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.
