U.S. v. Tirado-Tirado, 07-50670.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBenavides
Citation563 F.3d 117
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricardo TIRADO-TIRADO, Defendant-Appellant.
Docket NumberNo. 07-50670.,07-50670.
Decision Date19 March 2009
563 F.3d 117
UNITED STATES of America, Plaintiff-Appellee,
Ricardo TIRADO-TIRADO, Defendant-Appellant.
No. 07-50670.
United States Court of Appeals, Fifth Circuit.
March 19, 2009.

[563 F.3d 119]

Joseph H. Gay, Jr., Assist. U.S. Atty., Mara A. Blatt (argued), San Antonio, TX, for U.S.

Richard E. Mattersdorff (argued), El Paso, TX, for Tirado-Tirado.

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


[563 F.3d 120]

BENAVIDES, Circuit Judge:

Ricardo Tirado-Tirado ("Tirado-Tirado") was convicted of encouraging and inducing Rodrigo Garay-Ramirez ("Garay-Ramirez"), an alien, to enter the United States with knowledge or reckless disregard of the fact that such entry was unlawful in violation of 8 U.S.C. § 1324(a)(1)(A). Tirado-Tirado asserts that the introduction of a videotaped deposition of Garay-Ramirez at trial violated his rights under the Confrontation Clause of the Sixth Amendment because the government failed to show that Garay-Ramirez was unavailable for trial and Tirado-Tirado did not have a full and fair opportunity to cross examine Garay-Ramirez during the videotaped deposition. For the reasons stated below, we VACATE the judgment and REMAND for new trial.

I. Background

A. Efforts to Secure Garay-Ramirez's Presence at Trial

Garay-Ramirez's videotaped deposition was taken by the government and Tirado-Tirado's counsel on August 29, 2006. Garay-Ramirez was advised that the case would be tried at a future date and that he would be asked to come back and appear as a witness at trial. He was also asked to provide his contact information to his attorney. He was subsequently released and returned to Mexico.

On December 8, 2006, the district court set the first day of Tirado-Tirado's trial for February 20, 2007. The Customs and Border Protection officer assigned to the case, Raymon Rosado, attempted to contact Garay-Ramirez prior to trial using an address and telephone number provided by Garay-Ramirez's counsel. The telephone number did not work. On February 12, 2007, just eight days prior to trial, Rosado sent a letter to Garay-Ramirez using the address provided by Garay-Ramirez's counsel. The letter notified Garay-Ramirez of the pending trial date and location; requested that he appear and that he contact Rosado; provided him with information regarding the port of entry that he should use to enter the United States and who would meet him there; and stated that he would be reimbursed for his travel expenses. Rosado also spoke to Garay-Ramirez's brother, Feliciano, who said that Garay-Ramirez had no telephone at his home in Mexico and that he would attempt to relay the information to his brother. Rosado also questioned Feliciano about his role in bringing Garay-Ramirez into the United States.

On February 15, 2007, Rosado spoke to the owners of the vehicle seized from Tirado-Tirado and obtained the name of Tirado-Tirado's common-law wife in Hatch, New Mexico. Rosado obtained her telephone number from the telephone directory. On February 16, Rosado reviewed the call log of the cellular telephone possessed by Tirado-Tirado at the time of his arrest. One of the calls was made to Western Union, and Rosado subpoened Western Union records for transactions made in Tirado-Tirado's name. Another call was made to Sergio Banuelos, the name on the resident alien card that Garay-Ramirez tried to use to enter the United States. However, these leads did not assist the government in locating Garay-Ramirez. Rosado also checked immigration and criminal records but was unable to locate any information regarding Garay-Ramirez's whereabouts.

B. Tirado-Tirado's Trial

On the first day of trial, Tirado-Tirado filed a motion to quash the video deposition on the basis that the government had failed to make sufficient efforts to secure Garay-Ramirez's presence at trial. The district court questioned whether a letter

563 F.3d 121

sent eight days before trial was calculated to obtain a response by the trial date and stated that the government should have begun its efforts sooner. The government conceded that "preferably a letter should have gone out several weeks before it did." Nevertheless, the court admitted the video deposition pursuant to 8 U.S.C. § 1324(d), which provides that "notwithstanding any provision of the Federal Rules of Evidence, the videotaped ... deposition of a witness ... who has been deported or otherwise expelled from the United States, or is otherwise unable to testify, may be admitted into evidence in an action brought for [transporting illegal aliens] if the witness was available for cross-examination and the deposition otherwise complies with the Federal Rules of Evidence."1

