Amicus Curiae Brief — Renado Smith and Richard Delancy, Petitioners v. United States

Supreme Court briefOct 18, 2019

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No. 19-361

IN THE

RENADO SMITH AND RICHARD DELANCY,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF CRIMINAL DEFENSE

ORGANIZATIONS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

Thomas C. Goldstein

Counsel of Record

Daniel Woofter

Charles H. Davis

Erica Oleszczuk Evans

GOLDSTEIN &

RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

tg@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 6

The Government Failed To Show That Its

Witness Was “Unavailable” To Testify At

Trial, So Admitting Her Prior Testimony

Into Evidence Violated Petitioners’

Confrontation Rights............................................. 6

A. The Government Cannot Establish That

Its Witness Is “Unavailable” When It

Negligently Allowed Her To Abscond ............ 6

B. The Government Failed To Show That It

Made Good Faith Efforts To Locate Its

Witness ......................................................... 10

II. The Decision Below Unfairly Prejudices

Defendants........................................................... 18

A. The Panel Majority Impermissibly

Shifts The Government’s Evidentiary

Burden To Criminal Defendants ................. 18

B. The Panel Majority Creates Perverse

Incentives For The Government .................. 21

CONCLUSION .......................................................... 24

TABLE OF AUTHORITIES

Cases

Barber v. Page,

390 U.S. 719 (1968) .............................. 11, 12, 17, 18

California v. Green,

399 U.S. 149 (1970) ................................................ 11

Crawford v. Washington,

541 U.S. 36 (2004) .......................................... passim

Hardy v. Cross,

565 U.S. 65 (2011) ........................................ 4, 15, 19

Mancusi v. Stubbs,

408 U.S. 204 (1972) ................................................ 13

Mattox v. United States,

156 U.S. 237 (1895) .......................................... 17, 22

Motes v. United States,

178 U.S. 458 (1900) ...................................... 3, 7, 8, 9

Ohio v. Roberts,

448 U.S. 56 (1980) .......................................... passim

United States v. Burden,

934 F.3d 675 (D.C. Cir. 2019) .................. 6, 9, 11, 21

United States v. Mann,

590 F.2d 361 (1st Cir. 1978) ............................ 10, 22

United States v. Tirado-Tirado,

563 F.3d 117 (5th Cir. 2009) .............................. 6, 22

United States v. Yida,

498 F.3d 945 (9th Cir. 2007) .................................... 9

Constitutional Provisions

U.S. Const. amend. IV ............................................... 21

U.S. Const. amend. VI ................................. 4, 7, 17, 21

iii

Rules

Fed. R. Evid. 804(a)(5) ............................................... 10

Sup. Ct. R. 37 ............................................................... 1

Other Authorities

Roy L. Austin, Jr. et al., Prosecution and Public

Defense: The Prosecutor’s Role in Securing a

Meaningful Right to an Attorney (Mar. 2019),

http://bit.ly/2B37gnz .............................................. 20

INTEREST OF AMICI CURIAE1

Amici are organizations whose members represent a broad cross-section of the criminal defense bar.

All have a strong interest in this case because the opinion below unfairly disadvantages amici’s clients in defending their cases against the Government, and incentivizes federal and state prosecutors to declare as

“unavailable” the witnesses whom defendants most

need to cross-examine live in front of a jury. Amici are:

National Association for Public Defense

Alabama Criminal Defense Lawyers Association

Arizona Attorneys for Criminal Justice

Association of Criminal Defense Lawyers of New

Jersey

California Attorneys for Criminal Justice

District of Columbia Association of Criminal

Defense Lawyers

Georgia Association of Criminal Defense Lawyers

Human Rights Defense Center

The Innocence Project

National Legal Aid & Defender Association

Neighborhood Defender Service of Harlem

Office of the Defender General in Vermont

Pursuant to Supreme Court Rule 37, counsel for amici represent that they authored this brief in its entirety and that none

of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties have consented to the filing of this brief, and counsel for

all parties received timely notice of amici’s intent to file.

