U.S. v. Allie, 92-5516
| Decision Date | 25 November 1992 |
| Docket Number | No. 92-5516,92-5516 |
| Citation | 978 F.2d 1401 |
| Parties | 37 Fed. R. Evid. Serv. 422 UNITED STATES of America, Plaintiff-Appellee, v. Stephen Ross ALLIE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Philip J. Lynch, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.
Joseph H. Gay, Jr., Asst. U.S. Atty., Richard L. Durbin, Jr., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GOLDBERG, SMITH and EMILIO M. GARZA, Circuit Judges.
Stephen Ross Allie appeals his conviction for harboring illegal aliens. Allie contends that the district court erred by permitting the government to depose the illegal aliens and by admitting the depositions into evidence. Allie also argues that the court below erred by admitting hearsay statements into evidence and by misinstructing the jury. We affirm.
On April 17, 1991, Immigration and Naturalization Service ("INS") agents searched Allie's residence and found three Mexican citizens, Reyes Sifuentes-Espinoza, Alfonso Lares-Arevalo and Juan Francisco Lares-Mongaray, working and living on Allie's property. As the men did not possess documents permitting them to be in the United States, a criminal complaint was filed against Allie for harboring illegal aliens.
The government requested that the three aliens be detained as material witnesses pursuant to 18 U.S.C. § 3144. 1 Unable to post the $25,000 bond set as a condition for their release, the witnesses were incarcerated.
On June 10, 1991, fifty-four days into the alien witnesses' incarceration, the government filed a motion to extend the detention of the witnesses or alternatively for permission to depose them. The government's motion was prompted by the Western District's standing order 2, which mandates the release of detained witnesses after sixty days of incarceration unless further detention is necessary to prevent "a failure of justice." The sixtieth day of the alien witnesses' detention would have occurred ten days before the trial, set for June 24, 1991. The Magistrate denied the government's request to extend the detention of the alien witnesses but permitted the government to depose the witnesses. The depositions were videotaped and transcribed on June 18, 1991.
After being deposed, the witnesses were released with a subpoena to appear at Allie's trial, which had been rescheduled for July 22, 1991. The alien witnesses were given the option of remaining in the United States with a work permit pending trial, or returning to Mexico. All three witnesses chose to return to Mexico but stated that they would return to the United States to testify at Allie's trial. The witnesses were apprised of reentry procedures into the United States and given letters to be presented at the United States inspection station on the Mexican border to aid their reentry. The aliens were told that the government would pay them a witness fee for testifying as well as reimburse them for their travel expenses.
On June 20, 1991, the witnesses appeared before an immigration judge for their deportation hearing. At the hearing, the witnesses again gave their assurances that they would return for Allie's trial. The witnesses were again given reentry instructions and told about the witness fees and the travel reimbursements.
INS agent Andrade instructed the witnesses to meet him at a specified port of entry on July 19, 1991. Andrade recorded the witnesses' addresses and telephone numbers in Mexico. After the aliens returned to Mexico, agent Andrade called the witnesses several times to confirm that the witnesses would return as promised and to verify the date, time and place of reentry. Although Andrade was unable to contact Reyes Sifuentes-Espinoza, he did contact Alfonso Lares-Arevalo and Juan Francisco Lares-Mongaray. Both men promised to return to testify and to contact Reyes Sifuentes-Espinoza about returning with them. Andrade arranged for checks to be issued to the aliens upon their arrival at the border. Andrade also contacted the authorities at the designated port of entry to apprise the inspectors of the expected arrival of the aliens.
Despite the government's efforts, the alien witnesses did not show up. Allie filed a pretrial motion to preclude the government from introducing the depositions of the alien witnesses at trial. The district court denied Allie's motion, finding that the witnesses were "unavailable" and that the government made a good faith effort to procure their presence at trial.
At trial, the videotaped depositions of the three aliens were admitted over Allie's renewed objections. Also over Allie's hearsay objection, the government played a videotape made during the search of Allie's property, showing one of the aliens indicating that he slept in Allie's garage.
The jury, after deliberating for several hours, sent a note to the judge asking what Allie's duties were as an employer hiring alien laborers. Over Allie's objection, the court issued a supplemental instruction answering the jury's question. The jury returned a verdict of guilty on all counts.
On appeal we face two questions concerning the depositions of the alien witnesses. The first is whether it was appropriate to permit the government to take the depositions. The second is whether the depositions were properly admitted into evidence at trial. The remaining questions concern the alleged hearsay violation and the supplemental instruction to the jury.
Rule 15(a) and § 3144
Allie challenges the district court's decision permitting the government to depose the alien witnesses. The permissibility of deposing witnesses in a criminal trial is generally governed by Fed.R.Crim.P. 15(a). Rule 15(a) provides:
Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition ... If a witness is detained pursuant to section 3144 of Title 18, United States Code, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness. (emphasis added)
Allie contends that no "exceptional circumstances," as required by Fed.Crim.P. 15(a), existed in this case to justify deposing the alien witnesses. Before addressing Allie's argument, we must first consider the government's suggestion that no "exceptional circumstances" need be established before deposing a detained witness. The government relies on 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." 3
The government's argument is facially supported by the fact that § 3144 does not state that a showing of "exceptional circumstances" is required. However, in light of Rule 15(a), the government's position is plausible only if § 3144 is interpreted as modifying Rule 15(a)'s "exceptional circumstances" requirement by establishing that the detention of a witness constitutes a per se exceptional circumstance.
This interpretation of Rule 15(a) and § 3144 is not tenable. Rule 15(a) plainly establishes that § 3144 modifies its "exceptional circumstances" requirement with regard to motions for depositions made by detained witnesses. 4 However, Rule 15(a)'s explicit and limited reference to depositions taken pursuant to a motion of a detained witness indicates that a motion for the deposition of a detained witness made by a party (either the government or the defendant) is subject to Rule 15(a)'s "exceptional circumstances" requirement. Because the government, as opposed to the witnesses, requested the depositions of the detained witnesses in the instant case, Rule 15(a) requires that the government establish exceptional circumstances warranting the depositions.
The district court held that exceptional circumstances existed in this case because the Western District's standing order mandated the release of the detained witnesses before the date of Allie's trial. The district court's finding of exceptional circumstances was supported by additional factors such as the aliens' illegal presence in the United States, their lack of ties to San Antonio, and the government's inability to make its case against Allie without their testimony.
We review the trial court's Rule 15(a) findings of exceptional circumstances only for abuse of discretion. United States v. Farfan-Carreon, 935 F.2d 678, 679 (5th Cir.1991). See also United States v. Fuentes-Galdino, 929 F.2d 1507, 1509 (10th Cir.1991). The district court has "broad discretion in granting rule 15(a) motions, and in considering the particular characteristics of the case to determine whether the 'exceptional circumstances' requirement has been met." United States v. Farfan-Carreon, 935 F.2d at 679. See also United States v. Bello, 532 F.2d 422, 423 (5th Cir.1976).
The district court did not abuse its discretion in finding that "exceptional circumstances" exist in this case. The trial court's holding is consistent with our decision in U.S. v. Farfan-Carreon, 935 F.2d at 679-680. In Farfan-Carreon we found "exceptional circumstances" when an alien witness was unlikely to return to the United States from Mexico to testify at the defendant's trial. Similarly, in the case before us, the fact that the witnesses would be released in compliance with the Western District's standing order, and the indications that they were likely to return to Mexico, constituted exceptional circumstances.
Allie argues that the Western District's standing order...
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