DEFENDANT (1)MALCOLM A FRENCH REPRESENTED BY JAMES A. BILLINGS MCKEE BILLINGS, MATTHEW D. MORGAN MCKEE BILLINGS, TERENCE M. HARRIGAN VAFIADES, BROUNTAS & KOMINSKY, WALTER F. MCKEE MCKEE BILLINGS.
DEFENDANT (2) RODNEY RUSSELL ALSO KNOWN AS ROD REPRESENTED BY STEVEN C. PETERSON LAW OFFICES OF STEVEN C. PETERSON, WILLIAM S. MADDOX LAW OFFICE OF WILLIAM.
DEFENDANT (4) KENDALL CHASE REPRESENTED BY JEFFREY M. SILVERSTEIN SILVERSTEIN-LAW PA.
DEFENDANT (6) HAYNES TIMBERLAND INC REPRESENTED BY THOMAS S. MARJERISON NORMAN, HANSON & DETROY TWO CANAL PLAZA.
PLAINTIFF USA REPRESENTED BY JOEL B. CASEY OFFICE OF THE U.S. ATTORNEY, DONALD E. CLARK U.S. ATTORNEY'S, F. TODD LOWELL OFFICE OF THE U.S. ATTORNEY.
ORDER ON GOVERNMENT’S MOTION IN LIMINE RE: ADMISSIBILITY OF DEPOSITION OF MARTIN ROBLERO
JOHN A. WOODCOCK, JR.CHIEF UNITED STATES DISTRICT JUDGE
Concluding that the Government failed to demonstrate that an earlier-deposed but now deported alien witness is “unavailable” under the constraints of the Confrontation Clause and Federal Rule of Evidence 804(b)(1), the Court denies the Government’s motion to introduce a videotape of his testimony in lieu of his live testimony in a criminal jury trial.
I. STATEMENT OF FACTS
In accordance with a Court Order dated May 8, 2013, Martin Roblero, a Government witness, testified by videotaped deposition on May 14, 2013. Order Overruling Malcolm French’s Objection to the Magistrate Judge’s Order Regarding Dep. (ECF No. 142). At the time of his testimony, Mr. Roblero was an illegal Mexican alien, had served a state of Indiana sentence for child molestation, and was subject to deportation from the United States. Id. at 3. After the Government contended that Mr. Roblero was a significant cooperating witness, who was likely to be deported from the United States during trial, the Court authorized the taking of Mr. Roblero’s deposition under Federal Rule of Criminal Procedure 15, but observed that it was not then addressing its admissibility. Id. at 12-17. Mr. Roblero has now been deported and the Government anticipates he will not be available for trial. Id. at 1.
Trial is looming. Jury selection is scheduled for January 8, 2013 and trial will proceed immediately thereafter. Seeking to admit the Roblero videotape deposition, the Government filed a motion in limine on December 6, 2013. Gov’t’s Mot. in Limine Re: Admissibility of Dep. of Martin Roblero (ECF No. 208) (Gov’t’s Mot.). On December 16, 2013, Malcolm French objected to the admission of the Roblero deposition. Def. Malcolm French’s Opp’n to Gov’t’s Mot. in Limine Re: Admissibility of Dep. of Martin Roblero (ECF No. 211) (French Opp’n). On December 20, 2013, Haynes Timberland, Inc. joined in Mr. French’s objection and presented its own argument in opposition. Def. Haynes Timberland, Inc.’s Opp’n to Gov’t’s Mot. in Limine Re: Admissibility of Dep. of Martin Roblero (ECF No. 213) (Haynes Opp’n). On December 23, 2013, Rodney Russell joined in the arguments of both Mr. French and Haynes Timberland. Def. Russell’s Opp’n to Gov’t’s Mot. in Limine Re: Admissibility of Dep. of Martin Roblero (ECF No. 238). On December 24, 2013, the Government replied. Gov’t’s Reply to Defs.’ Objection to Gov’t’s Mot. in Limine Re: Admissibility of Dep. of Martin Roblero (ECF No. 239) (Gov’t Reply). On December 27, 2013, Kendall Chase filed a notice, confirming that he has no objection to the admission of the Roblero deposition. Notice of Def., Kendall Chase, Not to Oppose Roblero Dep., Mot. in Limine Req. by Gov’t (ECF No. 242).
