USA v. Juan Matus-Zaya

Filing

FILED OPINION (BETTY BINNS FLETCHER, RICHARD C. TALLMAN and JOHNNIE B. RAWLINSON) AFFIRMED. Judge: JBR Authoring. FILED AND ENTERED JUDGMENT. [7868407]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN LEONARDO MATUS-ZAYAS,
Defendant-Appellant.





No. 09-10294
D.C. No.
4:08-cr-00870CKJ-HCE-3
OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
August 30, 2010—San Francisco, California
Filed August 24, 2011
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson

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COUNSEL
Harriette P. Levitt, Tucson, Arizona, for the defendantappellant.
Dennis K. Burke, United States Attorney, Christina M.
Cabanillas, Appellate Chief, Bruce M. Ferg, Assistant United
States Attorney, Robert L. Miskell, Assistant United States
Attorney (argued), Tucson, Arizona for the plaintiff-appellee.

OPINION
RAWLINSON, Circuit Judge:
Appellant Juan Leonardo Matus-Zayas appeals his conviction on various counts related to transporting and harboring
illegal aliens. Matus-Zayas specifically challenges the district
court’s decision to admit into evidence videotaped deposition
testimony of detained material witnesses pursuant to 18
U.S.C. § 3144. For the first time on appeal, Matus-Zayas
argues that the statute is facially invalid and that the court
erred by permitting the government to admit the depositions
into evidence at trial without any showing of a witness’s
unavailability. He also argues that the magistrate judge failed
to comply with the statute and that certain procedural requirements of Federal Rule of Criminal Procedure 15 and General

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Order 05-34 of the United States District Court for the District
of Arizona were unmet.
Though the bulk of Matus-Zayas’s claims are meritless, we
do agree that the court plainly erred by permitting the government to introduce the now-contested depositions into evidence without a showing of unavailability. Ultimately,
however, we decline to accord Matus-Zayas any relief
because we are not persuaded that “the error seriously affect[ed] the fairness, integrity, or public reputation of [the] proceedings.” United States v. Hammons, 558 F.3d 1100, 1103
(9th Cir. 2009) (citation and internal quotation marks omitted). We therefore affirm the district court’s judgment of conviction.
I.

BACKGROUND
A.

Pre-Trial Proceedings

On or about June 10, 2008, Matus-Zayas and three codefendants were arrested in or near Rio Rico, Arizona. The
arrests were made by Border Patrol agents who were conducting surveillance on a residence that was suspected to be a
staging area for illegal aliens. The agents ultimately obtained
and executed a search warrant for the residence, resulting in
the discovery of thirty-six illegal aliens. Five of the aliens
were identified as material witnesses with potential information implicating Matus-Zayas and his co-defendants in a
scheme to transport and harbor illegal aliens.
The government filed a Complaint alleging that MatusZayas and his co-defendants conspired “with each other and
with other persons known and unknown to transport and harbor illegal aliens” in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(iii), 1324(a)(1)(A)(v)(i),
and 1324(a)(1)(B)(i). The magistrate judge assigned to the
case granted the government’s motion to temporarily detain
the five material witnesses. The government subsequently

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filed an Affidavit for Detention of Material Witnesses
requesting that the material witnesses be detained pursuant to
18 U.S.C. §§ 3142 and 3144. In the affidavit, the government
noted that the material witnesses were citizens of Mexico, and
“would return to Mexico to reside if released . . .” The government also declared that if the material witnesses were
released from custody and returned to Mexico, their presence
for further proceedings in the case “could not be required by
subpoena of the court system of the United States, and securing such presence by subpoena would become impracticable.”
On June 16, 2008, the government filed a notice of hearing
indicating that the depositions of the material witnesses would
be taken on July 1st and 3rd of 2008. After the magistrate
judge entered an order continuing the depositions to August
4th and 5th of 2008, Matus-Zayas and his co-defendants were
indicted on eleven counts of conspiracy to transport and harbor illegal aliens for profit, transportation of illegal aliens for
profit, and harboring illegal aliens for profit.
On July 30, 2008, Matus-Zayas filed a motion objecting to
the government’s request to depose the material witnesses,
and requesting the district court to detain the material witnesses for trial. Matus-Zayas argued, among other things, that
no exceptional circumstances existed to justify taking the
depositions of the material witnesses prior to trial, and that his
constitutional rights to confront and cross-examine the material witnesses at trial would be violated if the depositions proceeded.
At a hearing on the motion, the government took “no position if the depositions don’t go through and [the material witnesses] are held [for trial].” However, the government did
argue that the material witnesses should not be released from
custody because they would likely return to Mexico and “disappear.” The attorney for the material witnesses, on the other
hand, contended that the depositions of his clients should be

