Opposition Brief — Rivera v. United States

OCTOBER TERM, 1988

HUMBERTO RIVERA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

ANDREW LEVCHUK

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner’s rights under the Confrontation

Clause were violated by the admission at trial of deposi-

tions taken, pursuant to 18 U.S.C. 3144 (Supp. IV 1986)

and Fed. R. Crim. P. 15(a), from illegal alien witnesses

who voluntarily departed the United States prior to peti-

tioner’s trial.

(I)

——

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Baer ©. Fae, F9e U.S. TIS CISGS) . 2... 2 occ eee. 5

California v. Green, 399 U.S. 149 (1970) ............... 6

Coy v. lowa, No. 86-6757 (June 29, 1988).............. 8

Mancusi v. Stubbs, 408 U.S. 204 (1972) ................ 5

Ohio v. Roberts, 448 U.S. 56 (1980) ................... 5-6, 7

United States v. Guadian-Salazar, 824 F.2d 344 (Sth Cir.

es eS, a sein cia eae és ss 7

United States v. Mann, 590 F.2d 361 (ist Cir. 1978) ..... 8

United States v. Rothbart, 653 F.2d 462 (10th Cir. 1981).. 8

United States v. Seijo, 595 F.2d 116 (2d Cir. 1979) ....... 7

United States v. Terrazas-Montano, 747 F.2d 467 (8th

cg I a ToS nd 2 6-7

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) .. 4, 6, 8

Constitution, statutes, regulation and rules:

U.S. Const. Amend. VI (Confrontation Clause) ........ 4,5

8 U.S.C. 1324(a)(1)(B) (Supp. IV 1986) ................ 2

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Fed. R. Crim. P.:

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(111)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-1210

HUMBERTO RIVERA, PETITIONER

ws

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-12a)

is reported at 859 F.2d 1204.

JURISDICTION

The judgment of the court of appeals was entered on

October 24, 1988. On December 16, 1988, the Chief

Justice extended the time within which to file a petition for

a writ of certiorari to and including January 22, 1989. The

petition was filed on January 19, 1989. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1)-

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Virginia, petitioner was con-

victed on nine counts of transporting illegal aliens, in vio-

(1)

2

lation of 8 U.S.C. 1324(a)(1)(B) (Supp. IV 1986). Peti-

tioner was sentenced to concurrent three-year terms of im-

prisonment on each of the nine counts, but the sentence

was suspended except for that portion equal to the time

that petitioner had already been incarcerated. Petitioner

was also placed on concurrent three-year terms of proba-

tion. The court of appeals affirmed (Pet. App. la-12a,

27a-28a).

1. The evidence at trial is summarized in the govern-

ment’s brief in the court of appeals. It showed that on

August 5, 1987, special agents of the United States Immi-

gration and Naturalization Service (INS) executed a search

warrant at a work site of the Blazer Construction Com-

pany in Woodbridge, Virginia, and arrested 47 illegal

aliens at the site. Petitioner was a labor foreman at the

work site and had arrived there that day with a carload of

illegal aliens. After receiving Miranda warnings, petitioner

admitted to the agents that he had harbored illegal aliens

at his apartment. Gov’t C.A. Br. 2-3; C.A. App. 123-124,

151-152, 161-162, 240-241.

Petitioner took the stand at trial and admitted that he

had transported a number of aliens to work in Virginia

and that he had also transported aliens from Ohio to

Virginia. Initially, he denied knowing that the aliens were

illegal, but he finally admitted that he was aware that one

of his passengers, Nicholas Guerro-Avila, was an illegal

alien. Petitioner also admitted that he had cashed checks

for a number of the aliens because they had had no per-

sonal identification. Gov’t C.A. Br. 7-8; C.A. App.

282-283.

2. For three weeks following petitioner’s arrest, the

government incarcerated six aliens as material witnesses to

testify against petitioner. Counsel for the aliens then

moved to have the aliens’ depositions taken pursuant to

the provisions of the material witness statute, 18 U.S.C.

3144 (Supp. IV 1986),' and Fed. R. Crim. P. 15.? Counsel

also moved for the aliens’ release from incarceration. Pet.

App. 14a-17a. The government supported and petitioner

opposed the motion (id. at 15a-18a). The district court

granted the motion, concluding that “[e]xceptional cir-

cumstances have been shown in that the witnesses are be-

ing incarcerated awaiting a trial. And humanitarian con-

siderations alone demand that something be done to

release them from incarceration, when their only purpose

of being incarcerated is to be witnesses” (id. at 18a).

Pursuant to the court’s order, the aliens were deposed.

Petitioner and his counsel were present, and they exten-

sively cross-examined the witnesses. Thereafter, rather

than face formal deportation proceedings, the aliens

elected to depart the country pursuant to 8 C.F.R. 242.5.

The INS returned the aliens to their native country of

Mexico. Gov’t C.A. Br. 4.

