Petition for Writ of Certiorari — Renado Smith and Richard Delancy, Petitioners v. United States
Supreme Court briefSep 18, 2019
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No. 19-____
IN THE
Supreme Court_________
of the United States
RENADO SMITH AND RICHARD DELANCY,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
MICHAEL CARUSO
NEAL KUMAR KATYAL
Federal Public Defender
Counsel of Record
BRENDA G. BRYN
MITCHELL P. REICH
ANSHU BUDHRANI
HOGAN LOVELLS US LLP
Assistant Federal
555 Thirteenth St., N.W.
Public Defenders
Washington, D.C. 20004
1 E. Broward Blvd.
(202) 637-5600
Suite 1100
neal.katyal@hoganlovells.com
Ft. Lauderdale, FL 33301 Counsel for Petitioners
Counsel for Richard Delancy
ALBERT Z. LEVIN
ALBERT Z. LEVIN, P.A.
Courthouse Center
40 N.W. 3d St., Ste. 200
Miami, FL 33128
Counsel for Renado Smith
QUESTIONS PRESENTED
The Confrontation Clause permits prosecutors to
introduce the out-of-court testimonial statements of
an absent witness only if the witness is “unavailable”
despite the government’s “good-faith effort to obtain
[the witness’s] presence at trial.” Barber v. Page, 390
U.S. 719, 724-725 (1968). The questions presented
are:
1. Whether the government makes a good-faith
effort to obtain a witness’s presence at trial if it
curtails its search for that witness because it already
has the witness’s deposition testimony.
2. Whether the government makes a good-faith
effort to obtain a witness’s presence at trial if it
forgoes an “easy” investigative step that it has “reason to believe” would procure the absent witness.
3. Whether a witness is “unavailable” if the government releases the witness from its custody without making any arrangements to secure the witness’s
presence at trial.
(i)
ii
PARTIES TO THE PROCEEDING
Renado Smith and Richard Delancy, petitioners on
review, were the defendants-appellants below.
The United States of America, respondent on review, was the plaintiff-appellee below.
iii
RELATED PROCEEDINGS
The following proceedings are directly related to
this petition:
United States v. Delancy et al., No. 1:16-cr20908-JAL (S.D. Fla.) (Delancy Judgment entered July 10, 2017; Smith Judgment entered
July 18, 2017), aff’d, United States v. Smith et
al., Nos. 17-13265 & 17-13330 (11th Cir. July
2, 2019) (reported at 928 F.3d 1215).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDING ............................ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES....................................... vi
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 3
JURISDICTION .......................................................... 3
CONSTITUTIONAL PROVISION
INVOLVED ......................................................... 3
STATEMENT .............................................................. 3
REASONS FOR GRANTING THE PETITION ....... 12
I.
THE
ELEVENTH
CIRCUIT’S
DECISION DEEPENS MULTIPLE
SPLITS OF AUTHORITY ON THE
SCOPE OF THE CONFRONTATION
CLAUSE ........................................................... 13
A.
The Circuits Are Split on Whether the Government May Curtail
Its Search for an Absent Witness
Because It Has the Witness’s Prior Deposition Testimony ........................ 13
B.
The Circuits Are Split on Whether the Government May Forgo an
Easy Investigative Step That It
Has Reason to Believe Would
Procure an Absent Witness .................... 17
v
TABLE OF CONTENTS—Continued
Page
C.
II.
The Circuits are Split on Whether the Government Must Take
Steps to Secure a Witness’s Attendance At Trial Before Releasing the Witness from Its Custody .......... 22
THE ELEVENTH CIRCUIT ERRED
ON EACH QUESTION PRESENTED .......... 25
III. THIS CASE IS OF CONSIDERABLE
IMPORTANCE ............................................... 32
CONCLUSION .......................................................... 35
APPENDIX
APPENDIX A—Eleventh Circuit’s Opinion (July 2, 2019) ............................................... 1a
APPENDIX B—District Court Trial
Transcript: District Court’s Ruling
on Admissibility (Apr. 20, 2017) (excerpt) .............................................................. 106a
APPENDIX C— District Court Trial
Transcript: Testimony of HSI Special
Agent Craig Nowicki (Apr. 20, 2017)
(excerpt) ......................................................... 115a
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Acosta v. Raemisch,
877 F.3d 918 (10th Cir. 2017) .............................. 20
Aguilar-Ayala v. Ruiz,
973 F.2d 411 (5th Cir. 1992) ................................ 18
Barber v. Page,
390 U.S. 719 (1968) ...................................... passim
Brooks v. United States,
39 A.3d 873 (D.C. 2012) ................................. 15, 23
Brumley v. Wingard,
269 F.3d 629 (6th Cir. 2001) .................... 14, 15, 19
California v. Green,
399 U.S. 149 (1970) ........................................ 31, 32
Cook v. McKune,
323 F.3d 825 (10th Cir. 2003) ........................ 11, 14
Crawford v. Washington,
541 U.S. 36 (2004) ........................................ passim
Crown v. Caruso,
108 F.3d 1376 (6th Cir. 1997) (Table) ................. 19
Hardy v. Cross,
565 U.S. 65 (2011) .......................................... 29, 30
McCandless v. Vaughn,
172 F.3d 255 (3d Cir. 1999) ............... 14, 18, 19, 25
Motes v. United States,
178 U.S. 458 (1900) .............................. 2, 30, 31, 32
Ohio v. Roberts,
448 U.S. 56 (1980) ........................................ passim
vii
TABLE OF AUTHORITIES—Continued
Page(s)
People v. Fuiava,
269 P.3d 568 (Cal. 2012) ...................................... 20
State v. Edwards,
665 P.2d 59 (Ariz. 1983)....................................... 15
State v. Lee,
925 P.2d 1091 (Haw. 1996) .................................. 15
State v. Sosa,
839 A.2d 519 (R.I. 2003) ................................ 20, 23
State v. Trice,
874 N.W.2d 286 (Neb. 2016) .......................... 20, 21
Tate v. Flenoy,
47 F.3d 1170 (6th Cir. 1995) (Table) ................... 19
United States v. Burden,
--- F.3d ---, 2019 WL 3917651 (D.C. Cir.
Aug. 20, 2019) .................................... 14, 22, 25, 31
United States v. French,
No. 1:12-cr-00160-JAW, 2014 WL 34802
(D. Me. Jan. 6, 2014) ............................................ 14
United States v. Johnson,
108 F.3d 919 (8th Cir. 1997) .................... 15, 16, 28
United States v. Lynch,
499 F.2d 1011 (D.C. Cir. 1974) ................ 13, 14, 15
United States v. Mann,
590 F.2d 361 (1st Cir. 1978) ........................ passim
United States v. Quinn,
901 F.2d 522 (6th Cir. 1990) ................................ 19
United States v. Rivera,
859 F.2d 1204 (4th Cir. 1988) ............ 16, 17, 23, 24
viii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Rothbart,
653 F.2d 462 (10th Cir. 1981) .............................. 23
United States v. Tirado-Tirado,
563 F.3d 117 (5th Cir. 2009) .................... 18, 22, 23
United States v. Yida,
498 F.3d 945 (9th Cir. 2007) .................... 16, 23, 27
Williams v. Illinois,
567 U.S. 50 (2012) ................................................ 32
STATUTE:
28 U.S.C. § 1254(1) ...................................................... 3
CONSTITUTIONAL PROVISION:
U.S. Const. amend. VI ....................................... passim
IN THE
Supreme Court_________
of the United States
NO. 19-___
_________
RENADO SMITH AND RICHARD DELANCY,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Renado Smith and Richard Delancy respectfully
petition for a writ of certiorari to review the judgment of the Eleventh Circuit in this case.