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permitted to go forward because they had already been
detained for over twenty days.
After considering the parties’ arguments, the magistrate
judge ruled that the affidavit filed by the government placed
Matus-Zayas’s attorney on notice that the material witnesses
“were citizens of another country and that the government’s
subpoena power would be basically ineffectual.” The magistrate judge explained that the government had moved pursuant
to Federal Rule of Criminal Procedure 15 to take the depositions of material witnesses, and found that exceptional circumstances justified granting the motion. Specifically, the
magistrate judge delineated the following circumstances: the
material witnesses were in the country illegally, criminal
charges had not been filed against the witnesses, and the witnesses would be deported to Mexico if released, thereby
depriving the government of “authority . . . to obligate them
to return for the giving of testimony.” The magistrate judge
also considered the fact that Matus-Zayas would have an
opportunity to cross-examine the material witnesses during
the depositions, and that the depositions would be recorded by
videotape so that the jury would have the opportunity to “assess the demeanor of the [material witnesses].” The magistrate judge determined that after the depositions had been
taken, the material witnesses would be released “absent a
showing that further detention [was] necessary to prevent a
failure of justice . . .”
On August 4, 2008, the depositions of three of the five
material witnesses were taken and recorded on videotape.
Matus-Zayas was represented by an attorney other than his
attorney of record, who was unable to attend. On the same
day, the government and Matus-Zayas’s three co-defendants
jointly moved to release the material witnesses from custody.
The magistrate judge thereafter ordered that the material witnesses be released “to the Department of Homeland Security
for return to their country of origin.”

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On August 20, 2008, a Superseding Indictment was filed
charging Matus-Zayas with an additional count of illegal
reentry. In a re-numbered Superseding Indictment, MatusZayas was charged in Count 1 with conspiracy to transport
and harbor illegal aliens for profit, in Counts 2-4 with transportation of illegal aliens for profit, in Counts 5-7 with harboring illegal aliens for profit, and in Count 8 with illegal
reentry.
B.

Trial Proceedings

A four-day jury trial began on April 28, 2009.1 On the first
day of trial, Border Patrol Agent Philip Bidwell testified concerning the surveillance he conducted and his questioning of
Matus-Zayas that resulted in Matus-Zayas’s arrest. Bidwell
also described how a Border Patrol Special Response Team
executed a search warrant at the subject residence shortly
after Matus-Zayas was arrested, resulting in the discovery of
thirty-six illegal aliens.
On the second day of trial, the government played for the
jury a recorded interview that had taken place between Border
Patrol Agent Agapito Medina and Matus-Zayas on the day of
Matus-Zayas’s arrest. During the interview, Matus-Zayas
admitted that he had entered the United States illegally.
Matus-Zayas also admitted to staying at the subject residence,
but denied any involvement in the staging activities.
As part of its case, the government played for the jury the
videotaped depositions of the three material witnesses. The
first witness testified that he had come to the United States
illegally, and that he had learned from the “manager” of the
subject residence that Matus-Zayas would be a person who
could help him get past a border checkpoint located between
Nogales, Arizona and Tucson, Arizona. The first witness
1

Matus-Zayas’s co-defendants avoided trial by pleading guilty to Count
1 of the re-numbered Superseding Indictment.

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explained that he subsequently had a conversation with
Matus-Zayas, and Matus-Zayas confirmed that he could
indeed assist the witness in getting past the checkpoint.
The second witness testified that he had likewise come to
the United States illegally, and that he had made prior
arrangements to pay $3,000 to be taken to Atlanta, Georgia.
The second witness related that after he crossed the border
into the United States, he was picked up by Matus-Zayas at
a fast-food restaurant. Matus-Zayas drove the witness to the
subject residence, and the witness never saw Matus-Zayas
again.
The third witness similarly testified that he crossed the
United States border illegally, and that Matus-Zayas picked
him up at a McDonald’s in Nogales before driving him to the
subject residence. As with the second witness, the last time
the third witness saw Matus-Zayas was when the witness was
dropped off at the subject residence.
Border Patrol Agent Charles Fulgham testified to the contents of Matus-Zayas’ alien registration file (A-file), and identified documents establishing that Matus-Zayas had
previously been ordered removed or deported from the United
States. Kenneth Woods, a fingerprint specialist, verified that
fingerprints taken from Matus-Zayas during trial matched the
fingerprints from documents found in Matus-Zayas’ A-file.
On the third day of trial, Matus-Zayas testified on his own
behalf. On direct examination, Matus-Zayas specifically
denied ever smuggling illegal aliens. Matus-Zayas admitted
staying at the subject residence for two days, but declared that
he “had no duties [at the residence].” Matus-Zayas stated that
he never provided food for any illegal aliens at the residence,
and that he never “knowledgeably” drove anyone that was an
undocumented alien. Matus-Zayas remarked that he never
accepted any money for anything related to illegal alien
smuggling operations. Although Matus-Zayas conceded that