SUMMARY OF ARGUMENT

The Government was allowed to play a prerecorded deposition of its primary, crucial witness to

the jury, even though it had negligently allowed her to

abscond before trial and then failed to pursue a fresh

lead that she was living with her boyfriend in Delaware. The Government said that one reason it did not

try to find the boyfriend’s address using a routine database search (at essentially no cost) was because the

Government already had its witness’s testimony in

hand. A split panel of the Court of Appeals for the

Eleventh Circuit affirmed the admission of the evidence, finding that the witness was unavailable. As

thoroughly set forth in the petition, the opinion deepens several well-developed splits worthy of this Court’s

attention. See Pet. 13-25. This brief focuses on the

panel majority’s legal errors, which greatly disadvantage amici—who represent a broad cross-section of

the criminal defense bar—and, more importantly,

their clients. The Court should grant the petition and

reverse.

I. Under this Court’s precedents, testimonial

statements of absent witnesses may be admitted at

trial only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

Crawford v. Washington, 541 U.S. 36, 59 (2004). The

panel majority erred in holding that the Government

met its burden to prove that its witness was unavailable to testify at trial.

A. For a witness to be considered “unavailable”

because the witness cannot be found, the proponent of

the witness’s testimony must show that it could not

produce the witness despite good faith, i.e., reasonable

efforts to secure its witness’s attendance at trial. But

here, the panel majority excused the Government’s error in “mistakenly” releasing its witness from custody

after obtaining her deposition testimony, even though

it had not taken any steps to ensure her attendance at

trial. This Court has long held that a Government witness’s unavailability cannot be caused by its own misconduct, any more than a defendant may admit the

out-of-court testimony of a defense witness who is unavailable due to the actions of the defendant. Motes v.

United States, 178 U.S. 458, 471 (1900). When the

Government is the reason its own witness cannot be

found, it must procure the witness for trial or it cannot

present that witness’s testimony. In conflict with

Motes, which is squarely on point, the panel majority

improperly holds the Government to a different evidentiary burden than defendants by excusing the Government’s negligence in allowing its witness to abscond.

B. Even had the Government not negligently

caused its witness to become unavailable, the panel

majority erred in finding that the Government made

reasonable efforts to re-secure its witness when it

failed to pursue a fresh lead that had a reasonable

chance of leading to her, even though doing so would

involve little time or money. The witness’s former lawyer told the Government that its witness was with her

boyfriend in Delaware. And the lawyer gave the Government the boyfriend’s name and cellphone number.

Yet the Government did not even attempt to run a routine law-enforcement database search to see whether

it could obtain the boyfriend’s address. Contrary to the

opinion below, this Court’s precedents require, at minimum, the Government to pursue a hot lead by taking

minimally costly “affirmative measures” that have a

reasonable chance of success. See Hardy v. Cross, 565

U.S. 65, 71 (2011) (per curiam); Ohio v. Roberts, 448

U.S. 56, 74 (1980), abrogated on other grounds by

Crawford, 541 U.S. at 61-62.

The Government compounded its error by deciding not to pursue the lead because, in part, it already

had its witness’s deposition testimony. So too the

panel majority, which took into account the existence

of the prior deposition testimony in determining that

the Government’s efforts were reasonable. In other

words, the panel majority erred by finding that the

Government did not need to make the same efforts to

find its witness as it would have had it not had the

prior-recorded deposition. Nothing in this Court’s

precedents allows the existence or quality of the prior

testimony to lower the Government’s burden of proving unavailability.

II. A. Aside from being untethered from Confrontation Clause doctrine, the panel majority’s opinion de

facto shifts the Government’s burden of proving unavailability to defendants, who essentially have to show

that the Government’s efforts were unreasonable.

Here, the Government does not dispute that attempting to locate the witness’s boyfriend might be fruitful

and could be accomplished at minimal cost. Indeed,

the Government seemed to believe she was with her

boyfriend in Delaware. Rather, it was the panel majority who mused that such efforts might be unsuccessful,

and thus held the Government was not required to try.

Defendants are not in a position to prove that the Government could have been successful in making additional efforts, making this burden shift clearly prejudicial. This is especially concerning for amici, whose

members and their clients already suffer from vast resource disadvantages in defending their clients

against the Government.

