USA v OLAFSON, 9950216o
U.S. 9th Circuit Court of Appeals
USA v OLAFSON
9950216o
UNITED STATES OF AMERICA, No. 99-50216
Plaintiff-Appellee,
D.C. No.
v. CR-98-02464-MLH
HEATHER LADON OLAFSON, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted January 6, 20001
Pasadena, California
Filed February 3, 2000
Amended May 22, 2000
Before: Cynthia Holcomb Hall, Stephen S. Trott, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Trott
district court may admit a deported alien's hearsay statements
regarding nationality and illegal status.
Responding to a seismic sensor's indication that an intru-
sion had occurred near the Mexican border, Border Patrol
Agent Jay found fresh footprints on a trail used by illegal
aliens to enter the United States. He knew from previous
arrests and familiarity with the trail that the footprints headed
toward 20855 Cinnamon Drive, a location where many illegal
aliens stopped to rest and board vehicles.
As Agent Jay approached 20855 Cinnamon Drive, he heard
car doors slam and people say "hurry up" in Spanish. He
noted that the footprint trail he had been following shifted
toward the driveway of the residence. Jay concluded that
some sort of vehicle loading was taking place. He saw a
Chevrolet Blazer drive away and notified Agent Johnson of
what he had witnessed.
Agent Johnson was familiar with 20855 Cinnamon Drive,
having tracked many groups of aliens to the residence. John-
son also had seen the Blazer and a blue minivan parked on the
property for months.
Agent Johnson surveilled a nearby intersection. He
observed the Blazer arrive behind the blue minivan, which
was driven by appellant Heather Olafson. Based on his previ-
ous observation of the minivan at 20855 Cinnamon drive, he
connected the minivan to the Blazer. Due to the way it negoti-
ated a dip in the road, the minivan appeared to Johnson to be
heavily loaded. Believing that the minivan contained illegal
aliens, Johnson instructed another Border Patrol agent to stop
and check it.
When the minivan was stopped, there were six illegal aliens
lying on the floor. Four of them were immediately returned to
Mexico. The remaining two, Amadeo Chavez-Martinez and
Cerilio Gomez-Rivera, were detained as material witnesses.
Both gave statements that they were Mexican nationals and
were in the United States illegally.
Before Olafson's trial for smuggling aliens, Chavez-
Martinez and Gomez-Rivera were inadvertently returned to
Mexico by the Border Patrol. Agent Montes spoke with
Gomez-Rivera by telephone and asked him to return to the
United States to testify against Olafson. Gomez-Rivera
refused, indicating that he was afraid of being detained again,
or of being harmed by Olafson's husband.
Olafson moved to suppress all evidence derived from the
stop of the minivan on the ground that the Border Patrol
agents lacked reasonable suspicion. She also moved in limine
to exclude any use of the statements regarding the citizenship
and alienage of Chavez-Martinez and Gomez-Rivera on the
ground that the statements were inadmissible hearsay. Olafson
asked the court to order the government to take their deposi-
tions under Fed. R. Evid. 15(a) because neither witness would
be present at trial.
Agents Johnson and Jay testified, recounting the circum-
stances and events they had witnessed before stopping the
blue minivan, including Johnson's observation of the minivan
parked at 20855 Cinnamon Drive for several months.
The district court denied both motions. As to reasonable
suspicion to stop the minivan, the court concluded that based
on the totality of the circumstances recounted by Jay and
Johnson, the agents were justified in stopping Olafson's vehi-
cle. Regarding the witness's statements, the court determined
that under Fed. R. Evid. 804(a), the government had made a
showing of their unavailability sufficient to allow admission
of their assertions of citizenship and alienage. The court found
that conditions in Mexico were unsafe for American prosecu-
tors, and that the circumstances of the case did not warrant
such measures.
Olafson pled guilty conditionally, and on appeal challenged
the district court's denial of her suppression and in limine
exclusion motions.
[1] The Fourth Amendment prohibits an officer from stop-
ping a vehicle without a reasonable or well-founded suspicion
of criminal conduct at the time of the stop. Reasonable suspi-
cion exists when an officer is aware of specific, articulable
facts, which, taken together with objective and reasonable
inferences, form the basis for suspecting that the person to be
detained has committed or is about to commit a crime. The
facts are to be interpreted in light of a trained officer's experi-
ence, and the totality of circumstances.