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he had described himself to the material witnesses as a
“guide,” he explained that he did so to “calm them down[.]”
According to Matus-Zayas, he never actually guided anyone
through the desert.
On cross-examination, Matus-Zayas acknowledged that he
drove two of the material witnesses to the subject residence
in another person’s car from a McDonald’s “[b]ut not knowing they were illegal.” Notwithstanding his earlier testimony,
Matus-Zayas testified on cross-examination that he did not
actually tell the material witnesses he was a guide, but did tell
them he knew how “[they] could get there” and that the material witnesses should “calm down and not leave the house.”
The jury convicted Matus-Zayas on all eight counts of the
re-numbered Superseding Indictment. However, the jury did
not find that Matus-Zayas had committed the acts described
in Counts 1-7 for profit. The district court sentenced MatusZayas to 60 months’ imprisonment on Counts 1-7, and 70
months’ imprisonment on Count 8, with the sentences to run
concurrently. Matus-Zayas filed a timely notice of appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the
convictions.
II.

STANDARDS OF REVIEW

As a general rule, “[q]uestions of statutory interpretation
are reviewed de novo.” United States v. Youssef, 547 F.3d
1090, 1093 (9th Cir. 2008) (per curiam) (citation omitted).
Similarly, we generally review “claims of a violation of the
Confrontation Clause de novo.” United States v. Nguyen, 565
F.3d 668, 673 (9th Cir. 2009) (citation omitted). However,
“[i]f the defendant failed to object to the admission of evidence under the Confrontation Clause, we review for plain
error.” United States v. Hagege, 437 F.3d 943, 956 (9th Cir.
2006) (citation omitted).
We ordinarily review “de novo a district court’s interpretation of the Federal Rules of Criminal Procedure.” United

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States v. Fort, 472 F.3d 1106, 1109 (9th Cir. 2007) (citation
omitted). “[A] district court’s decision . . . to grant or deny a
deposition under Federal Rule of Criminal Procedure 15(a)”
is reviewed for abuse of discretion. United States v. Olafson,
213 F.3d 435, 441 (9th Cir. 2000), as amended (citations
omitted).
“Issues raised for the first time on appeal are reviewed for
plain error.” United States v. Baramdyka, 95 F.3d 840, 844
(9th Cir. 1996) (citations omitted). “Plain error is (1) error, (2)
that is plain, and (3) that affects substantial rights.” Hammons,
558 F.3d at 1103 (citation and internal quotation marks omitted). “If these three conditions are met, th[is] court may then
exercise its discretion to grant relief if the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation and internal quotation marks omitted).
“An error is not plain unless it is clear or obvious.” United
States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007) (citation, alteration, and internal quotation marks omitted). “Plain
error is so clear-cut, so obvious, a competent district judge
should be able to avoid it without benefit of objection.” Id.
(citation omitted).
III.

DISCUSSION

A.

18 U.S.C. § 31442

2

18 U.S.C. § 3144 provides:
If it appears from an affidavit filed by a party that the testimony
of a person is material in a criminal proceeding, and if it is shown
that it may become impracticable to secure the presence of the
person by subpoena, a judicial officer may order the arrest of the
person and treat the person in accordance with the provisions of
section 3142 of this title. No material witness may be detained
because of inability to comply with any condition of release if the
testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure
of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be
taken pursuant to the Federal Rules of Criminal Procedure.

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1.

