case for today is two thousand and seventeen five zero four six five united states of america versus george lamar darrell foster you may proceed with your argument whenever i take a client up to plead guilty one of the key things that i tell him that he's waving you're giving up your right to confront the witnesses to have them come testify against you and try to see them in person before you and that's the issue the primary issue that i'm going to focus on in this case and if i have some time i'd also like to talk about the extraneous offenses that were admitted in this case in this case there were three key witnesses for the government one was a special agent  primary goal in this case was to provide a statement that mr foster had given to him where he inculpated himself and methods of committing the offense and then the other two witnesses were witnesses that appeared by video deposition they were aliens that were in the truck that mr foster was driving and they're the people that he was charged with transporting illegally in this case i'd like to focus most of all on the issue of an availability and whether or not the government met its burden in showing that these witnesses were unavailable and of course it's our contention that they did not do that  this case they had prior to trial started starting they had filed a motion to have the witnesses declared unavailable and to have them be allowed to testify by video deposition on july twenty second when they were released from custody after they had given their depositions were they just released and told to voluntarily return or the records unclear to me on what app if it isn't clear and that's one of the issues that i had was that's i believe that since it's the government's burden to prove an availability it was the government's burden to clear up the issue as to how that occurred and what instructions they were given and what they were told all we know with respect to how the release happened was what was contained in one of the pleadings filed by the government where they indicated that one of the individuals had been given a letter with instructions and it's very vague as to what those instructions were there was no copy of that letter ever provided to to the district court and then there's i guess statements made that they were released on that date but that's the extent of what we know i saw a good record confirm that they had been put under oath when they gave their contact information and under oath they said they would update it no that is absolutely true during the video deposition obviously they were under oath during the video that was it what more can the government do than having someone under oath say we will tell you where you can always find us i think that's very simple i mean they can verify information they can call the numbers they can ask for additional numbers additional points of contact i mean these are things that i do every day when i let's say when i'm meeting with a new client comes into my office ok can i have your phone number can i have collateral contact information where do you work your mama's phone number your you have a brother in town or some you know right yeah i mean that and that's that's a very good point i mean they may have someone that lives in the united states sort of back on my point the witnesses have said under oath they will give you updated information like why would you have any doubt when someone's under oath that they'll do that i don't see why you'd have to keep verifying there's a reason to do just that the reason i believe you would have some doubt is because of the situation that these individuals found themselves in one they were in the country illegally so they were charged with a crime and they were being offered this opportunity to testify at the deposition so that they would no longer be prosecuted for this particular crime and so it stands to reason that once these people left they would not have a desire to come back to the united states to possibly for all they know they don't know how our system works for all they know they could be prosecuted at the time they could have additional charges placed on them right but that's that is speculation because it would be just as valid speculation to think they would continue to want to come in the united states they would love any opportunity return that was legal all that might be true the incentive structure is hard to guess right and so that's another thing that i think that the government could also do to avoid these witnesses being unavailable is to offer them the opportunity to stay in the country and that's mentioned in several of the other cases and several of the other cases i think allie to be specific in that case they talk about the fact that you know these individuals were offered the opportunity to stay within the country so once you're doing things like that it's hard to fault the government and say look no court is set up a rule that says good faith exists only if you hold them or parole them or put them in a halfway house that would be a very hard rule to apply here that the government has to keep trial they may want to go home to their families and that's that's absolutely true there is the language in those cases in various cases that say there's no per se rule that the government must keep them in the united states of both last names and which they indicate while their government is not per se required to do this the best practice would be to offer them the opportunity to stay in the country whether it's through a work permit or some other means where they could stay there voluntarily and that's where these particular individuals were from the date they were arrested to july twenty second so that is an option so they are going to stay there it's not clear to me how do we know that they actually voluntarily returned to mexico i mean is that clear in the record how they actually did leave because it didn't seem that they were  they do we know that they left we know i would agree with you we don't actually know what happened i mean there was like i said there was a representation in one of the pleadings filed by the government that these two individuals had been deported and they were no longer available they deported were they actually escorted with government officials to leave the country again or were they told to voluntarily depart and when people lost track of them that's not clear in the record just not made clear anywhere in the record and again going back to my original statement the burden is on the government to prove this and the questions i juror honors asking i think are very relevant to the issue of whether or not they were actually unavailable as to how this occurred do you agree though that the actions in november in december were were certainly sufficient at that time you don't have any quibbles with those actions i actually do because those actions in november and december if you really break them down i know it's written in three pages in the