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

No. 19-361

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

_________

REPLY BRIEF IN SUPPORT 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

neal.katyal@hoganlovells.com

Suite 1100

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

TABLE OF CONTENTS

Page

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

INTRODUCTION ........................................................ 1

ARGUMENT ............................................................... 3

I.

THE CENTRAL PREMISE OF THE

OPPOSITION BRIEF IS INCORRECT ........... 3

II.

THE DECISION BELOW DEEPENS

THREE UNDISPUTED CIRCUIT

SPLITS .............................................................. 5

III. THE ELEVENTH CIRCUIT’S

DECISION IS WRONG .................................... 9

IV. THIS CASE PRESENTS A CLEAN

VEHICLE TO RESOLVE THE

QUESTIONS PRESENTED........................... 11

CONCLUSION .......................................................... 13

(i)

ii

TABLE OF AUTHORITIES

Page(s)

CASES:

Barber v. Page,

390 U.S. 719 (1968)................................................... 4

Brooks v. United States,

39 A.3d 873 (D.C. 2012) ............................................ 7

California v. Green,

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

Crawford v. Washington,

541 U.S. 36 (2004)..................................................... 1

Motes v. United States,

178 U.S. 458 (1900)........................................... 10, 11

Neder v. United States,

527 U.S. 1 (1999)..................................................... 11

Ohio v. Roberts,

448 U.S. 56 (1980)..................................................... 8

Stuart v. Alabama,

139 S. Ct. 36 (2018) .................................................. 2

United States v. Burden,

934 F.3d 675 (D.C. Cir. 2019) ............................... 4, 7

United States v. Shayota,

934 F.3d 1049 (9th Cir. 2019) ...................... 1, 10, 11

United States v. Tirado-Tirado,

563 F.3d 117 (5th Cir. 2009) .................................... 8

STATUTE:

8 U.S.C. § 1325(a) ........................................................ 5

IN THE

Supreme Court_________

of the United States

No. 19-361

_________

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

_________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_________

INTRODUCTION

The Government fails to contest most of the case

for certiorari. It does not dispute that the Circuits

are deeply split on all three questions presented. See

Opp. 18-26. It makes little effort to reconcile the

Eleventh Circuit’s resolution of those questions with

either this Court’s precedents or the “strict rule[s] of

unavailability” that prevailed at the Founding.

United States v. Shayota, 934 F.3d 1049, 1053 (9th

Cir. 2019) (O’Scannlain, J., specially concurring)

(quoting Crawford v. Washington, 541 U.S. 36, 44-45

(2004)); see Amicus Br. of Constitution Project 5-6.

And it cannot dispute that each question presented is

of surpassing importance to the accused, whose

rights to confront the witnesses against them vitally

depend upon the good faith and reasonable efforts of

the Government to procure those witnesses for trial.

(1)

2

See Amicus Br. of Criminal Defense Organizations

18-23; Amicus Br. of Florida Ass’n for Criminal

Defense Lawyers 7-13.

Instead, the Government stakes most of its case

against certiorari on a single, late-breaking claim:

that the Government’s constitutional obligation to

search for Vanessa Vixama was diminished—and

that this case is accordingly “atypical”—because

petitioners ostensibly “agreed that the government

could intentionally make Vixama unavailable for

trial by deporting her.” Opp. 16. This argument is

misguided on every dimension. The Government

never made this argument below. Its premise is

false. And, even if this newfound claim were accurate and properly preserved, it would not offer a

basis for distinguishing any of the circuit splits,

justify any of the Eleventh Circuit’s manifestly

incorrect holdings, or provide reason to leave in place

a ruling that will inevitably spawn abuses by prosecutors until it is corrected.

The Confrontation Clause “promises every person

accused of a crime the right to confront his accusers.”