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Matus-Zayas’s Facial Challenge To 18 U.S.C.
§ 3144

[1] Matus-Zayas contends that § 3144 is unconstitutional
on its face because it infringes upon a defendant’s Sixth
Amendment right to confront and cross-examine the witnesses against him. Because this argument was never raised
before the district court, plain error review applies. See
Baramdyka, 95 F.3d at 844.
We rejected a similar argument in United States v. SantosPinon, 146 F.3d 734, 736 (9th Cir. 1998). Santos-Pinon
argued that 8 U.S.C. § 1324(d), “which allows videotaped
depositions of deported witnesses to be introduced into evidence[,]” “is unconstitutional on its face because it does away
with the ‘good faith efforts’ standard of establishing unavailability[.]” Id. at 735-36. We rejected the defendant’s argument
because the statute “simply allow[ed] the introduction of videotaped testimony notwithstanding any provision of the Federal Rules of Evidence[,]” and said “nothing about abrogating
the constitutional requirement of establishing unavailability”
prior to admitting the videotaped testimony into evidence. Id.
at 736 (internal quotation marks omitted).
[2] Similar to § 1324(d), § 3144 contains no language
abrogating the constitutional requirement of establishing
unavailability prior to the admission of preserved testimony.
In fact, even after the material witnesses in this case had been
deposed and released pursuant to § 3144, the government still
had the obligation to establish the witnesses’s unavailability
in order for their testimony to be admitted into evidence. See
id. (concluding that “demonstrating unavailability through
good faith efforts to procure witnesses is still required after
§ 1324(d)”).3
3

Matus-Zayas raised this issue as part of his as-applied Confrontation
Clause challenge discussed infra.

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[3] “Because the statute easily can be read to comport with
the Constitution,” we similarly conclude that “[MatusZayas’s] facial attack should be rejected.” Id. (citation omitted).
2.

The Magistrate Judge’s Compliance With 18 U.S.C.
§ 3144

[4] Matus-Zayas contends that the magistrate judge failed
to comply with § 3144 in denying his motion to detain the
material witnesses for trial. Because Matus-Zayas raised this
issue for the first time on appeal, we review for plain error.4
[5] Contrary to Matus-Zayas’s assertion, the magistrate
judge committed no plain error in determining that the government had sufficiently established that it was impracticable
to secure the presence of the material witnesses by subpoena.
Specifically, the magistrate judge noted that the government
filed an affidavit stating that it would become impracticable
to secure the presence of the material witnesses by subpoena
if they were released to Mexico. The magistrate judge concluded that the affidavit placed Matus-Zayas’s attorney on
notice that the material witnesses “were citizens of another
country and that the government’s subpoena power would be
basically ineffectual.” In addition, the magistrate judge made
an express finding that the government “would lose any
authority over [the material witnesses] to obligate them to
4
The government contends that Matus-Zayas waived his right to challenge the magistrate judge’s compliance with § 3144 by raising this issue
for the first time on appeal. We are not persuaded by the government’s
reliance on Santos-Pinon. In that case, the government made the witnesses
unavailable by deporting them. See Santos-Pinon, 146 F.3d at 736. We
reasoned that the objection was waived because it was made too late for
corrective action to be taken. See id. No similar situation exists in this
case. The testimony of the witnesses was preserved, and Matus-Zayas’s
challenge is based on the magistrate judge’s perceived failure to comply
with the provision of § 3144 rather than government action rendering the
witnesses unavailable.

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return for the giving of testimony” if they were released from
custody. The magistrate judge’s decision to detain the witnesses was entirely consistent with the statute and our precedent. See Torres-Ruiz v. U.S. Dist. Court for the S.D. of Cal.,
120 F.3d 933, 935 (9th Cir. 1997) (per curiam) (holding that
pursuant to § 3144 “a person may be detained in custody as
a material witness in the criminal proceeding if it is shown
that it may become impracticable to secure the presence of the
person by subpoena.” ) (citation and internal quotation marks
omitted).
[6] Matus-Zayas also failed to establish that the magistrate
judge plainly erred when he permitted the government to
depose the material witnesses, and then ordered their release.
In Torres-Ruiz, we expressly adopted the reasoning of the
Fifth Circuit in Aguilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir.
1992), that when Rule 15(a) and § 3144 are read together, a
“district court must order [a material witness’] deposition and
prompt release” when it has been demonstrated that the material witness’ “testimony can adequately be secured by deposition, and that further detention is not necessary to prevent a
failure of justice.” Torres-Ruiz, 120 F.3d at 935 (citations and
internal quotation marks omitted) ( emphasis in the original).
The magistrate judge concluded that the material witnesses’s testimony could adequately be secured by deposition testimony. In doing so, the magistrate judge explicitly noted that
Matus-Zayas would have the “opportunity to conduct crossexamination of the material witnesses” during the depositions,
and that because the depositions would be recorded by videotape, the jury would have the ability to assess the witnesses’s
“demeanor and credibility, inflection, intonation, and anything else” if the witnesses’s testimony was later introduced
into evidence at trial.
Notably, Matus-Zayas does not even allege that a failure of
justice ensued from the witnesses’s release from custody following the depositions. Instead, he insists that the magistrate

