U.S. v. Sines
| Decision Date | 31 May 1985 |
| Docket Number | No. 84-1054,84-1054 |
| Citation | 761 F.2d 1434 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Anthony SINES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Susan A. Ehrlich, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Jose de la Vara, Phoenix, Ariz., for defendant-appellant.
Appeal from the United States District Court for the District of Arizona.
Before SCHROEDER, FLETCHER, and CANBY, Circuit Judges.
James Anthony Sines appeals from his conviction for conspiracy to import heroin, in violation of 21 U.S.C. Secs. 952 and 963 (1982). 1 Sines challenges three pretrial rulings by the district court: (1) its ruling authorizing the government to take a videotaped deposition of Sines's unindicted co-conspirator, Christopher Steneman, who is currently incarcerated in Thailand; (2) its ruling admitting that deposition into evidence; and (3) its partial denial of Sines's motion under Fed.R.Crim.P. 41(e) for return of property that he claims was illegally seized from his residential trailer. We affirm.
On February 4, 1983, Christopher Steneman was arrested in the Bangkok, Thailand airport as he attempted to leave the country with 1.2 kilograms of heroin in a false-bottom suitcase. Steneman subsequently pleaded guilty in a Thai court to a charge of sale and possession of heroin with intent to smuggle. He was sentenced to life imprisonment in Thailand, but his sentence was reduced to twenty-five years because of his guilty plea. 2
After Steneman was arrested, he was interrogated by Thai and American drug enforcement officers, and he implicated two other men--James Sines and Rodney Rojas 3--in a plot to smuggle heroin out of Thailand. According to Steneman, Sines offered him $10,000 and a truck if Steneman would travel to Thailand with Sines and return with a suitcase full of heroin; financed Steneman's trip to Thailand and planned his airplane routing; travelled on the same flight as Steneman from Los Angeles to Bangkok; rendezvoused with Steneman in Chiang Mai, a city 300 miles north of Bangkok; and introduced him to the individuals who supplied him with the heroin. Steneman agreed to testify against Sines and Rojas in exchange for the United Sines was arrested by United States Drug Enforcement Administration (DEA) agents on May 11, 1983. He was charged in a five-count indictment with conspiracy to import heroin, 21 U.S.C. Secs. 952, 963, conspiracy to possess heroin with intent to distribute, 21 U.S.C. Secs. 841(a)(1), 846 (1982), two counts of interstate travel in aid of a racketeering enterprise, 18 U.S.C. Sec. 1952(a)(3) (1982), and use of a communication facility to commit a felony, 21 U.S.C. Sec. 843(b) (1982).
States government's promise that it would attempt to have him transferred to an American prison, 4 and that it would not prosecute him for his drug offense when he returned to the United States.
On June 23, 1983, the United States moved under Fed.R.Crim.P. 15 and 18 U.S.C. Sec. 3503 (1982) to take a videotaped deposition of Steneman for use in its case against Sines, claiming that Steneman qualified as an unavailable witness because of his lengthy prison sentence in Thailand and because of the Thai government's unwillingness to permit him to be brought to the United States to testify. The district court granted the United States' motion over Sines's objection on July 13, 1983, but made its order provisional upon receipt of an affidavit from the government confirming that Steneman would be unavailable for Sines's trial. No such affidavit was ever filed. However, the issue of Steneman's unavailability was raised again in a hearing on August 18, 1983, and the district court accepted the prosecution's representation that the Thai government would not permit Steneman to leave Thailand to testify.
Steneman was deposed in prison in Bangkok on August 24, 1983. Sines's attorney attended and participated extensively, but Sines did not attend, apparently out of concern that he would be arrested by Thai authorities based upon Steneman's statements. The district court ultimately granted the government's motion for admission of Steneman's deposition into evidence on November 15, 1983, over Sines's objection.
On May 12, 1983--one day after Sines's arrest and one week before his indictment--government agents conducted a search of Sines's residence, a silver trailer located in Scottsdale, Arizona, and seized various documents and other property of Sines, including his passport. On December 12, 1983, Sines moved under Fed.R.Crim.P. 41(e) to require the United States to return the documents and property it had seized, claiming that there was no probable cause for his trailer to be searched, that the warrant authorizing the search constituted an impermissible general warrant, and that the agents executing the search warrant exceeded its scope and conducted a general exploratory search of the premises. The district court granted Sines's motion in part and denied it in part.