[2] Factors on which Border Patrol agents may rely in find-
ing reasonable suspicion include: (1) characteristics of the
area; (2) proximity to the border; (3) usual patterns of traffic
and time of day; (4) previous alien or drug smuggling in the
area; (5) behavior of the driver, including obvious attempts to
evade officers; (6) appearance or behavior of passengers; (7)
model and appearance of the vehicle; and (8) officer experi-
ence.
[3] When analyzed as a whole, the facts provided ample
support for the Border Patrol agents' suspicion that the
minivan contained illegal aliens. The agents' general experi-
ence with the Cinnamon Drive location and their knowledge
of the two vehicles provided compelling evidence that there
was criminal activity underway.
[4] Reasonable suspicion is based on the totality of the cir-
cumstances. Even assuming some doubt existed as to Agent
Johnson's belief that the minivan looked loaded, when viewed
in light of the other available evidence, it was relevant to
determine whether the agents were reasonable in suspecting
that the minivan contained illegal aliens. Similarly, any ques-
tion raised by the fact that Agent Jay saw only the Blazer
drive away was cured by Agent Johnson's testimony that he
saw the minivan parked at 20855 Cinnamon Drive for several
months. This was sufficient to connect the vehicles.
[5] Under the totality of the circumstances, in light of all
the evidence available to Agent Johnson at the time he
ordered the stop of Olafson's minivan, his suspicion that the
van contained illegal aliens was reasonable. The district
court's conclusion was supported by the evidence, and Olaf-
son's motion to suppress was properly denied.
[6] The statements of Chavez-Martinez and Gomez-Rivera
would have been hearsay if offered at trial. To be admissible,
the statements therefore had to fit within one of the hearsay
exceptions of Rule 804. Under Rule 804(b)(3), and (4), hear-
say is admissible if the declarant is unavailable and the state-
ment is against the declarant's interest, or concerns the
declarant's personal or family history. Under these excep-
tions, a declarant is considered unavailable as a witness if he
is absent from the hearing, and the proponent of his statement
has been unable to procure his attendance or testimony by
process or other reasonable means. A witness is not consid-
ered "unavailable" unless the prosecutor makes a good-faith
effort to obtain the witness's presence.
[7] The hearsay statements were reliable. Gomez-Rivera
and Chavez-Martinez made their statements immediately
upon contact with law enforcement. There was no evidence
that they were lying. Moreover, their return to Mexico, and
Gomez-Rivera's unwillingness to come back to the United
States only lent further support to the reliability of their state-
ments. [8] The statement of Gomez-Rivera's citizenship and
alienage was admissible under Rule 804. The district court's
conclusion was not an abuse of discretion.
[9] Rule 15(a) allows a district court discretion in deciding
whether to order depositions in a criminal case, and states that
such depositions will be reserved for exceptional circum-
stances where it is in the interest of justice that the testimony
of a prospective witness be taken and preserved for use at
trial. In deciding whether to grant a Rule 15(a) motion, the
court must consider whether the deponent would be available
at the proposed location and willing to testify. The court
should also consider whether the safety of United States offi-
cials would be compromised by going to the foreign location.
[10] Because Rule 804(a)(5) requires only reasonable
means to procure testimony, the district court did not abuse its
discretion in refusing to order the taking of foreign deposi-
tions in Mexico under Rule 15(a).There was no indication that
either Gomez-Rivera or Chavez-Martinez were willing to pro-
vide testimony at a deposition, or that they would cooperate
in any way.
[11] Given the inherent reliability of Gomez-Rivera's state-
ment of citizenship and alienage, and absent extreme mea-
sures, his unavailability to testify, the district court correctly
exercised its discretion in denying Olafson's motion in limine.
While the court might have ordered a phone deposition, the
court was not required to do so.
_________________________________________________________________
COUNSEL
Charles T. McCutcheon, El Cajon, California, for the
defendant-appellant.