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judge erred5 simply because she permitted the witnesses to be
deposed and released without a motion from each witness.
Essentially, he argues that the government was required to
retain custody of the witnesses until they requested otherwise
— an argument we find entirely unpersuasive in light of our
holding in Torrez-Ruiz and the government’s reliance on Rule
15(a)(1). Accordingly, we conclude that Matus-Zayas has
failed to identify any plain error committed by the magistrate
judge in ordering the material witnesses’s depositions and
subsequent release. See Torres-Ruiz, 120 F.3d at 935.
3.

The District Court’s Admission of the Deposition
Testimony

Matus-Zayas contends that his Confrontation Clause rights
were violated when the videotaped deposition testimony was
admitted at trial despite the fact the government never provided evidence to establish that the material witnesses were
unavailable.6 We review this issue for plain error.7 See
Hagege, 437 F.3d at 956.
5

Because Matus-Zayas did specifically argue to the district court that
the material witnesses were required by Rule 15 to file their own motion
to be deposed, we review that aspect of his claim de novo. See Fort, 472
F.3d at 1109.
6
Matus-Zayas also appears to allege that he was denied the right to
effective cross-examination when he was not represented by his attorney
of record during the depositions. We have previously held that “[c]rossexamination is effective under the Sixth Amendment as long as the jury
receives sufficient information to appraise the biases and motivations of
the witness.” United States v. Carr, 18 F.3d 738, 740-41 (9th Cir. 1994)
(citation and internal quotation marks omitted). Although Matus-Zayas
was not represented by his attorney of record during the depositions, he
was represented by an attorney who was able to cross-examine the material witnesses. Matus-Zayas does not allege that the jury was deprived of
the ability to appraise the biases and motivations of the material witnesses
based upon the cross-examination that was actually conducted. Therefore,
we conclude that the mere fact that a different attorney cross-examined the
material witnesses did not constitute a violation of Matus-Zayas’s Sixth
Amendment rights. Id.
7
Matus-Zayas contends that he preserved this issue for appeal by raising

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a.

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The Existence of Plain Error

[7] It is well-established that “[t]he Sixth Amendment of
the U.S. Constitution guarantees an accused the right to be
confronted with the witnesses against him.” United States v.
Norwood, 603 F.3d 1063, 1068 (9th Cir. 2010), as amended
(citation and internal quotation marks omitted), cert. denied,
131 S. Ct. 225 (2010). “Testimonial statements of witnesses
absent from trial have been admitted only where the declarant
is unavailable, and only where the defendant has had the prior
opportunity to cross-examine.” Id. (citation and alteration
omitted). “The constitutional requirement that a witness be
unavailable before his prior testimony is admissible stands on
separate footing that is independent of and in addition to the
requirement of a prior opportunity for cross-examination.”
United States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (citation and internal quotation marks omitted).
[8] “A witness is considered unavailable for purposes of
the Confrontation Clause if the prosecutorial authorities have
made a good-faith effort to obtain his presence at trial.” Forn
v. Hornung, 343 F.3d 990, 995 n.3 (9th Cir. 2003), as
amended (citation and internal quotation marks omitted). In
the detained material witness context, the government typically “bears the burden of proving the [material] witness’
unavailability as a predicate to the admission of the [material
a Confrontation Clause objection in the motion he filed to detain the material witnesses for trial. However, Matus-Zayas’s Confrontation Clause
objection was raised prior to the time the depositions were taken. Pursuant
to our precedent, Matus-Zayas’s Confrontation Clause rights were not
implicated until the deposition testimony was sought to be introduced into
evidence. See Santos-Pinon, 146 F.3d at 737 n.4 (“Only when deposition
testimony is sought to be introduced in evidence are the defendant’s confrontation rights truly implicated . . .”) (citation and parentheses omitted).
Because Matus-Zayas failed to raise a Confrontation Clause objection at
the time the deposition testimony was introduced into evidence, plain error
review applies. See Hagege, 437 F.3d at 956.

