* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 20 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN LOUIS RUIZ, Defendant - Appellant. No. 03-2022 (D.C. No. CR 01-1662 BB) (D.N.M.)

ORDER AND JUDGMENT *

Before MURPHY , HOLLOWAY , andMcCONNELL, Circuit Judges.
This is an appeal from a criminal conviction for cr imes arising from illegal alien smuggling. One of the principal witnesses fo r the government, Rita Alderete-Gandara (“Alderete”), was a Mexican citize n whom the Defendant was accused of smuggling into the country. The governm ent did not charge this witness with any crime but instead held her as a material witness. This witness moved that her deposition be taken pursuant to Fed. R. Crim. P. 15. This request was granted. Prior to trial, the witness violated the terms of her release and-2-

returned to Mexico. As a result, the government wa s unable to secure her presence at the Defendant’s trial and instead intro duced her deposition pursuant to Fed. R. Evid. 804(a)(5). On appeal, the Defendant argues this was in error. Specifically, the Defendant says that Alderete’s deposition should no t have been taken because the requirements of Fed. R. Crim. P. 15 were not met as Alderete was not “detained.” The Defendant also argues that it was erroneous forthe district court to admit the deposition because the witness was not “unavailable ” as required by Fed. R. Evid. 804(a)(5). Because we find that the deposition was properly admitted, we find no error and AFFIRM the Defendant’s conviction.

I Background

On September 5, 2001, Ruiz was observed by remote c ameras picking up two people from a field where illegal immigrants fr om Mexico often attempt to enter the United States. Ruiz was intercepted and arrested along with his two passengers, Alderete and one Jesus Antonio Gutierre z-Miranda (Gutierrez), who were citizens of Mexico that had entered this count ry illegally. Ruiz was subsequently indicted on four counts: (1) conspirac y to bring illegal aliens into-3-

the United States; (2 & 3) transporting illegal ali ens, and (4) making a false claim of United States citizenship. Alderete and Gutierr ez were not charged but instead were held as material witnesses. Alderete and Guti errez posted bond and were placed on supervised release in the custody of a th ird person. One condition of their release was that they not leave the District of New Mexico. On January 26, 2002, Alderete, while on supervised release, petitioned the court to allow her deposition to be taken. Alderet e’s purported reason for this request was that she wished to return to Mexico bec ause her mother had suffered a heart attack and was ill. On February 7, 2002, amagistrate judge ordered a deposition to be taken. That order was not appeale d to the district court. On February 13, 2002, Alderete’s deposition was taken. Alderete’s deposition was presided over by the magi strate judge and attended by Alderete, her attorney, government coun sel, and Ruiz’s attorney–Ruiz having waived his right to be present. Prior to th e start of the deposition, Ruiz’s attorney objected to the taking of the deposition, arguing that the reason for the deposition had evaporated since Alderete’s mother w as no longer ill and Alderete had expressed a desire to stay in New Mexico for th e trial. Alderete’s counsel responded that Alderete’s mother may become ill aga in and, since all parties were present, that taking the deposition at that time wo uld be the most efficient course of action. The magistrate agreed and the depositio n was taken.-4-

Sometime prior to trial, Alderete violated the term s of her release and absconded to Mexico. The government nonetheless attempted to secure her presence at Ruiz’s trial by issuing a warrant for h er arrest and contacting her by phone. Though the government was able to speak with Alderete by telephone, its counsel were unable to persuade her to return to Ne w Mexico. The day before trial, Ruiz pled guilty to the fourt h count of the indictment, making a false claim of United States citizenship. The remaining counts went to trial at which Alderete’s deposition was entered into evidence. Ruiz was convicted on all remaining counts.

