United States Court of Appeals,

Eleventh Circuit.

No. 94-4029.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alcides J. RAMOS, Defendant-Appellant.

Feb. 24, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-332-CR-SM), Stanley Marcus, Judge.

Before KRAVITCH and CARNES, Circuit Judges, and FAY, Senior Circuit

Judge.

FAY, Senior Circuit Judge:

This appeal arises from Alcides Ramos's one-count conviction

for possessing cocaine with intent to distribute. Pretrial, the

magistrate granted Ramos's Rule 15 motion to depose a witness

deported to Colombia. On government motion, the magistrate

reconsidered and vacated that order, denying the motion to depose.

On appeal, Ramos argues the magistrate erred in reconsidering

and vacating her order. He asks this Court to reverse his

conviction, grant a new trial, and reinstate the order allowing him

to depose the third party. We grant partial relief and remand for

further proceedings.

I. BACKGROUND

A. Procedure

A Miami grand jury indicted Alcides Ramos ("Ramos" or "the

Defendant") on one count of possessing cocaine with intent to

distribute. Ramos pleaded not guilty. Ten days later, Ramos filed

an emergency motion under Federal Rule of Criminal Procedure 15 to
depose Ramon Yepez ("Yepez"). Ramos believed Yepez was at Krome

Detention Center awaiting deportation.

One week later the government responded that Yepez had been

deported five days before Ramos filed his emergency motion and

asked the district court to deny the emergency motion as moot. The

next day, Ramos amended his Rule 15 motion, alleging he could

locate Yepez in Colombia and still needed to depose him. The

district court denied the initial emergency motion and referred the

amended motion to a magistrate. Five days after referral, the

magistrate granted the amended motion to depose Yepez. That day,

the government filed a response to the motion in the nightbox. As

a result, the magistrate granted the motion before the government

responded.

A few weeks later, the district judge held a status

conference. Ramos's attorney advised the court that before Yepez

left Krome he gave Ramos's attorney information exculpating Ramos.

He further advised the court that whether Ramos would go to trial

would turn on whether he could depose Yepez and secure the

exculpatory testimony. The prosecutor responded that the

government would move for reconsideration because the magistrate

had granted the Rule 15 motion prior to the government's response.

The judge instructed the prosecutor to move quickly.

Two weeks later, the government moved for reconsideration.

Over a week later, only five days before trial, the magistrate

vacated her previous order and denied the amended motion to depose

Yepez as moot. The government concedes this ground is invalid and

error. Ramos went to trial without having deposed Yepez, did not
 1

Ramos's brother wrote him a $5000 check to purchase a home. 

According to Ramos, this is the $5000 cash found in his home. 

call Yepez as a witness, and was convicted and sentenced on one

count of possessing cocaine with intent to distribute.

B. Facts

Yepez delivered three boxes of cocaine to Ramos's home. This

is the lone fact on which both sides agree.

i. Ramos's Version of the Facts

Ramos maintains the other facts are as follows: Ramos knew

Yepez as a worker in a car wash where Ramos and his wife took their

cars each week. One day, Yepez came to Ramos's home and asked to

store some boxes there overnight while Yepez was moving. Ramos did

not know the boxes contained cocaine. Rather, he thought they

contained books. His wife directed Yepez to place the three boxes

upstairs in the master bedroom. After Yepez left, and without

Ramos's knowledge, she moved the smallest box into the closet to

clear the floor space.

The following day agents came to Ramos's house and asked if it

were his residence. He said yes. The agents then said they

suspected he had drugs or drug money in his home and asked if they

could search. He consented. Ramos immediately told the agents

about the boxes and encouraged them to open the boxes because he

did not want anything illegal in his home. He also told them he

had $5000 cash.1 He took the agents upstairs where two boxes sat

in the master bedroom. The agents opened the boxes, found cocaine,

and arrested Ramos.

During the search and arrest, Yepez drove by Ramos's house and
was stopped by the agents. They arrested him and took him back to

the Ramos house. Ramos identified Yepez as the man who had

delivered the boxes; Ramos then signed a written consent to search

form. He told agents Yepez had come by twenty minutes earlier but

had said he would return later for the boxes.

When the search did not uncover the $5000 cash Ramos had

mentioned earlier, the agents asked him where it was. He directed

them to the bedroom closet where the agents found both the cash and

the third box of cocaine. Ramos repeatedly said he had told them

about the third box when they first arrived.

ii. The Government's Version of the Facts

The government's fact allegations differ. They basically

agree with Ramos's actions described above; they dispute that

Ramos did not know the boxes contained cocaine.

The agents began surveillance of the Super Seven Car Wash

("Super Seven" or "the car wash") where Yepez worked. Once, they

followed Yepez from the car wash to Ramos's home.