Stuart v. Alabama, 139 S. Ct. 36, 36 (2018) (Gorsuch,

J., dissenting from denial of certiorari). “That promise was broken here,” id., as for years it has been

broken by courts that have hollowed out the “unavailability” requirement to a degree that would have

been unrecognizable to the Framers. The petition

should be granted, and the Eleventh Circuit’s judgment should be reversed.

3

ARGUMENT

I. THE

CENTRAL

PREMISE

OF

OPPOSITION BRIEF IS INCORRECT.

THE

The centerpiece of the Government’s opposition

brief is its claim that the parties “agreed that the

government could intentionally make Vixama unavailable for trial by deporting her.” Opp. 16. According to the Government, this alleged fact justifies the

Government’s lackluster efforts to find Vixama, id. at

16-18, distinguishes this case from all three circuit

splits, id. at 19-20, 22-23, 24-25, and renders this

case an “atypical” vehicle for review, id. at 11, 16, 20,

23. This argument, however, is thoroughly incorrect—procedurally, factually, and legally. And once

it is discarded, the remainder of the Government’s

case against certiorari collapses.

To start, the Government’s argument is not properly before the Court. Agent Nowicki never once cited

the Government’s agreement with petitioners or the

possibility of Vixama’s deportation when explaining

his reasons for failing to make greater efforts to find

Vixama. See Pet. App. 158a, 161a (Nowicki listing

his reasons for curtailing his search); id. at 51a

(Eleventh Circuit listing Nowicki’s reasons). The

Government’s attorneys also failed to make this

argument at any stage of the proceedings below. See

CA11 U.S. Br. 23-33; 4/20/2017 Trial Tr. 90-93, 99101. And neither the District Court nor the Eleventh

Circuit relied on this justification in nearly 70 pages

of opinions. See Pet. App. 1a-63a, 107a-112a. Simply put, the Government’s central argument is waived.

What is more, the factual premise of this argument

is incorrect. Petitioners did agree that the Government could deport Vixama after taking her material

4

witness deposition. See Pet. App. 18a-19a & n.5;

Smith Mot. to Exclude Dep. 1 (Apr. 18, 2017). But

petitioners did not agree that Vixama’s deportation

would automatically render her “unavailable.” On

the contrary, petitioners repeatedly stated that when

the Government deports a material witness, it must

make good faith, reasonable efforts to ensure her

return for trial, such as by keeping track of her

location or purchasing tickets for her return. See

CA11 Br. of Appellant Delancy 41-42, 47-48; Smith

Mot. to Exclude Dep. 3-5; see also United States v.

Burden, 934 F.3d 675, 687-689 (D.C. Cir. 2019)

(holding same, and citing cases). The video deposition of Vixama served as a precaution in case the

Government’s efforts to ensure her return failed, not

as an implicit waiver of petitioners’ confrontation

rights. Cf. Barber v. Page, 390 U.S. 719, 725 (1968)

(waiver of a defendant’s right to confrontation must

be “intentional” (internal quotation marks omitted)).

In any event, even if petitioners had agreed that

the Government could render Vixama unavailable by

deporting her, the Government did not do so; it

“mistakenly released her” into the United States.

Opp. 14. That meant that the Government once

again bore (at minimum) its ordinary constitutional

obligation to make reasonable, good faith efforts to

procure Vixama for trial—as one of the prosecutors

herself acknowledged when searching for Vixama.

See Delancy CA11 App. 159 (“Since [Vixama] hasn’t

been deported yet, we are working to determine if

she can be located to testify at trial or if she is unavailable to testify.”); see also Opp. 7-8 (discussing the

Government’s efforts to bring Vixama to trial). The

Government now suggests that searching for Vixama

would have been futile because it would have been

5

required to deport Vixama as soon as it found her.

Opp. 17-18. But nothing in the Government’s immigration detainer required it to deport Vixama immediately. See Delancy CA11 App. 156 (immigration

detainer). Furthermore, the Government had many

tools at its disposal to hold Vixama for trial, including obtaining a trial subpoena or a bench warrant

(both of which it belatedly did, see Pet. App. 12a,

15a), or arresting Vixama for unlawful entry, see 8

U.S.C. § 1325(a). The Government cites no case to

support the disturbing suggestion that once it fails to

deport a material witness, it is exempt from the

obligation to make reasonable, good-faith efforts

otherwise compelled by the Constitution to produce

her for trial.

