Appeals from the United States District Court for the
Southern District of Florida D.C. Docket No.
ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.
jury trial, defendants Renado Smith and Richard Delancy
appeal their convictions for conspiracy to commit alien
smuggling, alien smuggling, and attempted illegal reentry.
Both defendants argue that at trial the district court erred
in admitting the videotaped deposition testimony of passenger
Vanessa Armstrong Vixama, a smuggled alien in their boat.
Smith also argues that the prosecutor's improper comments
to the jury during closing argument warrant a new trial.
After careful review of the record and the parties'
briefs, and with the benefit of oral argument, we affirm
Smith and Delancy's convictions.
recount the overwhelming trial evidence of alien smuggling in
starters, on November 4, 2016, defendants Smith and Delancy,
both Bahamian nationals, set out from Freeport, Bahamas on a
24-foot Grady White boat with 21 passengers. Smith was the
operator of the vessel, and Delancy assisted him.
21 passengers on the boat, 20 were Haitian nationals,
including Vixama, and one was a Bahamian national. Sometime
after leaving Freeport, this small boat ran out of fuel and
drifted at sea for approximately six days. There was little
water and no food on the boat.
for the passengers, on November 9, 2016, a U.S. Customs and
Border Protection ("CBP") aircraft, conducting a
routine border security patrol, spotted the boat drifting
about 24 miles off the coast of Key Largo, Florida. The boat
was also about 24 miles to the southwest of Bimini, Bahamas
and was drifting in a northerly direction with the Gulf
Stream current. The CBP aircraft personnel notified the U.S.
Coast Guard of the boat's position and continued to
monitor the boat from the air until a Coast Guard vessel
Guard cutter was dispatched to the boat's location and
used a small boat to ferry passengers from the disabled boat
to the cutter. The passengers, who were tired and dehydrated
but otherwise in good health, were eager to leave the
disabled boat. Smith and Delancy, however, asked Coast Guard
personnel to supply the two of them with water and fuel to
continue their trip. A Coast Guard officer advised them that
the Coast Guard could not provide them with fuel, and Smith
and Delancy agreed to board the cutter.
time, Smith and Delancy claimed that they were taking the
passengers to Bimini, Bahamas. Coast Guard officers
testified, however, that they were skeptical of the
defendants' claims because they "didn't make
sense." The officers explained that the boat was found
south of Bimini, approximately halfway between Bimini and Key
Largo. Because the current in that area generally travels
north, it would not make sense for the boat to have drifted
south past Bimini after becoming disabled. Both officers
acknowledged, however, that because the boat had been adrift
for six days, it would be difficult to determine what the
boat's original route had been.
aircraft pilot who located the boat testified that, in his
experience, vessels traveling from the Bahamas to the United
States do not always take a straight route and sometimes take
evasive actions to "disguise exactly what they're
doing." Similarly, Homeland Security Investigations
("HSI") Agent Craig Nowicki, the case agent,
testified that people involved in smuggling aliens "find
various routes to avoid law enforcement detection."
Coast Guard processed all 23 people who were taken off the
boat (including Smith and Delancy). None of the 21 passengers
had any identification documents with them, nor did they have
permission to enter or reside in the United States. Smith and
Delancy both were previously removed from the United States
and did not have permission to reenter.
addition to the location of the boat, there was other
considerable evidence showing that the defendants were
bringing the aliens to the United States, not Bimini. For
example, this was not even the defendants' first attempt
to illegally enter the United States. Smith had a prior June
2013 conviction for alien smuggling for profit, and Delancy
had a prior November 2013 conviction for illegal reentry
after deportation. As discussed later, the first page of each
judgment of conviction was admitted into evidence at trial.
Among other things, those judgments reflected: (1) that both
defendants' prior convictions took place in the West Palm
Beach Division of the Southern District of Florida; (2) the
dates of each defendant's prior offense and conviction;
(3) the statute under which each defendant was convicted; and
(4) the nature of the offense.
the boat's passengers also testified they believed the
boat was headed to the United States. Specifically, two
passengers gave videotaped depositions that were played for
the jury and admitted into evidence at trial. As discussed in
greater detail below, the defendants did not object to the
admission of one passenger's deposition (that of Davidson
Francois), but did object to the other (that of Vanessa
Armstrong Vixama). We review what Francois said first.
