Important DC Circuit opinion on unavailability

Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued an opinion, in U.S. v. Burden, that may be important in determining unavailability of a witness.  I consulted informally with Burden’s counsel during the appeal, so I will be constrained in making comments until I am confident this issue is resolved in the case.  But briefly:

Burden was convicted of illegal export of defense articles.  A critical witness against him was Yindeear-Rom (Y-R).  Trial was twice postponed, in part to allow for translation of documents.  But the second postponement pushed the trial date until after Y-R was scheduled to be released from prison; he was to be deported after that.  So the Government moved to take his deposition to preserve his testimony.  The defense objected, at least largely on the basis that given the state of the documents it was unable to prepare for the deposition.  But the trial court allowed the deposition, and it took place over four days.  It was videotaped in court before the trial judge; Burden was present and counsel cross-examined on his behalf.  Y-R was then deported to Thailand.  According to the DC Circuit, there is no record that the Government made any efforts before deporting him to secure his presence at trial.  It did make efforts afterwards, but to no avail; Y-R had no interest in returning.  I gather the Government had no means (say, through a treaty provision) of compelling him to do so.  The Government sought to use the deposition at trial.  Burden objected, but the trial court allowed the use.

The D.C. Circuit treated the case as if the only issue was unavailability, citing Crawford, 541 U.S. at 57.  (Burden still had the argument that the opportunity for cross was inadequate, but the appellate court paid no attention to that.)  The court emphasized that in a situation like this, where the Government seeks to use prior testimony of a witness it contends is unavailable, it must demonstrate that it made as vigorous an attempt to secure the witness’s appearance at trial as it would have made had it not had the prior testimony to rely on.  The court declined to hold that there is a per se rule that if the Government deports the witness it cannot claim unavailability, but it said that in such a case the Government would have to make “greater exertions” to satisfy the standard of good faith and reasonable efforts. Here, before deportation, the Government “did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures.”  The court declined to say just what the Government should have done in this case.  But it held explicitly that “the duty to use reasonable means to procure a witness’s presence at trial includes the duty to use reasonable efforts to prevent a witness from becoming absent in the first place.” And here, though of course the Government had taken Y-R’s deposition, in light of the fact that the Government had made no efforts before deportation to secure his presence at trial, Y-R could not be considered unavailable.

Notably, the court did not inquire as to whether Burden was prejudiced, given the opportunity to cross-examine Y-R at deposition, by Y-R’s absence from the trial itself.  That may be because the Government conceded that if use of the deposition was error it was not harmless.  But, because assessment of prejudice in determining whether there was an error is not the same as assessment of harmlessness of an error, I am inclined to read the court’s opinion as effectively holding that, even given a videotaped deposition in the presence of the judge and with cross-examination, in the absence of any substantial efforts before deporting a witness to secure the witness’s attendance at trial, the witness should not be deemed unavailable, and the defense need not show prejudice.