In United States v. Smith, No. 17-13265 (July 2, 2019) (Hull, Julie Carnes, Rosenbaum), the Court affirmed the defendants' alien smuggling convictions.
The primary issue on appeal was whether the district court violated the Confrontation Clause by admitting the videotaped deposition of a deported government witness (an alien smuggled on the defendants' boat). In determining whether the witness was "unavailable" for purposes of the Confrontation Clause and the Rules of Evidence, the Court asked whether the government had made a good-faith effort to obtain the witness' presence at trial, and that was a question of "reasonableness." The government was not required to make every conceivable effort to locate the witness. Although the witness in this case was temporarily inside the United States at the time of trial, she had no cell phone or U.S. address, was illegally in the U.S., and had absconded from the trial court's jurisdiction to avoid detention and deportation. And although the government sent a trial subpoena to the witness through her former attorney and her boyfriend, and the attorney reported back that she would cooperate, the witness still refused to appear. Analyzing the particular facts and circumstances of the government's efforts, the Court found that the government made a reasonable good-faith effort to obtain her presence at trial.
The Court also concluded that the prosecutor did not make inappropriate comments during closing argument. The prosecutor's comment that the defendant's prior alien smuggling conviction occurred in West Palm was correct and was made in response to the defendant's argument in closing that it would make no sense for an alien smuggler not to take the most direct route from the Bahamas to Florida.
Judge Rosenbaum issued a 43-page dissent on the Confrontation Clause issue, which, in turn, generated a 25-page response by the majority. In her view, the government did not make a good-faith effort because it failed to pursue a promising lead it had reason to believe might help locating the missing witness. Specifically, it failed to conduct a database or online search for the address of the witness' boyfriend (the government had called and texted the boyfriend to no avail). The two opinions debate the governing Supreme Court opinions on unavailability, whether the government made a good-faith effort under the facts of the case, and the relevance of other circuit decisions.