David P. Curnow, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
_________________________________________________________________
ORDER
The opinion filed February 3, 2000, is hereby amended as
follows:
At slip opinion page 1166, first full paragraph, delete the
following text on line 10:
"Moreover, the burden of proof in a Rule 15(a)
motion rests with the movant to demonstrate the
necessity of preserving a prospective witness's testi-
mony with a deposition. United States v. Zuno-Arce,
44 F.3d 1420, 1424 (9th Cir. 1995)."
The word "Finally" shall be stricken from the next sen-
tence, and the sentence shall read:
"In deciding whether to grant a Rule 15(a) motion,
the district court must consider, among other factors,
whether the deponent would be available at the pro-
posed location for deposition and would be willing
to testify. Id. at 1425."
At slip opinion page 1166, line 6 of the last full paragraph
insert between "discretion" and "in refusing":
in concluding that the government met its burden of
proving "unavailability" and
At slip opinion pages 1166 and 1167, delete the following:
"Olafson did not meet her burden of demonstrating
the necessity of taking the deposition, nor did she
provide any explanation as to what evidence would
be gained or clarified by obtaining further testimony
from Gomez-Rivera. Finally,"
The next sentence shall begin with the word "Moreover,".
The text shall read:
"Moreover, there was no indication that either
Gomez-Rivera or Chavez-Martinez were willing to
provide testimony at a deposition, or that they would
cooperate in any way. The evidence in the record
was to the contrary."
At slip opinion page 1167, line 10: place a period at the end
of the word "limine," and delete the following:
"and her request for foreign depositions under Fed-
eral Rule of Criminal Procedure 15(a)."
At slip opinion 1167, first full paragraph, line 10, delete the
following:
"The district court determined that a deposition was
not necessary, and that the statement of Gomez-
Rivera was reliable for the limited purpose for which
it was to be used. This was not an abuse of discre-
tion."
At slip opinion, first full paragraph, line 10, the following
shall be inserted:
"The district court determined that it was not reason-
able to require the government to take the deposition
of Gomez-Rivera, and that his statement was reliable
for the limited purpose for which it was to be used.
This was not an abuse of discretion."
With these amendments, the petition for rehearing, and the
petition for rehearing en banc are DENIED.
_________________________________________________________________
OPINION
TROTT, Circuit Judge:
Heather Ladon Olafson ("Olafson") appeals her conviction
for transporting illegal aliens in violation of 8 U.S.C. S 1324.
Olafson entered a conditional guilty plea to the charge, which
preserved her right to appeal the district court's denial of a
motion to suppress, as well as its decision to admit hearsay
statements from two material witnesses instead of ordering
the government to take their depositions under Federal Rule
of Criminal Procedure 15(a). This appeal followed. We have
jurisdiction pursuant to 28 U.S.C. S 1291, and we AFFIRM.
I
Olafson was arrested on August 4, 1998 in Jamul, Califor-
nia when Border Patrol Agent Johnson ("Agent Johnson")
found six illegal aliens on the floor of a blue minivan Olafson
was driving. The facts leading up to Olafson's arrest are as
follows:
On the morning of August 4, 1998, Border Patrol Agent
Lawrence Jay ("Agent Jay") was on "line-watch" duty near
the United States/Mexico border when he was notified by a
seismic device of a possible intrusion in the Deerhorn Valley
area of East San Diego County. Agent Jay responded to the
area and found fresh footprints on a main trail used by illegal
aliens to enter the United States. He followed the footprints.
From previous arrests, and from the fact that the particular
trail led in only one direction, Agent Jay knew the footprints
were headed toward 20855 Cinnamon Drive. Agent Jay also
knew that Cinnamon Drive was an area where many illegal
aliens stopped "to rest and drink water . . . and wait for their
load vehicles."
As Agent Jay approached 20855 Cinnamon Drive, he heard
people saying in Spanish, "hurry up, hurry up, " and heard car
doors slamming. He also saw that the trail of footprints he had
been following shifted toward the driveway, and he believed
"that some sort of loading was occurring." As he approached
the top of a hill overlooking the area, Agent Jay saw a gold
Chevrolet Blazer driving away from the 20855 Cinnamon
Drive residence. He did not see any other vehicles leave.
Agent Jay immediately notified Agent Johnson about what he
had seen.