INTRODUCTION
The Confrontation Clause permits the admission of
a witness’s out-of-court testimonial statements
against a criminal defendant only where the witness
is “unavailable” despite the government’s “good-faith
effort to obtain [the witness’s] presence at trial.”
Barber v. Page, 390 U.S. 719, 724-725 (1968). In the
decision below, a divided panel of the Eleventh
Circuit dramatically eroded that fundamental constitutional protection. Over a vigorous, 43-page dissent, the majority permitted the prosecution to play
for the jury a videotaped deposition of the prosecution’s star witness despite the fact that the government’s agent admitted, repeatedly and under oath,
(1)
2
that he curtailed his search for the witness because
her “videotaped deposition was already taken,” Pet.
App. 51a-53a; that the government forwent an “easy”
investigative step—searching a law-enforcement
database for the address of the witness’s boyfriend—
that it had “reason to believe” would lead it to the
witness, id. at 42a; and that the government had the
witness in its custody and “mistakenly” let her go,
Pet. App. 28a.
By sanctioning these remarkable deviations from
the government’s obligation of good faith, the Eleventh Circuit deepened no fewer than three different
splits of authority on the scope of the Confrontation
Clause’s “unavailability” requirement—each of which
has profound significance for the day-to-day functioning of criminal trials. And, on every question, the
Eleventh Circuit badly erred. It ran together the
“two separate” prerequisites for admitting out-ofcourt testimony: unavailability and a prior opportunity to cross-examine. Ohio v. Roberts, 448 U.S.
56, 65 (1980) (emphasis added), abrogated on other
grounds, Crawford v. Washington, 541 U.S. 36
(2004). It adopted a toothless definition of “goodfaith effort” that is irreconcilable with this Court’s
precedents. And it flouted the Court’s foundational
decision in Motes v. United States, 178 U.S. 458
(1900), which held that a witness is not unavailable
for purposes of the Confrontation Clause where “his
absence was due to the negligence of the prosecution,” id. at 474—exactly what occurred here.
The Confrontation Clause is one of our Founders’
most vital guarantees of liberty. Crawford, 541 U.S.
at 59. The deep and pervasive division among the
Circuits has caused the scope of that protection to
3
vary widely based on nothing more than geography.
And, if left undisturbed, the Eleventh Circuit’s
decision—which occupies the extreme end even
among those courts that have construed the Confrontation Clause most stingily—will invite (indeed,
openly permit) efforts by prosecutors to avoid subjecting their witnesses to “testing in the crucible of
cross-examination” before a jury. Id. at 61. Certiorari should be granted, and the Eleventh Circuit’s
decision should be reversed.
OPINIONS BELOW
The Eleventh Circuit’s opinion (Pet. App. 1a-105a)
is reported at 928 F.3d 1215. The District Court’s
ruling on admissibility (Pet. App. 106a-114a) is
unreported.
JURISDICTION
The Eleventh Circuit entered judgment on July 2,
2019. This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment of the U.S. Constitution
provides in pertinent part:
In all criminal prosecutions, the accused shall enjoy
the right * * * to be confronted with the witnesses
against him * * * .
STATEMENT
1. In November 2016, the U.S. Coast Guard found a
boat with 21 passengers adrift at sea halfway between Key Largo, Florida, and Bimini, Bahamas.
Pet. App. 2a. The boat had run out of fuel six days
earlier, and its passengers were tired and dehydrated but otherwise in good health. Id. at 2a-3a. Most
4
of the boat’s passengers were Haitian; its operators,
Smith and Delancy, were nationals of the Bahamas.
Id. at 2a.
Upon making contact with the vessel, Coast Guard
personnel asked Smith and Delancy where they were
headed. Id. at 3a. Smith and Delancy said that they
had been traveling from Freeport, Bahamas, to
Bimini, but had run out of fuel and gone off course.
Id. at 2a-3a. The officers could not determine the
boat’s original route because it had been adrift for so
long; nonetheless, they suspected that Smith and
Delancy were trying to smuggle the boat’s passengers into the United States. Id. at 3a. The Coast
Guard brought Smith, Delancy, and two passengers,
Davidson Francois and Vanessa Armstrong Vixama,
to the United States for further questioning. Id. at
5a, 8a.
2. In December 2016, a federal grand jury indicted
Smith and Delancy for conspiracy to commit alien
smuggling, alien smuggling, and attempted illegal
reentry. Id. at 1a, 7a-8a; see Delancy CA11 App. 2932. Shortly thereafter, the government filed material witness complaints against Francois and Vixama.
Pet. App. 8a, 10a n.2. Both were arrested, transferred to the custody of the U.S. Marshals Service,
and appointed counsel. Id. Immigration and Customs Enforcement (“ICE”) then lodged immigration
detainers against Francois and Vixama so that, once
they were released from the custody of the U.S.
Marshals, they could be returned to ICE custody. Id.
at 8a-9a, 10a n.2.
Vixama and Francois gave videotaped depositions
in January and March 2017, respectively. Id. at 9a,
10a n.2. In her deposition, Vixama testified that her
5
family paid $5,000 for her passage with Smith and
Delancy, and that she boarded the boat in Freeport
“to come to the United States.” Id. at 6a. Francois,
in contrast, was uncertain about the boat’s ultimate
destination: He stated that while he “believed the
boat was going to the United States * * * he did not
personally know where the boat was heading when
he left Freeport because the defendants ‘didn’t tell
[the passengers] anything.’ ” Id. at 5a (brackets in
original).
After each deposition, a magistrate judge dismissed
the material witness complaints. Id. at 10a & n.2.
By law, ICE agents then had 48 hours to enforce the
immigration detainers. Id. at 10a. ICE promptly
detained Francois following his deposition and
deported him to Haiti. Id. at 10a n.2. ICE did not,
however, pick up or detain Vixama within 48 hours.
Id. at 10a. Accordingly, “on February 6, 2017, the
U.S. Marshals released Vixama from their custody.”
Id. The government did not obtain Vixama’s contact
information or address before releasing her, nor did
it take any other measures to ensure that she would
appear at petitioners’ trial.
3. Craig Nowicki, the case agent, learned that Vixama had been released from custody on February 7,
2017. Id. He briefly made an effort to locate Vixama: On the night of February 7, Nowicki called
Vixama’s uncle (whose phone number Vixama had
shared with Nowicki months earlier, when she was
“anxious” and asked to speak to someone “to put
herself at ease,” id. at 8a), and learned the uncle’s
address in Coral Springs, Florida. Id. at 10a-11a.
ICE agents waited two weeks before visiting the
uncle’s house. Id. at 11a. By then, Vixama could not
6
be found at the house, and the occupants said they
did not know where she was. Id.
The government then ceased its efforts to find Vixama for nearly two months. As Agent Nowicki later
testified, “we had the video deposition of her testimony already,” and so he saw no need to file a subpoena, reach out to ICE for additional support, or
continue looking himself. Id. at 150a, 152a-153a,
161a. At one point in March, Nowicki asked several
ICE agents whether they had located Vixama. Id. at
124a. An ICE supervisor responded that ICE “did
not have the manpower to go look for her again,” and
Nowicki did not follow up. Id. at 124a, 153a.
The government did not take any further action to
locate Vixama until April 12, 2017—five days before
the scheduled start of petitioners’ trial. Id. at 11a.
