IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50670

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RICARDO TIRADO-TIRADO

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Ricardo Tirado-Tirado (“Tirado-Tirado”) was convicted of encouraging and

inducing Rodrigo Garay-Ramirez (“Garay-Ramirez”), an alien, to enter the

United States with knowledge or reckless disregard of the fact that such entry

was unlawful in violation of 8 U.S.C. § 1324(a)(1)(A). Tirado-Tirado asserts that

the introduction of a videotaped deposition of Garay-Ramirez at trial violated his

rights under the Confrontation Clause of the Sixth Amendment because the

government failed to show that Garay-Ramirez was unavailable for trial and

Tirado-Tirado did not have a full and fair opportunity to cross examine GarayRamirez during the videotaped deposition. For the reasons stated below, we

United States Court of Appeals

Fifth Circuit

F I L E D

March 19, 2009

Charles R. Fulbruge III

Clerk
2

VACATE the judgment and REMAND for new trial.

I. Background

A. Efforts to Secure Garay-Ramirez’s Presence at Trial

Garay-Ramirez’s videotaped deposition was taken by the government and

Tirado-Tirado’s counsel on August 29, 2006. Garay-Ramirez was advised that

the case would be tried at a future date and that he would be asked to come back

and appear as a witness at trial. He was also asked to provide his contact

information to his attorney. He was subsequently released and returned to

Mexico.

On December 8, 2006, the district court set the first day of Tirado-Tirado’s

trial for February 20, 2007. The Customs and Border Protection officer assigned

to the case, Raymon Rosado, attempted to contact Garay-Ramirez prior to trial

using an address and telephone number provided by Garay-Ramirez’s counsel.

The telephone number did not work. On February 12, 2007, just eight days prior

to trial, Rosado sent a letter to Garay-Ramirez using the address provided by

Garay-Ramirez’s counsel. The letter notified Garay-Ramirez of the pending trial

date and location; requested that he appear and that he contact Rosado;

provided him with information regarding the port of entry that he should use to

enter the United States and who would meet him there; and stated that he

would be reimbursed for his travel expenses. Rosado also spoke to GarayRamirez’s brother, Feliciano, who said that Garay-Ramirez had no telephone at

his home in Mexico and that he would attempt to relay the information to his

brother. Rosado also questioned Feliciano about his role in bringing GarayRamirez into the United States.

On February 15, 2007, Rosado spoke to the owners of the vehicle seized

from Tirado-Tirado and obtained the name of Tirado-Tirado’s common-law wife

in Hatch, New Mexico. Rosado obtained her telephone number from the
This court has rejected the argument that the procedures established in § 1324(d) are

1

unconstitutional, but has stated that the statute does not eliminate the requirement that the

government establish the unavailability of a witness before the witness’s deposition testimony

3

telephone directory. On February 16, Rosado reviewed the call log of the cellular

telephone possessed by Tirado-Tirado at the time of his arrest. One of the calls

was made to Western Union, and Rosado subpoened Western Union records for

transactions made in Tirado-Tirado’s name. Another call was made to Sergio

Banuelos, the name on the resident alien card that Garay-Ramirez tried to use

to enter the United States. However, these leads did not assist the government

in locating Garay-Ramirez. Rosado also checked immigration and criminal

records but was unable to locate any information regarding Garay-Ramirez’s

whereabouts.

B. Tirado-Tirado’s Trial

On the first day of trial, Tirado-Tirado filed a motion to quash the video

deposition on the basis that the government had failed to make sufficient efforts

to secure Garay-Ramirez’s presence at trial. The district court questioned

whether a letter sent eight days before trial was calculated to obtain a response

by the trial date and stated that the government should have begun its efforts

sooner. The government conceded that “preferably a letter should have gone out

several weeks before it did.” Nevertheless, the court admitted the video

deposition pursuant to 8 U.S.C. § 1324(d), which provides that “notwithstanding

any provision of the Federal Rules of Evidence, the videotaped . . . deposition of

a witness . . . who has been deported or otherwise expelled from the United

States, or is otherwise unable to testify, may be admitted into evidence in an

action brought for [transporting illegal aliens] if the witness was available for

cross-examination and the deposition otherwise complies with the Federal Rules

of Evidence.”1
can be admitted at trial. See United States v. Aguilar-Tamayo, 300 F.3d 562, 565 (5th Cir.

2002), cited by United States v. Calderon Lopez, 268 F.App’x 279, 288–89 (5th Cir. 2008). 