Davidson Francois testified that he is from Cap-Haitien,
Haiti. In 2016, Francois left Haiti and traveled to Freeport,
Bahamas. After arriving in Freeport, Francois's father
told him that a trip was being planned to bring Francois to
the United States so that Francois could go to school. A few
months later, in November 2016, Francois boarded the
defendants' boat and left Freeport with about 21 other
passengers. Francois testified that it was night time when he
boarded the boat and that Smith drove while Delancy
"help[ed] out." After leaving Freeport, the boat
got lost and spent six days at sea.
expressly testified that other passengers on the boat said
they were headed to the United States, and Francois likewise
believed the boat was going to the United States. Francois
admitted, however, that he did not personally know where the
boat was heading when he left Freeport because the defendants
"didn't tell [the passengers] anything."
Notably though, Delancy did discourage the passengers from
waving at other boats or using their cell phones.
during those six days, Francois saw several other boats pass
by. One boat stopped and provided them with bread and water,
but no other boats came to their aid. But when the passengers
attempted to get the attention of the other boats that were
passing, Delancy told them not to wave at the other boats or
attract their attention "because we don't know what
kind of boats they are." Delancy also told the
passengers to turn their cell phones off during the trip and
that he did not want them using their phones for any reason.
Some of the passengers did attempt to use their phones but
were unable to get a signal at sea.
Francois's testimony was admitted without objection, the
defendants objected to the government using the videotaped
deposition of passenger Vanessa Armstrong Vixama, who also
was from Haiti. Vixama's testimony was strikingly similar
to Francois's. Vixama traveled to Freeport, Bahamas from
Haiti in April 2016. Her plan was to travel then from the
Bahamas to the United States illegally, as she previously had
applied for and been denied student visas to the United
States on three separate occasions. A friend of Vixama's
mother arranged the trip for Vixama, and Vixama's family
paid $5, 000 for her passage.
one night in November 2016, Vixama got on a boat in Freeport
with 20 to 22 other people to come to the United States.
Vixama testified that she believed she was going directly
from Freeport to Miami, and one of the defendants told her it
would be about a three-hour trip. Smith drove the boat while
Delancy held a GPS device and talked to Smith.
leaving Freeport, the boat got lost and ran out of gas. When
a fishing boat passed by, the passengers pooled their money
to buy gas so they could continue their trip. There was no
food on the boat, and they ran out of water after the first
day at sea.
and other passengers had cell phones with them on the boat
and attempted to use them while the boat was lost, but could
not get any signal. When Delancy noticed the lights from
their phones, he told the passengers to turn their phones off
when other boats were going by. Vixama guessed that this was
"so that the police wouldn't see us."
Initially, Delancy also told the passengers not to wave their
life jackets in the air to attract the attention of other
boats, but by their sixth day lost at sea, Delancy relented
and the passengers used the life jackets to attract the
attention of the Coast Guard cutter, which rescued them after
their six days at sea with little food or water.
federal grand jury indicted both Smith and Delancy on (1) one
count of conspiracy to encourage and induce an alien to come
to, enter, and reside in the United States, knowing and in
reckless disregard of the fact that such coming to, entry,
and residence is and will be in violation of law, in
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 1);
and (2) 21 counts of knowingly encouraging and inducing an
alien to come to, enter, and reside in the United States,
knowing and in reckless disregard of the fact that such
coming to, entry, and residence is and will be in violation
of law, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv),
(v)(II) and 18 U.S.C. § 2 (Counts 2-22). The grand jury
also charged Smith and Delancy with one count each of
attempted illegal reentry, in violation of 8 U.S.C. §
1326(a), (b)(2) (Counts 23 (Delancy) and 24 (Smith)). Both
defendants pled not guilty and proceeded to trial.
Material Witness Complaint Against Vixama
the aliens on the boat were never brought into the United
States, but were sent back to Haiti after being processed by
the Coast Guard. However, four aliens, including Vixama and
Francois, were brought into the United States to be
interviewed in connection with Smith and Delancy's
criminal conduct. Initially, Vixama was detained in
Immigration and Customs Enforcement ("ICE") custody
at the Broward Transitional Center.