On that date, the Assistant United States Attorney
(AUSA) assigned to the case emailed Vixama’s courtappointed counsel and asked if he knew Vixama’s
contact information. Id. at 11a-12a. Vixama’s
counsel responded that Vixama was “in Delaware”
and “doesn’t have a phone,” but that the attorney
had given the AUSA’s “contact info to her boyfriend.”
Id. at 12a. Two days later, Vixama’s attorney provided the name and phone number of Vixama’s
boyfriend, stating that “[y]ou can call her now at this
number” and “I believe she will cooperate.” Id. at
13a. The AUSA contacted Vixama’s counsel three
more times—once to send a subpoena, another time
to ask if he had learned anything further about
Vixama’s whereabouts, and a final time to provide a
copy of a bench warrant. Id. at 12a-13a, 15a. Agent
Nowicki also called the boyfriend’s number twice and
sent him two text messages. Id. at 13a-14a. When
7
the government received no response from Vixama or
her boyfriend, it ended its search. Id. at 14a.
Nowicki testified that “one of [the reasons]” he did
not do more—such as “attempt[ing] to ascertain [the
boyfriend’s] address in Delaware by running [his]
name” through a law-enforcement database—was
because “she’s already given the videotaped deposition.” Id. at 158a.
4. On April 17, 2017—the first day of trial—the
government informed the court and defense counsel
for the first time that Vixama had mistakenly been
released from its custody and was believed to be with
her boyfriend in Delaware. Id. at 13a-14a. The
government also disclosed that it had been searching
for Vixama since April 12, but had not procured her
attendance at trial. Id. The government moved to
play Vixama’s videotaped deposition for the jury,
contending that she was “unavailable” for purposes
of the Confrontation Clause. Id. at 14a. Smith and
Delancy objected, arguing that the government had
not met its burden to show that Vixama was unavailable. Id. at 14a-15a.
The District Court held a hearing to determine
whether the government had made adequate efforts
to secure Vixama’s attendance. Id. at 15a-16a. At
that hearing, Agent Nowicki acknowledged that
Vixama was “an essential witness to this case.” Id.
at 152a-153a. He also testified repeatedly that the
government curtailed its efforts to locate Vixama
because it already had her videotaped deposition in
its possession. Id. at 150a, 152a-153a, 158a, 161a.
Nevertheless, the District Court ruled that “the
Government made good-faith and reasonable efforts
to locate [Vixama] once she had been released.” Id.
8
at 107a-111a. It thus deemed Vixama “unavailable”
for purposes of the Confrontation Clause, and permitted the prosecution to play her videotaped deposition for the jury over petitioners’ objections. Id. at
16a, 111a-112a. That deposition provided the only
consistent, direct evidence that petitioners had been
attempting to enter the United States—a critical
element of each charge against them. See id. at
103a-104a (Rosenbaum, J., concurring in part and
dissenting). The prosecutors repeatedly invoked
Vixama’s testimony during their closing arguments
as evidence of petitioners’ guilt. See Smith CA11
App. 132, 134, 137, 148, 149, 150.
The jury found Smith and Delancy guilty on all
counts. Id. at 16a. The District Court sentenced
Smith to concurrent sentences of 87 months for
conspiracy and illegal reentry, and 60 months for
alien smuggling. Id. at 16a-17a. It sentenced Delancy to concurrent sentences of 90 months for conspiracy and illegal reentry, and 60 months for alien smuggling. Id. at 17a.
4. A sharply divided panel of the Eleventh Circuit
affirmed. Id. at 2a. Writing for the majority, Judge
Hull stated that “it is not our job to second guess, in
hindsight, the prosecutor’s efforts.” Id. at 39a. Nor
did the panel think it was appropriate to “think of
‘additional steps’ the prosecutor might have taken.”
Id. at 50a. Instead, the panel stated that “our task is
to examine the government’s cumulative efforts here
to determine if * * * the government made a goodfaith, reasonable effort to obtain Vixama’s presence
at trial.” Id. at 26a.
The panel was “convinced” that the government’s
efforts satisfied that standard. Id. The panel
9
“start[ed] with how Agent Nowicki attempted to
locate Vixama * * * after learning of Vixama’s release”: by contacting Vixama’s uncle and requesting
that ICE agents visit his home. Id. The panel did
not fault Agent Nowicki for halting his efforts when
that initial effort “failed to locate Vixama.” Id. After
all, the panel observed, ICE stated that it “did not
have the manpower to look for her again at that
time,” and, “[i]mportantly, * * * Vixama had given
her deposition.” Id. at 26a-27a.
“Even so,” the panel continued, “[i]n the week leading up to the April trial, the government continued
its efforts to locate Vixama by reaching out to her
former counsel * * * four times, issuing a trial subpoena, and thrice attempting to communicate with
Vixama using her boyfriend’s cell phone number.”
Id. at 27a. The panel found it “patently reasonable”
for the government to “rely on” Vixama’s attorney
and boyfriend in this way, given that the government
lacked an “address or cell phone” for Vixama, and
she was “obvious[ly] determin[ed] to go into hiding
and to elude capture.” Id. at 27a-28a. When those
efforts failed, the panel said, the government had
discharged its duty to make “a good-faith effort that
was reasonable under the factual circumstances of
this case.” Id. at 30a.
The panel refused to consider whether the government should have taken “additional investigatory
step[s],” even ones the government “ha[d] ‘reason to
believe’ might assist in locating” Vixama. Id. at 42a.
The panel described this analysis as “Mondaymorning quarterbacking of the prosecutor and Agent
Nowicki’s efforts”; it was sufficient, in the panel’s
view, that “this is not a case where the government
10
took no action when presented with a new lead.” Id.
at 43a-44a (emphasis added). Further, the panel
noted that the while the additional steps petitioners
and the dissent proposed—such as searching law
enforcement databases for Vixama’s boyfriend’s
address in Delaware—were “easy,” they would not
have removed all of the “investigatory hurdles” to
locating Vixama. Id. at 42a, 46a. For instance, the
panel pointed out that the government would still
have had to send an agent to the boyfriend’s address
in Delaware, and then “actually find the boyfriend at
that address.” Id. at 46a-47a.
The panel also “reject[ed] the * * * position” that
“the government’s efforts were unreasonable because
Agent Nowicki considered the fact that Vixama’s
videotaped deposition was already taken.” Id. at
50a-51a.
The panel acknowledged that Agent
Nowicki “candidly admitted he considered that fact”
when determining the extent of his search. Id. at
51a. But, in the panel’s view, “neither the case
agent, nor the prosecutor, nor this Court, is required
to pretend Vixama was never deposed” when determining whether she was “unavailable.” Id. On the
contrary, the panel said that this fact is “relevant
and important” in assessing the reasonableness of
the government’s search. Id. at 53a.
Judge Rosenbaum filed a lengthy and vigorous
dissent. Id. at 64a-105a.1 She explained that, by
“uphold[ing] the government’s lackluster efforts as
1
Judge Rosenbaum concurred in a separate portion of the
majority opinion denying Smith’s claim of prosecutorial misconduct. See Pet. App. 30a-35a. Petitioners do not seek review
of that ruling.
11
reasonable,” the majority “create[d] an unconstitutionally low (and unpredictable) bar for what constitutes ‘reasonable’ effort to find a witness.” Id. at 65a.