' 18 U.S.C. 3144 (Supp. IV 1986) provides:

If it appears from an affidavit filed by a party that the testimony

of a person is material in a criminal proceeding, and if it is shown

that it may become impracticable to secure the presence of the

person by subpoena, a judicial officer may order the arrest of the

person and treat the person in accordance with the provisions of

section 3142 of this title. No material witness may be detained be-

cause of inability to comply with any condition of release if the

testimony of such witness can adequately be secured by deposi-

tion, and if further detention is not necessary to prevent a failure

of justice. Release of a material witness may be delayed for a

reasonable period of time until the deposition of the witness can

. be taken pursuant to the Federal Rules of Criminal Procedure.

2 Fed. R. Crim. P. 15(a) provides in relevant part:

Whenever due to exceptional circumstances of the case it is in the

interest of justice that the testimony of a prospective witness of a

party be taken and preserved for use at trial, the court may upon

motion of such party and notices to the parties order that testi-

mony of such witness be taken by deposition * * *.

4

At trial, the government introduced deposition testi-

mony taken from three of the aliens. In the first of the

depositions, Wilfrido Campos-Gonzalez testified that he l

had worked with petitioner in Ohic and that they had

driven together to Virginia. Campos-Gonzalez also ex-

plained that he and several other illegal aliens had lived

with petitioner. Becausethe deposition testimony of the

other two aliens was similar, only selected portions of

those depositions were read to the jury. Gov’t C.A. Br. 4,

6-7.

3. The court of appeals affirmed, holding that the ad-

mission of the deposition testimony did not violate peti-

tioner’s Sixth Amendment right to confront the witnesses

against him (Pet. App. la-12a). The court found that the

alien witnesses were “unavailable” to testify, explaining

that the government had acted reasonably in agreeing to

depose the aliens and thereafter permitting them to depart

the country (id. at 9a). The court noted that the govern-

ment had the “ ‘dual responsibility’ ” both to prosecute the

present case and to enforce the immigration laws — which

included, in this instance, the “ ‘obligat[ion] to deport’ ”

the illegal aliens (id. at 8a, quoting United States v.

Valenzuela-Bernal, 458 U.S. 858, 864 (1982)). Moreover,

the court stated, “[i]f the [trial] court had denied the mo-

tion for depositions, these alien material witnesses would

have been incarcerated for more than three months, even

though they were neither indicted nor convicted of a

crime” (Pet. App. 7a). In any event, the court reasoned,

petitioner had “made no showing that he [was] denied

testimony favorable to him, nor ha[d] he shown that the

deposition testimony was any different from what the live

testimony of the witnesses would have been” (id. at 9a).

Moreover, the court found that petitioner’s “suggestions

* * * as to how the presence of the illegal aliens could have

| |

been assured at trial [were] all unrealistic and totally lack-

ing in merit” (id. at 10a).3

ARGUMENT

Petitioner contends (Pet. 7-16) that the admission of the

aliens’ deposition testimony violated his rights under the

Confrontation Clause of the Sixth Amendment. The court

of appeals correctly rejected that claim, and its decision

warrants no further review.

The Confrontation Clause permits the introduction of

prior testimony of a declarant who is not present at trial

when two conditions have been satisfied: (1) the declarant

is unavailable to testify at trial; and (2) the testimony bears

sufficient indicia of reliability. Ohio v. Roberts, 448 U.S.

56, 65-66 (1980); Mancusi v. Stubbs, 408 U.S. 204, 213

(1972). The second condition is easily met in this case. The

witnesses were under oath at the time they were deposed;

petitioner was present at the depositions and was repre-

sented by counsel; there was adequate opportunity for

cross-examination; and a complete record was made of the

testimony.

Moreover, the court of appeals correctly found that the

aliens were “unavailable” to testify at trial, and thus the

first condition of admissibility is satisfied as well. To be

sure, “a witness is not ‘unavailable’ for purposes of the

foregoing exception to the confrontation requirement

unless the prosecutorial authorities have made a good-

faith effort to obtain his presence at trial.” Barber v. Page,

390 U.S. 719, 724-725 (1968). Accord Roberts, 448 U.S.

> The court of appeals also rejected petitioner’s challenge to the jury

instructions (Pet. App. 11a), as well as his contention that the district

court had improperly restricted the evidence and the arguments that

could be offered at trial (id. at 1}a-12a). The petition does not present

those issues.

6

at 74; California v. Green, 399 U.S. 149, 161-162, 165, 167

n.16 (1970). But “ ‘{t}he lengths to which the prosecution

must go to produce a witness * * * is a question of reason-

ableness.’ ”_Roberts, 448 U.S. at 74, quoting Green, 399

U.S. at 189 n.22. The government’s actions in the present

case were plainly reasonable. As this Court recognized in

Valenzuela-Bernal, illegal immigration has become a “col-

ossal” national concern, and “Congress has determined

that prompt deportation * * * constitutes the most effec-

tive method for curbing the enormous flow of illegal

aliens” across the border (458 U.S. 864 & n.5). Thus, in

cases like the present one, “[t]he Government may * * *

find itself confronted with the obligation of prosecuting

persons [charged with transporting illegal aliens], and at

the same time obligated to deport other persons involved

in the event in order to carry out the immigration policies

that Congress has enacted” (id. at 864). The detention of

alien witnesses imposes “substantial financial and physical

burdens upon the Government,” and also involves “the

human cost to potential witnesses who are incarcerated

though charged with no crime” (id. at 865).

