Federal Evidence Review

The government’s minimal efforts to contact an “unavailable” witness in Mexico on the eve of trial were not reasonable nor in good faith; the playing of the witness’s video deposition at trial violated the Confrontation Clause; because the error was not harmless beyond a reasonable doubt, the conviction was reversed, in United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. March 19, 2009) (No. 07-50670)

The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (emphasis added). A recent Fifth Circuit case considered whether the government had made a good faith effort to obtain the trial testimony of a witness in Mexico. When the witness did not appear, the government played a pretrial videotaped deposition at trial. Because the government failed to demonstrate reasonable, good faith efforts were taken, the video deposition was inadmissible.

In the case, defendant Tirado-Tirado was prosecuted for encouraging and inducing alien Garay-Ramirez to enter the United States with knowledge or reckless disregard of the fact that the entry was unlawful. Before trial, a videotaped deposition of Garay-Ramirez was obtained by the prosecutor and defense counsel. In the deposition, the witness recounted how he traveled into the United States. Two men gave him an identification card and instructed him on where a driver would pick him up. The driver was defendant Tirado-Tirado.

The witness “believed Tirado-Tirado recognized him because [his brother] Feliciano had instructed Garay-Ramirez to wear a white hat. They then drove to the border checkpoint. Before they arrived at the border checkpoint, Tirado-Tirado asked Garay-Ramirez for his identification card. Otherwise, Tirado-Tirado did not speak to Garay-Ramirez during the drive. Garay-Ramirez stated that he had never seen Tirado-Tirado before that day. Garay-Ramirez stated that he did not pay anyone to take him into the United States, and he did not know what arrangements were made on his behalf. He conceded that he was going to be released to return home in exchange for his testimony.” Tirado-Tirado, 563 F.3d at 122.

The government told the witness “that the case would be tried at a future date and that he would be asked to come back and appear as a witness at trial. He was also asked to provide his contact information to his attorney. He was subsequently released and returned to Mexico.” Tirado-Tirado, 563 F.3d at 120. Before trial, the Customs and Border Protection (CBP) officer unsuccessfully “attempted to contact Garay-Ramirez prior to trial using an address and telephone number provided by Garay-Ramirez’s counsel.” Eight days before trial, the officer sent a letter to Garay-Ramirez to the address provided by his counsel, which notified him “of the pending trial date and location; requested that he appear and that he contact [officer] Rosado; provided him with information regarding the port of entry that he should use to enter the United States and who would meet him there; and stated that he would be reimbursed for his travel expenses.”

The officer contacted the witness’s brother who indicated Garay-Ramirez did not have a telephone but he would try to provide the information to him. The brother acknowledged that he and other family members had been involved in smuggling alients and that “he paid for Garay-Ramirez’s bus ticket to Juarez and that their brother-inlaw Chuy was involved in the plan to bring Garay-Ramirez into the United States.” Tirado-Tirado, 563 F.3d at 125. The officer tried to use the contact information provide by Garay-Ramirez when he entered the country but these efforts were unavailing. The witness could not be located based on a review of immigration and criminal records.

At trial, the court denied the defense motion to exclude the videotaped deposition. The court was concerned that the government delayed efforts to contact the witness only eight days before the trial. However, the video deposition was admitted under 8 U.S.C. § 1324(d), which provides that:

“notwithstanding 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 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.”

The defendant was convicted and sentenced to ten months’ imprisonment. On appeal, he argued that his Confrontation Clause rights were violated by the admission of the video deposition.