Under this Court’s precedents, Judge Rosenbaum
noted, “the government must take reasonable steps
to follow up on a promising lead” to locate an absent
witness. Id. at 71. Yet the panel “excuse[d] the
government from undertaking reasonable and routine efforts” that it had “reason to believe” would
lead to Vixama, such as running Vixama’s boyfriend’s name through a law-enforcement database.
Id. at 80a-84a. By dismissing any inquiry into the
efficacy and reasonableness of additional steps as
“impermissible Monday-morning quarterbacking,”
the majority insulated the government’s “inadequate
efforts” from Sixth Amendment scrutiny. Id. at 85a,
88a.
Judge Rosenbaum also noted that Agent Nowicki
“conceded” that the government “stopped well short
of the efforts it would have undertaken to find Vixama” had it not “already had her recorded testimony.” Id. at 77a. Judge Rosenbaum explained that
other Circuits have held that the Confrontation
Clause requires “the State to make the same sort of
effort to locate and secure the witness for trial that it
would have made if it did not have the prior testimony available.” Id. at 76a-77a & n.6 (quoting Cook v.
McKune, 323 F.3d 825, 836 (10th Cir. 2003)). Yet the
majority reached the opposite conclusion: It “lower[ed] the reasonableness bar” because the government had Vixama’s prior deposition testimony. Id.
at 92a-93a (emphasis added).
Finally, Judge Rosenbaum observed that “the admission of [Vixama’s] deposition testimony was not
12
harmless,” and that “[e]ven the Majority Opinion
does not argue that it was.” Id. at 103a. Rather, the
case agent himself described Vixama as “an ‘essential’ witness,’ ” id. at 104a, and her testimony provided the only reliable “direct evidence” that Smith and
Delancy were “bound for the United States.” Id. at
103a-104a.
Thus, Judge Rosenbaum concluded,
because the admission of Vixama’s testimony was
unconstitutional, “the judgment should be vacated
and the case remanded.” Id. at 105a.
REASONS FOR GRANTING THE PETITION
The Confrontation Clause gives force to “the Framers’ preference for face-to-face accusation” by “establish[ing] a rule of necessity”: Prosecutors may not
convict a defendant using a witness’s out-of-court
testimony unless the witness is “unavailable” despite
the government’s “good-faith effort to obtain his
presence at trial.” Roberts, 448 U.S. at 65, 74 (quoting Barber, 390 U.S. at 724-725); see Crawford, 541
U.S. at 54-56. The opinion below effects a dramatic
curtailment of that right. In a sweeping opinion, the
Eleventh Circuit (1) held that the government may
curtail its search for an absent witness because it
already has the witness’s deposition testimony, Pet.
App. 50a-53a; (2) permitted the government to forgo
an “easy” investigate step that it had “reason to
believe” would lead it to an absent witness, id. at
42a; and (3) exempted the government from any
scrutiny for releasing a witness from its custody
without making arrangements to secure that witness’s attendance at trial, id. at 28a-29a.
In each respect, the panel sharply split from the
holdings of other Circuits and flatly contradicted this
Court’s precedents. Further, it created a how-to
13
manual for prosecutors seeking to avoid the guarantees enshrined for criminal defendants in the Confrontation Clause. Certiorari should be granted to
bring the Eleventh Circuit in line with the majority
of courts, and to prevent this decision from inviting
governmental efforts to deny criminal defendants
“the right * * * to be confronted with the witnesses
against [them].” U.S. Const. amend. VI.
I. THE ELEVENTH CIRCUIT’S DECISION
DEEPENS
MULTIPLE
SPLITS
OF
AUTHORITY ON THE SCOPE OF THE
CONFRONTATION CLAUSE.
A. The Circuits Are Split on Whether the
Government May Curtail Its Search for
an Absent Witness Because It Has the
Witness’s Prior Deposition Testimony.
The Eleventh Circuit’s decision deepens a sharp, 84 split on whether the Confrontation Clause permits
the government to curtail its search for a witness
because it has that witness’s prior deposition testimony. Five Circuits and three state high courts hold
that such conduct is categorically unreasonable;
three Circuits—including the Eleventh—now hold
that it is permissible.
1. The First, Third, Sixth, Tenth, and D.C. Circuits,
as well as the high courts of Hawaii, Arizona, and
the District of Columbia, have all held that the
Confrontation Clause requires the government to
make the same efforts to find an absent witness as it
would have made if it lacked the witness’s prior
deposition testimony. The D.C. Circuit first held in
United States v. Lynch, 499 F.2d 1011 (D.C. Cir.
1974), and reiterated as recently as this August, that
“[w]hen the government seeks to rely on prior rec-
14
orded statements of a witness on the ground that the
witness is unavailable, it bears the burden of establishing that its unsuccessful efforts to procure the
witness’s appearance at trial were ‘as vigorous as
that which the government would undertake to
[secure] a critical witness if it has no [prior] testimony to rely upon in the event of ‘unavailability.’ ”
United States v. Burden, --- F.3d ---, 2019 WL
3917651, at *7 (D.C. Cir. Aug. 20, 2019) (quoting
Lynch, 499 F.2d at 1023). In United States v. Mann,
590 F.2d 361 (1st Cir. 1978), the First Circuit likewise held that the government fails to make a “good
faith effort” to locate an absent witness if it “d[oes]
not make as vigorous an attempt to secure the presence of the witness as it would have made if it did
not have the prior recorded testimony.” Id. at 367;
see, e.g., United States v. French, No. 1:12-cr-00160JAW, 2014 WL 34802, at *11 (D. Me. Jan. 6, 2014).
The Third, Tenth, and Sixth Circuits agree with
this view. In Cook, the Tenth Circuit held that “a
good measure of reasonableness is to require the
State to make the same sort of effort to locate and
secure the witness for trial that it would have made
if it did not have the prior testimony available.” 323
F.3d at 836 (citing Mann and Lynch). In McCandless
v. Vaughn, 172 F.3d 255 (3d Cir. 1999), the Third
Circuit found the government’s search inadequate
because the court had “the firm conviction that the
prosecution’s efforts to assure [the witness’s] presence would have been far less casual * * * [i]f the
prosecution had not had [the witness’s] preliminary
hearing testimony.” Id. at 269 (citing Mann and
Lynch). Along much the same lines, in Brumley v.
Wingard, 269 F.3d 629 (6th Cir. 2001), the Sixth
Circuit held that “the knowing preparation of a
15
videotaped deposition as a substitute for the trial
testimony of a constitutionally available witness is
inconsistent with the values of the Confrontation
Clause, despite reduced concerns with reliability.”
Id. at 642 (emphases in original).
The high courts of Hawaii, Arizona, and the District of Columbia have all adopted the same rule. In
State v. Lee, 925 P.2d 1091 (Haw. 1996), the Hawaii
Supreme Court “expressly adopt[ed] the Lynch
standard.” Id. at 1102. In State v. Edwards, 665
P.2d 59 (Ariz. 1983), the Arizona Supreme Court
likewise found that Lynch and Mann set forth “[a]n
appropriate standard to apply” in determining the
adequacy of the government’s search. Id. at 64.
Likewise, in Brooks v. United States, 39 A.3d 873
(D.C. 2012), the D.C. Court of Appeals adopted the
Lynch standard word-for-word, id. at 883, and found
the government’s search inadequate because its
“lackadaisical approach was [not] ‘equally as vigorous as that which the government would [have]
undertake[n]’ to prevent [the witness] from disappearing had it not had her prior testimony.” Id. at
888 (quoting Lynch, 499 F.2d at 1023).