4

At trial, Customs and Border Protection officer Margarita Crespin testified

that on August 14, 2006, she stopped a truck driven by Tirado-Tirado at the

Pasa Del Norte checkpoint. Tirado-Tirado gave Crespin his resident alien card

and that of his passenger. Tirado-Tirado’s card appeared to be valid. However,

the photograph on the passenger’s card did not resemble the passenger. When

Crespin questioned them about the passenger’s card, both men avoided eye

contact and looked straight ahead. They seemed uneasy and nervous, and

Tirado-Tirado licked his lips repeatedly. Tirado-Tirado said the two men had

been friends a long time, which Crespin found unusual as the passenger looked

much younger than Tirado-Tirado. She referred the truck to secondary

inspection with the notation “possible impostor.”

William Sutlive, a Customs and Border Protection officer, testified that he

interviewed Tirado-Tirado at secondary inspection. Sutlive testified that TiradoTirado was uncooperative, sullen, and angry. Tirado-Tirado refused to

acknowledge whether he understood his Miranda rights.

Officer Rosado testified that he interviewed Garay-Ramirez, who told

Rosado that Garay-Ramirez’s brother, Feliciano, had made the arrangements for

Garay-Ramirez to come into the United States. Rosado also testified about

statements that Feliciano made to Rosado the week before trial, which was the

first time that Rosado had spoken with Feliciano. Feliciano told Rosado that he

had paid for a bus ticket for Garay-Ramirez to travel to Juarez and that GarayRamirez’s brother-in-law, Chuy, had made the arrangements to bring GarayRamirez into the United States. Rosado stated that this account conflicted with

Garay-Ramirez’s statement to Rosado that Feliciano had made all of the
5

arrangements.

Customs and Border Patrol agent Pablo Castro testified that he arrested

Tirado-Tirado in 2001 for alien transporting, which was charged as a

misdemeanor. At the time of that arrest, Tirado-Tirado admitted that he had

transported people before. Tirado-Tirado indicated that he did so because it was

a far walk and that something could happen to them. However, Castro testified

that the aliens paid Tirado-Tirado $1,000 each to transport them into the United

States.

Garay-Ramirez’s video deposition was played for the jury. Garay-Ramirez

testified that Feliciano called him and told him to come to the United States.

Garay-Ramirez testified that Feliciano told him to talk to a man whose brothersin-law would pick him up. Garay-Ramirez took a bus to Juarez, where his aunt’s

brother-in-law, a man whose last name was Calderon, picked him up and took

him to his house, where Garay-Ramirez stayed for two to three days. Two men,

known to him as El Churro and El Perro, obtained an identification card for him.

Feliciano called and told Garay-Ramirez to go to a cathedral, where he would be

picked up.

Garay-Ramirez waited at the cathedral, where Tirado-Tirado came and

picked him up. Garay-Ramirez testified that he believed Tirado-Tirado

recognized him because Feliciano had instructed Garay-Ramirez to wear a white

hat. They then drove to the border checkpoint. Before they arrived at the border

checkpoint, Tirado-Tirado asked Garay-Ramirez for his identification card.

Otherwise, Tirado-Tirado did not speak to Garay-Ramirez during the drive.

Garay-Ramirez stated that he had never seen Tirado-Tirado before that day.

Garay-Ramirez stated that he did not pay anyone to take him into the United

States, and he did not know what arrangements were made on his behalf. He

conceded that he was going to be released to return home in exchange for his
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testimony.

Tirado-Tirado’s counsel argued to the jury that his client was simply

giving someone a ride without expectation of compensation and that there was

no evidence that he was involved in a prearranged plan to bring Garay-Ramirez

into the United States or that he knew Garay-Ramirez’s entry was unlawful. In

order to establish Tirado-Tirado’s knowledge or reckless disregard of the fact

that Garay-Ramirez’s entry was unlawful, the government pointed out that

Tirado-Tirado appeared nervous at inspection, that Tirado-Tirado falsely stated

at inspection that he and Garay-Ramirez were longtime friends, and that TiradoTirado picked Garay-Ramirez up in front of the church, the prearranged meeting

place, and drove directly to the border without speaking to him. The government

also noted Tirado-Tirado’s prior conviction for transporting aliens.

The jury found Tirado-Tirado guilty. The district court sentenced TiradoTirado to ten months in prison and a three-year term of supervised release.

Tirado-Tirado filed a timely notice of appeal.