B. The panel majority’s opinion also creates perverse incentives for the Government. In excusing the

Government’s failure to chase promising leads at minimal cost by looking in isolation at the few efforts the

Government did make, the panel majority incentivizes

the Government to obtain a witness’s testimony beforehand, then let that witness go with no plan to secure her attendance at trial. But the Government witnesses that most demand cross-examination before a

jury are the very witnesses the Government is incentivized to declare “unavailable” for confrontation purposes. The Eleventh Circuit’s framework eviscerates

the core trial right of the accused to confront witnesses

against them. As organizations who advocate in this

sphere, and whose members are involved in criminal

defense work day to day, amici are uniquely situated

to highlight the real-world impact the panel majority’s

framework will have on the ability of the accused to

test the veracity of the Government’s witnesses.

ARGUMENT

The Government Failed To Show That Its

Witness Was “Unavailable” To Testify At

Trial, So Admitting Her Prior Testimony

Into Evidence Violated Petitioners’ Confrontation Rights.

A. The Government Cannot Establish That

Its Witness Is “Unavailable” When It

Negligently Allowed Her To Abscond.

The Government’s “essential witness to th[e]

case,” Pet. App. 152a-153a, a Haitian national, was

brought into the United States and detained by Immigration and Customs Enforcement (ICE) to be interviewed in connection with petitioners’ allegedly criminal conduct, id. at 2a, 8a. After she gave her deposition, the material witness complaint against her was

dismissed, and the Government had 48 hours to enforce an immigration detainer that ICE had lodged

against her. Id. at 10a. However, the Government did

not pick up or detain her in that time, so she was released from custody—without any effort by the Government to obtain her contact information or address,

nor any other measures to ensure that she would appear at petitioners’ trial.2 Ibid. Because the Govern-

Amici take no position on what steps the Government would

have needed to take had it deported its witness for her deportation to render her “unavailable.” Cf. United States v. Burden, 934

F.3d 675, 686 (D.C. Cir. 2019) (when the Government “deport[s]

the witness, [it] will have to make greater exertions to satisfy the

standard of good-faith and reasonable efforts than it would have

if it had not played any role”); United States v. Tirado-Tirado, 563

ment allowed the witness to abscond by making absolutely no effort before releasing her to ensure that she

would be available to testify at trial, it cannot meet its

burden of proving that the witness was “unavailable”

such that her deposition testimony could be admitted

into evidence, as required by the Confrontation

Clause, U.S. Const. amend. VI.

There is no real dispute in this case that the Government “mistakenly released” its witness. See Pet.

App. 10a n.2 (panel majority describing that the Government “mistakenly released” the witness); id. at 72a

(dissent noting that the Government “accidentally” released its witness); id. at 113a (district judge describing the witness as “mistakenly released by the US

Government”). And there is no dispute that the Government made no concrete arrangements at the time

of release to try to ensure her attendance.

This Court has long held that when the Government witness’s “absence was manifestly due to the

negligence of the officers of the Government,” the admission into evidence of that witness’s prior testimony

is “in violation of the constitutional right of the defendants to be confronted with the witnesses against

them.” Motes v. United States, 178 U.S. 458, 471

(1900). This case is materially indistinguishable.

F.3d 117, 123-24 (5th Cir. 2009) (witness not unavailable despite

his deportation back to Mexico, because the Government had

made no concrete arrangements to have the witness testify at

trial and failed to make reasonable efforts thereafter to secure his

attendance). Rather, amici clarify that the crucial fact here is that

the Government released the witness without first taking any

steps (let alone reasonable steps) to secure her attendance at

trial.

In Motes, like here, the Government witness was

in its custody. 178 U.S. at 468. Moreover, in Motes, like

here, the Government released the witness from its

custody without any plan for ensuring its witness’s attendance at trial. Ibid. And just like here, the testimony was otherwise admissible because “all of the defendants . . . had an opportunity to cross-examine” the

witness and the witness had “in fact” been cross-examined. Id. at 468-69. Importantly, the Court in Motes,

unlike the panel majority here, refused to give the

Government a pass even though the Government

made post-release efforts to re-secure the witness,

holding that admitting the testimony violated the defendants’ confrontation rights. Id. at 474.

The panel majority below glossed over the fact

that the Government was partly responsible for its

witness’s absence from petitioners’ trial. According to

the panel majority, after the Government’s witness

was “mistakenly released,” it “was reasonable for the

government to try to locate [her].” Pet. App. 28a. No

doubt. But the panel majority was wrong to go a step

further, and hold that the Government’s post-negligence efforts were sufficient to render her unavailable

for purposes of admitting her deposition into evidence.