On the morning of Ramos's arrest, the agents were watching the

car wash. They saw several people entering, staying for long

times, and leaving with no apparent purchases. The agents also saw

several Super Seven employees including Yepez using outside pay

phones. Shortly before noon, Ramos arrived at the Super Seven,

went inside, and came out several minutes later with Yepez. They

spoke for a few minutes outside before Ramos left in his red truck;

Yepez reentered the car wash and went behind the counter. After

Ramos left, the suspicious activity continued.

Later that day, Yepez left the car wash in a blue-green Toyota
Paseo. An agent followed him to a strip mall where Yepez parked,

paced, repeatedly checked his watch, made a phone call, and left.

The agent followed him to a second strip mall where Yepez entered

a paint and body shop. Two other agents joined the surveillance at

this point. After five to ten minutes, Yepez left the shop and

drove to Ramos's home. This was the second time agents had

followed Yepez to the Ramos home.

Yepez parked in the Ramos driveway, entered the home, and

stayed around 20 minutes. During his stay a silver Honda parked in

the driveway. Several people exited the Honda, entered the house,

and came out a few minutes later. They appeared to the agents to

be rushing to leave. One agent testified at trial that when the

Honda occupants saw his car, they reentered the house before

driving away. Soon after, Yepez walked outside; when he saw the

agent's car, he ran back into the house. Five minutes later, he

left the residence in his Paseo, performing "countersurveillance"

maneuvers to lose anyone following him. Finally, he went home,

entering his apartment complex through an automatic gate. His car

remained there for 20-30 minutes.

Meanwhile, back at the Ramos house, Alcides Ramos left shortly

after Yepez. He drove his red truck around for 20-30 minutes,

driving past his own driveway three times. Finally, he returned

home, parked in the driveway, looked around, and went inside.

After Ramos returned home, the agents approached his house to

ask for consent to search. They noticed the front window blinds

had been pulled aside to permit someone to look out. When Ramos

answered the door, they told him they believed he had drugs or drug
money and asked if they could search his home. He consented. When

the agents asked if he had drugs in the home, he immediately said

no and told them about the boxes and $5000 cash. He led them to

the master bedroom, showed the agents the two boxes in plain view,

told them emphatically he had only two boxes, and encouraged the

agents to open them. He also told the agents the $5000 cash was in

another room.

After opening the box and the packets found inside, which

revealed white powder now known to be cocaine, the agents arrested

Ramos. They read him his Miranda rights; he waived them. He told

the agents that a friend named "Moncho" had left the boxes at his

home the night before. Ramos said he did not know the man's real

name or address, but did describe Yepez's Paseo and said he had a

beeper number for him. He also said "Moncho" had not been at his

house that day. The agents asked Ramos for the $5000 cash he had

mentioned when they first arrived. He said the money was in the

closet (having earlier said it was not in the master bedroom).

During the search, Yepez drove by the Ramos home, was

apprehended, and brought inside. The agents also searched his car.

When the agents brought him inside, Ramos immediately identified

Yepez as the owner of the boxes. Ramos then signed a consent to

search form and described how "Ramon" had brought the boxes over

the night before. Prior to this, Ramos steadfastly maintained he

knew the man only as "Moncho" and did not know his real name. He

also told the agent that Ramon (Yepez) had been to his house

earlier that day, only 20 minutes before the agents arrived.

Again, this statement contradicted what Ramos previously had told
another agent.

Meanwhile, the agent searching upstairs for the cash also

found the third, smaller box of cocaine. When the agents

confronted Ramos with the third box, he irately insisted he had

told them about it earlier. The agents deny that Ramos had

mentioned a third box.

The total retail value of the cocaine found in Ramos's bedroom

was $8 million to $10 million.

II. ANALYSIS

 Rule 15 permits a district court to authorize a deposition in

a criminal case when exceptional circumstances exist. See

Fed.R.Crim.P. 15(a). The court's decision to authorize or deny the

deposition will be upset only for an abuse of discretion. United

States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir.1993); United

States v. Mills, 760 F.2d 1116, 1120 (11th Cir.1985).

 In Drogoul, this Court held that three factors guide the

exceptional circumstances analysis: whether (1) the witness is

unavailable to testify at trial; (2) injustice will result because

testimony material to the movant's case will be absent; and (3)

countervailing factors render taking the deposition unjust to the

nonmoving party.

A. Unavailability

 The government did not charge Yepez and immediately deported

him to Colombia. Pretrial, the prosecution sought special

permission from the State Department to have Yepez reenter the

country to testify at Ramos's trial. Yepez, however, has refused

to reenter the United States. Under Drogoul, a substantial
likelihood of unavailability can be found when the proposed

deponent is beyond the subpoena powers of the United States and has

declared his unwillingness to testify at trial, or even having

declared willingness to testify cannot be subpoenaed if he changes

his mind. Drogoul, 1 F.3d at 1553, 1557. We find a substantial

likelihood Yepez that was unavailable under the meaning of Rule 15.

