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Fifth Circuit: Introduction of Deposition Video Without Making Good-Faith Effort to Secure Witnesses’ Presence at Trial Violates Confrontation Clause

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that the Sixth Amendment’s Confrontation Clause was violated when the Government introduced videotaped deposition testimony without making a good-faith effort, based on the facts of the case, to secure the witnesses’ presence at trial. As such, the witnesses were not “unavailable” for Confrontation Clause purposes. 

On July 7, 2016, Border Patrol agents discovered five undocumented aliens in the refrigerated trailer of George Lamar Darryl Foster’s semi. Foster was arrested and charged with transporting aliens for commercial advantage or financial gain and conspiracy to do the same.

On July 22, 2016, two of the aliens—Jose Manuel Francisco-Maldonado and Leandro Hernandez-Ruiz—each gave videotaped depositions in which they identified Foster as the driver of the tractor-trailer. 

The Government advised both men that if they were needed for trial the Government would allow them to re-enter the U.S. and pay travel expenses. Both witnesses provided contact information for their residences in Mexico. They were released that day.

On November 7, 2016, the case was set for a trial that ultimately occurred in February 2017. A week before the trial date, the Government filed a motion to declare the witnesses “unavailable” and to allow the introduction of their videotaped depositions at trial. 

In support of its motion, the Government claimed that it did the following in attempts to contact the two witnesses: (1) over a four-month period, called Hernandez-Ruiz six times and e-mailed Francisco-Maldonado four times, (2) sent a letter to each of their home addresses, and (3) reached out to the Mexican government and the witnesses’ attorney.   

Foster countered with a motion to exclude the depositions on the grounds that the Government had failed to prove the witnesses were unavailable and that the introduction of the videotaped depositions violated his right to confrontation. The district court ruled in favor of the Government. At trial when the videos were introduced, the district court overruled Foster’s objection. After the jury convicted Foster, he appealed.

The Court stated that, “A witness is unavailable for Confrontation Clause purposes if the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” United States v. Allie, 978 F.2d 1401 (5th Cir. 1992). It added, “[b]ecause of the importance our constitutional tradition attaches to a defendant’s right to confrontation, the good-faith effort requirement demands much more than a merely perfunctory effort by the government.” A review of the case law reveals that there is no bright-line test for how much effort and which activities constitute good-faith effort applicable to all cases. Instead, this type of inquiry requires careful examination of the totality of facts present in each case.

The Court compared and contrasted the Government’s efforts in the present case with the efforts reported in Allie and those found in United States v. Calderon-Lopez, 268 Fed. Appx. 279 (5th Cir. 2008). 

After reviewing those two cases, the Court held that the Government’s efforts in the present case to secure the presence of the witnesses did not meet the good-faith standard. The Court based its determination on the following facts: (1) the Government made no attempt to verify the witnesses’ contact information before releasing them, (2) made no attempt to obtain collateral contact information, (3) and did not offer them the option of remaining in the U.S. until the trial. Most critically, the Court observed, the Government did not maintain contact with the witnesses after they were released. 

Having ruled that Foster’s Sixth Amendment right to confront the witnesses against him was violated, the Court turned to the question of whether it amounted to harmless error. A defendant whose conviction is based upon “inadmissible Confrontation Clause evidence is entitled to a new trial unless” the Government can prove beyond a reasonable doubt that there’s no “reasonable possibility” that the inadmissible evidence “might have contributed to the conviction.” Chapman v. California, 386 U.S. 18 (1967). 

The Court concluded that the Government failed to meet it burden of proof. The Government relied, in part, on the inadmissible evidence in its closing argument. Additionally, the only questions the jury had for the court during deliberations were about Hernandez-Ruiz and Francisco-Maldonado’s testimony. Thus, the Government cannot prove beyond a reasonable doubt that their inadmissible testimony did not contribute to Foster’s conviction, the Court stated. 

Accordingly, the Court vacated the judgment and remanded for a new trial. See: United States v. Foster, 910 F.3d 813 (5th Cir. 2018). 

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United States v. Foster



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