II. Standard of Review

This court reviews a Confrontation Clause challenge de novo. United

States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008). Such claims,

however, are subject to harmless error review. Id.; see also United States v.

Jimenez, 464 F.3d 555, 558 (5th Cir. 2006); United States v. Bell, 367 F.3d 452,

465 (5th Cir. 2004). 

III. Whether There Was a Violation of the Confrontation Clause

The Confrontation Clause of the Sixth Amendment states that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington,

541 U.S. 36, 53–54, 68 (2004), the Supreme Court held that the right to

confrontation bars the “admission of testimonial statements of a witness who did
Tirado-Tirado appears to challenge the admission of the videotaped deposition solely

2

on constitutional grounds, not on any independent admissibility requirement imposed by

statute or the Federal Rules of Evidence.

Crawford did not change the definition of “unavailability” for Confrontation Clause 3

purposes; pre-Crawford cases on this point remain good law.

7

not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” See also United States v. Harper,

527 F.3d 396, 401 (5th Cir. 2008); United States v. Flores, 286 F.App’x 206, 214

(5th Cir. 2008). There is no dispute that the playing of the videotaped deposition

constituted the admission of testimonial statements of a witness who did not

appear at trial. At issue in this case is whether Garay-Ramirez was “unavailable

to testify” at Tirado-Tirado’s trial, and whether Tirado-Tirado had a prior

opportunity to cross-examine Garay-Ramirez. 

2

A. Unavailability

A witness is “unavailable” for Confrontation Clause purposes if the

“prosecutorial authorities have made a good-faith effort to obtain his presence

at trial.” Ohio v. Roberts, 448 U.S. 56, 74 (1980) (quoting Barber v. Page, 390

U.S. 719, 724–725 (1968)), overruled on other grounds by Crawford, 541 U.S. 36.3

“The lengths to which the prosecution must go to produce a witness . . . is a

question of reasonableness.” Id. (quoting California v. Green, 399 U.S. 149, 189

n.22 (1970) (Harlan, J., concurring)). “The law does not require the doing of a

futile act. Thus, if no possibility of procuring the witness exists (as, for example,

the witness’ intervening death), ‘good faith’ demands nothing of the prosecution.

But if there is a possibility, albeit remote, that affirmative measures might

produce the declarant, the obligation of good faith may demand their

effectuation.” Roberts, 448 U.S. at 74. “Because of the importance our

constitutional tradition attaches to a defendant’s right to confrontation, the ‘good
This Court treats the Confrontation Clause unavailability inquiry as identical to the

4

unavailability inquiry under Rule 804(a)(5) of the Federal Rules of Evidence, which defines

a witness as being unavailable when he is “absent from the hearing and the proponent of [his]

statement has been unable to procure [his] presence by process or other reasonable means.”

See Calderon–Lopez, 268 F.App’x at 288; Aguilar-Tamayo, 300 F.3d at 565 (“Unavailability

must ordinarily also be established to satisfy the requirements of the Confrontation Clause.”).

8

faith effort’ requirement demands much more than a merely perfunctory effort

by the government,” but “[t]he inevitable question of precisely how much effort

is required on the part of the government to reach the level of a ‘good faith’ and

‘reasonable’ effort eludes absolute resolution applicable to all cases.” United

States v. Allie, 978 F.2d 1401, 1406, 1408 (5th Cir. 1992). The prosecution bears

the burden of establishing that a witness is unavailable. Roberts, 448 U.S. at

74. 

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The measures taken by the government in this case do not constitute “good

faith” or “reasonable” efforts to secure the physical presence of Garay-Ramirez

at trial. The government failed to make any concrete arrangements with GarayRamirez prior to his deportation, and it delayed attempting to contact him about

making such arrangements until shortly before trial. Garay-Ramirez was not

served with a subpoena or given any sort of written notice regarding the trial

prior to being deported. He appears to have been only orally informed that his

testimony would be required if the case went to trial. Cf. United States v.