In light of those competing obligations, the government

did not violate its duty to make a “good-faith effort[ ]” to

produce the alien witnesses. Ohio v. Roberts, 448 U.S. at

74. While the government may have had the power to in-

carcerate the aliens until trial, it did not act unconstitu-

tionally in declining to exercise that power, in deference to

its duties to deport the aliens promptly and to address the

“humanitarian considerations” (Pet. App. 18a) presented

by their indefinite incarceration. In sum, the government’s

“exercise of [its] manifold responsibilities is not to be

judged by standards which might be appropriate if the

Government’s only responsibility were to prosecute crim-

inal offenses.” Valenzuela-Bernal, 458 U.S. at 866. Ac-

cord United States v. Terrazas-Montano, 747 F.2d 467,

7

469 (8th Cir. 1984) (videotaped depositions taken from

aliens who were thereafter deported held admissible at

trial, because “the witnesses were unavailable, under cir-

cumstances which reflect no bad faith on the part of the

government”); United States v. Seijo, 595 F.2d 116, 120

(2d Cir. 1979) (quoting Fed. R. Evid. 804(a)) (depositions

taken from aliens who were thereafter deported held ad-

missible at trial, because “there is no evidence that the

deported aliens were absent due to ‘the procurement or

wrongdoing’ of the Government ‘for the purpose of pre-

venting [those deposed] from attending or testifying’ ”).4

The court of appeals’ decision is not in conflict with the

Fifth Circuit’s decision in United States v. Guadian-

Salazar, 824 F.2d 344 (1987). In that case, depositions

were taken from illegal aliens, over the government’s ob-

jection, pursuant to a standing order of the district court

requiring “alien material witnesses to be deposed and re-

leased within sixty days of the date of their detention” (id.

at 345). The aliens were thereafter deported and the

depositions were admitted at trial. Because those pro-

cedures had been followed pursuant to a standing order of

* As the court of appeals recognized, petitioner’s suggestions as to

how, other than by incarceration, the aliens’ appearance at trial could

have been assured were “unrealistic” (Pet. App. 10a). Petitioner sug-

gested, for example, that the aliens should have been subpoenaed

before their departure and ordered to reappear for triai (C.A. Br. 27).

That surely would have been a “futile act,” since by the time of trial,

the aliens would have been thousands of miles away, and there would

have been no mechanism for enforcing the subpoena. See Ohio v.

Roberts, 448 U.S. 56, 74 (1980). Petitioner also suggested (C.A. Br.

29) that under the material witness statute, 18 U.S.C. 3144 (Supp. IV

1986), the aliens might have been placed on bond. But releasing the

witnesses would surely have been inconsistent with the government’s

responsibility to remove illegal aliens from the community, and the

district court correctly recognized that the aliens might flee when

released (C.A. App. 58).

8

the court, the government concluded that the trial court

had “exercised no discretion” in the case, and the govern-

ment therefore confessed error on appeal. The Fifth Cir-

cuit accepted the government’s confession and reversed the

defendant’s conviction (id. at 347).

The present case is easily distinguishable. Here, unlike

in Guadian-Salazar, the district court did not proceed

under a standing order, but instead responded to a motion

by the aliens themselves to be deposed and deported.

Counsel for the aliens informed the court of specific fac-

tors, such as the length of incarceration and the aliens’

family circumstances (Pet. App. 16a-17a), that justified

the taking of depositions and the subsequent deportation.

In granting the motion, the district court exercised its dis-

cretion in an appropriate fashion, and petitioner has made

no showing of prejudice from the admission of deposition

testimony. >

5 Petitioner relies (Pet. 10-13) on the decisions in United States v.

Mann, 590 F.2d 361 (Ist Cir. 1978), and United States v. Rothbart,

653 F.2d 462 (10th Cir. 1981), both of which rejected the government’s

use of deposition testimony at trial. Neither of those cases, however,

involved illegal aliens as witnesses, and thus neither presented the

government with the competing law enforcement obligations recog-

nized by this Court in Valenzuela-Bernal. Moreover, in the Mann case

the First Circuit found that the government had “abused” the deposi-

tion process under Fed. R. Crim. P. 15 (590 F.2d at 368), and in Roth-

bart the Tenth Circuit concluded that the record showed that the

government had “wrongfully procured [the witness’s}] absence for the

purpose of preventing the witness from attending or testifying” (653

F.2d at 465). No such allegations can be made in the present case.

Finally, the trial court in this case did not base its decision on any

“ ‘generalized finding’ ” (Pet. 16), such as the one rejected *»y this

Court in Coy v. lowa, No. 86-6757 (June 29, 1988), slip op. 8. To the

contrary, the court entertained the arguments of the witnesses and the

parties and issued an order that reasonably accommodated their com-

peting interests.

—— . we j

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Aitorney General

ANDREW LEVCHUK

Altorney

MARCH 1989

»¢ US GOVERNMENT PRIINTING OFFICE 1989—241-699/00168