EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, August 7, 2012

I'm Not There: 5th Circuit Finds "Unavailable" Means Same Thing Under Confrontation Clause/Rule 804(a)(5)

Federal Rule of Evidence 804(a)(5) provides that a declarant is unavailable for purposes of the rule against hearsay if the declarant

is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2)(3), or (4).

Meanwhile, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

So, does "unavailable" mean the same thing for Rule 804(a)(5)/hearsay purposes and Confrontation Clause purposes? According to the recent opinion of the Fifth Circuit in United States v. Acosta-Ruiz, 2012 WL 3002533 (5th Cir. 2012), the answer is "yes."

In Acosta-Ruiz, Samuel Arturo Acosta–Ruiz was convicted by a jury of transporting illegal aliens.

Two of the four aliens that Acosta was charged with transporting were removed to Mexico, and two others—Juan Osvaldo Lopez–Garcia...and Jose Gabriel Mendez–Parra...—were detained as material witnesses and deposed pursuant to 18 U.S.C. § 3144. After the Government took Lopez's and Mendez's depositions (with Acosta's counsel present), the Government began expedited removal of Lopez and Mendez. During their depositions, Lopez and Mendez were advised that they might be needed for trial and, if so, that the Government would grant them permission to reenter the United States for this purpose and pay for their travel expenses. They were asked to provide an address and telephone number where they could be reached in Mexico, which they did. Additionally, according to the prosecutor's representations at a later hearing, Lopez and Mendez were given letters in English and Spanish, which included the name and telephone number of a Border Patrol agent who would meet them at Del Rio, Texas port of entry to help them reenter the United States for trial. Lopez and Mendez were returned to Mexico on April 15, 2010.


Two weeks prior to trial, the Government filed a motion to declare Lopez and Mendez unavailable and to allow for the introduction of their videotaped depositions at trial. The Government argued that despite its best, reasonable efforts, it had been unable to secure the witnesses' presence at trial. Specifically, it noted in its motion that Border Patrol agents had unsuccessfully attempted to contact Lopez and Mendez by telephone on ten occasions between April and November 2010. The Government also stated that it had mailed subpoenas to the addresses provided by Lopez and Mendez advising them that their presence was needed at the trial and that their travel expenses would be paid. At the hearing on the motion, the prosecutor explained that Lopez and Mendez were not served with subpoenas at their depositions because the trial date had not been set and that he had no proof that the letters and subpoenas notifying Lopez and Mendez of the trial date had been received by the witnesses, noting that one of the letters had been returned as undeliverable. After an objection, the Government offered to call Border Patrol Agent Jonathan Anfinsen to testify about his efforts in locating Lopez and Mendez, but the district court stated that it was "factually satisfied" with the Government's efforts and declared Lopez and Mendez unavailable.

After he was convicted, Acosta-Ruiz appealed, claiming, inter alia, that the government failed to sufficiently establish that Lopez and mendez were "unavailable" for Confrontation Clause purposes. In response, the Fifth Circuit preliminarily noted that

The Government "bears the burden of establishing that a witness is unavailable."...The good-faith effort inquiry is "identical to the unavailability inquiry under [Federal] Rule [of Evidence] 804(a)(5)."...The effort required by the Government to procure a witness is, at base, "a question of reasonableness."

Having laid out this standard, the Fifth Circuit then refused to apply it, stating:

Even assuming arguendo that Acosta's contentions amount to error,we conclude, beyond a reasonable doubt, that absent the playing of Lopez's and Mendez's videotaped deposition testimony during trial, the jury would have nonetheless found Acosta guilty.



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