This Court has never held that after-the-fact efforts

can cure the Government’s negligence in causing the

unavailability.

Take the Government’s post-release efforts in

Motes, as described by this Court:

The United States marshal testified on behalf

of United States that he had instructed his

deputies that Taylor had escaped; that he had

offered a reward of two hundred dollars for

his arrest; that he had made diligent search

in the city of Birmingham for Taylor, and

could not learn anything as to his whereabouts. . . . The United States then offered as a

witness a deputy sheriff, who testified that

the sheriff of Jefferson County and his deputies had been on the lookout for Taylor ever

since his absence was known; that they had

had photographs taken of him and sent them

to various places, and that the deputies had

been on the lookout for him all over Birmingham and other parts of Jefferson county, and

that they had been unable to find him anywhere.

178 U.S. at 469. (Note, the Government’s efforts in this

case were far less extensive, see infra Part I.B.) It was

apparently of no moment to this Court that the Government, after having negligently released the witness, expended great effort in attempting to re-secure

him. Neither should the Government’s attempts in

this case to re-secure its witness excuse its negligence

in allowing her to abscond in the first place. Rather,

Motes requires that if the Government is the reason its

own witness is unavailable, it must find a way to procure the witness for trial or the witness’s testimony

cannot be entered into evidence.

At the very least, as some circuits have held, the

Government must “make greater exertions to satisfy

the standard of good-faith and reasonable efforts”

when it “itself bears some responsibility for the difficulty in procuring the witness” than “it would have if

it had not played any role” at all. United States v. Burden, 934 F.3d 675, 686 (D.C. Cir. 2019); United States

v. Yida, 498 F.3d 945, 955-56 (9th Cir. 2007) (“[T]he

appropriate time-frame [for assessing the government’s actions] should not be limited to the government’s efforts to procure [its witness]’s testimony after

it let him be deported, but should instead include an

assessment of the government’s affirmative conduct

which allowed [him] to be deported . . . in the first instance.”); United States v. Mann, 590 F.2d 361, 368

(1st Cir. 1978) (“Implicit . . . 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.”). It would be

especially unfair to excuse the Government’s failure to

ensure its witness’s attendance at trial, when defendants will presumably not be afforded the same courtesy. See Fed. R. Evid. 804(a)(5) (hearsay exception for

unavailable witnesses “does not apply” if proponent

“procured or wrongfully caused” the declarant’s unavailability to prevent declarant from attending trial).

On top of being untethered doctrinally from the decisions of this Court, the Eleventh Circuit unfairly advantages the Government. See also infra Part II.

B. The Government Failed To Show That It

Made Good Faith Efforts To Locate Its

Witness.

Even if the Government had not negligently

caused its witness’s unavailability, it failed to make

reasonable efforts to secure her attendance at trial.

And the Government’s burden to make reasonable efforts is not at all lowered merely because the witness’s

out-of-court testimony was given in a cross-examined

deposition, as the Government’s agent and the panel

majority believed.

1. This Court held in Barber v. Page, 390 U.S. 719

(1968) that “a witness is not ‘unavailable’ for purposes

of the [unavailability] exception to the confrontation

requirement unless the prosecutorial authorities have

made a good-faith effort to obtain his presence at

trial.” Id. at 724-25. In cases where, like here, “there

is a possibility, albeit remote, that affirmative

measures might produce” the witness, the “ultimate

question is whether the witness is unavailable despite

good-faith efforts undertaken prior to trial to locate

and present that witness.” Ohio v. Roberts, 448 U.S.