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witness’] deposition testimony.” Aguilar-Ayala, 973 F.2d at
417-18 (citation omitted); see also Santos-Pinon, 146 F.3d at
736 (noting that “demonstrating unavailability through good
faith efforts to procure witnesses is still required after
§ 1324(d)”); United States v. Fuentes-Galindo, 929 F.2d
1507, 1511 (10th Cir. 1991) (concluding that deposition testimony of a detained material witness was inadmissible when
the government did not “meet its burden” of “demonstrat[ing]
a ‘good faith’ effort or use ‘reasonable means’ in attempting
to obtain the three material witnesses’ presence at trial”).
[9] In this case, it is undisputed that the government failed
to present any evidence at trial to establish that efforts were
made to procure the witnesses’s presence. As a result, the district court did not make any findings on the record that the
material witnesses were unavailable. The government now
seeks to establish for the first time on appeal that it made a
good faith effort to procure the material witnesses’s presence
at trial. Specifically, the government points to a letter written
to the material witnesses’s attorney approximately one month
prior to trial which requested the material witnesses’s presence to testify at trial. The letter also indicates that the government offered to pay for the material witnesses’s travel
expenses. The government alleges that “neither this letter nor
any other evidence about the government’s efforts to secure
the witnesses’ attendance” was introduced at trial “because
[Matus-Zayas] did not object at trial to the admission of the
depositions on any grounds[.]”
[10] Unfortunately for the government, our precedent dictates that, even absent an objection by the defendant, the obligation remains on the government to provide evidence at trial
demonstrating the witness’s unavailability as a predicate to
the admission of the material witness’s testimony. In United
States v. Vasquez-Ramirez, 629 F.2d 1295, 1297 (9th Cir.
1980) (per curiam), we relied on United States v. Provencio,
554 F.2d 361 (9th Cir. 1977) (per curiam), as modified, to
hold that “it was plain error to permit the introduction of

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depositions of alien witnesses without any proof that the
deposed witnesses were unavailable and without a stipulation
permitting the use of the depositions.” This language compels
the conclusion that the district court also committed plain
error in this case by admitting the deposition testimony into
evidence without any showing by the government at trial that
the material witnesses were unavailable.
To avoid committing plain error, the district court should
have followed our well-established precedent and required the
government to place on the record some evidence of the continued unavailability of the material witnesses. See VasquezRamirez, 629 F.2d at 1297. Indeed, such a showing is necessary to avoid a successful Confrontation Clause challenge.
See Santos-Pinon, 146 F.3d at 736 (discussing the “constitutional requirement of establishing unavailability”) (internal
quotation marks omitted). The government could have met its
obligation by detailing its efforts to procure the witnesses’s
presence at the trial and by making a showing that despite its
efforts, the witnesses remained unavailable. This required
showing is not unique to the facts of this case. Indeed, the
government is routinely required to demonstrate the unavailability of witnesses prior to using preserved testimony. See
Jackson v. Brown, 513 F.3d 1057, 1083 (9th Cir. 2008)
(“[T]he prosecution may introduce the prior testimony of a
witness without running afoul of the Sixth Amendment . . .
[if] the prosecutor . . . prove[s] that the witness is unavailable
. . . and if the defendant “had the opportunity to crossexamine the witness at the prior hearing.”) (citations omitted).
[11] Because the government failed to meet its burden of
establishing at trial that the material witnesses were unavailable, we conclude that admission of the depositions at trial
was “error” that was “plain” and that affected Matus-Zayas’
substantial Confrontation Clause rights. Hammons, 558 F.3d
at 1103; see also Vasquez-Ramirez, 629 F.2d at 1297
(describing the right of confrontation as a “fundamental constitutional right[ ]”).

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b.

Exercise of Discretion to Grant Relief

[12] Having determined that the trial court committed
plain error that affected Matus-Zayas’s substantial rights, we
may exercise our discretion to grant relief if we are persuaded
that the error “seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings.” Hammons, 558
F.3d at 1103 (citation omitted).
[13] In Provencio, we concluded that reversible error
occurred because the government failed to introduce proof
that the deposed material witnesses were unavailable, notwithstanding the fact they “were not released [from custody]
and were still available at the time of trial.” Provencio, 554
F.2d at 362. Unlike in Provencio, it is not evident from this
record that the material witnesses were available for trial.
Notably, Matus-Zayas does not allege that the witnesses were
in fact available, and he does not assert that the deposition testimony would not have been admitted had he made a proper
objection at trial. In fact, had Matus-Zayas raised a Confrontation Clause objection at trial, the government likely would
have provided evidence to establish that a good faith effort
was made to produce the material witnesses for trial. Because
we are not persuaded that either “the fairness, integrity, or
public reputation of [the] judicial proceedings” was adversely
affected, Hammons, 558 F.3d at 1103 (citation omitted), we
decline to exercise our discretion to grant relief.
B.

