Unpublished Disposition, 930 F.2d 920 (9th Cir. 1991)

No. 90-55971.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and WARE, District Judge^** .

MEMORANDUM^*** 

Robert Montenegro, proceeding pro se, appeals the district court's denial of his petition for habeas corpus. We affirm.

* Montenegro was found guilty by a California jury of first degree murder and conspiracy to murder Joe "Nico" Varela, a member of the "Mexican Mafia" who apparently sought to enter the heroin trade in El Centro, California. Montenegro and his codefendants, fearing a reduction in their drug business, successfully eliminated Nico from claiming any of their Imperial County territory. Montenegro is currently serving concurrent sentences of 25 years to life.

Montenegro appealed his conviction to the California Court of Appeals, which affirmed the judgment and also denied habeas corpus relief. After the Court of Appeals denied Montenegro's petition for rehearing, the California Supreme Court denied his request for review. Montenegro then filed a habeas petition with the California Supreme Court, which it denied with a citation to In re Waltreus, 62 Cal. 2d 218, 225, 42 Cal. Rptr. 9, cert. denied, 382 U.S. 853 (1965). Montenegro sought federal habeas corpus, alleging eight grounds of relief and filing in the district court the same petition he filed in the California Supreme Court.

The district court first concluded that Montenegro had exhausted his state remedies under 28 U.S.C. § 2254(b). Although only one of Montenegro's claims specifically alleged a violation of federal rights--that the trial court violated his right to confront and cross-examine witnesses when it admitted deposition testimony of Nancy Googe, an unavailable material witness--the district court "construe [d] his petition to represent a claim that the alleged errors of the trial court compromised the fundamental fairness of his trial." After examining each of Montenegro's claims, the district court denied the petition. Montenegro now appeals, stating that he "seeks review by this Court on all contentions submitted to the District Court."

II

Montenegro's only specific constitutional claim is that the state trial court's admission of Nancy Googe's deposition testimony deprived him of his sixth amendment right to confront a witness against him, on the principal ground that the prosecution had not shown unavailability. " [W]e review de novo the question of whether the Supreme Court's standards for unavailability have been satisfied in this case." Dres v. Campoy, 784 F.2d 996, 998 (9th Cir. 1986).

In December 1982, pursuant to stipulation of the parties, the court ordered the conditional examination of Nancy Googe. The defendants waived their personal appearances at the examination, but defense counsel attended and extensively cross-examined Googe about the facts surrounding Nico's murder. At the time of the trial, Googe lived in Arizona. The prosecution therefore sought to have her declared unavailable as a witness in order to introduce her deposition testimony.¹  The court then issued a certificate under the Uniform Act to Secure the Attendance of Witnesses From Without A State in Criminal Proceedings to obtain Googe's presence at trial. See Cal.Penal Code Sec. 1334.2.

After a hearing at which Googe and the prosecuting attorney testified, the Arizona court rejected the certificate, finding that Googe had been deposed earlier when both defense and prosecution counsel were present, Googe and her family had received threats of physical harm, and compelling her to appear would result in financial hardship to her husband. Based on the prosecution's proffer to this effect, the California trial court ruled that the prosecution had sought with reasonable diligence to obtain Googe's presence at trial and held Googe was unavailable as a witness. Her deposition was then read to the jury.

A defendant's confrontation right is not absolute. " [T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant." Barber v. Page, 390 U.S. 719, 722 (1968) (footnote omitted). "A witness is not 'unavailable' for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Ohio v. Roberts, 448 U.S. 56, 74 (1980) (quoting Barber, 390 U.S. at 724-25 (preliminary hearing testimony improperly introduced when the state made no effort to avail themselves of several means to secure witness's presence at trial)); see also Dres, 784 F.2d at 999; United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir.), cert. denied, 469 U.S. 1075 (1984). Cal.Evid.Code Sec. 240(a) (5) provides that a witness is "unavailable" if he or she is " [a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." A California court's process includes the powers under the Uniform Act. Dres, 784 F.2d at 999; see also People v. Masters, 134 Cal. App. 3d 509, 522-23, 185 Cal. Rptr. 134, 144 (1982); People v. Nieto, 268 Cal. App. 2d 231, 239, 73 Cal. Rptr. 844, 849 (1968).

Montenegro contends that the prosecution did not make a good faith effort to obtain Googe's presence at trial. In support, he argues that the prosecution had entered into a deal with Googe that it would not subpoena her; the government did not subpoena her when she was present in California at the conditional examination, even though a trial date had been set; and the prosecution abused the spirit of the Uniform Act by conducting the Arizona hearing without giving the defense notice and by essentially "requesting ... the Arizona Court not to compel witness Googe to attend" the trial. Montenegro claims the prosecution in reality sought to prevent the Arizona court from ordering Googe's appearance, rather than obtain her presence at trial, and points to the prosecution's testimony at the hearing about the dangerous nature of the case and that Googe's life could be in danger if she were compelled to testify. Montenegro analogizes this to a case where the prosecution "procures" the unavailability of the witness. See Cal.Evid.Code Sec. 240(b) (West Supp.1991) (witness not unavailable if "exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent").

