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United States v. Darryl Foster

United States Court of Appeals, Fifth Circuit

December 12, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

          Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.

          REAVLEY, Circuit Judge.

         George Lamar Darryl Foster was convicted of transporting aliens for commercial advantage or private financial gain. Foster argues that the introduction of videotaped depositions of two material witnesses at trial violated his rights under the Confrontation Clause because the government failed to demonstrate the witnesses were unavailable. We vacate the judgment and remand for new trial.


         Driving a tractor-trailer with a refrigerated unit, Foster attempted to cross the Sierra Blanca checkpoint around midnight on July 7, 2016. Border Patrol agents discovered six persons in the trailer's refrigerated unit, five of whom were undocumented aliens. Two of those aliens were Jose Manuel Francisco-Maldonado and Leandro Hernandez-Ruiz. Everyone relevant to this appeal was arrested. The government charged Foster in a two-count indictment for transporting aliens for commercial advantage or financial gain and conspiracy to do the same.

         The government conducted video depositions of Francisco-Maldonado and Hernandez-Ruiz on July 22, 2016. Both identified Foster as the driver of the tractor-trailer. During their depositions, the government advised the witnesses they might be needed for trial and, if so, that the government would allow them to reenter the United States and would pay for their travel expenses. The witnesses were asked to provide an address and telephone number where they could be reached in Mexico. Hernandez-Ruiz provided a home address and a telephone number. Francisco-Maldonado provided a home address and email address. Both testified under oath that they would return for Foster's trial and that they would update their contact information if it changed. In exchange for their testimony, the government agreed to drop all criminal charges against them. Francisco-Maldonado and Hernandez-Ruiz were released from their halfway house that day.[1]

         On November 7, 2016, the district court issued an order setting Foster's case for trial.[2] The week before trial, the government filed a motion to declare Francisco-Maldonado and Hernandez-Ruiz unavailable and to allow for the introduction of their videotaped depositions at trial. According to the government's motion, the agent assigned to Foster's case began attempts to contact Francisco-Maldonado and Hernandez-Ruiz the day after the district court set Foster's case for trial, and continued those efforts through February 14, 2017, the week before Foster's trial. During that four-month period, the government stated that it called Hernandez-Ruiz six times, emailed Francisco-Maldonado four times, sent a letter to the witnesses' home addresses, and made some attempt to reach out to the Mexican government, as well as the witnesses' attorney. The government did not attach any documentary evidence in support of the above-mentioned efforts. A few days prior to trial, the district court granted the government's motion to declare Hernandez-Ruiz and Francisco-Maldonado unavailable.

         The trial went as follows: Foster filed a motion to exclude the videotaped depositions on the ground that their introduction would violate his Sixth Amendment right to confrontation because the government failed to demonstrate that the material witnesses were unavailable. Although Foster argued, among other things, that the efforts the government described in its motion were "not reflected on the record . . . in any place," the district court accepted the government's factual representations and denied Foster's motion.

         The Border Patrol agents who investigated and arrested Foster testified that Foster attempted to drive the tractor-trailer through the checkpoint and that they discovered six individuals inside the trailer's refrigerated unit, two of whom were Francisco-Maldonado and Hernandez-Ruiz. The Special Agent from the U.S. Department of Homeland Security who interviewed Foster upon his arrest testified that Foster initially denied having knowledge that undocumented aliens were in his truck but eventually confessed to transporting them for money. The agent also testified that Foster gave a written statement to this effect. Next, the government presented Francisco-Maldonado and Hernandez-Ruiz's videotaped depositions, and Foster again objected on Confrontation Clause grounds. Testifying in his own defense, Foster claimed that he did not know there were individuals in his trailer and that he gave a written statement only after being threatened and coerced by investigators during the interview.

         The jury found Foster guilty of transporting aliens for commercial advantage or private financial gain but not guilty on the conspiracy count. The district court sentenced Foster to 57 months of imprisonment, to be followed by 2 years of supervised release. Foster timely filed a notice of appeal.


         Foster argues that the district court violated his Sixth Amendment confrontation rights by allowing the use of Hernandez-Ruiz's and Francisco-Maldonado's videotaped depositions in lieu of live testimony. We review Confrontation Clause challenges de novo, subject to harmless error review. United States v. Tirado-Tirado, 563 F.3d 117, 122 (5th Cir. 2009).[3]

         The Confrontation Clause affords criminal defendants the right "to be confronted with the witnesses against him." U.S. Const. Amend. VI. The Supreme Court has explained ...

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