Federal Rule of Criminal Procedure 158

8

Fed. R. Crim. P. 15 provides in relevant part:
(a) When Taken.
(1) In General. A party may move that a prospective witness
be deposed in order to preserve testimony for trial. The
court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the
deposition to be taken, it may also require the deponent to
produce at the deposition any designated material that is not

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[14] Matus-Zayas argues that the district court committed
two different procedural errors in applying Rule 15. First,
Matus-Zayas contends that the district court failed to comply
with Rule 15(a)(2) when it did not require the material witnesses to file written requests to be deposed. Second, MatusZayas alleges that the district court did not comply with Rule
15(a)(2) when it failed to require the material witnesses to
sign their deposition transcripts under oath.9
Matus-Zayas’s first argument conflates the standards under
Rule 15(a)(1) and (2). As Matus-Zayas correctly notes, Rule
15(a)(2) provides that “[a] witness who is detained under 18
U.S.C. § 3144 may request to be deposed by filing a written
motion and giving notice to the parties . . .” Fed. R. Crim. P.
15(a)(2) (emphasis added). Matus-Zayas, however, ignores
Rule 15(a)(1), which unlike Rule 15(a)(2), provides that any
“party may move that a prospective witness be deposed in
order to preserve testimony for trial.” Fed. R. Crim. P.
15(a)(1).
[15] At the hearing on Matus-Zayas’s motion to detain the
material witnesses, the magistrate judge made clear that he
privileged, including any book, paper, document, record,
recording, or data.
(2) Detained Material Witness. A witness who is detained
under 18 U.S.C. § 3144 may request to be deposed by filing
a written motion and giving notice to the parties. The court
may then order that the deposition be taken and may discharge the witness after the witness has signed under oath
the deposition transcript.
9
The government urges us to conclude that Matus-Zayas waived his
right to argue that the district court failed to comply with Rule 15. As discussed in note 5 above, Matus-Zayas specifically argued the first asserted
error in the district court. Although he did not specifically raise the second
asserted error, he generally alleged in his memorandum supporting his
motion to detain the material witnesses that there was a lack of compliance
with Rule 15. Therefore, we review for plain error rather than treating the
second asserted error as waived. See Baramdyka, 95 F.3d at 844.

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was permitting the depositions to proceed pursuant to Rule
15(a)(1), and not Rule 15(a)(2), when he noted that “[a] party
may move, and the government has moved to take their depositions, that a prospective witness be deposed in order to preserve the testimony for trial.” The magistrate judge also
referenced the “exceptional circumstances standard” contained in Rule 15(a)(1). Because Rule 15(a)(1) permits any
party to move that a prospective witness be deposed, we conclude that the magistrate judge committed no error by permitting the government to move to depose the material witnesses
rather than requiring the material witnesses to make the
motion.
We further note that at least one court has expressly
rejected the notion that only material witnesses may move to
have their depositions taken. In United States v. Lai Fa Chen,
214 F.R.D. 578, 580 (N.D. Cal. 2003), a magistrate judge held
that “Rule 15 and 18 U.S.C. § 3144 are inextricably bound
even when the government, and not the detained material witness, moves for a Rule 15 deposition.” The magistrate judge
noted that it would be illogical “to refrain from reading Rule
15 in conjunction with 18 U.S.C. § 3144 when the government is the moving party, [because] the [c]ourt would: (1)
needlessly require serial Rule 15 motions from each material
witness; (2) deter the government from playing an active role
in ensuring that material witnesses are only detained as long
as necessary to secure their testimony; and (3) forestall the
government from effective enforcement of its immigration
laws.” Id. at 581 (footnote reference omitted). According to
the magistrate judge, “[t]he better practice, in the detained
material witness context, is to consider the impact that an
order permitting depositions would have on the detained
material witness even when a party and not the witness makes
the motion.” Id. This reasoning persuades us that MatusZayas’s argument is unavailing.
[16] Matus-Zayas’s second argument presents a closer
question. In contrast to Rule 15(a)(2), Rule 15(a)(1) does not

