Metropolitan News-Enterprise


Friday, August 17, 2007


Page 1


Court Upholds Exclusion of Deportee’s Testimony From Trial




A Ninth U.S. Circuit Court of Appeals panel yesterday affirmed a district judge’s ruling that prosecutors may not, at the retrial of an alleged drug smuggler, introduce the prior testimony of a witness who was deported after testifying at the first trial.

David Reziniano was not “unavailable” for purposes of the prior-testimony exception to the hearsay rule, Judge Ronald Gould said, because it was unreasonable for the government to deport the Israeli national without notifying the district judge or the defendant’s lawyers or taking meaningful steps to assure his availability for trial.

The government’s offer to pay Reziniano’s expenses to come back was not sufficient, Gould wrote for the panel, which also included Judge Milan D. Smith Jr. and visiting Senior Judge Alfred V. Covello, from the District of Connecticut.

Reziniano was charged in with conspiracy to smuggle the hallucinogenic drug ecstasy, along with Yacov Yida and others. Reziniano pled guilty in 2004 and was sentenced to more than five years in prison, and was subsequently ordered deported, but remained in custody under a material witness warrant.

He testified at Yida’s trial last year, explaining how he and the defendant had smuggled the drug into the United States via Europe on multiple occasions. The jury deadlocked, and the case was set for retrial in July of last year.

Before the date set for retrial, the government—after receiving assurances from Reziniano and his attorney that he would return—returned him to Israel. He subsequently called his attorney and said he would not return because he was ill and needed medical attention, and his lawyers then informed prosecutors he was not coming back.

The assistant U.S. attorney handling the case, and the lead FBI agent, tried to persuade him to return, but he insisted that his health had deteriorated while in custody and that the government’s offer to pay him to return and to assist him in obtaining medical treatment here was unsatisfactory.

Prosecutors then moved to admit his testimony from the first trial. U.S. District Judge Charles Breyer of the Northern District of California denied the motion, saying that the government did not use “reasonable means” to procure the witness’ testimony for the second trial, as required by the Federal Rules of Evidence.

The issue, Breyer emphasized, was not whether efforts to bring Reziniano back were adequate, but whether the government should have allowed him to be deported in the first place.

Gould, writing for the Court of Appeals, said the district judge was correct.

The appellate jurist acknowledged that other courts have applied the former- testimony exception to admit testimony by aliens who were out of the country, including deportees. But those cases did not involve the type of affirmative conduct by the government that occurred here, Gould said.

He agreed with the National Association of Criminal Defense Lawyers, which argued in an amicus brief that the “the “Supreme Court has never extended the concept of unavailability to the point where the government seeks to extend it here — that is, to find a witness unavailable when the government itself shares some of the responsibility for its inability to produce the witness at trial.”

Gould rejected the government’s contention that allowing the witness to leave the country was reasonable given Reziniano’s assurances that he would return. Those assurances were worth little, the judge said, coming from a convicted felon whose previous cooperation was given as a condition of a plea agreement.

He also emphasized that the government had reasonable alternatives to deporting Reziniano. It could have released him on condition that he surrender his passport and remain in the country, subject perhaps to house arrest or travel restrictions, or moved to take his video deposition.

Gould pointed out in a footnote that it is still possible to take Reziniano’s video deposition in Israel. He rejected the argument that the deposition will be no more valuable than his earlier testimony, saying the defendant has the right to use any knowledge gained since the first trial on cross-examination and to point out any changes in the testimony to the trier of fact.

In a concurrence to his own opinion, Gould suggested that the admission of Reziniano’s testimony under the circumstances might violate the Confrontation Clause as well as the rules of evidence. The court’s interpretation of the rule, however, appropriately avoids the need to decide the constitutional issue, he said.

The case is United States v. Yida, 06-10460.


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