UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 01-50847
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
ANTONIO AGUILAR-TAMAYO,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
July 25, 2002
Before DAVIS, DeMOSS and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Antonio Aguilar-Tamayo appeals his conviction by a
jury of two counts of illegal alien transportation and two counts
of bringing an alien into the United States, both in violation of
8 U.S.C. § 1324. He challenges, as a violation of the
Confrontation Clause, the district court’s decision to admit the
video deposition testimony of witnesses who were not available to
testify at trial because they had been deported. Because we
conclude that any error in this practice was harmless based on the
overwhelming evidence of Aguilar-Tamayo’s guilt, we affirm.
I.
At trial before a jury, evidence was presented that in the
early morning of February 21, 2001, United States Border Patrol
Agent David Mitchell was alerted that a sensor had been activated
on a trail often followed by aliens. Agent Mitchell testified that
it was a very dark night. He and another agent proceeded to a
point on the trail to attempt to intercept the individuals
triggering the sensor. Mitchell and one agent traveled in one
vehicle. Agent Goodwin arrived separately later. Both vehicles
used their headlights which could have been observed by individuals
on the trail.
The agents reached a point where they thought they would
intercept the individuals, but after a time, decided to walk up the
road towards the expected direction of their travel. About 3:00
a.m., the agents observed a group of suspected aliens approaching.
The agents crouched behind a ranch gate that was closed blocking
the road. Agent Mitchell testified that he observed the first
person in the group, whom he identified as the defendant, trying to
open the gate. Aguilar-Tamayo spoke to the other aliens as he was
unlocking the gate. Agent Mitchell heard him tell them that there
were lights coming from the direction they were going. The agent
also heard Aguilar-Tamayo warn the group that border patrol had
been in that area before. Agent Mitchell testified that he could
tell Aguilar-Tamayo was leading the group from the way he was
talking and using hand-signals to guide the group. He also
testified that based on his observations, it was clear that
Aguilar-Tamayo was in charge of the group. The group of suspected
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aliens consisted of seventeen individuals. Because of the size of
the group, the agents radioed for assistance in apprehending them
and followed the group. Aguilar-Tamayo maintained the position in
the front of the group during the entire time the agents conducted
surveillance. The group was apprehended and all were found to be
aliens who had illegally entered this country.
Agent Mitchell testified that he observed Aguilar-Tamayo being
read his constitutional rights in Spanish by Agent Banda and having
those rights, including the right to counsel, explained to him.
Aguilar-Tamayo indicated that he understood his rights. Aguilar-
Tamayo was interviewed by a Spanish-speaking agent in Spanish.
Aguilar-Tamayo confessed that he guided the group of aliens to the
United States in exchange for $750 each, because he wanted to make
some extra money. His intention was to guide the group on foot to
Leakey, Texas. Aguilar-Tamayo was given the opportunity to review
his written statement and was again advised of his rights. He re-
read the statement and was given the opportunity to edit his
responses. Aguilar-Tamayo signed the statement in the presence of
Agent Cruz and another witness. Agent Cruz testified that the
defendant did so voluntarily and that there had been no threats or
use of force.
At trial, the prosecution also produced, over Aguilar-Tamayo’s
objection, the videotaped depositions of two material witnesses who
were part of the group of aliens intercepted that night. The
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depositions were conducted with the witnesses under oath, before a
U.S. magistrate judge, and with the participation of both Aguilar-
Tamayo and his attorney. These witnesses testified that Aguilar-
Tamayo charged them $800 each to lead them into the United States.
After their depositions, the witnesses were deported to Mexico.
Aguilar-Tamayo also testified at the trial. He asserted that
he was not the leader and that no one paid him or promised to pay
him for showing them the way into the United States. He disputed
telling the agents that he was charging the aliens. A jury
convicted Aguilar-Tamayo of all counts. Aguilar-Tamayo appeals.
II.
Aguilar-Tamayo argues that the introduction of the videotaped
material witness testimony violates his rights under the
confrontation clause of the Sixth Amendment because the government
failed to show that the witnesses were unavailable for trial. He
argues further that he was damaged by the admission of this
testimony. Alternatively, he argues that 8 U.S.C. § 1324 is
unconstitutional. Whether hearsay evidence was properly admitted
is reviewed under the abuse of discretion standard. A
constitutional challenge is reviewed de novo.
The challenged material witness depositions were offered under
the authority of Section 1324(d) of Title 8 which provides:
[N]otwithstanding any provision of the Federal Rules of
Evidence, the videotaped . . . deposition of a witness .
. . who has been deported or otherwise expelled from the
United States, or is otherwise unable to testify, may be
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admitted into evidence in an action brought for
[transporting illegal aliens] if the witness was
available for cross-examination and the deposition
otherwise complies with the Federal Rules of Evidence.
Subsection (d) of 8 U.S.C. § 1324(d) was added to the statute in
1986. As its enactment did not repeal any provisions of the
Federal Rules of Criminal Procedure or Federal Rules of Evidence,
this provision must be read in conjunction with other rules
governing the admission of deposition testimony in a criminal
proceeding. Federal Rule of Criminal Procedure 15(e) provides
that deposition testimony “so far as [it is] otherwise admissible
under the rules of evidence, may be used if the witness is
unavailable, as unavailability is defined in Rule 804(a) of the
Federal Rules of Evidence.” Federal Rule of Evidence 804(a)(5)
defines unavailability as being “absent from the hearing and the
proponent of [his] statement has been unable to procure [his]
presence by process or other reasonable means.” Unavailability
must ordinarily also be established to satisfy the requirements of
the Confrontation Clause, which generally does not allow admission
of testimony where the defendant is unable to confront the witness
at trial. Ohio v. Roberts, 448 U.S. 56 (1980). This rule is not
absolute. The lengths to which the government must go to produce
a witness to establish the witness’s unavailability is a question
of reasonableness and the government need not make efforts that
would be futile. Id. At 74.