December 2016, Agent Nowicki met with Vixama while she was in
immigration detention at the Broward Transitional Center.
During that meeting, Vixama was anxious and provided Agent
Nowicki with the phone number of her uncle, and then she
called her uncle to put herself at ease. The uncle's
phone number was the only U.S. contact information Vixama
on December 22, 2016, the government filed a material witness
complaint against Vixama and obtained a warrant for her
arrest. On January 12, 2017, Vixama was arrested on the
material witness complaint. Because she was now under arrest,
Vixama was then transferred into the custody of the U.S.
Marshals Service at the Federal Detention Center in Miami
("FDC Miami"). When Vixama was transferred to FDC
Miami, ICE personnel within its Enforcement and Removal
Operations ("ICE ERO") lodged an immigration
detainer against Vixama to ensure that she would be
transferred back into ICE detention for immediate deportation
once the material witness complaint was dismissed as to the
January 19, 2017, a magistrate judge appointed attorney David
Raben to represent Vixama on the material witness complaint.
On January 27, 2017, and by agreement of the defendants, the
government took a videotaped deposition of Vixama to preserve
her testimony for trial. Defendants Smith, Delancy, and their
respective defense counsel were present and cross-examined
time, the parties expected that after Vixama's deposition
was taken two things would happen: (1) the material witness
complaint would be dismissed (releasing her from the U.S.
Marshals' custody at FDC Miami), and (2) ICE would then
deport her back to Haiti and she would be unavailable to
testify at trial. If the deposition had not been taken, then
Vixama would have remained in the U.S. Marshals' criminal
custody until Smith and Delancy's trial. The deposition,
however, would allow Vixama to get out of the U.S.
Marshals' criminal custody, and then ICE would deport her
back to Haiti. Smith and Delancy never objected to the taking
of Vixama's videotaped deposition. Smith and Delancy do
not dispute that their counsel had a full and adequate
opportunity to cross examine Vixama.
Vixama's videotaped deposition was completed, a
magistrate judge dismissed the material witness complaint
against her on February 3, 2017. At the time, Vixama was
still in the U.S. Marshals' custody at FDC Miami.
Vixama's Release from Custody
the material witness complaint against Vixama was dismissed
as to the criminal case, ICE ERO personnel had 48 hours to
pick Vixama up and take her into detention pursuant to the
immigration detainer ICE had filed against her. See
18 U.S.C. § 3144; 8 C.F.R. § 287.7(d). ICE ERO
personnel did not pick Vixama up within the required 48-hour
time period. As a result, on February 6, 2017, the U.S.
Marshals released Vixama from their custody.
Government's Multiple Attempts to Locate Vixama
February 7, 2017, Agent Nowicki learned of Vixama's
release and began his efforts to locate her. Nowicki
contacted Vixama's uncle (whose number Vixama previously
had provided), and he was at work. Later that night, Nowicki
contacted the uncle again and obtained the uncle's
address in Coral Springs, Florida. The next day, Nowicki
passed on the uncle's contact information to ICE ERO
February 21, 2017, ICE ERO agents went to the uncle's
house and searched the house for Vixama, but were unable to
locate her. The ICE ERO agents could not get a straight
answer from the occupants of the house as to whether Vixama
was staying there. The occupants of the house told the ICE
ERO agents "they're not sure if [Vixama's]
residing there," but the ICE ERO agents "felt like
they were getting the runaround."
March 2017, Agent Nowicki followed up with the ICE ERO agents
to see if they had located Vixama but "was told by a
supervisor there that they did not have the manpower to go
look for her again."
morning of April 12, 2017, the government attempted to locate
Vixama a third time. The government emailed Vixama's
former counsel, David Raben, to see if he knew where Vixama
was and to obtain her contact information. Specifically, the
Assistant United States Attorney ("AUSA") wrote to
I'm writing to see if you have a contact number or know
where your former client, Vanessa Armstrong Vixama, is
currently residing. It is my understanding that she was
released from the custody of the U.S. Marshalls [sic] before
ICE ERO officers came to pick her up at FDC. ICE ERO officers
have been unable to locate her to date. Since she hasn't
been deported yet, we are working to determine if she can be
located to testify at trial or if she is unavailable to
than an hour later, attorney Raben responded: "I sent an
email to family member. I never heard from client after
release. Will keep you advised." The following morning,
April 13, 2017, attorney Raben sent another email to the
AUSA, stating: "She is in Delaware[.] She doesn't
have a phone[.] I gave your contact info to her
that same day, April 13, 2017, the AUSA sent a trial subpoena
for Vixama to attorney Raben via email and again asked for an
address or phone number as follows:
Please find attached a trial subpoena for Vanessa Armstrong
Vixama. Please let me know if you have an address or phone
number to reach her or know of any other means of serving
this subpoena to her.