Agent Johnson was patrolling the area in a marked vehicle
when he received Agent Jay's call regarding the activity on
Cinnamon Drive. Agent Johnson knew the 20855 Cinnamon
Drive location well, having personally tracked "ten or so"
groups of aliens to the residence. Specifically, he participated
in three alien smuggling apprehensions at the address and
received several citizen tips about similar illegal activity
going on at the home. In addition, Agent Johnson had seen the
gold Blazer and a small, blue minivan parked on the property
for months.
Agent Johnson set up surveillance on the gold Blazer at
Four Corners, a nearby intersection. The Blazer arrived at the
intersection after about ten minutes and, in front of it, sepa-
rated by one other vehicle, was the blue minivan driven by
Olafson. From his previous observations of the blue minivan
parked at 20855 Cinnamon Drive, Agent Johnson connected
it to the Blazer. He also testified that as the minivan drove
along the road and negotiated a dip, it appeared heavily
loaded. Believing that the minivan contained illegal aliens, he
instructed another Border Patrol agent to stop and check the
van. When the minivan was stopped, six illegal aliens were
found lying on the floor. Olafson was arrested. Agent Johnson
stopped the gold Blazer, which did not contain any illegal
aliens, and arrested the driver, Celeste Arnold.
Of the six aliens seized from the minivan driven by Olaf-
son, four were immediately returned to Mexico. The remain-
ing two, Amadeo Chavez-Martinez and Cerilio Gomez-
Rivera, were detained as material witnesses and both gave
statements to the Border Patrol that they were Mexican citi-
zens and had entered the United States illegally. Before Olaf-
son's trial, however, Chavez-Martinez and Gomez-Rivera
were inadvertently returned to Mexico by the United States
Border Patrol.
Prior to trial, Olafson brought a motion to suppress all evi-
dence from the vehicle stop on the ground that the Border
Patrol agents lacked reasonable suspicion. Olafson also
brought a motion in limine to exclude any use of the state-
ments regarding Chavez-Martinez's and Gomez-Rivera's citi-
zenship and alienage as inadmissible hearsay and requested
that the court order the government to take their depositions
because neither witness would be present at trial. The district
court denied both motions as well as the request for deposi-
tions.
Following these adverse district court rulings, Olafson
entered a conditional guilty plea to count three of the indict-
ment for transporting illegal aliens within the United States in
violation of 8 U.S.C. SS 1324(a)(1)(A)(ii) and (v)(II). The
plea preserved Olafson's right to appeal the district court's
denial of both her motion to suppress and her motion in
limine, including the related request for depositions.
II
Olafson contends that the district court erred by denying
her motion to suppress evidence seized as a result of the
investigatory stop because the Border Patrol agents lacked
reasonable suspicion to stop the blue minivan she was driving.
This contention lacks merit.
The specific question of whether reasonable suspicion
existed under given facts is a legal conclusion subject to de
novo review. See Ornelas v. United States, 517 U.S. 690, 699
(1996). However, we "review findings of historical fact only
for clear error and . . . give due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers." Id.
[1] The Fourth Amendment prohibits an officer from stop-
ping a vehicle without a reasonable or well-founded suspicion
of criminal conduct at the time of the stop. United States v.
Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992), as amended,
997 F.2d 1306 (9th Cir. 1993). Reasonable suspicion exists
when an officer is aware of specific, articulable facts, which,
together with objective and reasonable inferences, form a
basis for suspecting that the particular person to be detained
has committed or is about to commit a crime. United States
v. Salinas, 940 F.2d 392, 394 (9th Cir. 1991). The facts are
to be interpreted in light of a trained officer's experience, and
the totality of the circumstances must be taken into account.
United States v. Sokolow, 490 U.S. 1, 8 (1989).
[2] The Supreme Court has set forth a nonexclusive list of
factors upon which Border Patrol agents may rely in finding
reasonable suspicion: "(1) characteristics of the area; (2) prox-
imity to the border; (3) usual patterns of traffic and time of
day; (4) previous alien or drug smuggling in the area; (5)
behavior of the driver, including `obvious attempts to evade
officers'; (6) appearance or behavior of passengers; (7) model
and appearance of the vehicle; and, (8) officer experience."
United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th
Cir. 1997) (quoting United States v. Brignoni-Ponce, 422 U.S.