2. In contrast, four courts—the Eighth, Ninth,
Fourth, and Eleventh Circuits—have held that the
government and the courts may take into account
the existence and quality of a witness’s prior deposition testimony in determining the lengths to which
the government must go to procure the witness’s
attendance at trial.
In United States v. Johnson, 108 F.3d 919 (8th Cir.
1997), the Eighth Circuit held that “[t]he question of
reasonable means [to procure a witness] cannot be
divorced from * * * the reliability of the former testi-
16
mony[ ] and whether there is reason to believe that
the opposing party’s prior cross exam was inadequate.” Id. at 922. Thus, the Eighth Circuit held
that the prosecution employed “ ‘reasonable means’
to procure” a witness, despite “fail[ing] to subpoena”
that witness while “he was on vacation in Florida,”
because the officer’s former testimony was highly
“reliable” and the defendant “failed to note any
specific need for additional cross examination.” Id.
The Ninth Circuit has taken a similar approach. In
United States v. Yida, 498 F.3d 945 (9th Cir. 2007),
the court held that the government failed to make
reasonable efforts to procure a witness’s attendance
at trial where it released him from its custody “without having any means of compelling his return.” Id.
at 957-960; see infra pp. 22-23. But the Ninth Circuit emphasized that “our assessment of the reasonableness of the government’s actions would be altered if its efforts included the taking of a witness’s
video-recorded deposition before allowing deportation
to occur.” 498 F.3d at 959. Playing that videotaped
deposition, the court reasoned, would have been
“almost as good as if [the witness] had testified live,”
and thus would have relieved the government of the
obligation to take “alternative[ ]” measures otherwise
required to secure the witness’s attendance at trial.
Id. at 959-960.
The Fourth Circuit’s decision in United States v.
Rivera, 859 F.2d 1204 (4th Cir. 1988), is to similar
effect. The government there released several alien
witnesses from its custody and allowed them to leave
the country after taking their depositions. Id. at
1207. But the court found the government’s actions
reasonable because the defendants “were present at
17
the taking of the depositions” and had an opportunity to “cross-examine[ ] the witnesses.” Id. at 1207,
1208-09. The witness’s “testimony could be and was
adequately secured by deposition,” the court concluded, and so “the actions of the United States attorney
in this case were reasonable.” Id. at 1208-09.
In the decision below, the Eleventh Circuit unequivocally adopted the same view. The case agent
responsible for finding Vixama “candidly admitted,”
over and over again, that he curtailed his search
because “Vixama’s videotaped deposition was already
taken.” Pet. App. 50a-51a; see id. at 150a, 152a153a, 158a, 161a. Yet the Eleventh Circuit “reject[ed] the * * * position” that this conduct rendered
the government’s efforts unreasonable. Id. at 51a52a. On the contrary, the panel stated, the government and the court need not “pretend Vixama was
never deposed,” id. at 52a, and indeed the existence
of Vixama’s videotaped deposition was a “relevant
and important” consideration in determining what
efforts were adequate to locate Vixama, id. at 53a.
B. The Circuits Are Split on Whether the
Government May Forgo an Easy Investigative Step That It Has Reason to Believe Would Procure an Absent Witness.
The Eleventh Circuit’s decision also deepens a 3-5
split as to whether the government may forgo a lowcost investigative step that it has reason to believe
would procure a witness’s appearance at trial. Three
Circuits hold that failing to take such a minimal step
necessarily renders a search unreasonable; two
Circuits and three state high courts have rejected
that proposition.
18
1. The Fifth, Third, and Sixth Circuits all hold that
the government’s decision to forgo a minimal investigative step that has a reasonable prospect of procuring a witness is per se unreasonable. In the Fifth
Circuit, “deposition testimony is admissible only if
the government has exhausted reasonable efforts to
assure that the witness will attend trial.” AguilarAyala v. Ruiz, 973 F.2d 411, 418 (5th Cir. 1992)
(emphasis added). Thus, in United States v. TiradoTirado, 563 F.3d 117 (5th Cir. 2009), it found the
government’s search unreasonable because, despite
“conduct[ing] a fairly exhaustive investigation of [a
witness’s] whereabouts,” the government “fail[ed] to
make [certain] minimal efforts”—such as remaining
in contact with the witness after his release from
custody—that could have procured the witness’s
appearance without “requir[ing] significant government resources.” Id. at 124-125 (5th Cir. 2009).
The Third Circuit likewise holds that a search is
unreasonable if the government does not make the
“minimal effort necessary to follow up” on a promising lead as to the witness’s whereabouts.
McCandless, 172 F.3d at 268. In McCandless, prosecutors took several steps to locate a witness named
John Barth over a two-month period, including
visiting and calling his home, checking police records, and speaking to his neighbors and family. Id.
at 267-269. Yet prosecutors “fail[ed] to adequately
investigate [a] fresh lead” as to Barth’s location: a
statement by his wife that “she had met Barth in
Dover, Delaware just two weeks earlier.” Id. at 268,
270. Instead of taking the routine and low-cost steps
of checking “phone records” or “further press[ing]
Mrs. Barth regarding her husband’s location,” prosecutors “simply accepted the quick assurance of the
19
Dover police that they had no record of Barth.” Id. at
268. The Third Circuit concluded that that omission
rendered the search unreasonable. Id. at 270.
The Sixth Circuit, too, has repeatedly held that a
search is unreasonable if there is “strong evidence
that other avenues of inquiry” that the government
forwent “might not have been futile.” Tate v. Flenoy,
47 F.3d 1170, at *9 (6th Cir. 1995) (Table) (per
curiam). In United States v. Quinn, 901 F.2d 522
(6th Cir. 1990), the court rejected a search as inadequate because, despite making various efforts to
locate a witness, the government did not examine
“county or city records,” obtain the witness’s “forwarding address,” or “check with relatives prior to
trial.” Id. at 528. Likewise, in Brumley, the court
rejected reliance on a witness’s out-of-court testimony because “a means existed for obtaining [the
witness’s] presence” that the government did not
pursue: invoking the Uniform Act to Secure the
Attendance of Witnesses from Without a State in
Criminal Proceedings. 269 F.3d at 641. Conversely,
in Crown v. Caruso, 108 F.3d 1376 (6th Cir. 1997)
(Table), the Sixth Circuit found that the government
“satisfied its burden of making a reasonable, goodfaith attempt to locate” a witness because it “followed
several leads into a number of states, all of which
resulted in dead ends.” Id. at *2.
2. In contrast, the Tenth Circuit, several state high
courts, and now the Eleventh Circuit all hold that
courts may not fault the government for failing to
take additional investigative steps, no matter how
low-cost or promising they may be, if those steps that
the government did take were, in the court’s judgment, reasonably extensive.
20
The Tenth Circuit, for example, has held that “the
Sixth Amendment does not require the prosecution
to exhaust every possible means of producing a
witness at trial.” Acosta v. Raemisch, 877 F.3d 918,
930 (10th Cir. 2017). In Acosta, the government
checked the witness’s “last known address,” “spoke
twice a week with [her] grandfather,” and “enlisted
the aid” of a crime unit to search “areas she was
known to frequent.” Id. at 929. The court acknowledged that prosecutors “failed to undertake several
other steps it could have taken to find her,” including
checking her arrest records and visiting her relatives’ homes. Id. at 930. But, in the Tenth Circuit’s
view, the prosecution may “engage[ ] in good-faith
efforts to produce [a] witness, even though the prosecution had a lead it did not pursue.” Id. It was
enough, the court reasoned, that “the prosecution did
far more than make ‘absolutely no effort’ to obtain
[the witness’s] presence at trial.” Id. at 929.