Please provide Ms. Vixama['s] contact information for the
case agent, Craig Nowicki . . . .
subpoena directed Vixama to appear at trial on April 19,
2017, six days later. A few minutes after the AUSA sent the
trial subpoena, attorney Raben responded: "I am
forwarding info to boyfriend[.]"
April 15, 2017, the AUSA emailed attorney Raben again,
indicating that if Vixama did not appear at trial on April
19, the AUSA would then seek a bench warrant for Vixama. The
AUSA's April 15 email asks:
Have you heard anything back from Ms. Vixama or her
boyfriend? If she doesn't appear on Wednesday, April 19th
as indicated in the subpoena, we will be seeking a bench
an hour later on April 15, attorney Raben sent the AUSA an
email with the name and phone number of Vixama's
boyfriend, stating: "You can call her now at this
number." In a separate email, attorney Raben
stated: "I just emailed you her number. I believe
she will cooperate." (emphasis added) From this
exchange, it appeared that attorney Raben had successfully
gotten the trial subpoena to Vixama through her boyfriend and
that Vixama would cooperate.
that same day, Agent Nowicki attempted to call Vixama's
boyfriend, but the call "went to an unset-up voicemail
box" and Nowicki was not able to leave a message. Agent
Nowicki then sent a text message to the boyfriend identifying
himself as a Homeland Security agent, advising the boyfriend
that Vixama was needed in Miami, and requesting that Vixama
call him back. Agent Nowicki did not receive a response to
this text message.
April 17, 2017, the first day of trial, the government
informed the district court that it intended to present
Vixama's deposition testimony. The government explained
that, after her deposition was taken, Vixama was released
from the U.S. Marshals' custody and was not picked up by
ICE ERO personnel to be returned to immigration detention.
The government described the various steps it had taken to
locate Vixama. The government stated that it still considered
her to be "unavailable" because it had not been
able to locate her. In response, defendant Smith moved that
Vixama be required to testify, arguing that she was
"available" because she was still somewhere within
the borders of the United States and was not yet deported.
The district court directed the parties to file memoranda and
caselaw on the admissibility of Vixama's deposition
Parties' Motions Regarding Admission of Vixama's
April 18, 2017, the government filed a motion in limine to
use Vixama's videotaped deposition at trial. The
government argued that it had made good-faith efforts to
locate Vixama and compel her attendance at trial but had been
unable to do so. The government therefore asserted that
Vixama should be deemed "unavailable" for trial,
and her videotaped deposition should be admitted pursuant to
Federal Rule of Evidence 804 and 8 U.S.C. § 1324. In the
meantime, Agent Nowicki attempted to call and text
Vixama's boyfriend again on April 18 but again received
same day, defendant Smith filed a motion to exclude
Vixama's deposition, which defendant Delancy adopted.
Smith argued that the government had not demonstrated Vixama
was "unavailable" under the Federal Rules of
Evidence, because it knew she was in Delaware, and had not
made a reasonable, good-faith effort to ascertain her precise
next day, April 19, 2017, the government asked the district
court to issue a bench warrant for Vixama's arrest in
light of her failure to comply with the trial subpoena. The
district court issued a bench warrant but did not rule on the
motions regarding the admissibility of Vixama's
deposition. The bench warrant was entered into the National
Criminal Information Center ("NCIC") database.
government also sent a copy of the bench warrant to
Vixama's former counsel, Raben. And Raben again attempted
to contact Vixama's boyfriend but received no response.
In an email on April 20 at 6:05 a.m., Raben informed the
prosecutor that "I spoke to boyfriend this morning and
explained consequences of her failing to contact agent."