56, 74 (1980), abrogated on other grounds by Crawford

v. Washington, 541 U.S. 36 (2004). “The lengths to

which the prosecution must go to produce a witness

. . . is a question of reasonableness.” Ibid. (quoting California v. Green, 399 U.S. 149, 189 n.22 (1970) (Harlan, J., concurring)) (alteration in original).3

This Court’s decisions in Barber and Roberts are

informative. In Barber, the State of Oklahoma sought

to introduce the prior testimony of a witness who was,

at the time of trial, incarcerated in a federal penitentiary in Texas, and thus “outside the jurisdiction” of

In this section, amici rely solely on this Court’s cases in

which the witnesses were unavailable due to no fault of the Government. These precedents are more than sufficient to show that

the Government’s efforts in this case were not reasonable—setting aside the fact that the Government was partly responsible

for its witness’s absence. To the extent that the Government’s

“mistaken” release is also factored into the analysis, the Government fell even shorter of its burden. See supra pp.9-10 & note 2

(citing circuit cases like Burden, 934 F.3d at 686, that require the

Government to make “greater exertions to satisfy the standard of

good-faith and reasonable efforts” when it “itself bears some

responsibility for the difficulty in procuring the witness”).

the State. 390 U.S. at 720. The court of appeals “reasoned that because the State would have had to request an exercise of discretion on the part of federal

authorities, it was under no obligation to make any

such request” to establish unavailability. Id. at 724.

This Court flatly rejected the notion.

According to the Court, “the sole reason why [the

State’s witness] was not present to testify in person

was because the State did not attempt to seek his presence,” and the “right of confrontation may not be dispensed with so lightly.” 390 U.S. at 725. The “possibility of a refusal” by the federal authorities “is not the

equivalent of asking and receiving a rebuff,” so the

State was required to ask. Id. at 724-25 (internal quotation marks omitted). In other words, this Court concluded that the State’s witness was not unavailable

even though he was outside the State’s jurisdiction—

the State was required to make the minimal effort of

asking the federal authorities for assistance in procuring the witness to testify in the state trial.

In Roberts, this Court held that the prosecution

had made good faith efforts to locate the witness, because none of the Government’s other leads were remotely likely to produce the witness; the “law does not

require the doing of a futile act.” See 448 U.S. at 74. In

Roberts, unlike here, there was “no clear indication, if

any at all, of [the witness’s] whereabouts.” Id. at 76.

And “the great improbability that [additional] efforts

would have resulted in locating the witness, and would

have led to her production at trial, neutralize[d] any

intimation that a concept of reasonableness required

their execution.” Ibid. As the dissent below aptly describes the situation in Roberts—“the trail had effec-

tively gone cold for the missing witness: the government’s most recent information about the witness’s

whereabouts was seven-to-eight months old, and the

government knew only generally that the witness was,

at that time, traveling outside Ohio.” Pet. App. 97a

(Rosenbaum, J., concurring in part and dissenting in

part).

In this case, there is no question that the Government’s witness was within its jurisdictional reach. 4

Compare Mancusi v. Stubbs, 408 U.S. 204, 212 (1972)

(witness was unavailable after moving to Sweden

where the State “was powerless to compel his attendance at the second trial, either through its own process

The panel majority tries to obfuscate this fact by reasoning

that the Government would have had to coordinate its efforts to

find and secure the witness for trial:

Miami federal officials would have had to secure the

ready help of either their federal [Homeland Security

Investigations (HSI)] counterparts, or state law enforcement, in Delaware to attempt to find the boyfriend

at that street address. The federal HSI agents, or state

law enforcement, in Delaware would then have had to

get lucky and actually find the boyfriend at that address, and then persuade him to reveal [the witness’s]

whereabouts so they could more formally serve the

trial subpoena on [her]. Assuming that the boyfriend

would help them find the girlfriend he had presumably

been hiding, ICE [Enforcement and Removal Operations], which had the detainer, would have to be on the

spot at just the right moment to grab her, else [the witness] would once again go on the run.

See Pet. App. 46a-47a. But this is the federal government. It cannot be the rule that the largest prosecuting sovereign with the

most resources and the furthest reach is excused, based on those

very attributes, for failing to chase down reasonable leads within

its jurisdiction.

or through established procedures depending on the

voluntary assistance of another government”). And

unlike in Roberts, the Government in this case failed

to pursue a fresh, promising lead to find its witness—

not stale leads with no real chance of success: the Government had it on good authority that its witness was

staying with her boyfriend, and that her boyfriend

lived in Delaware. See Pet. App. 28a (panel majority

noting that the witness’s boyfriend was “reportedly in

Delaware”); id. at 72a (dissent noting that the witness’s “attorney informed the government that [the

witness] was in Delaware with her boyfriend”). The

Government even had her boyfriend’s name and cellphone number.