In short, the central consideration on which the

Government stakes its opposition brief is a nonfactor: It is not properly before the Court, rests on

an erroneous factual premise, and—even if it were

accurate—would not have altered the Government’s

obligation to conduct a good faith, reasonable search

for Vixama. It follows that the Government’s remaining arguments fail as well.

II. THE DECISION BELOW DEEPENS THREE

UNDISPUTED CIRCUIT SPLITS.

As the petition explains, the Eleventh Circuit’s

decision deepens three severe splits on the scope of

the Confrontation Clause. See Pet. 13-25. The

Government does not deny the existence of any of

these splits or contest their importance. See Opp. 1820, 22-23, 25. And its efforts to show that the splits

are not implicated here—nearly all of which turn on

the same false premise that pervades its brief—are

wholly unconvincing.

6

1. The Eleventh Circuit held—in direct conflict

with five Circuits and three state high courts—that

the Government could intentionally curtail its search

for a witness because it had “already taken” her

deposition testimony. Pet. App. 50a-52a; see Pet. 1317. This case presents an especially clean vehicle to

resolve this split: Not only did the Eleventh Circuit

issue a square holding on this point, but the Government’s agent “candidly admitted,” repeatedly and

under oath, that he had forgone steps to find Vixama

because he had her deposition testimony in hand.

Pet. App. 51a; see id. at 150a, 152a-153a, 158a, 161a.

Even the Government does not dispute that this was

“one factor” the agent relied on. Opp. 18.

The Government nonetheless suggests that the

split is not implicated here because Agent Nowicki

ostensibly had an additional reason for failing to

search more diligently for Vixama: that her apprehension “would have simply resulted in her prompt

removal from the United States.” Id. at 19. As the

absence of any accompanying citation suggests, that

assertion is groundless. Agent Nowicki never once

cited the possibility of Vixama’s removal as a reason

for failing to look more thoroughly for her. See supra

p. 3. On the contrary, Nowicki indicated that his

expectation was that, if Vixama were apprehended,

she would be transferred from “an immigration

facility in Delaware to * * * Miami,” where petitioners’ trial was set to take place. Pet. App. 158a.

Furthermore, even if (contrary to fact) Agent

Nowicki had considered the possibility of removal as

one reason for curtailing his search, that would not

alter the fact that he also admitted that his decision

rested, in part, on the fact that Vixama had already

7

been deposed. In eight jurisdictions, the Government bears the “burden” of establishing that its

efforts were “as vigorous as that which the government would undertake * * * if it ha[d] no [prior]

testimony to rely upon.” Burden, 934 F.3d at 686

(internal quotation marks omitted); see Pet. 13-15.

Agent Nowicki’s express admission would have made

it impossible for the Government to carry that burden, irrespective of what other factors he may have

considered. See, e.g., Brooks v. United States, 39

A.3d 873, 888 (D.C. 2012) (“infer[ring]” from the “pro

forma” nature of the Government’s efforts that its

search was not “equally as vigorous” (internal quotation marks omitted)). The circuit split is thus

squarely implicated here even on the Government’s

counterfactual understanding of the case.

2. The Eleventh Circuit also split from three of its

sister Circuits in holding that the Government could

forgo a low-cost investigative step that it had reason

to believe would lead to an absent witness. Pet. 1721. Again, the court’s holding on this point was

clear; indeed, it was the crux of the majority’s disagreement with the dissent. Pet. App. 42a-44a; cf. id.

at 70a-71a (Rosenbaum, J., dissenting).

The Government vaguely suggests that this split is

not implicated here because of the “atypical” and

“unusual” facts of this case. Opp. 21, 23. But the

particular facts here do not alter what legal standard

the Court should have applied in assessing those

facts.