Hearing on Admissibility of Vixama's Deposition
April 20, 2017 (the fourth day of trial), after the day's
testimony concluded, the district court dismissed the jury
and held a hearing on the admissibility of Vixama's
deposition testimony. At the hearing, Agent Nowicki testified
regarding the above-described events and the government's
multiple attempts to locate and contact Vixama. The
government emphasized (1) that Vixama was a deportable alien,
(2) that if she now contacted law enforcement (such as Agent
Nowicki), she could be deported, and (3) that she had every
motivation to hide from the AUSA and law enforcement and to
not make herself available at trial. The government argued
that it made reasonable, good-faith efforts to obtain
Vixama's presence at trial. Defendants Smith and Delancy
asserted that the government's efforts to locate Vixama
were insufficient to establish good faith.
district court found that Vixama was "unavailable"
and that the government had made good-faith, reasonable
efforts to secure her presence at trial. The district court
rejected the defendants' contention that the
government's efforts were "merely perfunctory"
and found, based on Agent Nowicki's credible testimony,
that the government's efforts to locate Vixama were
reasonable under the totality of the circumstances. On April
21, 2017, Vixama's videotaped deposition was played for
the jury over the defendants' objection.
Convictions and Sentences
jury found both defendants guilty as charged on all counts.
At sentencing, Smith had a total offense level of 25 and a
criminal history category of III, resulting in an advisory
guidelines range of 70 to 87 months' imprisonment.
Delancy had a total offense level of 23 and a criminal
history category of V, resulting in an advisory guidelines
range of 84 to 105 months' imprisonment.
district court sentenced Smith to 87-month prison sentences
on Counts 1 (conspiracy) and 24 (illegal reentry) and
60-month sentences on Counts 2 through 22 (alien smuggling),
all to run concurrently with each other but consecutive to
Smith's revocation sentence in a separate federal case
related to his prior alien smuggling conviction. The district
court sentenced Delancy to 90-month sentences on Counts 1
(conspiracy) and 23 (illegal reentry) and 60-month sentences
on Counts 2 through 22 (alien smuggling), all to run
concurrently with each other but consecutive to Delancy's
revocation sentence in a separate federal case related to his
prior illegal reentry conviction.
VIXAMA'S VIDEOTAPED DEPOSITION
Standard of Review
we review challenges to the district court's rulings on
the admissibility of evidence for an abuse of discretion.
United States v. Gari, 572 F.3d 1352, 1361 (11th
Cir. 2009). But we review de novo a defendant's
claim that his Sixth Amendment rights were violated. See
id.; see also United States v. Ignasiak, 667
F.3d 1217, 1227 (11th Cir. 2012) ("A defendant's
claim that his Sixth Amendment rights were violated is
reviewed de novo."); United States v.
Yates, 438 F.3d 1307, 1311 (11th Cir. 2006) (en banc)
("[W]e review de novo Defendants' claim that their
Sixth Amendment rights were violated."); United
States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000)
("We . . . give plenary review to claims of
constitutional error for a failure to show the unavailability
of an out-of-court declarant."). Such claims, however,
are subject to harmless error review. United States v.
Lang, 904 F.2d 618, 625-26 (11th Cir. 1990).
defendants Smith and Delancy challenge the admissibility of
Vixama's videotaped deposition only on the ground that it
violated their Confrontation Clause rights under the Sixth
Amendment. Accordingly, we review their claim de
Applicable Federal Rules
addressing the Confrontation Clause issue, we review the
relevant federal rules as background.
law provides for the admission at trial of a material
witness's videotaped deposition testimony in alien
smuggling cases if the witness has been deported.
See 8 U.S.C. § 1324(d). The defendants agreed
to Vixama's deposition and expected that Vixama would be
deported immediately to Haiti after that deposition, meaning
that her videotaped deposition would then be admissible at
trial under § 1324(d). Id. ("[T]he
videotaped (or otherwise audiovisually preserved) deposition
of a witness to a violation of subsection (a) 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 that violation.").
to the expectations of both the defendants and the
government, Vixama was not transferred by the U.S. Marshals
Service to ICE, per the latter's detainer, because ICE
missed the 48-hour deadline to take Vixama into custody upon
dismissal of the material witness complaint. That being so,
upon her release, Vixama was able to escape
Vixama had not been deported at the time of trial, we look to
Federal Rule of Criminal Procedure 15(f), which provides that
a witness's deposition testimony may be used at trial if
the witness is "unavailable," as determined by
Federal Rule of Evidence 804. See Fed. R. Crim. P.
