In Guadian-Salazar, supra, the court ordered the videotaped depositions of material witnesses. After the depositions, the witnesses were released at the Mexican border, served with subpoenas, invited to return with promises of assistance but no advances of travel funds. Nevertheless, on appeal, the government conceded that the defendant had been denied his constitutional right of confronting the adverse witnesses. 824 F.2d at 347-48.
By contrast, in United States v. Eufracio-Torres, 890 F.2d 266, 270 (10th Cir. 1989) (affirming lower court decision), cert. denied, 494 U.S.1008, 108 L. Ed. 2d 482, 110 S. Ct. 1306 (1990), the district court permitted the government to depose the alien witnesses over the objection of the criminal defendant, denied the defendant's motion to detain the witnesses pending trial, and ordered their release. Proper arrangements were made for the witnesses' return for trial. The witnesses promised to return, but failed to do so. The trial court deemed the witnesses unavailable for trial and admitted their deposition testimony in evidence pursuant to Rule 804 of the Federal Rules of Evidence despite the defendant's objection that using the deposition violated his right to confront the witnesses under the Sixth Amendment. See 890 F.2d at 269-70.
The defendant's Sixth Amendment right to confrontation is protected where the defendant has the opportunity to cross-examine the material witnesses under oath, see United States v. Salim, 855 F.2d 944, 950 (2d Cir. 1988) ("the district court should satisfy itself that defense counsel will be given an opportunity to cross-examine the witness in order to . . . ensure a likelihood that the deposition will not violate the confrontation clause"), and where the government, by making reasonable and good faith efforts to ensure the attendance of the witnesses at trial, even though the means employed prove ultimately unsuccessful, satisfies its burden of proving the witness' unavailability as a predicate to the admission of the deposition testimony. Barber v. Page, 390 U.S. at 724-25; Eufracio-Torres, 890 F.2d at 270; see Phillips v. Wyrick, 558 F.2d at 493 ("admitting the prior testimony of a witness does not violate the Confrontation Clause where the witness is unavailable for trial, the testimony was given at a previous judicial proceeding against the same defendant, and the defendant had an opportunity to cross-examine the witness."). As the court in Ruiz stated:
"deposition testimony is admissible only if the government has exhausted reasonable efforts to assure that the witness will attend trial. The ultimate success or failure of those efforts is not dispositive. So long as the government has employed reasonable measures to secure the witness' presence at trial, the fact that the witness has never the less failed to appear will not preclude the admission of deposition testimony. Such a witness will be deemed "unavailable," and the deposition is admissible over the defendant's Confrontation Clause and hearsay objections.
973 F.2d at 418 (citation omitted). If the government is unable to hold the material witnesses or ensure their return for trial and makes the requisite showing of unavailability, then the government need at most make the material witnesses' "testimony available as provided by law" in order to satisfy the requirements of the confrontation clause. United States v. Seijo, 595 F.2d 116, 120 (2d Cir. 1979).
Here, the government has made efforts to assure that each material witness, save Mr. Jang, will attend trial. On December 21, 1992, the day the depositions began, the government wrote each material witness to officially extend them "an invitation to return to the United States to testify as a witness at the trial. . . ." In the letter, the government states that it "will make all necessary travel arrangements and pay for your expenses, including round trip air fare from Taiwan and all hotel and food expenses while you are in the United States." The letter further provides the name, telephone number and address of the Special Agent each material witness should contact to return to testify at trial. A second letter from the government to each material witness, dated December 31, 1992, provides the name and telephone number of a person who speaks Chinese and resides in Taiwan, and whom the material witnesses can contact instead of the Special Agent to arrange for their return to the United States. The government also issued trial subpoenas for the witnesses whom Defendants seek to cross-examine at trial, and each witness stated on the record that he would return for trial.
This situation is very different from the circumstances in United States v. Mann, 590 F.2d 361 (1st Cir. 1978), where the material witness was not told she should return to testify, no expenses for food and board were guaranteed, no trial subpoenas were issued, the depositions were not videotaped and could not capture the witness' demeanor where credibility was at issue, and the government's other efforts to assure the presence of the material witness at trial were clearly "perfunctory." Id. at 367 & n.8.
For purposes of the right to confrontation and the rules of evidence, whether the invitations prove successful or the offer is accepted is immaterial; the government's efforts to apprise the material witnesses of these arrangements and actually make such arrangements available to them constitutes "reasonable efforts to assure that the witness will attend trial." Ruiz, 973 F.2d at 418. These efforts also demonstrate that the absence of the material witnesses at trial will not be due to the "procurement or wrongdoing" of the government. Fed. R. Evid. 804(a); see Seijo, supra, 595 F.2d at 120. Accordingly, the witnesses will be unavailable and their depositions are admissible at trial over both Sixth Amendment confrontation rights objections and evidentiary objections.