But instead of “running a basic, routine, quick,

and inexpensive database search of the boyfriend’s

name to ascertain his address . . . the government did

no more than just engage in minimal efforts to twice

call and once text the boyfriend,” Pet. App. 78a (Rosenbaum, J., concurring in part and dissenting in part),

and relied on the witness’s former attorney to forward

a subpoena to the boyfriend by email, with the hope he

would pass it along to the witness, id. at 72a-73a. Indeed, “[n]o evidence suggests the government took

even five minutes to check for the boyfriend’s profile

on Facebook, Twitter, or Instagram, or to punch his

name into Google to see what those quick searches

could dredge up.” Id. at 78a. And when asked by the

trial judge during trial whether the Government had

run the boyfriend’s name through any database or otherwise made any attempt to find his address, the case

agent replied “Not yet.” Id. at 73a.

There is little question that had the Government

not had its witness’s deposition, it would have made

more of an effort to find her. The Government admits

as much. At the trial court, the Government’s agent

responded that one of the reasons it had not made any

effort to ascertain the boyfriend’s address in Delaware

was “because [he] assumed that [the witness had] already given the videotaped deposition,” so he “didn’t

really need to try to find her.” Pet. App. 51a n.18. But

she was “an essential witness to this case.” Id. at 152a53a. And the fundamental point of Roberts is that the

Government must take reasonable “affirmative

measures” that have even a “remote” possibility of success. Roberts, 448 U.S. at 74; see Hardy v. Cross, 565

U.S. 65, 71 (2011) (per curiam) (state court not unreasonable in finding that the State was not required to

take “additional steps” to find a witness when there

was “no reason to believe” such efforts would be successful).

To be sure, the Government need not “exhaust

every avenue of inquiry, no matter how unpromising.”

Hardy, 565 U.S. at 71-72. But at minimum, when, as

here, the Government has a promising lead to locate

the witness, and pursuing that lead would require

minimal effort, the Government must pursue it to

show that it made reasonable, good faith efforts. Instead of holding the Government to that low burden,

the panel majority excused the Government’s failure

to take minimal steps by looking in isolation at the few

efforts that had previously been made. See Pet. App.

at 43a-44a (accusing the dissent of “Monday-morning

quarterbacking” in light of the actions the Government took).

Of course, making some efforts to pursue a lead

does not excuse the Government’s failure to take other

obvious and promising steps that require minimal resources. Consider the following example: the Government gets a tip that its witness is staying with either

her uncle or her boyfriend. It would assuredly fail to

satisfy Roberts if the Government located her uncle’s

residence and checked there, but after failing to find

her at her uncle’s ignored the part of the tip about her

boyfriend. Under the panel majority’s reasoning, the

Government’s efforts would be sufficient because they

did something. Pet. App. 44a (rejecting that the Government had to do a routine database search for the

boyfriend’s address because “this is not a case where

the government took no action when presented with a

new lead”). This Court’s precedents require more of

the Government to prove its witness is unavailable.

2. Relatedly, the panel majority erred in folding

into the unavailability inquiry the fact that the witness was previously subject to cross-examination. According to the panel majority, “neither the case agent,

nor the prosecutor, nor this Court is required to pretend [that the witness] was never deposed for the express purpose of having her deposition presented at

trial,” distinguishing “testimony presented at a preliminary hearing or on the off-chance the witness

might become unavailable later.” Pet. App. 52a. The

panel majority believed that although “prior cross-examination alone cannot substitute for the government’s burden to establish a witness is unavailable,”

that fact “is relevant and important.” Id. at 52a-53a

(emphasis added).

But it is not a relevant fact at all. And it shouldn’t

be. Meeting Crawford’s minimum requirement of prior

opportunity to cross-examine has nothing to do with

the Government’s completely unrelated burden to

show it took reasonable steps to secure its witness for

trial. See 541 U.S. at 55 (“prior opportunity to crossexamine” is “a necessary” but not “sufficient . . . condition for admissibility of testimonial statements”).