15(f) ("A party may use all or part of a deposition as
provided by the Federal Rules of Evidence.").
turn, Federal Rule of Evidence 804(a)(5)(A) provides that a
witness is considered to be "unavailable" if, among
other things, the witness is absent from the trial and the
government "has not been able, by process or other
reasonable means, to procure . . . the declarant's
attendance." Fed.R.Evid. 804(a)(5)(A). If a witness is
"unavailable," the Federal Rules of Evidence do not
exclude as hearsay the witness's former testimony given
in a lawful deposition at which the defendant had an
opportunity for cross-examination. Fed.R.Evid. 804(b)(1).
explained below, unavailability must ordinarily also be
established to satisfy the requirements of the Confrontation
Clause, which we discuss next.
Sixth Amendment's Confrontation Clause provides 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. Most of the time, this
means that a witness must appear in person and give live
testimony at trial if her statements are to be used against
the defendant. See Crawford v. Washington, 541 U.S.
36, 53-54, 124 S.Ct. 1354, 1365 (2004).
defendant's right to a witness's live testimony in
the courtroom serves many important purposes, including
allowing the jury to observe closely the witness's
demeanor, expressions, and intonations, and thereby determine
the witness's credibility. See Ohio v. Roberts,
448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38 (1980),
abrogated in part on other grounds by Crawford, 541
U.S. at 60-69, 124 S.Ct. at 1369-74. The Supreme Court has
emphasized that in-court confrontation not only allows the
defendant to test the witness's recollection, but also
compels the witness "to stand face to face with the jury
in order that they may look at him, and judge by his demeanor
upon the stand and the manner in which he gives his testimony
whether he is worthy of belief." Id. (internal
quotations omitted); see also Barber v. Page, 390
U.S. 719, 721, 88 S.Ct. 1318, 1320 (1968) (stating same).
course, the Supreme Court has also told us that the right to
a witness's presence at trial is not absolute. In
Crawford, the Supreme Court expressly held that the
testimony of a witness who does not appear at trial is still
admissible, in the constitutional sense, if these two
conditions are met: (1) the witness "was unavailable to
testify"; and (2) "the defendant had had a prior
opportunity for cross-examination." Crawford,
541 U.S. at 59, 124 S.Ct. at 1369. Accordingly, prior
cross-examination alone cannot substitute for the
defendant's right to live testimony in the courtroom
unless the witness meets the Confrontation Clause's
requirement of "unavailability." See id.;
see also Roberts, 448 U.S. at 65, 100 S.Ct. at 2538
(noting that the "Framers' preference for
face-to-face accusation" requires the proponent of
recorded testimony to demonstrate unavailability of the
witness, "including [in] cases where prior
cross-examination has occurred."). The integrity of the
fact-finding process is at stake because the Confrontation
Clause is a procedural protection. Crawford, 541
U.S. at 61, 124 S.Ct. at 1370.
parties do not dispute that the government was authorized to
take Vixama's videotaped deposition, that both the
defendants and their counsel were physically present during
the videotaped deposition, or that the defendants'
counsel had an adequate and full opportunity to cross-examine
Vixama at her deposition. Her testimony was taken precisely
for use at trial, given she would be deported before trial.
In fact, the government's direct and redirect examination
of Vixama totals approximately 32 pages, whereas the
cross-examination by defense counsel, together, totals 79
pages of the deposition transcript. Defense counsel tested
Vixama's testimony and credibility with sufficient
the sole issue on appeal is whether Vixama was
"unavailable" to testify at the time of trial.
witness is "unavailable" for purposes of the
Confrontation Clause if the witness does not appear and the
government has "made a good-faith effort" to obtain
the witness's presence at trial. Hardy v. Cross,
565 U.S. 65, 69, 132 S.Ct. 490, 493 (2011); see also
Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 (examining
whether the prosecution "made a good-faith effort"
to obtain the witness's presence at trial (internal
quotation marks omitted)); Siddiqui, 235 F.3d at
1324. Because Vixama did not appear at trial, our inquiry
here narrows to whether the government made "a
good-faith effort" to obtain her presence.
not write on a blank slate as to what constitutes "a
good-faith effort." The Supreme Court has told us that
whether "a good-faith effort" has been made is
"a question of reasonableness."