And, as noted above, the Government

agreed—and the Eleventh Circuit held—that the

Government was required to make reasonable, goodfaith efforts to find Vixama, irrespective of what the

parties may have agreed at the time she was de-

8

posed. See supra pp. 4-5. This case thus straightforwardly presents the question of what efforts are

sufficient to constitute a reasonable, good-faith

search.

The Government also suggests that its efforts sufficed under any standard, because the Eleventh

Circuit supposedly found that it was “unlikel[y]” that

running a database search for Vixama’s boyfriend

would have led it to Vixama. Opp. 21-22. That is a

mischaracterization of the opinion below, which

merely found that it was “unclear” whether a database search would succeed. Pet. App. 46a. Further,

courts on the other side of the split have repeatedly

held—in line with this Court’s precedents—that a

step that has even a “remote” possibility of success

must be taken if it entails little cost. United States

v. Tirado-Tirado, 563 F.3d 117, 123-125 (5th Cir.

2009) (quoting Ohio v. Roberts, 448 U.S. 56, 74

(1980)). The panel did not dispute that conducting a

database search for Vixama’s boyfriend would have

satisfied that legal standard; it simply rejected the

standard altogether. See Pet. App. 42a-44a.

3. Finally, this case implicates a 7-2 split over

whether the Government may release a witness from

its custody without first making arrangements to

secure her attendance at trial. Pet. 22-24. The

Government again does not dispute that this split

exists, Opp. 25, nor that it “mistakenly released”

Vixama from its custody, id. at 14.

Still, the Government contends that this split is not

implicated here because the parties supposedly

“agreed that the government could intentionally

make Vixama unavailable for trial (by deporting

her).” Id. at 25. Again, the parties did not agree to

9

that; had the Government deported Vixama as the

parties agreed, it would have been compelled to

make reasonable efforts to bring her back to the

United States to testify. See supra pp. 3-4. Instead,

the Government negligently released Vixama from

its custody without making arrangements for her

return, creating the very challenges that it now

claims prevent it from locating Vixama at all. See

Opp. 14. In seven jurisdictions, that conduct would

have precluded any finding that Vixama is “unavailable.”

The Government claims that petitioners failed to

preserve the argument that Vixama’s mistaken

release should be taken into account in assessing the

Government’s efforts. Opp. 25. That is just wrong.

In the Eleventh Circuit, petitioners expressly argued

that the Government’s efforts to locate Vixama were

inadequate in part because “her continued presence

resulted from its own mistake” and because she was

“erroneously released” from federal custody. CA11

Br. of Appellant Delancy 48 (emphasis added); see

Pet. App. 113a. That was more than sufficient to

preserve this argument.

III. THE ELEVENTH CIRCUIT’S DECISION IS

WRONG.

The Government also offers no plausible defense of

the Eleventh Circuit’s decision on the merits.

1. The Government makes no effort to defend the

Eleventh Circuit’s holding that Agent Nowicki could

“consider[ ] the fact that Vixama’s videotaped deposition was already taken” in assessing the scope of his

search. Pet. App. 51a-52a. Instead, the Government

reimagines both Agent Nowicki’s justification and

the court’s holding. Opp. 19. But that reimagining

10

is baseless, see supra p. 6, and the Government’s

conspicuous refusal to defend a rule that it now

benefits from in three Circuits amply confirms that

the rule is as indefensible as it appears. See Pet. 2528.

2. The Government also gives no legitimate reason

why it was free to forgo the “minimal steps” necessary to locate Vixama’s boyfriend after learning that

Vixama was staying with him. See Pet. 28-30. The

Government, like the Eleventh Circuit, observes

simply that it took “other steps” to find Vixama that

failed. Opp. 21. But this Court’s decisions make

clear that undertaking some efforts—particularly

efforts as belated and cursory as the ones the Government undertook here—does not exempt the

Government from pursuing additional low-cost steps

that it had reason to believe would lead to Vixama.