The high courts of Rhode Island, California, and
Nebraska have all taken a similar approach. In
State v. Sosa, 839 A.2d 519 (R.I. 2003), the Rhode
Island Supreme Court held that “the touchstone of
our unavailability analysis is reasonableness, not
exhaustion,” and that it was immaterial whether
“additional steps could have been taken” to locate an
absent witness where the investigator “pursued the
same avenues of inquiry that led him to locate” the
witness in the past. Id. at 525. In People v. Fuiava,
269 P.3d 568 (Cal. 2012), the California Supreme
Court held that its finding of unavailability was “not
affect[ed]” by the fact “that additional efforts might
have been made or other lines of inquiry pursued” to
find the witness. Id. at 614. So too in State v. Trice,
874 N.W.2d 286 (Neb. 2016), the Nebraska Supreme
21
Court stated, in applying its state-law equivalent of
the federal unavailability rule, that “[w]hen considering whether a good faith effort to procure a witness
has been made * * * , the proper inquiry is whether
the means utilized by the proponent prior to trial
were reasonable, not whether other means remain
available at the time of trial or whether additional
steps might have been undertaken.” Id. at 295-296.
The Eleventh Circuit firmly joined this latter camp
in the decision below. The panel deemed the government’s search for Vixama reasonable based on an
analysis of those actions the government did take,
without taking into account whether the government
failed to pursue other, reasonable means for finding
Vixama. See Pet. App. 26a-30a. It then expressly
rejected the dissent’s “proposed * * * rule” “that the
government does not make a good-faith, reasonable
effort as a matter of law” if it fails to take an “easy”
step that it has “reason to believe” would lead to a
witness—in this case, running a “database search”
for Vixama’s boyfriend’s address in Delaware. Id. at
42a. The majority did not dispute that this step was
“easy,” nor that it “stood a decent chance of leading
the prosecution * * * to Vixama.” Id. Rather, it
dismissed the entire inquiry proposed by the dissent
as “Monday-morning quarterbacking.” Id. at 43a,
50a. It was enough, in the majority’s view, that “this
is not a case where the government took no action
when presented with a new lead.” Id. at 43a-44a
(emphasis added).
22
C. The Circuits are Split on Whether the
Government Must Take Steps to Secure
a Witness’s Attendance at Trial Before
Releasing the Witness from Its Custody.
Last, the Eleventh Circuit’s decision widens a 7-2
split as to whether the government’s actions are
unreasonable if the government fails to make any
efforts to secure a witness’s attendance at trial before
releasing that witness from its custody.
At least five Circuits and two state high courts hold
that the government’s failure to take such actions
renders its search unreasonable. In Burden—a
decision released just weeks after the Eleventh
Circuit’s decision here—the D.C. Circuit held that
“the duty to use reasonable means to procure a
witness’s presence at trial includes the duty to use
reasonable efforts to prevent a witness from becoming absent in the first place.” 2019 WL 3917651, at
*9. Accordingly, it held, where “[t]he government
does not dispute that it made no efforts before deporting [a witness] to secure his presence at trial[,]
[t]he witness * * * was not ‘unavailable’ such that
prior testimony could be admitted consistent with
the Confrontation Clause.” Id.
“Other courts * * * agree.” Id. at *7. The First
Circuit held in Mann that “[i]mplicit * * * in the duty
to use reasonable means to procure the presence of
an absent witness is the duty to use reasonable
means to prevent a present witness from becoming
absent.” 590 F.2d at 368. The Fifth Circuit held in
Tirado-Tirado that a search was unreasonable where
“[t]he government failed to make any concrete arrangements with [a witness] prior to his deportation”
(and then later “fail[ed] to make * * * minimal ef-
23
forts” to get him back). 563 F.3d at 123-125. Even
the Ninth Circuit in Yida explained that a witness is
not unavailable “when the government itself shares
some of the responsibility for its inability to produce
the witness at trial.” 498 F.3d at 956. It thus
“adopt[ed] the First Circuit’s approach * * * [of]
assessing the reasonableness of the government’s
actions both before and after [the witness’s] material
witness warrant was released and he was deported.”
Id. at 956-957 (emphasis in original) (citing Mann).
The Tenth Circuit and the high courts of the District
of Columbia and Rhode Island have all issued similar
rulings.2
The Fourth Circuit disagrees. In Rivera, it found
two witnesses “unavailable” even though “the United
States by its own efforts made them unavailable,” by
allowing them to “le[ave] this country voluntarily
after they were deposed and released from custody.”
859 F.2d at 1207. In the Fourth Circuit’s view, the
government “had a dual responsibility” to “consider
the rights of the witnesses, as well as the rights of
the [defendant],” and so could not be faulted for
“releas[ing] [them] from custody” and failing “to
2
See Sosa, 839 A.2d at 526 (“the duty to undertake reasonable
efforts to procure a witness’s attendance at trial includes the
concomitant duty to make reasonable efforts to prevent that
unavailability in the first place”); Brooks, 39 A.3d at 883 (the
reasonableness inquiry “may take into account the government’s efforts prior to the witness going missing”); United
States v. Rothbart, 653 F.2d 462, 466 (10th Cir. 1981) (faulting
the government for “clear[ing] existing obstacles to [the witness’s] journey outside the jurisdiction of the court by taking his
deposition and releasing him from subpoena”).
24
ensure that they would be present at trial two
months later.” Id.
The Eleventh Circuit joined the Fourth in the decision below. The panel “start[ed]” its analysis by
evaluating the steps that Agent Nowicki took to find
Vixama “after learning of Vixama’s release” from the
custody of the U.S. Marshals. Pet. App. 26a (emphases added). The panel did not scrutinize how the
government “mistakenly released” Vixama from its
custody in the first place. Id. at 28a. Nor did it fault
the government for failing to obtain Vixama’s address or contact information, to require Vixama to
remain in contact with the government, or otherwise
to take steps to keep track of Vixama before releasing her. And the court overlooked these omissions
notwithstanding that the government had been
holding Vixama on a material witness warrant, and
so knew full well that she would be a key witness at
petitioners’ trial. See id. at 8a-10a.
*
*
*
In short, the decision below represents a dramatic
deepening of division among the lower courts on
three vitally important questions of Sixth Amendment law. The Eleventh Circuit joined three already-deep splits: In direct contradiction of the rules
that prevail in five Circuits and three States (and in
agreement with two Circuits), it permitted the
government to make a less “vigorous * * * attempt to
secure the presence of the witness [than] it would
have made if it did not have the prior recorded
testimony.” Mann, 590 F.2d at 367; see Pet. App.
51a-53a. In disagreement with the rules that govern
in three Circuits (but in agreement with the Tenth
Circuit and three States), it allowed the government
25
to forgo “minimal effort[s] necessary to follow up” on
a “fresh lead” as to a witness’s whereabouts.
McCandless, 172 F.3d at 268-270; see Pet. App. 42a44a, 50a. And, contrary to a nearly simultaneous
decision by the D.C. Circuit and the decisions of at
least four other Circuits and two States (but in
alliance with the Fourth Circuit), the panel found a
witness unavailable despite the fact that the government “made no efforts” to “prevent [the] witness
from becoming absent in the first place.” Burden,
2019 WL 3917651, at *9; see Pet. App. 8a-10a, 26a.
This deep, pervasive, and growing division on one
of the Constitution’s core protections is intolerable.