government's brief and it seems to be quite a bit of effort but essentially when they break the law and i'm sorry when you break down when you break down those what they indicated their efforts were basically they made several phone calls to one of the witnesses who had given them a phone number and to the other witness they sent him various e mails so i think there's an indication that i see on november eighth they sent both of them one got a phone call the other one got an e mail  twenty second they both got what one of them got the phone call the e mail one didn't get anything on december seventh again the phone call in an e mail on the fourteenth a phone call what else could they have done at that time and the context that the lawyers for them in they contacted a lawyer and according to this according to the document but the pleading filed by the government they contacted the lawyer in december him to send a letter to the government and so and then they asked the mexican government to assist was that really clear what they did i mean there's a represent security did there's a representation that there was a collateral request to h s i at tashi in mexico that's what that's what the pleading says something along lines and that there was no response so we don't know of no response means we never got a hold of him they never talked to us or of no response means we talked to them they went out and looked and did you know made a made an effort which if they had done something like that then i think we're getting to the point of maybe where you're thinking maybe they've made reasonable efforts so but that the officials in mexico cooperating in going in looking or else people sending agents u s agents into mexico to go to the town they lived in and all of that sort of thing you think it's insufficient even in november or december is that what you're saying what i'm saying is that we don't know what happened so we have these general statements that there was contact made with certain persons and we don't know what that contact was what that contact involved do you have any case that would say that you have to go door to door know that there is absolutely there's absolutely no case that says you have to go door to door but what the cases do say is you have to make reasonable efforts and reasonable efforts are more than just maybe phone calls so the what the cases that hold in favor of the government and say you're fine you know you did what you had to do our cases alley where they say ok you offered these people the right to say they didn't want to stay they left you can't make them stay you gave them a letter with very specific instructions as to what they needed to do to come back to court and use you told them you know here's the directions to your nearest embassy back in mexico here's a contact information for the agent here's a contact agent for the prosecutor or whatever that may be you know they're taking steps to make sure that these people have the ability to get back if they so desire to come back and be a witness the other thing that i think is key and i know you asked me about this a little bit earlier you said well what about the the efforts they they took in november and december do you agree that those were sufficient whether they were sufficient are not sufficient one of the key issues and again this is mention and though is the time frame as to when the government began to make these efforts  there were two issues one they waited too late before that the two issues that the court had with what the government did was that they weighed it too late to start making the efforts and so arguably in this case you know were a couple of months before trial so it's not the same as did other where they waited a week but the other thing that they indicated was that the government made no effort to stay in contact with the witnesses and that was between july and november something to do there should have been an attempt to continue on plea they were still out here we don't have a date yet is that what you're saying that could be one thing i mean there's no hard and fast rule as to what they should do but yes there should have been continued contact whether it's phone calls whether it's letters whether it's come back to the border and meet us and then we'll have an idea at that point whether you know we can contact you i know i know that just judge dickinson you had indicated that you know isn't it enough to get their information under oath given the importance of the issue we're dealing with here confrontation given how frowned upon it is to try someone by deposition and that's that's stated in all the cases too we don't want to do that we don't want to try people by deposition minimal efforts of verifying an address of getting collateral contacts of verifying it was one of the cases that cited in both briefs also one of the main cases that talks about the fact that you know this is a very important issue and to to require these minimal efforts is not too much to ask given given the issue that's being dealt thousand and seventeen and then eventually it happened in february of two thousand and seventeen ok and you agree though that they did reach out the day after they got the notice of the date for the trial they were november seventh they knew that they had a trial date in november eighth they began in earnest so if i could one thing that i had an issue with when we were litigating the issue was i wanted the government to put on a witness or some some kind of testimony or evidence to support their their request that these witnesses be declared unavailable so that we could ask questions and get more the letter that was talked about there's these letters that were sent what did those letters say where those letters in spanish were they in english where they both in spanish and english did these people speak english i mean and you are a very unsteady hearing under oath and you were denied people on the stand and cross examine them about their efforts so we were discussing the matter with the court and at a hearing i think it was a pretrial hearing i can't for the life of me at this point remember but we were having a hearing and i  court that they needed to put on evidence to support this and the judge essentially what his response was well you know i've dealt with many of these cases and i know the efforts that the government goes through and we don't need to do so do you know you make a record that you wanted to put on a record a hearing in i believe that i would go ahead sorry my mistake i believe that there was a point on the record where i indicated that i wanted the government objection that you have to be long but you know what i'm objecting to confrontation i'm saying judge i want you to do this i want you to make them carry their burden of proving that these witnesses are now available and then at another point window when the actual hearing where the government would be required to prove this up and that was the court's response that he