United States Court of Appeals,
Eleventh Circuit.
No. 94-4029.
UNITED STATES of America, Plaintiff-Appellee,
v.
Alcides J. RAMOS, Defendant-Appellant.
Feb. 24, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-332-CR-SM), Stanley Marcus, Judge.
Before KRAVITCH and CARNES, Circuit Judges, and FAY, Senior Circuit
Judge.
FAY, Senior Circuit Judge:
This appeal arises from Alcides Ramos's one-count conviction
for possessing cocaine with intent to distribute. Pretrial, the
magistrate granted Ramos's Rule 15 motion to depose a witness
deported to Colombia. On government motion, the magistrate
reconsidered and vacated that order, denying the motion to depose.
On appeal, Ramos argues the magistrate erred in reconsidering
and vacating her order. He asks this Court to reverse his
conviction, grant a new trial, and reinstate the order allowing him
to depose the third party. We grant partial relief and remand for
further proceedings.
I. BACKGROUND
A. Procedure
A Miami grand jury indicted Alcides Ramos ("Ramos" or "the
Defendant") on one count of possessing cocaine with intent to
distribute. Ramos pleaded not guilty. Ten days later, Ramos filed
an emergency motion under Federal Rule of Criminal Procedure 15 to
depose Ramon Yepez ("Yepez"). Ramos believed Yepez was at Krome
Detention Center awaiting deportation.
One week later the government responded that Yepez had been
deported five days before Ramos filed his emergency motion and
asked the district court to deny the emergency motion as moot. The
next day, Ramos amended his Rule 15 motion, alleging he could
locate Yepez in Colombia and still needed to depose him. The
district court denied the initial emergency motion and referred the
amended motion to a magistrate. Five days after referral, the
magistrate granted the amended motion to depose Yepez. That day,
the government filed a response to the motion in the nightbox. As
a result, the magistrate granted the motion before the government
responded.
A few weeks later, the district judge held a status
conference. Ramos's attorney advised the court that before Yepez
left Krome he gave Ramos's attorney information exculpating Ramos.
He further advised the court that whether Ramos would go to trial
would turn on whether he could depose Yepez and secure the
exculpatory testimony. The prosecutor responded that the
government would move for reconsideration because the magistrate
had granted the Rule 15 motion prior to the government's response.
The judge instructed the prosecutor to move quickly.
Two weeks later, the government moved for reconsideration.
Over a week later, only five days before trial, the magistrate
vacated her previous order and denied the amended motion to depose
Yepez as moot. The government concedes this ground is invalid and
error. Ramos went to trial without having deposed Yepez, did not
call Yepez as a witness, and was convicted and sentenced on one
count of possessing cocaine with intent to distribute.
B. Facts
Yepez delivered three boxes of cocaine to Ramos's home. This
is the lone fact on which both sides agree.
i. Ramos's Version of the Facts
Ramos maintains the other facts are as follows: Ramos knew
Yepez as a worker in a car wash where Ramos and his wife took their
cars each week. One day, Yepez came to Ramos's home and asked to
store some boxes there overnight while Yepez was moving. Ramos did
not know the boxes contained cocaine. Rather, he thought they
contained books. His wife directed Yepez to place the three boxes
upstairs in the master bedroom. After Yepez left, and without
Ramos's knowledge, she moved the smallest box into the closet to
clear the floor space.
The following day agents came to Ramos's house and asked if it
were his residence. He said yes. The agents then said they
suspected he had drugs or drug money in his home and asked if they
could search. He consented. Ramos immediately told the agents
about the boxes and encouraged them to open the boxes because he
did not want anything illegal in his home. He also told them he
had $5000 cash.1 He took the agents upstairs where two boxes sat
in the master bedroom. The agents opened the boxes, found cocaine,
and arrested Ramos.
During the search and arrest, Yepez drove by Ramos's house and
1
Ramos's brother wrote him a $5000 check to purchase a home.
According to Ramos, this is the $5000 cash found in his home.
was stopped by the agents. They arrested him and took him back to
the Ramos house. Ramos identified Yepez as the man who had
delivered the boxes; Ramos then signed a written consent to search
form. He told agents Yepez had come by twenty minutes earlier but
had said he would return later for the boxes.
When the search did not uncover the $5000 cash Ramos had
mentioned earlier, the agents asked him where it was. He directed
them to the bedroom closet where the agents found both the cash and
the third box of cocaine. Ramos repeatedly said he had told them
about the third box when they first arrived.
ii. The Government's Version of the Facts
The government's fact allegations differ. They basically
agree with Ramos's actions described above; they dispute that
Ramos did not know the boxes contained cocaine.
The agents began surveillance of the Super Seven Car Wash
("Super Seven" or "the car wash") where Yepez worked. Once, they
followed Yepez from the car wash to Ramos's home.