Calderon Lopez, 268 F.App’x 279, 289 (5th Cir. 2008) (finding that a government

special agent made a good faith effort to secure the presence of four witnesses

at trial sufficient to satisfy the Confrontation Clause by: (1) issuing subpoenas

and letters to each witness translated into Spanish indicating the trial date and

that the witness might be required to testify at trial prior to the witnesses’

deportation; (2) providing explicit instructions in the letters for obtaining the

necessary documents to enter the United States and providing each witness with
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the travel distance to the local American Embassy from his respective place of

residence, along with the addresses and telephone numbers for the Embassies;

(3) informing each witness that the government would pay for the trip and

reimburse the witness for any other incidental travel needed for the purpose of

testifying; (4) providing one of the witnesses with a contact number; (5) making

“several attempts to contact” another one of the witnesses in Mexico; and (6)

remaining in contact with the two other witnesses and requesting Significant

Public Benefit Paroles in order to facilitate their reentry into the United States);

Allie, 978 F.2d at 1403, 1407 (finding that the government took reasonable

measures to secure the presence of deported witnesses by: (1) giving the

witnesses the option of remaining in the United States with work permits; (2)

telling the witnesses about the payment of witness fees and travel cost

reimbursements; (3) giving the witnesses a subpoena and a letter to facilitate

their reentry into the United States after their depositions and prior to their

deportation; (4) calling the witnesses in their home country; (5) prior to their

deportation, getting the witnesses’ repeated assurances that they would return;

(6) apprising the border inspectors of the witnesses’ expected arrival; and (7)

issuing checks to be given to the witnesses upon their reentry into the United

States). Further, this oral notice only apprised Garay-Ramirez of the prospect

that he would be required to return to testify in relatively vague and uncertain

terms. See United States v. Guadian-Salazar, 824 F.2d 344, 346–47 (5th Cir.

1987) (stating that instructions to witnesses that in the event their testimony

was needed, the government would “make provisions for you to legally enter the

United States and to remain until the case is terminated,” were ambiguous and

contributed to “virtually assur[ing] the witnesses’ absence”).

The government did not make any effort to contact to Garay-Ramirez to

make concrete arrangements for his attendance at trial until more than five
The record does not show that the government deliberately sought to make Garay- 5

Ramirez unavailable for trial. However, “good faith” in the Confrontation Clause context is

an objective standard that looks to the reasonableness of the government’s efforts to secure

the witness, not the subjective intent of the responsible government officials. Thus, showing

that the government acted in good faith from a subjective perspective is necessary, but not

10

months after his deposition was taken, more than two months after the district

court set the trial date, and only eight days before trial. This lack of vigilance

on the part of the government is similar to that in Guadian-Salazar, in which

the government made no effort to contact the witnesses in the intervening month

before trial and conceded that it had not made a good faith effort to procure the

availability of deported witnesses for trial. 824 F.2d at 346. By contrast, in Allie

and Calderon Lopez, in which we found that the government took reasonable

measures to secure the presence of deported witnesses, the government made

efforts to remain in contact with the witnesses following their deportation.

The government’s failure to keep Garay-Ramirez in the United States does

not, as Tirado-Tirado asserts, per se demonstrate a lack of good faith by the

government. Allie, 978 F.2d at 1407–08. Although “the government’s good faith

efforts to assure [a witness’s] availability at trial should include efforts aimed at

keeping the witness[ ] in the United States,” as keeping a witness in the United

States is often probably the best way to ensure that the witness will be present

for trial, deporting a witness may still be consistent with “good faith” and

“reasonable” efforts to procure the witnesses’ availability at trial. Id. However,

in this case, the government’s actions do not meet that standard. The problem

is not that officer Rosado failed to make a diligent effort to find Garay-Ramirez

once he began the search (indeed, Rosado appears to have conducted a fairly

exhaustive investigation of his whereabouts), but that those efforts were made

at the last minute and followed a long period during which the government

apparently made no effort to remain in contact with Garay-Ramirez.5
sufficient, to establish good faith for the purposes of the unavailability inquiry. See Roberts,

448 U.S. at 74. 

11

Attempting to remain in contact with Ramirez and make concrete arrangements

with him to return for trial once the trial date had been set by the district judge,

or at least seeking to contact him more than one week prior to trial, as the

government concedes it should have done, would not have required significant

government resources, and in fact might have saved the government from

having to conduct a more exhaustive search as the trial date approached. The

failure to make such minimal efforts demonstrates a lack of good faith on the

part of the government, with the consequence that Garay-Ramirez was not

“unavailable” for Confrontation Clause purposes.

B. Prior Opportunity to Cross Examine

Tirado-Tirado asserts that he did not have the opportunity to cross

examine Garay-Ramirez regarding statements made the week before trial by

Garay-Ramirez’s brother, Feliciano, to officer Rosado regarding Feliciano’s and

other family members’ involvement in smuggling operations. Feliciano stated

that he paid for Garay-Ramirez’s bus ticket to Juarez and that their brother-inlaw Chuy was involved in the plan to bring Garay-Ramirez into the United

States. Tirado-Tirado argues that Garay-Ramirez’s desire to protect his family

from criminal prosecution gave him an incentive to lie about Tirado-Tirado’s role

in the smuggling operation, and that he was prejudiced by not being able to

cross-examine Garay-Ramirez about Feliciano’s statements. 