seen these kind of cases before and he knows exactly what they do and he's familiar with the efforts that they make and so therefore that was not necessary in this particular case ok record of that so that when no there was no record of that ok so i would i would agree with you that there is no record showing what portions i would have like to bring in jack to go ahead what i did and my time is up but what i did do is i indicated that i wanted the full deposition to be admitted and that is on the record but then once i was denied that opportunity i would agree with your honor that i did not go and specify more detailed portions of that when i gave you relief in if you can't tell us how you were harmed could we give you relief on that basis i think you can give me relief on the basis of primarily be an availability basis i think that's the key issue and availability not on the thirty minute limit the thirty minute limit i think and this is the way i believe it comes into play is the fact that the thirty minute limit  is showing why this was harmful because of the fact that you have these witnesses who are testifying two weeks after the cases started basically way before the theory of the case has been developed by the defense and just so your honour's familiar at the time of the deposition i was not the attorney that actually did the deposition that was a different attorney because there was a change of attorneys so you have one attorney with one theory of the case with a different attorney with a different theory of the case but i understand what the court saying i mean there's no record as to specifically what i would have brought either way if i hadn't been limited what you would have shown in the deposition testimony that you were not allowed to show and what other additional questions you would i think the harm with respect to that issue of the limitation is different than the harm with respect to the un availability that's all i thank you morning new please the court good morning and rob and i represent the united states or i'd like to begin first of all just as a point of clarification before moving into the on availability issue is there was some of the court had some concern about whether or had requested a hearing for actual witnesses to testify about the efforts that the government made and there was no request for hearing the the defendant's attorney commented to the court expressed concern that the government had not put on had not it wasn't part of the record or the record didn't reflect what efforts were made and at that point the court said well the record is made when they file their motion and rather then  important thing to know about that is these are representations by a government representative being the prosecution about what efforts the government made this is not a confrontation issue about witnesses testifying against the defendant in factual context because it is a factual situation i mean it would be completely reasonable to make you produce documentary evidence and to put a your paralegal or whoever was responsible on the stand to say i called so and so and i that's and that's just because you're the government doesn't mean you are i mean we hope that and we expect you to have your duties but it doesn't mean that you automatically are credible trial court about what efforts the government made and the defendant's attorney even said he had no i think maybe the language something about he didn't have a doubt whether those things were done or something to th so the court been basically could accept those representations as fact there was no dispute about what the government made so in that respect you know move away from that now i'd like to address the end of alle guilty argument and to determine whether the material witnesses were unavailable for trial the longly requires that the government make a good faith and reasonable effort to obtain the presence of the witnesses in this case the government's to assure the presence of the witnesses began at the very deposition and during that deposition the prosecution talked to each of the witnesses made sure are you willing to return and that in the event of a trial the witnesses assured them yes they would return they made sure that the witnesses under oath gave contact information to the agent who was in charge and also to the attorney who was representing those materials which is so these are witnesses who are under oath giving their contact information now that the defendant made a point or the appellate made a point that they should have done something to to make that information valid or to make sure that information was valid but the ability of the government of the united states to conduct an investigation in a foreign country is a stream limited but before you release them you could have gone and double checked to see if those are even legitimate addresses or whatever couldn't you have if their addresses are in mexico your honor i think it would be difficult to determine whether or not they're valid we do determine whether the government does that sort of thing and other types of proceedings they determine things in foreign countries and that that is true you know and i'm not saying that it's impossible but i'm saying on a day to day basis to require the government to investigate every time a person gives an address in a phone number is unduly burdensome ok actually if they're in in this case your honor there is no evidence that that information was is there any evidence in this record that they even went back to mexico and we have got to that address did anyone follow through with them after their deposition to make sure they i don't know where abouts if this was a walk across the bridge situation or if it's a so different part of the return situation or will say that i did look for than in the record in the representing the representations made by the government in its motion to declare the witnesses under vailable the video deposition now with respect to hernandez ruiz i didn't find anything with respect to definitive when he was deported but during the video depositions the government at the very end in the admissions that was th were given to the to be witnesses basically clare for it fighter confirmed that in exchange for their cooperation that they the government agreed to allow them to voluntarily depart may or may not happen well i think your honor these days they're not says what i mean they were in a halfway house so it's not like the government allowed the witnesses to just be free in the community so i think you have to assume there's only an assumption that you can make here whether or not they left will that you bear the burden because you're trying to say that this was all good and fine i mean i think we bear the burden your honor to say that we made a legitimate good faith and reasonable effort to find them and that we made a good faith reasonable effort to assure that they would be present in the event that we needed them and in this case it's