On the morning of Ramos's arrest, the agents were watching the
car wash. They saw several people entering, staying for long
times, and leaving with no apparent purchases. The agents also saw
several Super Seven employees including Yepez using outside pay
phones. Shortly before noon, Ramos arrived at the Super Seven,
went inside, and came out several minutes later with Yepez. They
spoke for a few minutes outside before Ramos left in his red truck;
Yepez reentered the car wash and went behind the counter. After
Ramos left, the suspicious activity continued.
Later that day, Yepez left the car wash in a blue-green Toyota
Paseo. An agent followed him to a strip mall where Yepez parked,
paced, repeatedly checked his watch, made a phone call, and left.
The agent followed him to a second strip mall where Yepez entered
a paint and body shop. Two other agents joined the surveillance at
this point. After five to ten minutes, Yepez left the shop and
drove to Ramos's home. This was the second time agents had
followed Yepez to the Ramos home.
Yepez parked in the Ramos driveway, entered the home, and
stayed around 20 minutes. During his stay a silver Honda parked in
the driveway. Several people exited the Honda, entered the house,
and came out a few minutes later. They appeared to the agents to
be rushing to leave. One agent testified at trial that when the
Honda occupants saw his car, they reentered the house before
driving away. Soon after, Yepez walked outside; when he saw the
agent's car, he ran back into the house. Five minutes later, he
left the residence in his Paseo, performing "countersurveillance"
maneuvers to lose anyone following him. Finally, he went home,
entering his apartment complex through an automatic gate. His car
remained there for 20-30 minutes.
Meanwhile, back at the Ramos house, Alcides Ramos left shortly
after Yepez. He drove his red truck around for 20-30 minutes,
driving past his own driveway three times. Finally, he returned
home, parked in the driveway, looked around, and went inside.
After Ramos returned home, the agents approached his house to
ask for consent to search. They noticed the front window blinds
had been pulled aside to permit someone to look out. When Ramos
answered the door, they told him they believed he had drugs or drug
money and asked if they could search his home. He consented. When
the agents asked if he had drugs in the home, he immediately said
no and told them about the boxes and $5000 cash. He led them to
the master bedroom, showed the agents the two boxes in plain view,
told them emphatically he had only two boxes, and encouraged the
agents to open them. He also told the agents the $5000 cash was in
another room.
After opening the box and the packets found inside, which
revealed white powder now known to be cocaine, the agents arrested
Ramos. They read him his Miranda rights; he waived them. He told
the agents that a friend named "Moncho" had left the boxes at his
home the night before. Ramos said he did not know the man's real
name or address, but did describe Yepez's Paseo and said he had a
beeper number for him. He also said "Moncho" had not been at his
house that day. The agents asked Ramos for the $5000 cash he had
mentioned when they first arrived. He said the money was in the
closet (having earlier said it was not in the master bedroom).
During the search, Yepez drove by the Ramos home, was
apprehended, and brought inside. The agents also searched his car.
When the agents brought him inside, Ramos immediately identified
Yepez as the owner of the boxes. Ramos then signed a consent to
search form and described how "Ramon" had brought the boxes over
the night before. Prior to this, Ramos steadfastly maintained he
knew the man only as "Moncho" and did not know his real name. He
also told the agent that Ramon (Yepez) had been to his house
earlier that day, only 20 minutes before the agents arrived.
Again, this statement contradicted what Ramos previously had told
another agent.
Meanwhile, the agent searching upstairs for the cash also
found the third, smaller box of cocaine. When the agents
confronted Ramos with the third box, he irately insisted he had
told them about it earlier. The agents deny that Ramos had
mentioned a third box.
The total retail value of the cocaine found in Ramos's bedroom
was $8 million to $10 million.
II. ANALYSIS
Rule 15 permits a district court to authorize a deposition in
a criminal case when exceptional circumstances exist. See
Fed.R.Crim.P. 15(a). The court's decision to authorize or deny the
deposition will be upset only for an abuse of discretion. United
States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir.1993); United
States v. Mills, 760 F.2d 1116, 1120 (11th Cir.1985).
In Drogoul, this Court held that three factors guide the
exceptional circumstances analysis: whether (1) the witness is
unavailable to testify at trial; (2) injustice will result because
testimony material to the movant's case will be absent; and (3)
countervailing factors render taking the deposition unjust to the
nonmoving party.
A. Unavailability
The government did not charge Yepez and immediately deported
him to Colombia. Pretrial, the prosecution sought special
permission from the State Department to have Yepez reenter the
country to testify at Ramos's trial. Yepez, however, has refused
to reenter the United States. Under Drogoul, a substantial
likelihood of unavailability can be found when the proposed
deponent is beyond the subpoena powers of the United States and has
declared his unwillingness to testify at trial, or even having
declared willingness to testify cannot be subpoenaed if he changes
his mind. Drogoul, 1 F.3d at 1553, 1557. We find a substantial
likelihood Yepez that was unavailable under the meaning of Rule 15.