We reject Aguilar-Tamayo’s contention that §1324(d) is
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unconstitutional. We do not read the statute as eliminating the
requirement that the government establish the unavailability of a
witness before the witness’s deposition testimony can be admitted
at trial. The procedures established in that statute comport with
constitutional confrontation rights. United States v. Santos-
Pinon, 146 F.3d 734 (9th Cir. 1998). The question remaining is
whether the action taken by the government to secure the presence
of the witnesses who testified by video deposition was sufficient
to establish their unavailability. The parties stipulated that the
witnesses were deported to Mexico, that they were not subject to
subpoena and that Mexico would not recognize their extradition on
a material witness warrant. The government also established that
a standing order issued by the district court in Del Rio is in
place requiring the government to depose and deport illegal aliens
so as to avoid lengthy detention of Mexican Nationals as material
witnesses. The parties also stipulated that the government made no
effort to secure the witnesses return to the United States for
trial.
We are sympathetic to the plight of the government dealing
with (1) the high volume of § 1324 prosecutions on the Mexican
border; (2) a standing court order and statutory scheme encouraging
or requiring the deportation of illegal aliens who are material
witnesses in this type of case; and (3) the government of Mexico
that will not honor material witness warrants. However, to
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establish unavailability as predicate for the admission of
depositions, Federal Rule of Evidence 804(a)(5) requires an
attempt to secure the presence of a witness by “process or other
reasonable means.” (emphasis added).
In United States v. Allie, 978 F.2d 1401 (5th Cir. 1992), we
decided a case presenting a similar issue. The aliens who were
material witnesses had been deposed under 18 U.S.C. § 3144 which
requires that “detained material witnesses be deposed ‘within a
reasonable period of time’ if ‘further detention is not necessary
to prevent a failure of justice.’” Id. at 1404. Defendants argued
that the district court erred in admitting the deposition. One of
the objections lodged by defendants was that the government had not
shown that the witnesses were unavailable. The government,
however, had taken numerous steps to insure that the deported
witnesses would return for trial including providing witness fees
and travel cost reimbursements, giving the witnesses a subpoena and
letter to facilitate their reentry into the U.S., calling them in
Mexico, getting assurance from the U.S. that they would return,
apprising border inspectors of their expected arrival and issuing
checks to be given to the witness upon their reentry into the U.S.
at time of trial. Despite these efforts, the witnesses did not
appear for the trial, but we held that the government employed
reasonable measures to secure their presence and that their
deposition testimony was admissible.
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We do not suggest that it is necessary for the government to
take all of the steps referenced in Allie to establish that it
acted reasonably to secure a witness’ presence. However, as stated
above, the government stipulated that it took no steps to secure
the presence of these witnesses. This can hardly constitute the
use of “reasonable means” to secure the presence of the witnesses.
The district court found that it would have been futile for the
government to have taken steps to secure these witnesses’ presence
once they were deported. The 8th Circuit in United States v. Perez-
Sosa, 164 F.3d 1082 (8th Cir. 1998), affirmed a similar finding by
a trial court in an analogous case, although it is not clear what
record the government made in that case of its earlier unsuccessful
efforts to secure the deported witnesses for trial. In the absence
of such a record, we have serious doubts that a finding of futility
could be sustained.
III.
But, we need not decide whether the admission of the
deposition testimony was error, because we conclude that any error
that may have occurred was harmless. Whether a violation of the
Confrontation Clause is harmless in a particular case depends on a
host of factors including
the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
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prosecution’s case.
Delaware v. Van Arsdall, 475 U.S. 673, 686-87, 106 S.Ct. 1431
(1986). The only serious fact issue presented at trial was whether
appellant profited from assisting and leading illegal aliens into
this country. In the statement he gave to the border patrol,
appellant admitted charging the aliens for his services. The
material witnesses confirmed their payment to Aguilar-Tamayo for
his assistance in guiding them across the border. Aguilar-Tamayo
repudiated the portions of his statement asserting that he was
guiding the group of aliens and that they paid him for his
services. But he faced the difficult task of persuading the jury
to credit his testimony over the testimony of two Border Patrol
agents who witnessed the statement. In addition, other testimony,
independent of Aguilar-Tamayo’s statement, corroborated the
government’s contention that Aguilar-Tamayo was leading the group
of aliens. The border patrol agents who apprehended Aguilar-Tamayo
and the other aliens observed the defendant leading the group,
physically, by speech and by hand signals. He unlocked the gate
that obstructed their path and warned the group that he had seen
lights ahead and that border patrol had been in that area before.
We also note that the defendant had the opportunity to cross-
examine the witnesses in the deposition process. Accordingly,
given the overall strength of the prosecution’s case against the
defendant any error in allowing the videotaped depositions to be
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admitted at trial was harmless beyond a reasonable doubt.
IV.
For the foregoing reasons, Appellant Aguilar-Tamayo’s
conviction and sentence are AFFIRMED.
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