On December 13, 1983, Sines entered a conditional plea of nolo contendere under Fed.R.Crim.P. 11(a)(2) to the first count of his indictment: conspiracy to import heroin in violation of 21 U.S.C. Secs. 952 and 963. Sines reserved the right to appeal, inter alia, the district court's rulings concerning the taking and admission of Steneman's videotaped deposition and concerning the issuance and execution of the search warrant for Sines's trailer. He now appeals on those grounds.
Sines raises essentially five separate challenges to the district court's rulings. He claims that: (1) the taking of Steneman's deposition violated Fed.R.Crim.P. 15 and 18 U.S.C. Sec. 3503, because the United States failed to demonstrate prior to the deposition that Steneman was "unavailable"; (2) the conduct of Steneman's deposition violated the procedural requirements imposed by Rule 15 and section 3503; (3) the district court's admission of Steneman's deposition into evidence violated Rule 15 and section 3503; (4) the taking and admission of Steneman's deposition violated his constitutional rights of confrontation and to effective assistance of counsel; and (5) the district court's failure to order the government to return Sines's passport after seizing it from his trailer violated his rights under the fourth amendment. None of these claims provides a basis for reversal.
The United States moved to depose Steneman in Thailand and later moved to admit his deposition into evidence under both Fed.R.Crim.P. 15 and 18 U.S.C. Sec. 3503. These two provisions have an interconnected legislative history, 5 and as a result, they impose similar, although not identical, procedural requirements.
Both provisions authorize the taking of a deposition "[w]henever due to exceptional circumstances ... it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved." 18 U.S.C. Sec. 3503(a); Fed.R.Crim.P. 15(a). Both require "[t]he party at whose instance [the] deposition is to be taken [to] give to every party reasonable written notice of [its] time and place." 18 U.S.C. 3503(b); Fed.R.Crim.P. 15(b). Both provide that "[a] defendant not in custody shall have the right to be present at the examination," and that "[w]henever a deposition is taken at the instance of the government ... the court may direct that the expenses of travel and subsistence of the defendant and his attorney for attendance ... shall be paid by the government." 18 U.S.C. Sec. 3503(b)-(c); Fed.R.Crim.P. 15(b)-(c). Finally, both provisions state that a defendant's "failure, absent good cause shown, to appear [at a deposition] after notice and tender of expenses ... shall constitute a waiver of [his] right [to be present] and of any objection to the taking and use of the deposition based upon that right." 18 U.S.C. Sec. 3503(b); Fed.R.Crim.P. 15(b).
However, there are two significant differences between Rule 15 and section 3503. First, section 3503, unlike Rule 15, requires that the Attorney General or his designee must certify "that [the underlying] legal proceeding is against a person ... believed to have participated in an organized criminal activity" before any order for the taking of a deposition will be issued. 18 U.S.C. Sec. 3503(a) (emphasis added). Second, the two provisions impose different requirements for the admission of a deposition into evidence once it has been taken. Rule 15 provides that:
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence ....
Fed.R.Crim.P. 15(e) (emphasis added). Federal Rule of Evidence 804(a) provides that a witness is "unavailable" for a given hearing, if he ... is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means .... [and] if his ... absence is [not] due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing [him] from attending or testifying.
Fed.R.Evid. 804(a) (emphasis added).
In contrast, section 3503 authorizes the admission of depositions into evidence in a broader set of situations:
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears: ... that the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition ... or that the party offering the deposition has been unable to procure the attendance of the witness by subpena.
18 U.S.C. Sec. 3503(f) (emphasis added).
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...forcing witnesses to undergo cross-examination; and (3) permitting the jury to observe the demeanor of witnesses.” United States v. Sines, 761 F.2d 1434, 1441 (9th Cir.1985) (internal citations omitted). The district court conducted a hearing during trial on the problems posed by video repl......
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U.S. v. Walker, s. 92-3135
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