not that it is a hard rule but it's a constitutional imperative and just looking at this case alley versus toronto sort of spectrum it's an un satisfactory rule for us to sort of pick and choose to me but it isn't  getting them out on the other hand when you prosecute the person that they've paid to get smuggled you have to get their witnesses back so that's the obvious sort of odd circumstance yes your honor here's what i heard the defendant written refine his proposed rule of law to be his as i understood it and i may be misstating it he said in oral argument the rule should be that it the government's actions are only reasonable in good faith if you offer to the material witness that they can stay before they go and what is your thought you know of any court that's adopted that rule your honor i have not found anything to that fellow kaye but but there is some sense to it obviously we never know when the trial will occur could be six months it's taxpayer expense we have huge numbers of people being deported but what would be wrong with that rule yeah i think the practicality of that rule is something that it's not required under the law there is there is case law which says that the fact that the government allows a witness to return their a foreign country does not preclude a finding of good faith and so basically the fact that they're allowed to leave the country even under deportation doesn't mean that the government has an exercise  so their point is if you just stated in the record to the material witness you may day that would be this pretty deep or taishan good faith gesture that wasn't done here i don't think there was any discussion about whether or not they were given an opportunity to stay under some type of parole but that was i don't believe that is required under the law your honor i think under the not telling me that other courts have explicitly said that isn't required there's a witness is deported which means they're not voluntarily allowed to me the government is telling them to leave so it's an odd see saw do you see it that we have to find good faith at the front end and good faith of the back end or can they  rules i think your honor it's to view everything in the context like in this case for example that the rule of the reasonable miss should be considered in the context of the reasonableness of what they did after the witnesses left the country is should be in the context of the efforts that were the i guess the what was happening in the trial and in this case before the district court schedule the first trial set in foster had asked for two continuances and docket calls in both of those docket calls the order which granted the continuance is on the docket calls the court made a note that the continuance was granted as of october seventh maclean negotiations are still being ordered i guess i'm just the volume of billions being smuggled in is so huge and people the government is trying to prosecute every smuggler they can get i would have thought there'd be a u s attorney manual policy exactly on this issue you may only let the material witness go if you do these things and these things you're not aware of any court case or any u s attorney manual provision that says this is what is reasonable co less required here well less is not required here yonder it's just that what was done was reasonable you know we've best to gator when to go verify that nobody even called mexico to see if these were actual addresses or phone numbers or anything where very is no evidence in the records that the phone numbers were not valid as a matter of fact if you look at the was someone found at those phone numbers and someone else picked up the phone and said he's not here you no but i think you can't assume that that information that they gave under oath was invalid because under the litany of the efforts that the government made that he's the agent is leaving voice mails he's there's no nothing that says a telephone was disc and then why should we assume that is valid i mean you know unfortunately under oath people give information every single day about their whereabouts and where they look for their from and their address and where they can be found every single day to agents under oath in the fall so why do we assume that these people were telling the truth and without any kind of follow up and i'm not in their character in any way i'm just saying why isn't there at least a minimal duty to verify the information through other sources yeah and i think the reasonable miss must be what is reasonable for this huge vast population of illegal aliens who who have provided who are material witnesses when they're transported what is reasonable have you have to take into consideration the necessary efforts that we would take on the part of the government to investigate every single personal address personal phone number present material witnesses in a smuggling case not of every single person who comes across the border but of people who are material witness it's for good determined and i think basically that's why they're there's case law that says deportation the fact that they're deported doesn't preclude good faith just means the government has to make a reasonable good faith effort to make sure they're there and in this case the government's efforts began at at the deposition one of the circuit is given any insight into this spectrum what's good faith what's not i'm i'm thinking that may have but in that respect i may adol and this case is different from the toronto case where the court said that it was insufficient into rado basically bit there was a long period of time and the long period of time was five months and they waited till a week before the trial but in this case it was three and a half months after the depositions and during part of that time plea negotiations were being conducted so it wasn't even clear that there would have been a trial in this case there's an admission the defendant actually gave confession that he conducted it so i don't think i think the reasonableness of the government's conduct or efforts in this case has to consider the context of that so you think if somebody might plead you have to do less no your hon that's not what i'm saying well that's what honour's what is necessary and what is reasonable for the government now the government did not delay unnecessarily the moment but could the government receive the trial setting prior to that time there was never a trial setting to advise the witnesses up so the court the government couldn't make arrangements for them to be here at a particular date if the trial setting had been maybe even a year later hypothetically would would the duty have been soonish you know of the trial setting or would you have had an interim duty to keep in touch which is sword which is what that case we just talked about seems to say that at some point there is an interim duty to keep in touch even if there is not a trial setting and i think that that is clear from the to rod ok