873, 885 (1975)).
Here, after a pre-trial evidentiary hearing, the district court
denied Olafson's motion and concluded that, based upon the
totality of the circumstances, the Border Patrol agents had
ample reasonable suspicion to stop Olafson's minivan. In
addition, the court noted that it was "quite a strong case." The
district court was correct. The testimony from Agent Jay and
Agent Johnson was sufficient, under the factors set out in
Garcia-Barron, to conclude that the agents had reasonable
suspicion to stop the minivan.
Specifically, the following facts were available to the dis-
trict court in making its determination: (1) Agent Jay was
assigned to line-watch duties in Jamul, California, an area in
close proximity to the Mexican border; (2) after a sensor was
set off during Agent Jay's watch, he found fresh footprints on
a trail notoriously traveled by alien smugglers; (3) Agent Jay
followed the footprints to 20855 Cinnamon Drive, an area
previously involved in alien smuggling activity; (4) when
Agent Jay arrived at the 20855 Cinnamon Drive, he heard
someone say "hurry up, hurry up," in Spanish; (5) Agent Jay
heard vehicle doors slamming and saw a gold Chevrolet
Blazer drive away from the house on Cinnamon Drive; (6)
Agent Johnson recognized the Chevrolet Blazer and the blue
minivan as being connected with the house on 20855 Cinna-
mon Drive and had seen the blue minivan parked in the drive-
way on the property for extended periods of time over the
previous three to four months; (7) based upon Agent John-
son's experience and special training as a Border Patrol
Agent, he believed that the gold Blazer and blue minivan
were traveling together in tandem; and finally, (8) Agent
Johnson observed that the minivan appeared to be weighted
down from the way it handled a dip in the road.
[3] When analyzed as a whole, these specific and articul-
able facts provided ample support for the Border Patrol
agents' suspicion that the minivan driven by Olafson con-
tained illegal aliens. The agents' general experience with the
Cinnamon Drive location and their specific knowledge of the
two vehicles provided compelling evidence that there was
criminal activity underway.
Olafson argues that the district court erred because it
should not have relied upon certain evidence from the pre-
trial hearing in determining whether the agents had reasonable
suspicion. For example, Olafson argues that the court should
not have relied upon Agent Jay's testimony that the minivan
looked "loaded" or heavy, because a minivan is the type of
vehicle normally used to carry loads and, thus, no suspicion
can be raised from its apparent weight. See United States v.
Garcia-Camacho, 53 F.3d 244, 249 (9th Cir. 1995) (acknowl-
edging that the heavily laden nature of a truck is less suspi-
cious because, unlike a passenger car, one of the normal uses
of a truck is to transport heavy materials). Olafson also argues
that Agent Jay's testimony that he saw the gold Blazer pull
away from 20855 Cinnamon drive cannot be used to support
suspicions about the minivan because Agent Jay did not see
the minivan pull away with the Blazer and had never seen it
involved in any illegal activity.
[4] Olafson's arguments are unpersuasive because reason-
able suspicion is based upon the totality of the circumstances.
See Sokolow, 490 U.S. at 8. Hence, even assuming some
doubt existed as to Agent Johnson's belief that the minivan
looked loaded, when viewed in light of the other evidence
available, it was relevant to determine whether the Border
Patrol agents were reasonable in suspecting that the blue
minivan driven by Olafson contained illegal aliens. Similarly,
any question raised by the fact that Agent Jay saw only the
Blazer drive away was cured by Agent Johnson's testimony
that he saw the blue minivan parked at 20855 Cinnamon
Drive for several months. This testimony was sufficient to
connect the vehicles.
[5] Under the totality of the circumstances, in light of all
the evidence available to Agent Johnson at the time he
ordered the stop of Olafson's minivan, his suspicion that the
van contained illegal aliens was reasonable. The district
court's conclusion was well-supported by the evidence, and
Olafson's motion to suppress was properly denied.
III
Olafson's second claim on appeal challenges the district
court's denial of her motion in limine to exclude the hearsay
statements of Chavez-Martinez and Gomez-Rivera. The dis-
trict court denied the motion because it found that, under Fed-
eral Rule of Evidence 804(a), the government had made a
showing of unavailability of these two witnesses sufficient to
permit admission of their statements regarding citizenship and
alienage. Olafson contends that the district court erred in its
finding of unavailability by declining to consider alternative
means of procuring testimony from the witnesses and, specifi-
cally, by not ordering depositions under Federal Rule of
Criminal Procedure 15(a). We disagree.