At trial, Customs and Border Protection officer Margarita Crespin testified that on August 14, 2006, she stopped a truck driven by Tirado-Tirado at the Pasa Del Norte checkpoint. Tirado-Tirado gave Crespin his resident alien card and that of his passenger. Tirado-Tirado's card appeared to be valid. However, the photograph on the passenger's card did not resemble the passenger. When Crespin questioned them about the passenger's card, both men avoided eye contact and looked straight ahead. They seemed uneasy and nervous, and Tirado-Tirado licked his lips repeatedly. Tirado-Tirado said the two men had been friends a long time, which Crespin found unusual as the passenger looked much younger than Tirado-Tirado. She referred the truck to secondary inspection with the notation "possible impostor."

William Sutlive, a Customs and Border Protection officer, testified that he interviewed Tirado-Tirado at secondary inspection. Sutlive testified that Tirado-Tirado was uncooperative, sullen, and angry. Tirado-Tirado refused to acknowledge whether he understood his Miranda rights.

Officer Rosado testified that he interviewed Garay-Ramirez, who told Rosado that Garay-Ramirez's brother, Feliciano, had made the arrangements for Garay-Ramirez to come into the United States. Rosado also testified about statements that Feliciano made to Rosado the week before trial, which was the first time that Rosado had spoken with Feliciano. Feliciano told Rosado that he had paid for a bus ticket for Garay-Ramirez to travel to Juarez and that Garay-Ramirez's brother-in-law, Chuy, had made the arrangements to bring Garay-Ramirez into the United States. Rosado stated that this account conflicted with Garay-Ramirez's statement to Rosado that Feliciano had made all of the arrangements.

Customs and Border Patrol agent Pablo Castro testified that he arrested Tirado-Tirado in 2001 for alien transporting, which was charged as a misdemeanor. At the time of that arrest, Tirado-Tirado admitted that he had transported people before. Tirado-Tirado indicated that he did so because it was a far walk and that something could happen to them. However, Castro testified that the aliens paid Tirado-Tirado $1,000 each to transport them into the United States.

Garay-Ramirez's video deposition was played for the jury. Garay-Ramirez testified

563 F.3d 122

that Feliciano called him and told him to come to the United States. Garay-Ramirez testified that Feliciano told him to talk to a man whose brothers-in-law would pick him up. Garay-Ramirez took a bus to Juarez, where his aunt's brother-in-law, a man whose last name was Calderon, picked him up and took him to his house, where Garay-Ramirez stayed for two to three days. Two men, known to him as El Churro and El Perro, obtained an identification card for him. Feliciano called and told Garay-Ramirez to go to a cathedral, where he would be picked up.

Garay-Ramirez waited at the cathedral, where Tirado-Tirado came and picked him up. Garay-Ramirez testified that he believed Tirado-Tirado recognized him because Feliciano had instructed Garay-Ramirez to wear a white hat. They then drove to the border checkpoint. Before they arrived at the border checkpoint, Tirado-Tirado asked Garay-Ramirez for his identification card. Otherwise, Tirado-Tirado did not speak to Garay-Ramirez during the drive. Garay-Ramirez stated that he had never seen Tirado-Tirado before that day. Garay-Ramirez stated that he did not pay anyone to take him into the United States, and he did not know what arrangements were made on his behalf. He conceded that he was going to be released to return home in exchange for his testimony.

Tirado-Tirado's counsel argued to the jury that his client was simply giving someone a ride without expectation of compensation and that there was no evidence that he was involved in a prearranged plan to bring Garay-Ramirez into the United States or that he knew Garay-Ramirez's entry was unlawful. In order to establish Tirado-Tirado's knowledge or reckless disregard of the fact that Garay-Ramirez's entry was unlawful, the government pointed out that Tirado-Tirado appeared nervous at inspection, that Tirado-Tirado falsely stated at inspection that he and Garay-Ramirez were longtime friends, and that Tirado-Tirado picked Garay-Ramirez up in front of the church, the prearranged meeting place, and drove directly to the border without speaking to him. The government also noted Tirado-Tirado's prior conviction for...

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