U.S. v. Aguilar-Tamayo, 01-50847.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 300 F.3d 562
• Docket Number: No. 01-50847.,01-50847.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio AGUILAR-TAMAYO, Defendant-Appellant.
• Decision Date: 25 July 2002

300 F.3d 562 UNITED STATES of America, Plaintiff-Appellee,
v.
Antonio AGUILAR-TAMAYO, Defendant-Appellant. No. 01-50847. United States Court of Appeals, Fifth Circuit. July 25, 2002.

Page 563

Mark Randolph Stelmach (argued) and Joseph H. Gay, Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

Donna F. Coltharp (argued), San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

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

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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 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 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...