B. Materiality
At no time before, during, or after trial has Ramos proffered
anything to show that Yepez's testimony will exculpate him. His
attorney merely stated in a pretrial colloquy with the district
court judge that Yepez had "provided exculpatory information as to"
Ramos. If this statement was the full extent of the attorney's
proffer, it is insufficient. As this court stated inUnited States
v. Sheffield, 992 F.2d 1164 (11th Cir.1993),
[f]or error to be predicated on a ruling excluding evidence,
Federal Rule of Evidence 103(a)(2) requires that "the
substance of the evidence was made known to the court by offer
or was apparent from the context within which the questions
were asked." Fed.R.Evid. 103(a)(2). The purpose of this
requirement is "to alert the [trial] court and opposing
counsel to the thrust of the excluded evidence, enabling them
to take appropriate action," and to construct a record
appropriate for appellate review. Parliament Ins. Co. v.
Hanson, 676 F.2d 1069, 1074 (5th Cir. Unit B 1982).
Sheffield, 992 F.2d at 1169. Such a proffer may be made by several
means including affidavit, proffered testimony, or calling a
witness to the stand; at the very least, the proffer must alert
the district court to the substance of the evidence that is at
peril of being excluded. See id.
To our surprise, however, the government has conceded on
appeal that Yepez's testimony was material, citing Drogoul.2 Under
Drogoul, material is a term of art that means material to the party
moving to depose. Accordingly, we must accept for purposes of
appeal the concession that Yepez's testimony was material to
Ramos's defense. Nonetheless, we point out that the district court
has never considered materiality on the merits because the defense
has never proffered what the testimony will be.
C. Countervailing Factors
The government rests its argument for upholding the denial of
the Rule 15 motion on the presence of countervailing factors that
render taking the deposition unjust.
The government lists the following countervailing factors:
Yepez's testimony was suspect because he cannot be sanctioned for
perjury; because the defense had neither taken nor scheduled the
deposition when the magistrate vacated the order five days before
trial, it was unclear the deposition could actually be taken;
deposing a suspected drug dealer at a place and time arranged by an
undisclosed third party in Medellin, Colombia, posed a serious
threat to the prosecutor's safety; because the defense never
detailed what Yepez's testimony would be, the testimony may have
been irrelevant, cumulative, or inadmissible.
We find that none of these factors, whether taken singly or
together, render taking the deposition unjust. Indeed, the court
in Drogoul found that neither the possibility of inaccurate
2
The government cited Drogoul for its understanding that it
must concede Yepez's testimony was material. Appellee's Br. at
18. The government also conceded unavailability, though we agree
evidence of unavailability is clear.
translations nor the defendant's inability to confront witnesses
called only by deposition would render taking the deposition
unjust. See Drogoul 1 F.3d 1554-56. Delay in moving to take the
deposition was an insufficient countervailing factor as well. Id.
at 1556. Moreover, Drogoul dealt with injustice to the defendant;
here, we find it impossible to conclude that preserving Yepez's
testimony through deposition would have been unjust to the
government.
Although concern for the safety of an Assistant United States
Attorney in Colombia may be warranted, it is obvious that our
government has officials in Colombia who could attend; it is also
clear that the deposition could be accomplished through written
interrogatories.
III. STANDARD OF REVIEW
The parties on appeal dispute whether the magistrate's error
was harmless. Because the defense has proffered nothing other than
the attorney's conclusory statement of what Yepez will say, we
cannot decide that question. Accordingly, and in view of the
government's concession, we must remand to the district court for
further proceedings. This remand is to allow the district court to
hear the defense's proffer and decide on the merits whether the
Yepez deposition should be allowed.
Indeed, this may be a two step process. Should the district
court allow the taking of the deposition, it will be in a position
to evaluate whether the testimony is in fact exculpatory. Should
such occur, the district court will also be in a position of
determining whether or not a new trial is justified.
If the appellant is allowed to attempt to depose Yepez, and is
not able to do so within a reasonable period, or if the deposition
is completed and the district court finds the testimony is not
sufficiently exculpatory, the conviction will stand.
IV. CONCLUSION
We hold that the ruling of the magistrate vacating her order
granting Ramos's Rule 15 motion was error.
We REMAND to allow the district court to consider the Rule 15
motion on the merits. The district court must permit the defendant
to proffer facts establishing that Yepez's testimony will exculpate
Ramos. If sufficient grounds are presented, the deposition should
be allowed. If the deposition is completed, the district court
must determine whether the testimony warrants the granting of a new
trial. If not, the conviction stands.
REMANDED with instructions.