II Discussion
A Taking of depositions under Fed. R. Crim. P. 15 Ordinarily, “[w]e review a trial court’s decision a uthorizing the taking of a deposition under [Fed. R. Crim. P.] 15(a) for an ab use of discretion.” United States v. Fuentes-Galindo , 929 F.2d 1507, 1509 (10th Cir. 1991). In this ca se, however, the authorization to take the deposition w as issued by a magistrate judge and his order was never appealed to the district co urt. A magistrate judge is granted the authority to authorize the taking of a deposition pursuant to Fed. R.-5-

Crim. P. 15 by 28 U.S.C. § 636(b)(1)(A). Such an o rder by a magistrate judge, however, is not “a final order directly appealable to the court of appeals.” Hutchinson v. Pfeil , 105 F.3d 562, 566 (10th Cir. 1997). Accordingly, orders by magistrate judges are reviewed only for plain errorunless first appealed to the district court. Ayala v. United States , 980 F.2d 1342, 1352 (10th Cir. 1992). The one exception to this rule is where the appeal chal lenges the magistrate judge’s subject matter jurisdiction. Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). In this case, Ruiz never appealed the order of the magistrate judge that authorized the deposition of Alderete. And, since Ruiz does not argue this order was outside the subject matter jurisdiction of the magistrate judge, we review this order for only plain error. In criminal cases, to reverse a conviction for plai n error, “the error must (1) be an actual error that was forfeited; (2) be plain or obvious; and (3) affect substantial rights, in other words, in most cases the error must be prejudicial, i.e., it must have affected the outcome . . . .” United States v. Haney , 318 F.3d 1161, 1166 (10th Cir. 2003); Fed. R. Crim. P. 52(b). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairnes s, integrity, or public reputation of judicial proceedings.” United States v. Edgar , 348 F.3d 867, 871 (10th Cir. 2003)-6-

(quoting Johnson v. United States , 520 U.S. 461, 467 (1997)). Here, the magistrate judge’s order to depose Aldere te was not plain error because, even if assumed to be both actual error an d obvious error, the order did not affect Ruiz’s substantial rights. “An error af fects substantial rights where the error was prejudicial, that is, if it affected the outcome of the district court proceedings.” United States v. Brown , 316 F.3d 1151, 1158 (10th Cir. 2003) (internal quotation marks omitted). Moreover, “[i] t is the defendant, rather than the Government who bears the burden of persuasion w ith respect to prejudice.” United States v. Olano , 507 U.S. 725, 734 (1997). Ruiz’s claim of error in this case is that the gove rnment violated Fed. R. Crim. P. 15. A violation of Fed. R. Crim. P. 15 po tentially affects the outcome of district court proceedings in two ways: allowing de positions to be misused as “a discovery device in criminal cases,” or allowing de positions to be used as a substitute for “live testimony at trial in contrave ntion of the spirit of the Sixth Amendment.” United States v. Mann , 590 F.2d 361, 365 (1st Cir. 1978). Here, it is uncontested that the government did not use the deposition of Alderete as a discovery device. Therefore, the only way Ruiz can demonstrate his su bstantive rights were violated by this order is to show the government tr ied to use Alderete’s deposition in lieu of her live testimony in contravention of t he Sixth Amendment. A-7-

criminal defendant’s Sixth Amendment rights are pro tected by Fed. R. Crim. P. 15 through Fed. R. Evid. 804. Specifically, Fed. R. C rim. P. 15(e) provides that the admissibility of depositions taken pursuant to Fed. R. Crim. P. 15(a) is governed by the Federal Rules of Evidence. In turn, Fed. R. Evid. 804 permits the entry into evidence of a deposition only where the declar ant is “unavailable.” Where the government seeks to introduce the deposition, awitness is “unavailable” only if the government can show it made a “good faith” e ffort to secure the declarant’s presence at trial. Barber v. Page , 390 U.S. 719, 723-25 (1968). This requirement of good faith ensures that the substantive rights g ranted under the Confrontation Clause of the Sixth Amendment are not violated. Id. at 721-22. Ordinarily, the burden is on the proponent of the t estimony to show good faith. United States v. Eufracio-Torres , 890 F.2d 266, 269 (10th Cir. 1989). In this case, however, we apply plain error analysis and, therefore, the burden is on Ruiz to show prejudice. Olano , 507 U.S. at 734. Therefore, in order to establis h that a deposition taken in contravention of Fed. R. Crim. P. 15 violates substantial rights, the deposition must first be entered into e vidence in lieu of live testimony. In addition, the defendant must show that the government failed to “demonstrate that a good faith effort was made to obtain the dec larant's presence at trial using reasonable means.” United States v. Fuentes-Galindo , 929 F.2d 1507, 1511 (10th Cir. 1991) (reversing a conviction where deposition s were taken in violation of-8-