II. POSITIONS OF THE PARTIES
A. The Government’s Motion
In its motion in limine, the Government confirms that, after his May 14, 2013 testimony, Mr. Roblero was in fact deported to Mexico on June 13, 2013 as a result of his commission of an aggravated felony. Gov’t’s Mot. at 1-2 & n.2. Counsel for the Government, Assistant United States Attorney (AUSA) Joel Casey, says that before Mr. Roblero was deported, AUSA Casey corresponded with an attorney in the Department of Homeland Security (DHS) to determine whether Mr. Roblero’s deportation could be delayed. Id. at 2. Based on the DHS attorney’s response, AUSA Casey formally requested that DHS defer deportation. Id. On May 17, 2013, DHS denied AUSA Casey’s request for deferral because of Mr. Roblero’s “recent and serious criminal conviction.” Id. Attach. 3 Letter from Michael Lana, Resident Agent in Charge, U.S. Immigration and Customs Enforcement, U.S. Dep’t of Homeland Security at 1 (May 17, 2013) (Lana Letter).
The Government emphasizes that before he was deported, it served Mr. Roblero with a subpoena requiring his attendance at trial, which was then set to begin on September 4, 2013. Gov’t’s Mot. at 2. The Government says that it gave Mr. Roblero detailed instructions in Spanish on “how, when and where to parole back in the [C]ountry to appear at trial” and reserved a plane ticket for him to fly from Mexico to the United States. Id. The Government also provided Mr. Roblero with a letter from the federal prosecuting attorney to be presented to the first immigration officer that Mr. Roblero encountered on his return to the United States. Id. Finally, the Government obtained contact information in Mexico from Mr. Roblero. Id. The Government says that after the case was continued to January, 2014, it attempted to contact Mr. Roblero in Mexico but has been unable to do so. Id. at 2-3.
In these circumstances, the Government maintains that Mr. Roblero is “unavailable” under Federal Rule of Evidence 804(b)(1) and his deposition should be admitted. Id. at 3. It recites its efforts to present Mr. Roblero as a live witness at trial, including its request to DHS and its instructions to Mr. Roblero upon deportation about returning for trial. Id. at 4. Anticipating that the defense might argue that it should have used a material witness warrant, the Government sees “a couple problems with this argument.” Id. at 4-5. First, the Government points out that a material witness subpoena was available to the Defendants. Id. Second, the Government observes that even if it had obtained a material witness warrant, Mr. Roblero would at most have been detained until September 2013, when trial was originally scheduled, not until January 2014, when it is being reached. Id.
The Government contends that the second prong of admissibility under Rule 804(b)(1)—similar motive and opportunity to develop the challenged testimony— has been satisfied in this case by the circumstances of the Rule 15 deposition in this case. Id. at 6-7. The Government says that these circumstances also satisfy the Defendants’ Confrontation Clause rights. Id.
B. Malcolm French’s Opposition
Mr. French objects to the admission of Mr. Roblero’s videotape deposition. French Opp’n at 1-9. First, Mr. French argues that the Government failed to exhaust all reasonable efforts to assure Mr. Roblero’s availability for trial. Id. at 3-6. Next, Mr. French maintains that he did not have the opportunity to question Mr. Roblero about possible issues of witness collusion and therefore his rights under the Confrontation Clause would be violated with the admission of the Roblero deposition. Id. at 6-9.
Regarding the first argument, Mr. French relies on the First Circuit case of United States v. Mann, 590 F.2d 361 (1st Cir. 1978), for his contention that the Government must engage in more than “perfunctory efforts” to obtain the absent witness’s appearance. Id. at 3-4. Mr. French criticizes the Government’s efforts as too late and too little. Id. He observes that the DHS agent who denied the Government’s request for a stay of deportation recommended to the prosecutor that the Government obtain a material witness warrant, but the Government made no effort to do so. Id.
Next, Mr. French also points out that the legal problems associated with detaining a witness who has not been charged with a crime are problems of the Government’s own making. Id. at 5. He observes that the Government elected not to charge Mr. Roblero, and in fact gave him immunity in exchange for his testimony. Id. If the Government had not done so, it could have sought to hold Mr. Roblero under the provisions of pre-trial detention law. Id. Moreover, Mr. French notes that the Government failed to make any provision in its immunity agreement with Mr. Roblero that would have required him to remain in the ...