U.S. v. Rivera

• Decision Date: 24 October 1988
• Docket Number: No. 87-5681,87-5681
• Citation: 859 F.2d 1204
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Humberto RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1204

859 F.2d 1204

UNITED STATES of America, Plaintiff-Appellee, v. Humberto RIVERA, Defendant-Appellant.

No. 87-5681.

United States Court of Appeals Fourth Circuit.

Argued July 11, 1988.

Decided Oct. 24, 1988.

Trevor Washington Swett, III (Geoffrey Judd Vitt, Caplin & Drysdale, Chartered, Washington, D.C., on brief), for defendant-appellant.

Paul G. Cassell, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., Keith A. Logan, Sp. Asst. U.S. Atty., William G. Otis, Asst. U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.

CHAPMAN, Circuit Judge:

Humberto Rivera was convicted of nine counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B). ¹ The appellant claims error by the trial court in the admission of the deposition testimony of certain alien witnesses, who had been deported prior to trial; in failing to charge the jury that there must be proof of a direct and substantial relationship between the defendant's conduct and the alien's violation of the law; and in excluding evidence and forbidding argument relating to the eligibility of the aliens for amnesty. Finding no merit in these exceptions, we affirm.

I

Appellant was indicted following an investigation by the U.S. Immigration and Naturalization Service into the transportation of illegal aliens into the northern part of Virginia from other states. At a work site, a number of illegal aliens were arrested, and shortly thereafter appellant and three others were charged with illegal transportation of illegal aliens.

Following the arrest of Rivera and the aliens, Rivera posted bond and was released from custody. The illegal aliens could not arrange the posting of a bond and they were retained in custody for a period of approximately three weeks. An attorney was appointed for these aliens, and shortly thereafter he made a motion to have their testimony taken by deposition pursuant to the Material Witness Statute, 18 U.S.C. Sec. 3144 ² and Federal Rule of Criminal Procedure 15 ³. This motion also asked that the illegal aliens be released from custody and allowed to leave the country. At the hearing on the motion the United States Attorney supported the taking of the depositions and the attorney for the appellant opposed. The trial judge, in granting the motion, made the following finding:

Exceptional circumstances have been shown in that the witnesses are being incarcerated awaiting a trial. And humanitarian considerations alone demand that something be done to release them from incarceration, when their only purpose for being incarcerated is to be witnesses. And whether they voluntarily flee after their depositions have been taken or whether the INS deports them back to their countries of origin is beside the point.

Pursuant to the court's order, the depositions were taken and the appellant and his attorney were present at each deposition and participated therein, not only by cross-examining the witnesses, but by the attorney making certain comments into the record as to the demeanor and condition of the witness, i.e., "Let the record reflect that the witness is having a great deal of difficulty right now. He is very ill." "Also let the record reflect that the witness has been disturbed and is very shaky, he is crying."

After the depositions were taken the deposed aliens elected to voluntarily leave the country, rather than face normal deportation proceedings, and they were returned to Mexico.

At trial one of these depositions was read in its entirety, and since the other deposition testimony was quite similar, only selected portions of the direct and cross-examination of two other depositions were read. The evidence showed that Rivera leased a small apartment and that seven aliens lived with him in the apartment. Appellant took the witness stand and admitted that he had transported a number of aliens to work in Virginia and that he had also transported them from Ohio to Virginia. Initially, he denied that he knew that any of them were illegal aliens, but he finally admitted that he was aware, at the time of his arrest, that Nicolas Guerrero-Avila was an illegal alien. He also admitted that he had cashed checks for the aliens because they had no personal identification.

Upon conviction Rivera was sentenced to three years imprisonment on each count, with the sentences to run concurrently. However the sentences were suspended upon service of the short period of time that Rivera had been incarcerated, and he was placed on probation.