The Fifth Circuit reversed the conviction and remanded the case after concluding the Confrontation Clause was violated. It was undisputed that the video deposition included testimonial statements. The government failed to meet its burden to show the witness was unavailable after making good faith, reasonable efforts to obtain his trial testimony. Tirado-Tirado, 563 F.3d at 123 (citing United States v. Allie, 978 F.2d 1401, 1406, 1408 (5th Cir. 1992) (“Because of the importance our constitutional tradition attaches to a defendant’s right to confrontation, the ‘good faith effort’ requirement demands much more than a merely perfunctory effort by the government,” but “[t]he inevitable question of precisely how much effort is required on the part of the government to reach the level of a ‘good faith’ and ‘reasonable’ effort eludes absolute resolution applicable to all cases.”; good faith, reasonable efforts were established by “giving the witnesses the option of remaining in the United States with work permits, telling the witnesses about the payment of witness fees and travel cost reimbursement, giving the witnesses a subpoena and a letter to facilitate their reentry into the United States, calling the witnesses in Mexico, getting the witnesses' repeated assurances that they would return, apprising the border inspectors of the witnesses' expected arrival and issuing checks to be given to the witnesses upon their reentry in to the United States.”). The Fifth Circuit explained:

“The measures taken by the government in this case do not constitute ‘good faith’ or ‘reasonable’ efforts to secure the physical presence of Garay-Ramirez at trial. The government failed to make any concrete arrangements with Garay-Ramirez prior to his deportation, and it delayed attempting to contact him about making such arrangements until shortly before trial. Garay-Ramirez was not served with a subpoena or given any sort of written notice regarding the trial prior to being deported. He appears to have been only orally informed that his testimony would be required if the case went to trial. The government did not make any effort to contact to Garay-Ramirez to make concrete arrangements for his attendance at trial until more than five The record does not show that the government deliberately sought to make Garay-Ramirez unavailable for trial. However, ‘good faith’ in the Confrontation Clause context is an objective standard that looks to the reasonableness of the government’s efforts to secure the witness, not the subjective intent of the responsible government officials. Thus, showing that the government acted in good faith from a subjective perspective is necessary, but not 10 months after his deposition was taken, more than two months after the district court set the trial date, and only eight days before trial. This lack of vigilance on the part of the government is similar to that in Guadian-Salazar, in which the government made no effort to contact the witnesses in the intervening month before trial and conceded that it had not made a good faith effort to procure the availability of deported witnesses for trial. The problem is not that officer Rosado failed to make a diligent effort to find Garay-Ramirez once he began the search (indeed, Rosado appears to have conducted a fairly exhaustive investigation of his whereabouts), but that those efforts were made at the last minute and followed a long period during which the government apparently made no effort to remain in contact with Garay-Ramirez. Attempting to remain in contact with Ramirez and make concrete arrangements with him to return for trial once the trial date had been set by the district judge, or at least seeking to contact him more than one week prior to trial, as the government concedes it should have done, would not have required significant government resources, and in fact might have saved the government from having to conduct a more exhaustive search as the trial date approached. The failure to make such minimal efforts demonstrates a lack of good faith on the part of the government, with the consequence that Garay-Ramirez was not ‘unavailable’ for Confrontation Clause purposes.”

Tirado-Tirado, 563 F.3d at 125 (citations and footnotes omitted).

The defendant also contended that he was denied a full and fair opportunity to cross examine Garay-Ramirez during the video deposition about new information that the defendant’s brother had provided to the officer. The Fifth Circuit was unpersuaded, noting:

“This new evidence concerned only the relative extent of each family member’s involvement. Tirado-Tirado had an opportunity to cross-examine Garay-Ramirez about his family’s involvement and explore the possibility that Garay-Ramirez testified falsely in order to protect his family.”

Tirado-Tirado, 563 F.3d at 125-26 (citation omitted). In sum, the video deposition “violated the Confrontation Clause because Garay-Ramirez was not ‘unavailable’ for trial, but not because Tirado-Tirado did not have a full and fair opportunity to cross examine Garay-Ramirez.”

The Confrontation Clause error in playing the video deposition was not harmless beyond a reasonable doubt. The government emphasized the video testimony to show the defendant’s knowledge. Also, the video testimony was the sole evidence noting false statements made by the defendant concerning his relationship with Garay-Ramirez. For these reasons, the conviction was reversed and the case was remanded.

The case underscores the importance of creating a clear record of government efforts to locate an unavailable witness before trial. Also, efforts to contact a witness on the eve of trial will be viewed with a more critical view.