when is that kick in is it six months four months when does that kick in an interim duty to keep in touch and i think that does have to depend on the case became a case by case basis your honor and that's where all of the circumstances should be taken into consideration in determining what efforts the government had to make if there had been a six month delay here between the deposition in the trial would you still say would you still be here arguing that it was good faith i'm sorry if if the government had done nothing for six months if the government had the deposition on july twenty second and then there's a six month delay because the trials going to be in march or april instead of january is would you still be here arguing that it was good faith if there had been  well i think it would be more difficult drama because under the toronto case there was a five month delay but during that five month period nothing was done and there was i think there was even if if i'm not mistaken i think it was toront after the trial setting so depending on the circumstances of this case we have this case doesn't fall under the type of story you write up against it for three and a half is not is fine but five months would be problematic no i don't think so your honor i think when you consider and that's why i brought up the point about the context of what was happening at the time i'm trying to figure out what context makes the a longer delay appropriate if for example your honor if  a defendant had given some indication that he was going to plead guilty i thought you told me just a second ago that the fact that the person might plead is not a reason to delay contact it's not it's a factor your honor i think so why do you think it is a factor the fact that the person might plea means you don't have to keep up with the witnesses no i think no if that if the government had sufficient information about where they could contact the witnesses in the event of a trial didn't occur till november the seventh of two thousand and sixteen and then on the eighth november eighth is when the agent began to make calls ok the next record question is did these material witnesses have counsel yes they did your honor so counsel was present when under oath they said that they would update the government with their addresses and contact events direct and in addition to that they were they gave their contact information to the material  witness and then turn legally legally and don't be opportunistic here because i may be completely wrong but even if the government hadn't taken good faith efforts would the fact that we have a video where they were given a cross examination opportunity and stopped ten minutes but short of the time they were allotted could that ever make the underlying an availability issue harmless is the government arguing that i'm sorry your idea or you that say we conclude their work best practices we conclude it doesn't be good faith whatever will we think we can improve on the existing spectrum so we come to that conclusion but nonetheless we have the video we have the defense cross of these witnesses and they stop short of the time allotted i think ok would the underlying confrontation clause violation a constitutional one be harmless beyond a reasonable doubt well under harm yes there is a harmless this argument in terms of there is a harmless argument but the harm of argument would be that if the videotapes had not been introduced it was harmless it would have been harmless without the videotape but i still play would need them at he refuted that confession and i'm sorry i'm done with time the defendant refuted basically redacted or refuted his confession at trial so he he backed off on that but yes the harmlessness would be that if the government could make its case without the cross examination of the i mean the video deposition then it would be harmless and i did make that argument and in my brief there are no further questions thank you thank you for your yes with regards to what was indicated that i said that they should be required to give them the opportunity and did i know they were quoting to ellie and they said this is almost a direct quote if not direct i said governments good that faith efforts should include efforts at keeping witnesses in the united states as this is the best way to ensure a witness will be present and deporting a witness point which intrigues me that at least you have to offer right and they talk about that and so i'd like to say that i came up with that on my own but that's from those two cases from the so the other thing that i'd like to explain to you a little bit i know you keep i know there was a lot made out of well you know there are so many cases and we can't do this generally the way it works in a paso is you ours and these kinds of cases if you're set for a video deposition within two weeks of that they are arrested and what happens in the majority of those cases they plead out because it's either we're going to have the video depo or you're going to plead if you don't plead then you know the government has you know we may charge you with something worse than which are then what will let you plead to if you plead before the video d so a majority of the cases get resolved by pleas that occur prior to the video depositions the video deposition is actually not a commonplace thing that happens where we actually go through the video deposition so and of course the fact that you have a video deposition doesn't automatically mean you're going to have a trial but that's a good indicator to the prosecution that you know these this case may actually go to trial this is a case where you actually have to make some efforts to try to keep this person in the country so this is not every case this is probably one in twenty cases fifty cases some very small number to handle a lot of these you're familiar with the system i do and i ask just how often do you see the government able to find someone in mexico and bring them well actually the way and i should backtrack a little bit the ones that i've handled in this kind of case always end up in police and say ever seen the government able to find someone and pull them back this is the one the only one that i had tried of this kind of case where the we actually went through the video depositions and actually had a trial so in the other cases it wasn't necessary to find them because a person pled guilty it just can't it can't be that every one of these there have to be diplomatic channels reaching out to mexican government help it but i guess this virtually is never you know another point that i wanted to make i mean the government in their argument says well we should assume this and assume that and that's one of the big problems here is the burden was on them and if they had met their burden and done what they needed to do we wouldn't have to be assuming the court wouldn't have all these questions you need to wrap it up that and that's all i have you on thank you thank you we have your