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United States v. Smith

United States Court of Appeals, Eleventh Circuit

July 2, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RENADO SMITH, RICHARD DELANCY, Defendants-Appellants.

          Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:16-cr-20908-JAL-2

          Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.

          HULL, Circuit Judge:

         After a 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.

         I. TRIAL EVIDENCE

         We recount the overwhelming trial evidence of alien smuggling in this case.

         For 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.

         Of the 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.

         Fortunately 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 arrived.

         A Coast 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.

         At the 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.

         The CBP 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."

         The 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.

         In 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.

         Two of 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.

         Passenger 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.

         Francois 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.

         Specifically, 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.

         While 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.

         Late 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.

         After 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.

         Vixama 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.

         II. PROCEDURAL HISTORY

         A. Indictment

         A 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.

         B. Material Witness Complaint Against Vixama

         Many of 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.

         In 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 provided.

         Subsequently, 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 criminal case.

         On 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.[1] Defendants Smith, Delancy, and their respective defense counsel were present and cross-examined Vixama.

         At that 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.

         Once 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.

         C. Vixama's Release from Custody

         Once 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.[2]

         D. Government's Multiple Attempts to Locate Vixama

         On 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 personnel.

         On 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."

         In 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."

         On the 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 attorney Raben:

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 testify.

         Less 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 boyfriend[.]"

         Later 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 . . . .

         The 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[.]"

         On 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 warrant.

         About 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."[3] 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.

         Later 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.

         On 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 testimony.

         E. Parties' Motions Regarding Admission of Vixama's Deposition

         On 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 no response.

         That 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 whereabouts.

         The 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.

         The 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."

         F. Hearing on Admissibility of Vixama's Deposition

         On 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.

         The 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.

         G. Convictions and Sentences

         The 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.

         The 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.[4]

         III. VIXAMA'S VIDEOTAPED DEPOSITION

         A. Standard of Review

         Typically, 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).

         Here, 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 novo.

         B. Applicable Federal Rules

         Before addressing the Confrontation Clause issue, we review the relevant federal rules as background.

         Federal 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.").

         Contrary 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 deportation.[5]

         Because 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.").

         In 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).

         As explained below, unavailability must ordinarily also be established to satisfy the requirements of the Confrontation Clause, which we discuss next.

         C. Confrontation Clause

         The 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).

         The 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).

         Of 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.

         The 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 cross-examination.

         Therefore, the sole issue on appeal is whether Vixama was "unavailable" to testify at the time of trial.

         D. "Unavailable" Witnesses

         A 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.

         We do 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).

         The 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.

         Furthermore, 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).

         Although 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.

         Of course, Siddiqui involved foreign witnesses outside the United States at the time of trial. Here, we must address the different factual situation[6] 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.

         We are 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)).[7]

         Therefore, 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.

         E. Discussion

         Given 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.

         We 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.

         The ICE 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.

         Importantly, 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.

         Even 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 cell phone.

         Moreover, 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.

         Further, 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.

         We also 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 ...


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