B. Materiality

At no time before, during, or after trial has Ramos proffered

anything to show that Yepez's testimony will exculpate him. His

attorney merely stated in a pretrial colloquy with the district

court judge that Yepez had "provided exculpatory information as to"

Ramos. If this statement was the full extent of the attorney's

proffer, it is insufficient. As this court stated in United States

v. Sheffield, 992 F.2d 1164 (11th Cir.1993),

[f]or error to be predicated on a ruling excluding evidence,

Federal Rule of Evidence 103(a)(2) requires that "the

substance of the evidence was made known to the court by offer

or was apparent from the context within which the questions

were asked." Fed.R.Evid. 103(a)(2). The purpose of this

requirement is "to alert the [trial] court and opposing

counsel to the thrust of the excluded evidence, enabling them

to take appropriate action," and to construct a record

appropriate for appellate review. Parliament Ins. Co. v.

Hanson, 676 F.2d 1069, 1074 (5th Cir. Unit B 1982).

Sheffield, 992 F.2d at 1169. Such a proffer may be made by several

means including affidavit, proffered testimony, or calling a

witness to the stand; at the very least, the proffer must alert

the district court to the substance of the evidence that is at

peril of being excluded. See id.

To our surprise, however, the government has conceded on
 2

The government cited Drogoul for its understanding that it

must concede Yepez's testimony was material. Appellee's Br. at

18. The government also conceded unavailability, though we agree

evidence of unavailability is clear. 

appeal that Yepez's testimony was material, citing Drogoul.2 Under

Drogoul, material is a term of art that means material to the party

moving to depose. Accordingly, we must accept for purposes of

appeal the concession that Yepez's testimony was material to

Ramos's defense. Nonetheless, we point out that the district court

has never considered materiality on the merits because the defense

has never proffered what the testimony will be.

C. Countervailing Factors

 The government rests its argument for upholding the denial of

the Rule 15 motion on the presence of countervailing factors that

render taking the deposition unjust.

The government lists the following countervailing factors:

Yepez's testimony was suspect because he cannot be sanctioned for

perjury; because the defense had neither taken nor scheduled the

deposition when the magistrate vacated the order five days before

trial, it was unclear the deposition could actually be taken;

deposing a suspected drug dealer at a place and time arranged by an

undisclosed third party in Medellin, Colombia, posed a serious

threat to the prosecutor's safety; because the defense never

detailed what Yepez's testimony would be, the testimony may have

been irrelevant, cumulative, or inadmissible.

We find that none of these factors, whether taken singly or

together, render taking the deposition unjust. Indeed, the court

in Drogoul found that neither the possibility of inaccurate
translations nor the defendant's inability to confront witnesses

called only by deposition would render taking the deposition

unjust. See Drogoul 1 F.3d 1554-56. Delay in moving to take the

deposition was an insufficient countervailing factor as well. Id.

at 1556. Moreover, Drogoul dealt with injustice to the defendant;

here, we find it impossible to conclude that preserving Yepez's

testimony through deposition would have been unjust to the

government.

Although concern for the safety of an Assistant United States

Attorney in Colombia may be warranted, it is obvious that our

government has officials in Colombia who could attend; it is also

clear that the deposition could be accomplished through written

interrogatories.

III. STANDARD OF REVIEW

 The parties on appeal dispute whether the magistrate's error

was harmless. Because the defense has proffered nothing other than

the attorney's conclusory statement of what Yepez will say, we

cannot decide that question. Accordingly, and in view of the

government's concession, we must remand to the district court for

further proceedings. This remand is to allow the district court to

hear the defense's proffer and decide on the merits whether the

Yepez deposition should be allowed.

Indeed, this may be a two step process. Should the district

court allow the taking of the deposition, it will be in a position

to evaluate whether the testimony is in fact exculpatory. Should

such occur, the district court will also be in a position of

determining whether or not a new trial is justified.
If the appellant is allowed to attempt to depose Yepez, and is

not able to do so within a reasonable period, or if the deposition

is completed and the district court finds the testimony is not

sufficiently exculpatory, the conviction will stand.

IV. CONCLUSION

We hold that the ruling of the magistrate vacating her order

granting Ramos's Rule 15 motion was error.

We REMAND to allow the district court to consider the Rule 15

motion on the merits. The district court must permit the defendant

to proffer facts establishing that Yepez's testimony will exculpate

Ramos. If sufficient grounds are presented, the deposition should

be allowed. If the deposition is completed, the district court

must determine whether the testimony warrants the granting of a new

trial. If not, the conviction stands.

REMANDED with instructions.