A defendant’s “right * * * to be confronted with the
witnesses against him” should not wax and wane
depending on the jurisdiction in which he is arrested
or the courthouse in which he is prosecuted. U.S.
Const. amend. VI. Certiorari should be granted and
the lower courts’ division on the scope and meaning
of the confrontation right should be resolved.
II. THE ELEVENTH CIRCUIT ERRED ON
EACH QUESTION PRESENTED.
Certiorari should also be granted because, on each
of the three questions at issue, the Eleventh Circuit
erred. A straightforward reading of this Court’s
precedents, as well as the basic purposes and original meaning of the Confrontation Clause, support
the other side of each split, and make clear that the
circumscribed, incomplete, and belated efforts the
government made to locate Vixama did not establish
that she was “unavailable” to testify at petitioner’s
trial.
1. First, this Court has made clear that the government’s possession of a witness’s deposition testi-
26
mony does not permit the government to make a less
vigorous effort to locate that witness. On the contrary, it has long held that “[t]he Confrontation Clause
operates in two separate ways to restrict the range of
admissible hearsay.” Roberts, 448 U.S. at 65 (emphasis added). First, the Clause “establishes a rule
of necessity”: “[T]he prosecution must either produce,
or demonstrate the unavailability of, the declarant
whose statement it wishes to use against the defendant.” Id. Second, “once a witness is shown to be
unavailable,” the Clause “ensur[es] the defendant an
effective means to test adverse evidence,” id. (emphasis added), by permitting the admission of testimony of “witnesses absent from trial” only if “the
defendant has had a prior opportunity to crossexamine,” Crawford, 541 U.S. at 59.
As Justice Scalia explained in Crawford, this twopart test is firmly rooted in the Framers’ understanding of the confrontation right. Id. at 53-56. “[T]he
Framers would not have allowed admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for crossexamination.” Id. at 53-54. By enshrining that
protection in the Confrontation Clause, the Framers
vindicated their “preference” for “face-to-face confrontation at trial,” where the witness’s “discrediting
demeanor [can] be viewed by the factfinder” and the
trial context and human nature “make[ ] it more
difficult to lie against someone.” Roberts, 448 U.S. at
63-65 & n.6 (internal quotation marks omitted).
Allowing the government to curtail its search for a
witness simply because it has that witness’s out-ofcourt testimony collapses the two discrete protections
27
the Confrontation Clause embodies.
Under the
Eleventh Circuit’s approach, the government may
render a witness “unavailable” in part because the
defendant had an opportunity to cross-examine the
witness. Pet. App. 50a-53a. But the Court has made
clear that the Confrontation Clause embodies “two
separate” protections. Roberts, 448 U.S. at 65 (emphasis added). And it has held—in accord with the
Framers’ own understanding—that courts may take
into account that the defendant had a prior opportunity for cross-examination only “once a witness is
shown to be unavailable.” Id.
Furthermore, the Eleventh Circuit’s approach is
irreconcilable with the principle that “the Sixth
Amendment establishes a rule of necessity.” Id. At
least until now, that rule has meant that the government must secure the attendance of a witness in
court unless “no possibility of procuring the witness
exists,” despite the government’s “ ‘good-faith effort
to obtain his presence at trial.’ ” Id. at 74 (quoting
Barber, 390 U.S. at 724-725). The Eleventh Circuit’s
approach establishes what is more fairly called a rule
of convenience; a witness who could be obtained
through otherwise-reasonable effort need not be
produced if the government has what it judges to be
a good enough substitute for in-court testimony.
Such an intentionally curtailed search can hardly be
considered a “good-faith effort.” Id.
The Eleventh Circuit and some lower courts have
suggested that because a video deposition is “almost
as good” as live testimony, courts have less reason to
be concerned about a witness’s unavailability where
such a deposition exists. Yida, 498 F.3d at 959; see
Pet. App. 52a-53a. But a fundamental premise of the
28
Confrontation Clause is that the right to “face-to-face
confrontation at trial” is an incomparable mechanism
for ascertaining truth. Roberts, 448 U.S. at 63
(emphasis added); see Crawford, 541 U.S. at 61-62.
The Court has previously rejected efforts to qualify
that right based on a malleable interest-balancing
test or “amorphous notions of ‘reliability.’ ” Crawford, 541 U.S. at 61-62. The Court should not allow
lower courts to replicate that error in their interpretation of the Confrontation Clause’s “unavailability”
prong. See, e.g., Johnson, 108 F.3d at 922 (stating
that “[t]he question of reasonable means cannot be
divorced from * * * the reliability of the former testimony”).
2. The Eleventh Circuit was also incorrect to hold
that a witness is unavailable despite the government’s failure to take an “easy” investigative step
that it had “reason to believe” would lead to that
witness. Pet. App. 42a.
This Court has explained that “[t]he lengths to
which the prosecution must go to produce a witness
* * * is a question of reasonableness.” Roberts, 448
U.S. at 74 (citation omitted). “The law does not
require the doing of a futile act. Thus, if no possibility of procuring the witness exists * * * ‘good faith’
demands nothing of the prosecution.” Id. “But if
there is a possibility, albeit remote, that affirmative
measures might produce the declarant, the obligation of good faith may demand their effectuation.”
Id. Put differently: The government must take
“affirmative measures” that have even a “remote”
prospect of locating a witness if those efforts are
“reasonable[ ]” in scope. Id.
29
Every one of the Court’s unavailability precedents
is consistent with that straightforward principle. In
Barber, the Court deemed the state’s efforts unreasonable because it “made no effort to avail [itself] of
* * * alternative means of seeking to secure [the
witness’s] presence at * * * trial,” even though those
methods were readily available. 390 U.S. at 724. In
Roberts, the Court held that the government was not
required to take “other steps” to locate a witness
because “the great improbability that such efforts
would have resulted in locating the witness * * *
neutralizes any intimation that a concept of reasonableness required their execution.” 448 U.S. at 75-76.
And in Hardy v. Cross, 565 U.S. 65 (2011) (per
curiam), the Court held that the state was not required to take “additional steps” to find a witness
where there was “no reason to believe” additional
steps would have led to the witness. Id. at 71.
The Eleventh Circuit’s decision cannot be squared
with these precedents. It would permit the government to decline to take low-cost, routine measures
that have a good chance of procuring a witness
simply because the government has taken a substantial number of other measures that have failed. See
supra p. 21. But the failure of some measures in no
way establishes the “futil[ity]” of additional efforts.
Roberts, 448 U.S. at 74. And where those additional
efforts are routine and require little effort, it is
difficult to comprehend how it would be unreasonable to “demand their effectuation.” Id.
The Eleventh Circuit sought support for its rule in
this Court’s statement that, “when a witness disappears before trial, it is always possible to think of
additional steps that the prosecution might have
30
taken to secure the witness’s presence.” Hardy, 565
U.S. at 71 (citing Roberts, 448 U.S. at 75); see Pet.
App. 50a. But the Court immediately followed that
observation by stating that the prosecution need not
“exhaust every avenue of inquiry, no matter how
unpromising.” Hardy, 565 U.S. at 71-72 (emphasis
added). The Court has never exempted the government from its obligation to undertake affirmative
measures that are promising and that would require
minimal expenditure of resources.
3. Finally, the Eleventh Circuit erred in holding
that the government’s efforts were reasonable despite the fact that the government “mistakenly”
released Vixama from its custody without undertaking any measures to secure Vixama’s presence at
trial. Pet. App. 28a-29a.