The State acknowledges that it did not subpoena Googe when she was at the conditional examination, but submits that it did seek through several sources to locate Googe and persuade her to appear at trial. When these efforts failed, it invoked the Uniform Act to obtain a court order compelling her appearance.

The prosecution sufficiently demonstrated Googe's unavailability as a witness. It reasonably could have thought subpoenaing Googe at the time of the conditional examination would be futile: Googe had stated she would "rot" in an Arizona jail before coming to testify at the trial; and she failed to appear pursuant to a codefendant's subpoena. Resort to the Uniform Act, combined with the prosecution's other efforts to persuade her to testify, satisfies the demands of the confrontation clause. Cf. Barber, 390 U.S. at 723 n. 4; Dres, 784 F.2d at 999 ("The good faith obligation to resort to the Uniform Act, however, arises only when the prosecutor knows the location of the witness"); Daboul v. Craven, 429 F.2d 164, 167 (9th Cir. 1970) ("The Court indicated [in Barber ] that if the prosecution fails to make use of the Uniform Act ... it has not made the required 'good faith effort' and cannot use the prior testimony"); see also Masters, 134 Cal. App. 3d at 524; 185 Cal. Rptr. at 141-42 ("Those cases finding prejudicial error in permitting the reading of former testimony reveal no attempt to use the Uniform Act, in force between California and the other state involved, and either no efforts generally or minimal efforts limited to establishing contact with the witness out-of-state").

Montenegro's assertion that the prosecution sought not to obtain Googe's presence, but to prevent the Arizona court from ordering her appearance, lacks support in the record. At the hearing, the prosecutor first testified why Googe was a necessary, material witness in the case.²  The court then inquired, "Can you give us any reason why the Court should not direct Miss Googe to appear in your court in California?" It was only in response to that question that the prosecutor answered, "In all candor there are a number of reasons, Your Honor." The prosecutor then explained the dangerous circumstances surrounding the case and advised the court that Googe had received threats of physical harm. Given how it was elicited, this testimony does not amount to bad faith on the part of the prosecutor, nor does it show that he "procured" the witness's unavailability.³ 

In addition to establishing the unavailability of the hearsay declarant, the party seeking to introduce former testimony must show that the testimony bears indicia of reliability. Roberts, 448 U.S. at 65-66. The most typical indicator of reliability is that the testimony was subject to cross-examination. Id.; Mancusi v. Stubbs, 408 U.S. 204, 216 (1972) ("Since there was an adequate opportunity to cross-examine [the witness], and counsel ... availed himself of that opportunity, the transcript ... bore sufficient 'indicia of reliability' and afforded 'the trier of fact a satisfactory basis for evaluating the truth of the prior statement' "); California v. Green, 399 U.S. 149, 165-66 (1970); Dres, 784 F.2d at 1001 (testimony under oath, with counsel present and subject to cross-examination sufficiently reliable); Johnpoll, 739 F.2d at 710 (full opportunity to cross-examine sufficient). Googe's testimony at the conditional examination was made under oath, defense counsel was present and defense counsel cross-examined her extensively. The proffered testimony was properly admitted and Montenegro's confrontation rights were not violated.⁴ 

III

Montenegro lists all of the claims presented to the district court as "Appellant's Contentions" on appeal. However, he states that contention number six (the confrontation clause claim) is his "primary contention" and that he "will confine his arguments to contention 6, but also seeks review on [the remaining] contentions ...; See exhibit 1." Exhibit 1 in the excerpts of record is the petition for habeas corpus filed in the district court, which raises and argues each of the contentions. In effect, while Montenegro argues on appeal only his confrontation clause claim, he attempts to incorporate by reference his habeas petition and have this court review each of his claims even though he has presented no argument as to why the district court erred in rejecting them.

Under Rule 28(a) (4) of the Federal Rules of Appellate Procedure, the brief must contain "the contentions of the appellant with respect to the issues presented." "Issues raised in a brief which are not supported by argument are deemed abandoned.... We will only review an issue not properly presented if our failure to do so would result in manifest injustice." Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Wilcox v. Commissioner, 848 F.2d 1007, 1008 n. 2 (9th Cir. 1988) (pro se litigant abandoned arguments not addressed in brief); Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1430 (7th Cir. 1986) ("Our rules do not permit issues to be preserved by references to documents filed in the district court.... Issues must be argued to be preserved"). Because Montenegro made no argument with respect to them, all issues except the question whether admission of Googe's deposition violated his right to confront witnesses are therefore deemed abandoned.⁵ 

AFFIRMED.