Fed. R. Crim. P. 15 on the ground that the depositi ons were inadmissible because the government failed to demonstrate it made a good faith effort to secure the presence of the witness rather than on the ground that the depositions were taken in violation of Fed. R. Crim. P. 15). In this case, Ruiz fails to show that the government failed to made a good faith effort to secure the presence of Alderete at Ruiz’s trial. First, after arresting Alderete, the government did not release her straig ht into the custody of the INS for deportation, as was the case in Fuentes-Galindo , 929 F.2d at 1510. Instead, the government released Alderete on bond, into the custody of a third-party and with the condition that she remain within the state until trial. Appellee’s Answer Brief at 32 (Alderete’s conditions of pretrial rele ase). After it was discovered that Alderete had absconded back to Mexico, a warra nt for her arrest was issued. Record on App. Volume I (pleadings), Document 75 at2. Moreover, the government made several attempts to contact Alderet e by phone in Mexico to try to convince her to return for trial. Id. The government managed to persuade Alderete to agree to meet a government agent at the border, but she never showed
up. Id. These efforts satisfied the government’s burden o f showing a good faith effort to obtain Alderete’s presence at trial. We reached this conclusion on a virtually identical set of facts in United States v. Eufracio-Torres , 890 F.2d 266 (10th Cir. 1989). There, the govern ment-9-

attempted to secure the presence of a witness by se rving process and speaking with the witness and instructing him to return for trial. Id. at 269. Though the witness never returned, we concluded:

The law does not require the government to utilize an absolute means of attempting to assure the appearan ce of a witness, only a reasonable means. The facts of th is case establish the government utilized reasonable m eans to assure the attendance of the witnesses. The factthat the means utilized were unsuccessful does not mean that the government's efforts were not made in good faith. Id. Therefore, the government in this case did satisfy its burden of showing good faith and Ruiz’s substantial rights under the Confrontation Clause of the Sixth Amendment were not violated by the introducti on into evidence of Alderete’s deposition. Accordingly, whatever errorthe magistrate judge may have made in allowing Alderete to be deposed, such error was not plain and does not support reversal of Ruiz’s conviction.

B Entering Alderete’s deposition into evidence Ruiz also argues that the district court erred in a dmitting Alderete’s deposition into evidence under Fed. R. Evid. 804(a) because Alderete was not “unavailable.” Specifically, Ruiz argues the gover nment failed to demonstrate a good faith effort to obtain Alderete’s presence at trial.-10-

“We review the trial court's admission or exclusionof evidence under the abuse of discretion standard of review . . . .” Eufracio-Torres , 890 F.2d at 272. “[T]he Confrontation Clause of the Sixth Amendment . . . require[s] . . . [that] before using deposition testimony in a criminal cas e, the government must demonstrate [] it made a good faith effort using re asonable means to obtain the declarant's presence at trial.” Id. at 269. In this case, as noted above, the government did demonstrate a good faith effort to o btain Alderete’s presence at trial. Therefore, the district court did not abuse its discretion in admitting Alderete’s deposition.

III Conclusion For the reasons detailed above, we hold that the ma gistrate judge’s order to depose Alderete pursuant to Fed. R. Crim. P. 15 was not plain error. We also hold that the district court did not abuse its disc retion in admitting Alderete’s deposition into evidence. Accordingly, Ruiz’s conv iction is AFFIRMED. Entered for the Court William J. Holloway, Jr. Circuit Judge