And there is no exception to this rule for particularly good-quality cross-examination. Certainly Crawford makes no such distinction among different kinds

of cross-examined testimony. The Court did not say,

for example, that “particularly good cross-examination

is relevant to how hard the Government needs to try

to re-secure its lost witness.” On the contrary, the

Court expressly eschewed a “general reliability exception” to the confrontation right of defendants to face

their accusers in court. 541 U.S. at 62 (abrogating Roberts on this score); Barber, 390 U.S. at 725 (the “right

to confrontation is basically a trial right,” which “includes both the opportunity to cross-examine and the

occasion for the jury to weigh the demeanor of the witness”) (emphasis added).

The confrontation exception for unavailable witnesses is just that—an exception. Implicit in this exception is a historical “preference for face-to-face accusation.” Roberts, 448 U.S. at 65. As this Court stated

long ago, the “primary object” of the Confrontation

Clause was to provide the accused

an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to

face with the jury in order that they may look

at him, and judge by his demeanor upon the

stand and the manner in which he gives his

testimony whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-43 (1895).

No out-of-court cross-examination is a substitute

for compelling the witness “to stand face to face with

the jury,” and it is manifestly inappropriate to consider the existence or quality of prior testimony in determining whether the Government has met its burden of showing that the witness is unavailable.

II. The Decision Below Unfairly Prejudices

Defendants.

A. The Panel Majority Impermissibly Shifts

The Government’s Evidentiary Burden

To Criminal Defendants.

“As with other evidentiary proponents, the prosecution bears the burden of establishing” that its witness is unavailable. Roberts, 448 U.S. at 74-75. As previously discussed, when “there is a possibility” that the

witness may be found and called to testify at trial, this

means the prosecution bears the burden of establishing that it made reasonable, good-faith efforts to secure the witness’s attendance. Ibid.; Barber, 390 U.S.

at 724-25.

As the dissent below correctly reproves, see Pet.

App. 85a-88a, the panel majority’s opinion—which excuses the Government’s failure to take reasonable,

non-costly steps to pursue a promising lead—de facto

shifts the burden to criminal defendants—who effectively now have to prove that the Government’s actions were unreasonable. Petitioners should not have

had to show that trying to find the address of the witness’s boyfriend had a sufficiently promising chance of

leading to the witness. How could they? Defendants

cannot prove that the Government is not simply going

through the motions to clear the minimal bar set by

the panel majority. Rather, under this Court’s precedents, the Government was required to show it had “no

reason to believe” that finding the boyfriend’s address

would lead to the witness. See Hardy, 565 U.S. at 71;

Roberts, 448 U.S. at 74.

The Government never gave any reason to doubt

that a routine database search would turn up the boyfriend’s address. Neither did the Government show

that there was any doubt that the witness was staying

with her boyfriend. Far from it: the Government attempted to send a subpoena to her through him. Pet.

App. 86a (Rosenbaum, J., concurring in part and dissenting in part). Rather than hold the Government to

its burden, the panel majority tries to do the Government’s job for it, stating that although attempting to

locate the boyfriend “might” have led to the witness,

“the record contains no evidence that the boyfriend

ever had an address in Delaware or that a database

search would have revealed an address for him in Delaware,” and that criticizing the Government for what

it did not do was “Monday-morning quarterbacking.”

Id. at 42a-43a (majority opinion). But of course no record evidence conclusively establishes the boyfriend’s

whereabouts—the Government did not attempt even

minimal efforts to locate him. Thus, there was simply

nothing to “Monday-morning quarterback,” because

the Government made no plays at all. And unlike the

Government, petitioners could not themselves search

law-enforcement databases for the witness’s boyfriend’s address. Nor could they do anything even if

they had found it.

All we have are the panel majority’s musings as to

why searching for the boyfriend might not have been

fruitful. Moreover, the panel majority draws out and

exaggerates the effort the Government would have

had to expend to succeed. See supra note 3. Thus “it is

unclear,” according to the court, “why [the Government agent] would think that even if he got lucky and

found the boyfriend’s address in Delaware, the latter

would reveal [the witness]’s whereabouts and help

ICE snatch and jail her,” given previously unsuccessful efforts to locate the witness at her uncle’s home.

Pet. App. 46a. Obviously, it is “unclear” because the

Government itself never made the argument, and petitioners have no realistic way to disprove the negative.