Roberts, 448 U.S. at 74-75, 100 S.Ct. at 2543
(emphasis added) (internal quotation marks omitted).
Specifically, "[t]he lengths to which the prosecution
must go to produce a witness . . . is a question of
reasonableness." Id. at 74, 100 S.Ct. at 2543
(internal quotation marks omitted); see Hardy, 565
at 70, 132 S.Ct. at 494 (quoting same).
Supreme Court has also held that the prosecution bears the
burden to show it made a good-faith effort to produce the
witness. Roberts, 448 U.S. at 74-75, 100 S.Ct. at
2543. And the "'possibility of a refusal is not the
equivalent of asking and receiving a rebuff.'"
Id. at 76, 100 S.Ct. at 2544 (quoting Barber v.
Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 1322 (1968)). A
good-faith effort, however, does not require futile acts.
Id. at 74, 100 S.Ct. at 2543.
the Supreme Court in Hardy emphasized that,
"[w]hen a witness disappears before trial, it is always
possible to think of additional steps that the prosecution
might have taken to secure the witness' presence, but the
Sixth Amendment does not require the prosecution to exhaust
every avenue of inquiry, no matter how unpromising."
Hardy, 565 U.S. at 71-72, 132 S.Ct. at 495. The
Supreme Court in Hardy also pointed out that in
Roberts, "[w]e acknowledged that there were
some additional steps that the prosecutor might have taken in
an effort to find the witness, but we observed that
'[o]ne, in hindsight, may always think of other
things'" that could have been done. Id. at
70, 132 S.Ct. at 494 (quoting Roberts, 448 U.S. at
75, 100 S.Ct. at 2544).
our Circuit has little precedent in this area, we have
applied Roberts's reasonableness standard
before. Siddiqui, 235 F.3d at 1324 (11th Cir. 2000)
(citing Roberts, 448 U.S. at 74, 100 S.Ct at 2543
and acknowledging that "[t]he lengths to which the
government must go to produce a witness is a matter of
reasonableness"). Siddiqui involved two foreign
witnesses who resided in Japan and Switzerland and were
outside of the United States at the time of the trial.
See id. at 1320-21. After the depositions of both
witnesses, the government sent them letters urging them to
come and testify in person, but the witnesses declined to do
so. Id. at 1324-25. Our Court recounted other facts
in the case, such as that during their depositions, the
witnesses already indicated an unwillingness to travel to
attend the trial. Id. at 1324. Given all the factual
circumstances, this Court concluded that the government had
shown that the foreign witnesses were unavailable despite the
government's good-faith efforts to obtain their presence
at trial. Id.
course, Siddiqui involved foreign witnesses
outside the United States at the time of trial.
Here, we must address the different factual
situation of a foreign witness, like Vixama, who
resides in Haiti and is a Haitian citizen, but is temporarily
within the United States at the time of trial. Yet
that is far from the whole story. In this case, the missing
foreign witness Vixama (1) has no cell phone or address in
the United States, (2) is illegally here, and (3) has
absconded from the jurisdiction of the trial court in Florida
to avoid detention and immediate deportation to Haiti.
Although the government successfully sent a trial subpoena to
the witness Vixama, through her former attorney and her
boyfriend, and her former attorney reported back to the
government that she would cooperate, Vixama still refused to
appear at trial.
unaware of a similar factual case, but we do know from the
Supreme Court that there is no brightline rule for
reasonableness, and that a reasonableness inquiry necessarily
is fact-specific and examines the totality of the factual
circumstances of each particular case. See, e.g.,
Roberts, 448 U.S. at 75-77, 100 S.Ct. at 2543-45
(basing its reasonableness determination on all the
"facts presented"); United States v.
Banks, 540 U.S. 31, 36, 124 S.Ct. 521, 525 (2003)
(treating "reasonableness as a function of the facts of
cases so various that no template is likely to produce
sounder results than examining the totality of circumstances
in a given case"); Ohio v. Robinette, 519 U.S.