Whether the district court correctly construed the hearsay
rule is a question of law that we review de novo. United
States v. Collicott, 92 F.3d 973, 978 (9th Cir. 1996). We
review a district court's decision to admit evidence under a
hearsay exception and its decision to grant or deny a deposi-
tion under Federal Rule of Criminal Procedure 15(a) for abuse
of discretion. Id.; see also United States v. Hernandez-
Escarsega, 886 F.2d 1560, 1569 (9th Cir. 1989).
A.
[6] The parties do not dispute that the statements of
Chavez-Martinez and Gomez-Rivera would be hearsay if
offered at trial. Therefore, to be admissible, the statements
must fit within one of the hearsay exceptions of Federal Rule
of Evidence 804. Under Rule 804(b)(3) and (4), hearsay is
admissible if the declarant is unavailable and the statement is
against the declarant's interest or concerns the declarant's per-
sonal or family history. Fed. R. Evid. 804(b)(3), (4). Under
these two hearsay exceptions, a declarant is considered
unavailable as a witness if he is absent from the hearing, and
the proponent of his statement has been unable to procure his
attendance or testimony by process or other reasonable
means. Fed. R. Evid. 804(a)(5). Finally, while "a witness is
not [considered] `unavailable' unless the prosecutor makes a
good faith effort to obtain the witness's presence .. . . `[t]he
law does not require the doing of a futile act,' and the extent
of the effort the prosecutor must make is a question of reason-
ableness." United States v. Winn, 767 F.2d 527, 530 (9th Cir.
1985) (quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)).
We discussed the unavailability of a witness and the admis-
sion of hearsay statements pursuant to Rule 804(b)(3) and (4)
in Winn, a similar, but not identical, case to the one presented
here. Winn, 767 F.2d at 530. In Winn, where the material wit-
ness was involuntarily deported and his whereabouts were
completely unknown, the court held that he was unavailable
and his statement to immigration officers regarding his citi-
zenship and alienage was, therefore, admissible under the
hearsay exceptions for statements against interest and state-
ments of personal or family history. Id. The Winn court also
held that the admission of the hearsay statement did not vio-
late the defendant's confrontation rights under the Sixth
Amendment, because the statement had certain indicia of reli-
ability given the circumstances under which it was made. Id.
at 531. In response to the defendant's argument that the state-
ment was unreliable because the witness may have lied, the
Winn court noted that when four males who do not speak
English are found locked in the trunk at the San Clemente
border, "it is highly unlikely that they are legally in the United
States . . . posing as illegal aliens to avoid prosecution for ille-
gally smuggling other aliens." Id. at 530-31.
Here, the district court concluded that under Winn, Chavez-
Martinez and Gomez-Rivera were unavailable because they
were inadvertently returned to Mexico, were beyond the sub-
poena power of the district court, and failed to respond to
efforts to persuade them to return to the United States to tes-
tify. Specifically, the court relied on testimony from Agent
Montes of the United States Border Patrol, who stated that he
spoke with Gomez-Rivera on the telephone and requested that
he return to the United States to testify. Although Agent
Montes repeatedly promised Gomez-Rivera that he would be
safe, Gomez-Rivera refused to come back. He stated that he
was afraid of being incarcerated again or being harmed by
Olafson's husband. Chavez-Martinez was not contacted
directly by agents for the United States Border Patrol.2
[7] Additionally, the court concluded that under the ratio-
nale described in Winn, the hearsay statements were reliable.
Similar to Winn, Gomez-Rivera and Chavez-Martinez were
found lying on the floor of the minivan and made statements
that they were citizens of Mexico immediately upon contact
with law enforcement. There is no evidence to suggest that
the men were lying. Moreover, their return to Mexico and
Gomez-Rivera's unwillingness to come back to the United
States only lends further support to the reliability of their
statements.
