United States v. Rodriguez-Sifuentes, 021216 FED9, 14-50329

Docket Nº:14-50329
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN ANTONIO RODRIGUEZ-SIFUENTES, Defendant-Appellant.
Judge Panel:Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges. M. SMITH, Circuit Judge, concurring in part and dissenting in part:
Case Date:February 12, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JUAN ANTONIO RODRIGUEZ-SIFUENTES, Defendant-Appellant.

No. 14-50329

United States Court of Appeals, Ninth Circuit

February 12, 2016

NOT FOR PUBLICATION

Argued and Submitted January 6, 2016 Pasadena, California

Appeal from the United States District Court No. 3:13-cr-04028-GPC-1 for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.

MEMORANDUM [*]

Defendant Juan Rodriguez-Sifuentes, a national and citizen of Mexico, appeals from his conviction for attempted illegal reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate Defendant's conviction and remand for further proceedings.

The district court abused its discretion when it denied Defendant's motion to take foreign depositions of his common law wife and stepson under Federal Rule of Criminal Procedure 15(a). First, the district court subjected Defendant to too stringent a burden when it required him to show that the prospective witnesses were unable to be paroled into the United States to testify at trial. While unavailability of a witness underlies the Rule 15(a) analysis, see United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998), a conclusive showing of unavailability is required only to use a deposition in a criminal trial, not to allow the deposition to be taken so that the testimony can be preserved for possible eventual use, United States v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998); United States v. Sines, 761 F.2d 1434, 1439 (9th Cir. 1985). Here, Defendant showed that the witnesses were beyond the subpoena power of the court and were "unwilling, for good reason, to come to the United States" to testify. This is sufficient for Rule 15(a) purposes under our standards, see United States v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998), and the court abused its discretion in requiring Defendant to show that the witnesses were definitively unable and not merely unwilling to attend trial. See United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc) (providing that application of the incorrect legal rule is an abuse of discretion).

Second, the district court erred in denying the Rule 15(a) request on the ground that Defendant had made an insufficient showing of materiality. Rule 15(a) protects a defendant from being deprived of what may be "crucial exculpatory evidence, " Sanchez-Lima, 161 F.3d at 548, and, as with unavailability, a defendant is not required to show materiality conclusively in order to obtain and preserve testimony for possible later use at trial, Omene, 143 F.3d at 1170. Here, Defendant incorporated information about the content of the proposed testimony into his Rule 15(a) request by explicitly referencing in his motion and twice at the hearing his prior ex parte applications for issuance of subpoenas under Federal Rule of Criminal Procedure 17(b) for the same two witness. As set forth in those applications, the witnesses would have offered the sole testimony to support Defendant's theory of defense-that he lacked the conscious desire to enter the United States free from constant official restraint, see United States v. Lombera-Valdovinos, 429 F.3d 927, 928-30 (9th Cir. 2005)-by attesting to his legitimate presence at the Port of Entry as a candy salesman on the day of his arrest.

The district court's...

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