33, 39, 117 S.Ct. 417, 421 (1996) (eschewing
"bright-line rules," emphasizing "the
fact-specific nature of the reasonableness inquiry," and
instructing courts to examine "the totality of the
circumstances"); Ker v. California, 374 U.S.
23, 33, 83 S.Ct. 1623, 1629-30 (1963) (emphasizing
"there is no formula for the determination of
reasonableness" and "[e]ach case is to be decided
on its own facts and circumstances" (internal quotation
marks and alterations omitted)).
our task is to examine the government's cumulative
efforts here to determine if the district court correctly
decided that the government made a good-faith, reasonable
effort to obtain Vixama's presence at trial.
the specific facts of this case recounted at length above, we
are convinced that the district court did not err in
admitting Vixama's videotaped deposition testimony.
start with how Agent Nowicki attempted to locate Vixama
multiple times. Immediately after learning of Vixama's
release on February 6, 2017, Agent Nowicki on February 7
contacted her uncle, whose name and phone number Vixama had
previously provided. During Agent Nowicki's two efforts
to contact the uncle, he was successful in obtaining the
uncle's address. After doing that, Agent Nowicki
requested that ICE ERO agents visit the uncle's house to
look for Vixama.
ERO agents then did that on February 21, 2017. They even
searched the house, but were unable to locate Vixama and
found her relatives to be uncooperative. And after the ICE
ERO agents failed to locate Vixama at the uncle's house,
Agent Nowicki followed up with them again about Vixama in
March 2017. Ultimately, Agent Nowicki was told ICE ERO did
not have the manpower to look for her again at that time.
at this juncture, Vixama had given her deposition, the
material witness complaint had been dismissed, and Agent
Nowicki had no basis to take her into custody. Significantly,
though, there was still an immigration detainer against
Vixama. It was plainly reasonable for Agent Nowicki to turn
initially to ICE for help in locating Vixama.
so, the government's efforts to locate Vixama did not
stop. In the week leading up to the April trial, the
government continued its efforts to locate Vixama by reaching
out to her former counsel Raben four times, issuing a trial
subpoena, and thrice attempting to communicate with Vixama
using her boyfriend's cell phone number. It was patently
reasonable for the government to contact Raben, as
Vixama's former counsel, to try to locate her. Raben had
represented Vixama regarding the material witness complaint
against her in this very case. As such, Raben had an
established relationship with Vixama and access to her in a
way that the government did not. And Vixama had no address or
the government's efforts through attorney Raben did not
fall on deaf ears. As evidenced by the email communications
recounted above, former counsel Raben advised the government
that although Vixama did not have a phone number, he was
forwarding the government's communications, and later the
trial subpoena, to Vixama through her boyfriend. The
government thus made good progress as the government had
gotten Vixama's former counsel to send her the subpoena.
Subsequently, on April 15, Raben even advised that he
believed Vixama "will cooperate." Given how little
information the government had and how promptly and helpfully
Raben contacted her boyfriend and responded, it was also
reasonable for the government to rely on these efforts
through Vixama's former lawyer.
given that Raben had represented Vixama as to the material
witness complaint, it was also reasonable to rely on her
former attorney's assessment and representation that she
"will cooperate." When Vixama did not appear the
third day of trial on April 19, the government obtained a
bench warrant and also sent it to her former attorney, once
again in an effort to secure her presence at trial. Her
attorney then tried to contact the boyfriend again (who had
been responsive to Raben about the trial subpoena). But this
time, the boyfriend did not respond to even attorney Raben.
cannot ignore Vixama's obvious determination to go into
hiding and to elude capture. She had three times before
failed to obtain a visa to the United States, which led to
her attempt to sneak to the United States via the
defendants' illegal smuggling scheme. Then, when she was
mistakenly released, she immediately capitalized on that
mistake by absconding and fleeing from the jurisdiction of
the trial court in Florida. While her boyfriend was
reportedly in Delaware and initially cooperative with
Vixama's former lawyer, he then stopped responding to
calls or texts to his cell phone. Given these undisputed
circumstances, it was reasonable for the government to try to
locate Vixama through her former lawyer, which is confirmed
by the facts that the lawyer quickly and helpfully responded
to the government and then successfully ...