This Court confronted a closely analogous circumstance in one of its foundational Confrontation
Clause cases, Motes v. United States. There, the
government took a witness “into [its] custody,” but
allowed him to “stay at the hotel at night with his
family”; then, on the eve of trial, the witness “absconded.” 178 U.S. at 468. The government “made
diligent search” for the witness and put out a reward
for his arrest, but those efforts proved unsuccessful.
Id. at 469. The trial court deemed the witness unavailable and permitted his prior cross-examined
testimony to be read to the jury. Id. at 470-471. But
this Court reversed. The witness’s “absence was
manifestly due to the negligence of the officers of the
government,” the Court explained. Id. at 471. And
the Court was “unwilling to hold it to be consistent
with” the Confrontation Clause “to permit the deposition or statement of an absent witness * * * to be
31
read at the final trial, when * * * his absence was due
to the negligence of the prosecution.” Id. at 474.
This Court has consistently adhered to the principles announced in Motes in the century since. In
California v. Green, 399 U.S. 149 (1970), for instance, the Court held that the Confrontation Clause
permits “admitting [a witness’s] testimony given at
[a] preliminary hearing * * * as long as the declarant’s inability to give live testimony is in no way the
fault of the State.” Id. at 166 (citing Motes); see also
id. at 167 n.16 (the “necessity” that supports the
unavailability doctrine is “the State’s ‘need’ to introduce relevant evidence that through no fault of its
own cannot be introduced in any other way”). And it
is not hard to see why. Among other reasons,
“[f]ailing to factor the government’s own contribution
to the witness’s absence into the Confrontation
Clause analysis would warp the government’s incentives,” Burden, 2019 WL 3917651, at *7, and “sanction the government’s procuring depositions of witnesses, especially shaky witnesses, but then discourage attempts to bring the witness to trial so long as
the government is satisfied with what is in the
transcript,” Mann, 590 F.2d at 367 (footnote omitted).
This case is on all fours with Motes. The government’s release of Vixama without making any arrangements necessary to secure her testimony was
plainly the result of “negligence”—on the part of ICE,
which failed to enforce its immigration detainer, and
on the part of the prosecution, which knew that
Vixama was a material witness and would need to be
located soon thereafter. See Pet. App. 10a n.2, 28a,
45a (acknowledging that Vixama “was mistakenly
32
released”). As Motes makes clear, even a “diligent
search” cannot compensate for this clear breach of
the government’s obligations. Motes, 178 U.S. at
469. Yet the Eleventh Circuit not only permitted the
admission of Vixama’s testimony, but exempted the
government from any scrutiny for its failure to retain
custody of Vixama or release her on terms that
would ensure her presence at trial. If the facts of
Motes occurred today in the Eleventh Circuit, it is
difficult to see how a court could come out the same
way as this Court following the decision below.
III. THIS CASE IS
IMPORTANCE.
OF
CONSIDERABLE
This case is profoundly important. Every day, in
every jurisdiction in this country, criminal defendants are placed in jeopardy of life and limb based on
the testimony of witnesses for the prosecution.
Ensuring that prosecution witnesses testify in court,
subject to live cross-examination before a jury, is one
of the most basic protections our criminal justice
system affords the accused, and provides a vital
check against wrongful convictions. See Crawford,
541 U.S. at 61-62; Roberts, 448 U.S. at 63; Green, 399
U.S. at 158. The “genius of [this] 18th-century
device” has not diminished “as applied to 21stcentury evidence.” Williams v. Illinois, 567 U.S. 50,
119 (2012) (Kagan, J., dissenting). The examples are
too numerous to count in which witnesses who
appeared reliable in pretrial examinations faltered
when placed on the stand, face-to-face with the
person accused and the finder of fact ultimately
responsible for determining their truthfulness.
To work properly, however, the Confrontation
Clause requires the government to make “a good-
33
faith effort” to find the witnesses whom it wishes to
employ against the defendant. Barber, 390 U.S. at
724-725. The government has incomparable resources to locate witnesses that criminal defendants
lack—particularly vulnerable and poorly-resourced
defendants such as the aliens in this case. And only
the government has the power to hold witnesses in
custody or use the tools of state power to find them.
If the government’s obligation of good faith is slackened, then more defendants will be tried and convicted on the basis of out-of-court statements, without the protections afforded by live crossexamination before the jury.
The Eleventh Circuit’s decision represents the culmination of an alarming series of precedents in
which lower courts have gradually chipped away at
the government’s burdens under the Sixth Amendment. In a single sweeping decision, the Eleventh
Circuit joined multiple other Circuits and state
courts in sanctioning not one but three far-reaching
limitations on the confrontation right: prosecutors in
the Eleventh Circuit may now (1) curtail their efforts
to find a witness whom they have already deposed;
(2) forgo minimally costly measures that the government has reason to believe would find a witness;
and (3) release witnesses from their custody without
making any attempt to secure their attendance at
trial. Any one of these limits would represent a
dangerous erosion of the Confrontation Clause’s
protection that would merit this Court’s review.
Together they represent a wholesale retreat from the
protections the Confrontation Clause affords.
If left undisturbed, this decision will inevitably
cause more witnesses to be deemed “unavailable,”
34
and so enable more defendants to be tried without an
opportunity to confront the witnesses against them
at trial. And it will open the door to predictable
abuses by federal, state, and local prosecutors
throughout the Eleventh Circuit, who now have a
strong incentive (and a potent justification) to do less
in locating witnesses whom they do not wish to
subject to the “crucible” of in-court crossexamination. Crawford, 541 U.S. at 61.
This case is a compelling vehicle to bring the Eleventh Circuit and other courts in line with this
Court’s precedents. Each of the issues is starkly
presented: Agent Nowicki repeatedly stated that he
curtailed his efforts because he had Vixama’s deposition testimony; conducting a database search for the
boyfriend’s address was unquestionably “easy” and
something the government had “reason to believe”
might locate Vixama; and the government indisputably did nothing to secure Vixama’s attendance at
trial before releasing her. There is accordingly no
factual dispute. The only question is whether this
conduct rendered the government’s efforts unreasonable. And the Court has the benefit of two exhaustively detailed opinions airing competing views on
that question. See Pet. App. 1a-105a.
Furthermore, there is no procedural impediment
that would hamper the Court’s review. The case is
on direct review. Petitioners vigorously objected to
the admission of Vixama’s deposition at trial and on
appeal. Id. at 5a-6a, 112a-114a. And the majority
conspicuously did “not argue” that “the admission of
the deposition testimony was * * * harmless,” as it
plainly was not. Id. at 103a-104a (Rosenbaum, J.,
dissenting); see Pet. App. 152a-153a (government’s
35
acknowledgment that Vixama was “an essential
witness to this case”). Resolution of the merits of the
Confrontation Clause issues would therefore be
dispositive as to whether petitioners’ convictions
must be vacated.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MICHAEL CARUSO
Federal Public Defender
BRENDA G. BRYN
ANSHU BUDHRANI
Assistant Federal
Public Defenders
1 E. Broward Blvd.
Suite 1100
Ft. Lauderdale, FL 33301
Counsel for Richard Delancy
ALBERT Z. LEVIN
ALBERT Z. LEVIN, P.A.
Courthouse Center
40 N.W. 3d St., Ste. 200
Miami, FL 33128
Counsel for Renado Smith
SEPTEMBER 2019
NEAL KUMAR KATYAL
Counsel of Record
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioners
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