Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^** 

Defendant Lopez-Silva appeals his conviction for transportation of and conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B) and 18 U.S.C. § 371.

FACTS

When United States Immigration and Naturalization Service agents stopped defendant Lopez-Silva, they found sixteen undocumented aliens crouched on the floor of the van he was driving. They detained defendant and the aliens. Pursuant to Fed. R. Crim. P. 15(a), the illegal aliens moved to be deposed on videotape rather than remain in custody until the trial, which was four months away. The aliens were deposed and defendant and his attorney were permitted to cross-examine them. The aliens were then deported.

The agents who stopped defendant testified at trial and the jury viewed the videotape depositions of three of the illegal immigrants. The court also admitted into evidence a list of names and phone numbers found on defendant and one of his alleged co-conspirators. The names and phone numbers were the same ones the illegal aliens produced when asked who had arranged their entry. The prosecutor also sought to introduce the confessions of defendant's alleged co-conspirators. After he laid the foundation for introducing the confessions, however, the co-conspirators invoked their fifth amendment rights and refused to testify, preventing their statements from being introduced into evidence. Defendant took the stand in his own defense and testified that he did not know that the people he was transporting were illegal aliens.

DISCUSSION

I. Defendant alleges he was denied his right to confront the witnesses against him on three separate grounds.

A. Under Bruton v. United States, 391 U.S. 123, 137 (1968), the introduction of a co-conspirator's post-conspiracy statements violates the confrontation clause unless the defendant has the opportunity to cross-examine the co-conspirator. Defendant complains that the prosecutor's introduction of his co-conspirators' statements and their subsequent refusal to testify denied him his right to confront witnesses under Bruton. Contrary to defendant's assertion, however, the content of the co-conspirators' statements was never introduced. Because no statements came into evidence, there was no one to confront.

B. Second, defendant argues that the introduction of the video depositions violated the confrontation clause. However, if a defendant and his attorney are given the opportunity to cross-examine the witnesses at the time the depositions are taken, the introduction of videotaped depositions of witnesses who will be unavailable for trial does not offend the confrontation clause. United States v. Sines, 761 F.2d 1434, 1441 (9th Cir. 1985); 2 Orfield's Criminal Procedure Sec. 15:10, at 536 (1985). Defendant and his attorney were present when the witnesses were deposed and were permitted to cross-examine them at length.

C. Third, defendant claims that the introduction of a calling card found in his possession and several papers found on his alleged co-conspirator violated the confrontation clause under United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984). In Ordonez, we held that the introduction of a drug ledger as proof of the matters asserted in it--e.g. that a defendant had received certain quantities of drugs--violated the confrontation clause unless there was a showing that whoever had made the ledger was unavailable. Id. at 799, 802. Ordonez, however, is inapplicable because the papers here were not introduced to prove the truth of their contents. They were introduced to establish a link between defendant and the conspiracy by showing that both he and his alleged co-conspirator had papers containing the names of the people who arranged the aliens' illegal entry.

II. Defendant also claims that the poor quality of the video tapes shown to the jury deprived him of due process because he was unable to get a transcript of them and because the jury could not hear all of the questions and answers. However, defendant has been provided with a transcript of the tapes. To the extent that information on the tapes was inaudible, it was as likely to harm the government as defendant. We therefore find no violation of due process. Cf. Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988) (accidental destruction of evidence of unclear content that might or might not have exonerated the defendant does not violate due process).

III. According to defendant, the prosecutor established that defendant knew that the aliens were here illegally by introducing a statement defendant made to INS agents; he insists that the prosecutor's failure to disclose the full content of the statement before trial denied him due process. Defendant refers to the following exchange between the prosecutor and INS agent Dominguez:

Q: Did [defendant] tell you at all, or was there any indication as to the status of the sixteen other people that were in the van with him?

A: They had just entered illegally from Mexico.

Reporter's Transcript (RT) 2:27. The question was compound, inquiring whether defendant told the witness or whether there was any indication that the aliens were illegal. As a result, it is unclear whether the witness' response was based on something defendant had said or the witness' own observations. Defendant failed to object to form and no longer has grounds to complain that the response may have been misleading. In any case, defense counsel successfully clarified the source of the information by getting the witness to admit on cross-examination that defendant never confessed to knowing that the aliens were here illegally. RT 2:28.

IV. Defendant lastly argues that the prosecutor's closing statement deprived him of a fair trial.

A. On closing, the prosecutor said that people like defendant are getting rich exploiting farm workers and that they get their money out of the workers' paychecks. RT Closing Argument at 24. Defendant claims that the prosecutor misstated the evidence because there is no evidence that defendant is rich or that the aliens pay for their transportation. However, the prosecution never said defendant was in fact rich; he said that people like him are getting rich. And there was evidence in the record to support the statement that the aliens were going to pay for their transportation. RT Videotaped Depositions at 49-50, 84-85.

B. The prosecutor also argued in closing that defendant had the opportunity to create the story he gave from the stand after hearing the prosecution's case-in-chief. Defendant complains that the prosecutor's argument implied that he and his counsel conspired to present perjured testimony. We see no error. If the prosecutor accuses a defendant of fabricating his defense, he makes an implicit attack on the defense lawyer who assisted him. This may be unfortunate, but it does not necessarily prejudice the defendant. Nor was the prosecutor remarking on defendant's exercise of his fifth amendment rights; defendant did testify, and the prosecutor merely pointed out that because the defense attorney did not say anything of substance in his opening statement, defendant was able to form his story around the evidence the prosecutor presented. RT Closing Argument 2-3.

Affirmed.