[8] Accordingly, because both the unavailability and reli-
ability prongs of Winn were met, the district court concluded
that the statement of Gomez-Rivera's citizenship and alienage
was admissible under Federal Rule of Evidence 804 and
denied Olafson's motion in limine. The district court's con-
clusion was consistent with Winn, was well-reasoned and,
thus, was not an abuse of discretion.
B.
Olafson argues that Winn is distinguishable because the
material witness at issue in that case could not be located,
whereas here, the government knew the whereabouts of at
least one of the witnesses and communicated with him via
telephone. As such, Olafson argues, irrespective of the gov-
ernment's good faith efforts to procure the witness's atten-
dance in court, the witness should not be deemed
"unavailable" unless there was also an attempt to procure his
testimony, as required by Federal Rule of Evidence 804(a)(5).3
To this end, Olafson asked the district court to invoke Federal
Rule of Criminal Procedure 15(a) to order the government to
take the depositions of the two otherwise unavailable wit-
nesses. The district court denied the request.
[9] Rule 15(a) allows the district court broad discretion in
deciding whether to order depositions in a criminal case and
explicitly states that such depositions will be reserved for "ex-
ceptional circumstances [where] it is in the interest of justice
that the testimony of a prospective witness . . . be taken and
preserved for use at trial . . . ." Fed. R. Crim. P. 15(a); see
also United States v. Hernandez-Escarsega, 886 F.2d at 1569
("[T]he facts of each case must be separately considered to
determine whether the exceptional circumstances contem-
plated by Rule 15(a) exist . . . ."). In deciding whether to grant
a Rule 15(a) motion, the district court must consider, among
other factors, whether the deponent would be available at the
proposed location for deposition and would be willing to tes-
tify. Id. at 1425. The court should also consider whether the
safety of United States officials would be compromised by
going to the foreign location. United States v. Omene, 143
F.3d 1167, 1169-70 (9th Cir. 1998).
[10] Olafson is correct that the Border Patrol's communica-
tion with Gomez-Rivera distinguishes her case from Winn,
which would otherwise be directly on point. However,
because Rule 804(a)(5) requires only reasonable means to
procure testimony, the district court did not abuse its discre-
tion in concluding that the government met its burden of prov-
ing "unavailability" and in refusing to order the taking of
foreign depositions in Mexico under Federal Rule of Criminal
Procedure 15(a). The district court considered the factors out-
lined above and explicitly noted that conditions in Mexico
were unsafe for American prosecutors, and that the circum-
stances of the case did not require such measures. Moreover,
there was no indication that either Gomez-Rivera or Chavez-
Martinez were willing to provide testimony at a deposition, or
that they would cooperate in any way. The evidence in the
record was to the contrary.
[11] Given the inherent reliability of Gomez-Rivera's state-
ment of his citizenship and alienage, and, absent extreme
measures, his unavailability to testify at trial or any other
time, we hold that the district court correctly exercised its dis-
cretion in denying Olafson's motion in limine. While perhaps,
as suggested by Olafson, the district court might have ordered
a phone deposition, which would have avoided safety con-
cerns and other administrative problems, the district court was
not required to do so. The district court determined that it was
not reasonable to require the government to take the deposi-
tion of Gomez-Rivera, and that his statement was reliable for
the limited purpose for which it was to be used. This was not
an abuse of discretion.
IV
For the reasons outlined above, we AFFIRM Olafson's
conviction for transporting illegal aliens in violation of 8
U.S.C. S 1324. The district court correctly denied Olafson's
motion to suppress. The district court also correctly denied
Olafson's motion in limine to exclude the hearsay statement
of Gomez-Rivera and her request to take foreign depositions
under Federal Rule of Criminal Procedure 15(a).
_______________________________________________________________
FOOTNOTES
1 The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
2 It was not necessary for the government to use the statement of
Chavez-Martinez if it could prove its case using only Gomez-Rivera.
Therefore, although the record is not clear as to whether the government
attempted to contact Chavez-Martinez, we do not need to resolve this issue
to decide Olafson's appeal.
3 As noted, under the two hearsay exceptions at issue in this case, a
declarant is considered unavailable as a witness if he is absent from the
hearing, and the proponent of his statement has been unable to procure his
attendance or testimony by process or other reasonable means. Fed. R.
Evid. 804(a)(5) (emphasis added).