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contain a requirement that witnesses sign their own deposition
transcripts under oath. Compare Fed. R. Crim. P. 15(a)(1)
with Fed. R. Crim. P. 15(a)(2). Nevertheless, an argument
could be made that Rule 15(a)(2), which specifically
addresses detained material witnesses should have been
applied by the court and its failure to abide by the provisions
of Rule 15(a)(2) constituted plain error. See San Luis Obispo
Mothers for Peace v. Nuclear Reg. Comm’n, 635 F.3d 1109,
1117 (9th Cir. 2011) (observing that a specific provision
“qualif[ies] and suppl[ies] exceptions to the general [provision].”) (citation omitted).
[17] Matus-Zayas, however, does not allege that a review
of the transcripts was ever requested or that changes were
made. The jury viewed videotapes of the depositions, which
would have made them aware of any inaccuracy in the deposition transcripts. Indeed, Matus-Zayas “has not cited any specific examples of possible inaccuracies in the deposition
testimony” and has not “demonstrated any prejudice which
might have resulted from the failure of the deponents to
review and sign the transcripts of their testimony.” United
States v. Campbell, 845 F.2d 1374, 1379 (6th Cir. 1988)
(describing harmless error). Accordingly, any error in admitting the unsigned depositions at trial did not affect MatusZayas’s substantial rights. See Hammons, 558 F.3d at 1103.
C.

District Court General Order 05-3410

10

General Order 05-34 provides in relevant part:
3.) The attorney for a defendant charged by complaint, indictment, or information shall have three working days, after notification orally or in writing by the District Judge or Magistrate
Judge that a witness is being detained in the case, within which
to interview a detained material witness who is an adult. . .
...
5.) The deposition shall be conducted in accordance with Rule
15, Federal Rules of Criminal Procedure and under the general
supervision of a Magistrate Judge. . .

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[18] Matus-Zayas asserts that the district court failed to
comply with district court General Order 05-34 (General
Order) of the United States District Court for the District of
Arizona by not affording his attorney “three working days in
which to interview the material witnesses.” Matus-Zayas also
contends that the General Order “is in direct conflict with
Rule 15 . . . which requires deponents to attest to the accuracy
of the deposition transcripts.”11 We disagree.
[19] Paragraph 3 of the General Order provides that an
attorney for a defendant “shall have three working days, after
notification orally or in writing by the District Judge or Magistrate Judge that a witness is being detained in the case,
within which to interview a detained material witness who is
an adult.” Matus-Zayas’s attorney was appointed in this case
on June 16, 2008, and the record reflects that she never
requested to interview the detained material witnesses at any
time prior to their release. Paragraph 3 does not require the
district court to ensure that the interview takes place absent a
request by the defendant’s attorney. Therefore, we conclude
that no plain error was committed.
Matus-Zayas has also failed to establish that the General
Order conflicts with Rule 15. As noted above, Rule 15(a)(1)
does not require deponents to attest to the accuracy of their
depositions unless review is requested and changes are made.
Moreover, the General Order expressly states that depositions
of material witnesses “shall be conducted in accordance with
Rule 15[.]” Therefore, we conclude that this argument lacks
merit.
11

The government asserts that Matus-Zayas waived his right to challenge the district court’s compliance with the General Order. Because
Matus-Zayas’ arguments on this issue parallel those made in his motion
to detain the material witnesses, see supra n. 6, we similarly review for
plain error.

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IV.

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SUMMARY

Matus-Zayas’s facial challenge to 18 U.S.C. § 3144 fails.
The statute does not abrogate the constitutional requirement
of establishing the unavailability of a material witness prior to
allowing preserved testimony to be introduced at trial. The
magistrate judge complied with the provisions of § 3144 by
considering the affidavit submitted by the government, determining that it would become impracticable to secure the presence of the material witnesses by subpoena, and authorizing
the preservation of the witnesses’s testimony by deposition
prior to releasing them. However, the district court did plainly
err when it allowed admission of the deposition testimony
without requiring the government to present proof of the witnesses’s continued unavailability. Nevertheless, we decline to
exercise our authority to grant relief because we are not persuaded that the error adversely affected “the fairness, integrity, or public reputation of [the] judicial proceedings.”
Hammons, 558 F.3d at 1103 (citation omitted). Similarly, any
error committed by the district court in its application of Rule
15 of the Federal Rules of Criminal Procedure did not affect
Matus-Zayas’s substantial rights. Finally, the district court
committed no plain error when its actions are measured
against General Order 05-34.
AFFIRMED.