Frequently, when an alien smuggling case is developed, a few of the undocumented aliens are held as material witnesses. The other aliens are deported or granted voluntary departure in lieu of deportation, except those who possess evidence favorable to the defendant. The United States Supreme Court held, in United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), that the Executive Branch's responsibility to faithfully execute Congress' immigration policy of prompt deportation of illegal aliens justifies deportation of undocumented alien witnesses upon the Executive's good-faith determination that the aliens possess no evidence favorable to the defendant. And in order for the defendant to demonstrate a violation of the Sixth Amendment right of confrontation, he/she would have to show not merely that deportation of the aliens deprived him/her of their testimony, but must at least make some plausible showing of how their testimony would have been both material and favorable to the defense. Of course, if the alien material witnesses are released when the defendant becomes a fugitive, the defendant cannot later be heard to complain that he/she had no opportunity to interview the witnesses. See United States v. Vega-Limon, 548 F.2d 1390 (9th Cir. 1977); United States v. Saintil, 753 F.2d 984 (11th Cir. 1985), cert. denied, 472 U.S. 1012 (1986). One court of appeals has held that permitting voluntary departure of the alien witness is the equivalent of deporting him, for the purpose of this kind of analysis. See United States v. Morales-Quinones, 812 F.2d 604 (9th Cir. 1987).
Unfortunately, absent the concurrence of the defendant, there can be no guarantee that the transcripts of depositions of undocumented alien material witnesses who are deported or who voluntarily depart will be admissible at trial. For example, the Court of Appeals for the Ninth Circuit has ruled unsigned depositions inadmissible absent the express waiver of defendant's Sixth Amendment right of confrontation. See United States v. Vasquez-Ramirez, 629 F.2d 1295 (9th Cir. 1980). Moreover, in a Fifth Circuit case, where a local district court policy forces the taking of depositions of alien witnesses and their release after 60 days, the court of appeals reversed the conviction upon the urging of both the prosecution and defense, on the ground that defendant had been denied his Sixth Amendment right of confrontation. See United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987).
However, in United States v. Allie, 978 F.2d 1401 (5th Cir. 1992), cert. denied 113 S.Ct. 1662 (1993), the defendant's conviction for harboring aliens was affirmed even though videotaped depositions of alien witnesses, pursuant to a standing District Court order, were admitted over defendant's objections. The Fifth Circuit recognized that the right to confrontation is not absolute, and that out of court statements,like depositions, may be introduced against a criminal defendant if the government can demonstrate the unavailability of the declarant whose statements it wishes to use, and that the out of court statements bear indicia of reliability, Ohio v. Roberts, 448 U.S. 56 (1980). A witness is unavailable for Confrontation Clause purposes if the government has made a good faith effort to obtain the presence of the witness at trial, and the lengths to which the government must go to produce a witness is a matter of reasonableness. Since the courts have not, to date established a standard by which to measure the governments good faith and reasonableness, these issues will have to be decided on a case-by-case basis.The Guadian-Salazar opinion discusses the relationship between 18 U.S.C. § 3144, which authorizes the arrest of material witnesses; 18 U.S.C. § 3142, which provides conditions for release of persons detained; Rule 15 of the Federal Rules of Criminal Procedure, which authorizes the use of depositions in criminal cases; and 8 C.F.R. §§ 215.2(a) and 215.3(g), which concern aliens who are needed in the United States as trial witnesses. Federal Rules of Evidence 804(a) provides that a witness whose absence was procured by the "proponent of his statement for the purpose of preventing the witness from attending or testifying" is not considered unavailable.
COMMENT: Further discussion of alien material witnesses is set forth in Chapter 4 of Immigration Law, published as part of the Office of Legal Education's Litigation Series, and as part of the USABook computer library.