Although Tirado-Tirado was not able to cross-examine Garay-Ramirez

concerning the specific statements made the week before trial by Feliciano,

Garay-Ramirez testified during his deposition that his brother was responsible

for arranging his trip into the United States and that other family members
12

were involved in the plan. Feliciano’s statements did not newly raise the

prospect that Garay-Ramirez’s family members were involved in the plan to

bring Garay-Ramirez into the United States. Feliciano stated that he had

played a more minor role in the plan than Garay-Ramirez had testified, and that

Garay-Ramirez’s brother-in-law, Chuy, had made all of the arrangements to

bring Garay-Ramirez into the United States. This new evidence concerned only

the relative extent of each family member’s involvement. Tirado-Tirado had an

opportunity to cross-examine Garay-Ramirez about his family’s involvement and

explore the possibility that Garay-Ramirez testified falsely in order to protect his

family. See Calderon–Lopez, 268 F.App’x at 289–90 (rejecting argument that

defendants did not have an opportunity to cross-examine a deported witnesses

on the issue of hostage taking during a videotaped deposition when the

government provided notice on the day of the deposition that a superseding

indictment would be filed that might include that charge because “the

defendants were nonetheless able to evaluate to what extent each deponent’s

testimony would implicate them with regard to a potential hostage taking count

and cross-examine each witness on that issue”).

The admission of Garay-Ramirez’s videotaped deposition violated the

Confrontation Clause because Garay-Ramirez was not “unavailable” for trial, but

not because Tirado-Tirado did not have a full and fair opportunity to cross

examine Garay-Ramirez.

IV. Whether the Error Was Harmless

A defendant convicted on the basis of evidence introduced in violation of

the Confrontation Clause is entitled to a new trial unless the admission of that

evidence constitutes harmless error, meaning that there is no reasonable

possibility that the improperly admitted evidence might have contributed to the

conviction. Alvarado-Valdez, 521 F.3d at 341 (citing Chapman v. California, 386
13

U.S. 18, 24 (1967)). The government bears the burden of establishing that the

error is harmless beyond a reasonable doubt. Id. (citing United States v. Akpan,

407 F.3d 360, 377 (5th Cir. 2005)).

In this case, Tirado-Tirado was convicted of encouraging and inducing

Garay-Ramirez to enter the United States with knowledge or in reckless

disregard of the fact that such entry was unlawful under 8 U.S.C. §

1324(a)(1)(A). Tirado-Tirado does not dispute that he picked up Garay-Ramirez

in Mexico and attempted to drive him into the United States, but Tirado-Tirado

contends that he did not know, or act in reckless disregard of, the fact that

Garay-Ramirez was not legally permitted to enter the United States. In its

closing argument, the government argued that the jury could infer that TiradoTirado knew, or acted in reckless disregard of, the fact that Garay-Ramirez was

not legally permitted to enter the United States because: (1) Tirado-Tirado and

Garay-Ramirez appeared nervous when they were stopped at the border; (2)

Tirado-Tirado lied about Garay-Ramirez being his longtime friend; and (3)

Tirado-Tirado picked up Garay-Ramirez at a previously designated meeting

place and drove directly to the border after picking up Garay-Ramirez without

any discussion, indicating that Tirado-Tirado had prior knowledge of the plan

to bring Garay-Ramirez into the United States illegally. Garay-Ramirez’s

testimony was the only evidence that Tirado-Tirado lied about Garay-Ramirez

being his longtime friend and that Tirado-Tirado picked up Garay-Ramirez at

a previously designated meeting place and drove directly to the border after

picking up Garay-Ramirez without any discussion. In light of the emphasis that

the government placed on this evidence to show that Tirado-Tirado knew, or

acted in reckless disregard of, the fact that Garay-Ramirez was not legally

permitted to enter the United States, there is a reasonable possibility that it

might have contributed to Tirado-Tirado’s conviction. See Alvarado-Valdez, 521
14

F.3d at 341 (finding that admission of testimony was not harmless error because

of “the government’s insistent reliance on the testimony in its closing

argument”). As a result, the introduction of Garay-Ramirez’s testimony was not

harmless error.

The judgment is VACATED, and this matter is REMANDED for new trial.