Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 866 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Albert Major TALLEY, Jr., Defendant-Appellant.

No. 88-5220.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 26, 1989.

Decided July 11, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

Albert Talley appeals his conviction on two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Talley contends that the district court erred in (1) not dismissing his indictment because the government violated his fifth and sixth amendment rights by deporting and making unavailable three material witnesses for interviewing; (2) in not allowing him to testify regarding his attempt to have the three material witnesses detained; and (3) allowing the deposition testimony of the two retained witnesses to be read into evidence.

The judgment is affirmed. First, the government has established that it made a good-faith determination that the deported witnesses did not possess favorable and material evidence by submitting an affidavit of a border patrol agent who made that determination. See Valenzuela-Bernal, 458 U.S. 858, 873 (1982). Moreover, Talley has failed to demonstrate sufficiently that the testimony of the deported witnesses would have been material and favorable to his defense in ways not merely cumulative to the testimony of the available witnesses.

Second, the district court did not err in not permitting Talley to testify regarding his attempt to have the three material witnesses detained. The district court properly found that the testimony of the deported witnesses was not material to Talley's defense. In addition, Talley's testimony pertaining to his request of witness retention was not probative of the preceding line of questioning regarding whether any of the aliens showed him any identification cards. Moreover, the district court excluded the proffered evidence pertaining to Talley's request to retain the witnesses due to the fact that it had already ruled on the issue in Talley's pretrial motion to dismiss the indictment. Therefore, the district court did not abuse its discretion in excluding the proffered evidence from Talley's redirect examination. See United States v. Brannon, 616 F.2d 413, 418 (9th Cir. 1980).

Third, the district court did not abuse its discretion in admitting the deportation testimony of the two retained witnesses. Talley waived his claim that the transcriptions should have been signed before the release of the material witnesses because he orally consented to the release of the witnesses at the conclusion of the deposition. See Fed. R. Civ. P. 30(c); United States v. Garcia, 527 F.2d 473, 475 (9th Cir. 1975). Talley also waived his claim that the deposition testimony should have been recorded by other than stenographic means because he did not state his objection at the deposition. See Fed. R. Crim. P. 15(f). Similarly, Talley waived his claim that the government was required to make a showing that the two material witnesses were unavailable to testify because he failed to object to the reading of the depositions on the grounds of unavailability. See United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985). Finally, the district court did not abuse its discretion by restricting the cross-examination of Manuel Sanchez-Flores, one of the material witnesses. Talley's counsel had already extensively questioned Sanchez-Flores and ascertained that he understood that he could return to Mexico if Talley either pleaded guilty or was found guilty. Moreover, the opposing counsel conceded that Sanchez-Flores wanted to return to Mexico. Therefore, the district court properly admitted the deposition testimony. See, e.g., United States v. Candoli, No. 87-5260, slip op. at 2 (9th Cir. March 13, 1989) (citing United States v. Jones, 766 F.2d 412, 414 (9th Cir. 1985)).

AFFIRMED.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3