Pet. 28-29. That rule is reinforced by the original

understanding of the confrontation right, under

which a witness was deemed “unavailable” only

when he could not be procured for trial due to “circumstances

outside

the

prosecution’s

control.” Shayota, 934 F.3d at 1055 (O’Scannlain, J.,

specially concurring).

3. Finally, the Government fails to distinguish this

case from Motes v. United States, 178 U.S. 458

(1900), and its progeny. In Motes, this Court held

that a witness is not unavailable for purposes of the

Confrontation Clause if “his absence was due to the

negligence of the prosecution”—exactly what the

Government admits occurred here. Id. at 474; see

Opp. 14. The Government suggests that Motes

turned on the fact that the government’s agent

permitted the witness to leave jail “in violation of

11

law.” Opp. 23-24 (quoting Motes, 178 U.S. at 471).

But nothing in the Court’s holding rested on that

detail, which the Court noted only once and in passing. And in California v. Green, 399 U.S. 149 (1970),

the Court reaffirmed that Motes stands for the

proposition that a witness is unavailable only “as

long as the declarant’s inability to give live testimony

is in no way the fault of the State.” Id. at 166 (emphasis added); see Shayota, 934 F.3d at 1053-55

(O’Scannlain, J., specially concurring) (explaining

that the same rule prevailed at common law).

IV. THIS CASE PRESENTS A CLEAN VEHICLE

TO

RESOLVE

THE

QUESTIONS

PRESENTED.

This Court’s review is urgently warranted. The

decision below sanctions three alarming departures

from the Government’s obligations of good faith, any

one of which would merit certiorari in its own right.

And this case presents an uncommonly good vehicle

in which the critical factual predicates for each

question presented are unequivocally present. See

supra pp. 6, 8.

The Government contends that “any error in admitting Vixama’s testimony was harmless.” Opp. 26.

Even the court below did not accept this argument,

see Pet. App. 103a (Rosenbaum, J., dissenting), and

it is not hard to see why. To establish harmless

error, the Government must demonstrate “beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Neder v. United

States, 527 U.S. 1, 15 (1999) (internal quotation

marks omitted). Vixama was, by the Government’s

own admission, an “essential witness.” Pet. App.

152a-153a. She was the only witness who unquali-

12

fiedly testified that petitioners were headed to the

United States, rather than the Bahamas. Id. at 6a7a. Indeed, the prosecution relied extensively on

Vixama’s testimony in its closing argument, repeatedly invoking Vixama’s assertion that she had paid

$5,000 to travel to the United States as clear evidence of the conspiracy the Government alleged. See

Smith CA11 App. 128, 132, 134, 137, 148-151.

The Government claims that Vixama’s testimony

was merely “cumulative” of the testimony of Davidson Francois and other circumstantial evidence of

petitioners’ guilt. Opp. 26-27. But Francois repeatedly testified that he did not know the boat’s destination, Francois Dep. Tr. 21-22, 31-32, 35-36, and at

one point expressly stated that he believed the boat

was headed to Bimini, Bahamas, id. at 41-42. Even

the Government’s counsel conceded below that

Francois gave “conflicting” testimony, and that

Vixama was a “better witness.” CA11 Oral Argument Recording at 21:04-21:46. Furthermore, contrary to the Government’s suggestion (at 26), Coast

Guard officers testified that they could not infer the

ultimate destination of petitioners’ boat from the

currents, given how long the boat had been adrift.

Pet. App. 3a. And the fact that petitioners told the

Coast Guard that they wished to continue on to the

Bahamas, Opp. 2, 26, is entirely consistent with

petitioners’ defense that the Bahamas was their

intended destination.

Without Vixama’s deposition—admitted on the strength of the Government’s

belated, perfunctory, and constitutionally inadequate

efforts—it is impossible to say beyond a reasonable

doubt that the Government would have secured

petitioners’ convictions.

13

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

DECEMBER 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