United States v. Magdalene Dixon , 657 F. App'x 704 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10229
Plaintiff-Appellee, D.C. No.
4:14-cr-01809-JGZ-CRP-1
v.
MAGDALENE FAITH DIXON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted August 10, 2016**
San Francisco, California
Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
Magdalene Dixon was convicted, after a jury trial, of transportation of an
illegal alien for profit, in violation of 8 U.S.C. § 1324(a)(1). She challenges the
admission at trial of the videotaped deposition of a material witness, admitted on
the ground that the declarant was unavailable because he was deported
immediately following the deposition. Dixon argues that use of the prior recorded
testimony pursuant to 8 U.S.C. § 1324(d) violates the Confrontation Clause of the
Sixth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo whether the Confrontation Clause was violated. United States v. Bowman,
215 F.3d 951, 960 (9th Cir. 2000).
Under 8 U.S.C. § 1324(d), “[n]otwithstanding any provision of the Federal
Rules of Evidence, the videotaped . . . deposition of a witness to a violation of
subsection (a) of this section who has been deported . . . may be admitted into
evidence in an action brought for that violation if the witness was available for
cross examination and the deposition otherwise complies with the Federal Rules of
Evidence.” Admission of the deposition comports with the Sixth Amendment’s
Confrontation Clause “where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.” Crawford v. Washington,
541 U.S. 36, 59 (2004). “A witness is considered unavailable for purposes of the
Confrontation Clause if the prosecutorial authorities have made a good-faith effort
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to obtain his presence at trial.” Forn v. Hornung, 343 F.3d 990, 995 n.3 (9th Cir.
2003) (internal quotation marks omitted). The lengths to which a prosecutor must
go to establish good faith is a question of reasonableness. Ohio v. Roberts, 448
U.S. 56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S. 36.
The district court properly found the witness to be unavailable because the
government made good faith, reasonable efforts to secure his attendance at trial,
including sending two letters via the witness’s counsel and offering to pay for the
witness’s expenses to appear. Dixon does not claim on appeal that she didn’t have
an opportunity to cross-examine the witness at the deposition. The district court
did not err in admitting the videotaped deposition under 8 U.S.C. § 1324(d).
AFFIRMED.
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