The panel majority’s decision is a problem for all

defendants, especially the indigent. According to recent data, there are about 1,000 public defender officers at the state and local levels with about 15,000 litigation attorneys receiving over 4 million indigent defense cases a year, and only an average of about 10

percent of the total state judicial-legal expenditures go

to indigent defendants. Roy L. Austin, Jr. et al., Prosecution and Public Defense: The Prosecutor’s Role in

Securing a Meaningful Right to an Attorney 2 (Mar.

2019), http://bit.ly/2B37gnz. Under the Eleventh Circuit’s framework, criminal defendants, who already

suffer a resource disadvantage in defending their

cases, have no realistic way to dispel the doubts that

will be raised by the courts (not the Government, even

though it is the Government’s burden). The prejudice

this burden shift exacts on defendants exemplifies the

wisdom in requiring the Government to affirmatively

prove that it made all reasonable efforts to locate its

missing witnesses—which is exactly what this Court’s

precedents require.

B. The Panel Majority Creates Perverse

Incentives For The Government.

This Court’s confrontation precedents portend

that

When the government seeks to rely on prior

recorded 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.”

Burden, 934 F.3d at 686 (internal quotation marks

omitted) (alterations in original). Any other rule

“would warp the government’s incentives.” Ibid.

The panel majority’s opinion actually incentivizes

the Government to obtain a witness’s testimony beforehand, then let that witness go with no plan to secure her attendance at trial, knowing that making

some efforts later on to find her will satisfy the court’s

“totality of the circumstances” balancing test. Compare Pet. App. 24a-25a & n.7 (citing Fourth Amendment balancing test cases for how to determine “reasonableness”), with Crawford, 541 U.S. at 67-68 (in the

Confrontation Clause context, the Framers “were

loath to leave too much discretion in judicial hands,”

so “open-ended balancing tests” are disfavored because

“[v]ague standards are manipulable”).

The kind of witness who is the most problematic

for the Government, i.e., the kind of witness most susceptible to faltering in front of a jury, is the kind of

witness the Government is most likely to want to get

on record beforehand and not have tested live at trial.

The panel majority’s totality of the circumstances test

allows the Government to do just that. If the Court

permits the Government to satisfy its burden to establish that it made reasonable efforts by pursuing only

some of its promising leads, it would “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.” See Mann,

590 F.2d at 367 (footnote omitted). In fact, it’s even

worse under the panel majority’s test, which lowers

the Government’s burden even further if it does a good

job in the court’s estimation of developing the testimony in a deposition. See supra Part I.B.2.

Of course, those are the very witnesses whom defendants most need to cross examine in front of the

jury. Giving the Government a leg up in establishing

unavailability unfairly prejudices defendants’ ability

to test the Government’s most unreliable witnesses

“face to face with the jury,” such that the jury may

“judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox, 156 U.S. at 242-43. Forcing witnesses to testify in front of the jury discourages them

from trying to lie, in a way that a pre-recorded deposition does not, as it puts them face to face with those

who will judge their veracity.

It will be very difficult for defendants to inquire

into the Government’s motivations in its post-release

search, so the panel majority’s test is ripe for manipulation. See United States v. Tirado-Tirado, 563 F.3d

117, 125 n.5 (5th Cir. 2009) (“showing that the government acted in good faith from a subjective perspective

is necessary . . . to establish good faith for the purposes

of the unavailability inquiry”) (citing Roberts, 448 U.S.

at 74). The Eleventh Circuit’s framework allows the

Government to game the system by putting a lot of effort into the initial testimony of shaky witnesses,

knowing that it can release them and make perfunctory efforts to locate them later.

Amici provide a boots-on-the-ground perspective

regarding the critical importance of live cross-examination in federal and state courtrooms across the

United States. Their collective understanding reveals

that the issues in this case arise frequently and that

live cross-examination makes a significant difference

for criminal defendants. Because the panel majority’s

opinion requires defendants to somehow prove that it

would be reasonable for the Government to take additional steps to secure its witnesses, and incentivizes

federal and state prosecutors alike to declare the most

critical witnesses “unavailable” for cross-examination

at trial, amici stand together in urging this Court to

grant the petition and reverse—to safeguard their clients’ constitutional rights to confrontation, effective

assistance of counsel, and due process of law.

CONCLUSION

This Court should grant the Petition for a Writ of

Certiorari and reverse.

Respectfully submitted,