Defendant Fan, relying on United States v. Lopez-Cervantes, 918 F.2d 111 (10th Cir. 1990) and United States v. Fuentes-Galindo, 929 F.2d 1507 (10th Cir. 1991), next argues that the motion of the material witnesses should be denied because they failed to submit affidavits showing exceptional circumstances in support of their respective motions. However, an affidavit is not required in this case. Section 3144 by its terms requires only a party to submit affidavits in order to detain a material witness; it does not require a material witness to submit an affidavit in support of his release. Rule 15 requires a material witness to make a motion, not submit an affidavit, showing why he should be deposed and released. In both Lopez-Cervantes and Fuentes-Galindo, the parties provided no reasons for depositions prior to the court's order that depositions be taken. In neither case did the parties file Rule 15 motions or describe the particular circumstances requiring that the material witnesses be deposed. Nevertheless, the court in each case, pursuant to a standing order, permitted depositions to be taken and released the material witnesses. In each case, the Tenth Circuit held that a standing order alone was insufficient under section 3144 and Rule 15 to depose and release material witnesses, and that particular circumstances favoring deposition and release had to be set forth. In neither case, however, did the Tenth Circuit require witnesses, as opposed to the parties, to file affidavits, and certainly no such affidavits are required when the material witnesses file Rule 15 motions and state the reasons for each witness' request to be deposed.
Accordingly, neither Rule 15 nor section 3144 requires that material witnesses file affidavits giving reasons for their release.
II. COMPULSORY PROCESS
The Sixth Amendment states in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI.
The seminal case concerning compulsory process under the Sixth Amendment is Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967) (Warren, C.J.), which described the basic purpose of the right to compulsory process in the following way: "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense." Id. at 19.
In short, the right to compulsory process offers a means by which defense witnesses are heard and marks a right to have the testimony of defense witnesses entered into evidence for the jury on a footing equal to the testimony of prosecution witnesses. The Sixth Amendment contemplates a trial before a jury in which the defendant has a right to confront adverse witnesses and a right to "compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI.
Defendants seek to retain all four witnesses, claiming that certain parts of the witnesses' testimony support defenses which the defendants wish to assert at trial, and that their constitutional right to compulsory process will be violated if the witnesses are released and allowed to move outside the court's subpoena power before they provide their favorable testimony at trial. The Court has little insight as to the extent or nature of the government's proof in this case and so cannot ascertain whether the defendants are grasping at straws or will, as they claim, be deprived of material evidence. The Court is unable to determine the extent, if any, to which the testimony of the material witnesses is favorable and material to the government's case. Only the Defendants have indicated the importance of the witnesses' testimony to their defense. In the confrontation clause cases, cited by the parties and witnesses, where material witnesses were appropriately released, the witnesses favored the government's case-in-chief; thus the court's decision to release the witnesses in those cases potentially harmed only the government's case. Here, however, releasing the witnesses would seem to disadvantage Defendants, who are protected by the Sixth Amendment. Placing the Defendants at such a disadvantage risks triggering a "failure of justice" under section 3144, and under those circumstances section 3144 mandates the "further detention" of the witnesses. 18 U.S.C. § 3144.
The Court is mindful of the distance between Taiwan and the United States, the inconvenience that attendance at trial in New York would cause a witness, and the pressures which the witnesses are apt to suffer to remain in Taiwan and disregard their promises to return for trial. If these witnesses, particularly Chang and Tsay, do not return for trial, the defendants could well be deprived of their right to compulsory process. Because the videotaped deposition testimony has been obtained before trial, it may not necessarily cover significant aspects of the case as it develops during trial. Specifically, the testimony of the material witnesses may rebut the in-court testimony of the government witnesses and, therefore, a fair trial, which the Sixth Amendment is meant to ensure, may prove impossible without the witnesses' live in-court testimony.
See Washington v. Texas, 388 U.S. at 17-18 (Sixth Amendment right to compulsory process is fundamental and essential to fair trial).
In sum, using the depositions in lieu of live testimony violates the defendants' right to compulsory process. Because the defendants make the claim that Chang is necessary to their defense
and that the remaining three material witnesses corroborate his testimony, and because the Court cannot at this juncture judge the validity of the claimed defense, the defendants' motion is granted. No court has held that videotaped depositions are the equivalent of live testimony. Depriving the Defendants of live witnesses by virtue of the Court's invocation of 18 U.S.C. § 3144 under these circumstances deprives them of their right to call witnesses favorable to their defense before a jury as envisioned by the Sixth Amendment right to compulsory process.
The Court's calendar allows for an immediate trial. All counsel are to attend a pretrial conference on January 25, 1993 at 9:00 a.m. in courtroom 302 to object to a trial date of February 3, 1993, hereby set subject to objections, and determine appropriate terms of conditional release, if any, of the material witnesses pending trial that ensure their availability at trial.
IT IS SO ORDERED.
Dated: New York, New York
January 22, 1993
Robert P. Patterson, Jr.