II

Appellant claims that the use of the depositions violated his Sixth Amendment right to be confronted by the witnesses against him. The thrust of this claim is that the depositions cannot be used until the trial court finds that the witnesses are "unavailable to testify". He relies on Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Barber and Woods were jointly charged with armed robbery and at a preliminary hearing, Woods waived his privilege against self-incrimination and gave testimony incriminating Barber. Barber's attorney did not cross-examine Woods. Seven months later Barber was tried on the robbery charge in Oklahoma. At this time Woods was in a federal prison in Texas, and the State of Oklahoma made no effort to obtain Woods' presence at trial, but over petitioner's objection, introduced the transcript of Woods' preliminary hearing testimony, and claimed that Woods was unavailable to testify. Speaking through Justice Marshall, the Court noted that the State had made no effort to obtain the presence of Woods and it had assumed that the mere absence of the witness from the jurisdiction of the court was sufficient to show impossibility to compel his attendance. The court rejected this assumption of unavailability and concluded "... a witness is not "unavailable" for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." 390 U.S. at 724-25, 88 S.Ct. at 1321-22.

Barber was discussed and distinguished by the court in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In Mancusi a Tennessee prosecutor introduced a transcript of direct and cross-examination of the witness who had left the United States and taken permanent residence in Sweden. Prior to trial the prosecutor had attempted to subpoena the witness at his last known address. The Court found that the witness was unavailable because the State of Tennessee was powerless to compel his attendance and the court pointed out that in Barber the state had not met its obligation to make a good-faith effort to obtain the presence of a witness and had merely shown that he was beyond the boundaries of the prosecuting state, but in Mancusi the witness was out of the country and beyond the compulsory processes of the court.

The appellant argues that the deported witnesses are not "unavailable," because the United States by its own efforts made them unavailable by deporting them to Mexico. Actually, the witnesses left this country voluntarily after they were deposed and released from custody. The depositions resulted from a motion of the attorney representing the incarcerated alien witnesses. The appellant was heard on the motion and the judge made the necessary findings under Federal Rule of Criminal Procedure 15 and 18 U.S.C. Sec. 3144. At the time the depositions were taken the witnesses could not make bail. If they were released from custody, they had no place to stay, and there was no way to ensure that they would be present at trial two months later. The appellant and his attorney were present at the taking of the depositions, the attorney cross-examined the witnesses, and he was allowed to make his personal observations of the witnesses a part of the record.

If the court had denied the motion for depositions, these alien material witnesses would have been incarcerated for more than three months, even though they were neither indicted nor convicted of a crime. The appellant was both indicted and convicted on nine counts, and he spent less time incarcerated than did these witnesses, who were deposed and deported.

We find that the trial court followed both the letter and spirit of 18 U.S.C. Sec. 3144 and Rule 15, and its finding of Exceptional Circumstances was not clearly erroneous. On the present facts the illegal alien witnesses, who had been deposed and had left the country rather than await deportation, were unavailable within the meaning of Federal Rule of Criminal Procedure 15(e). The introduction of these depositions at appellant's trial did not deny him the right of confrontation.

The United States Attorney had a dual responsibility in this case. It was his duty to consider the rights of the witnesses, as well as the rights of the appellant, and to also comply with his duty of deporting the illegal aliens without undue delay. This problem was recognized by the Court in United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), in which the defendant was charged with transporting an illegal alien in violation of 8 U.S.C. Sec. 1324(a)(2). Valenzuela-Bernal had been arrested shortly after he crossed the Mexican-United States border with five illegal aliens lying down in the back of his automobile. After arrest the defendant and the passengers were interviewed. Three of the passengers admitted they were illegally in the country and identified the defendant as the driver of the car. The United States Attorney concluded that the three passengers possessed no evidence material to the prosecution or the defense and two of the passengers were deported to Mexico. Following conviction Valenzuela-Bernal contended that he was denied his Fifth Amendment right to due process and Sixth Amendment right of compulsory process for obtaining favorable witnesses by the...