Case: 17-50465 Document: 00514761781 Page: 1 Date Filed: 12/14/2018 REVISED December 14, 2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-50465 FILED December 12, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff – Appellee, v. GEORGE LAMAR DARRYL FOSTER, Defendant – Appellant. Appeal from the United States District Court for the Western District of Texas Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges. REAVLEY, Circuit Judge: George Lamar Darryl Foster was convicted of transporting aliens for commercial advantage or private financial gain. Foster argues that the introduction of videotaped depositions of two material witnesses at trial violated his rights under the Confrontation Clause because the government failed to demonstrate the witnesses were unavailable. We vacate the judgment and remand for new trial. I. Driving a tractor-trailer with a refrigerated unit, Foster attempted to cross the Sierra Blanca checkpoint around midnight on July 7, 2016. Border Case: 17-50465 Document: 00514761781 Page: 2 Date Filed: 12/14/2018 No. 17-50465 Patrol agents discovered six persons in the trailer’s refrigerated unit, five of whom were undocumented aliens. Two of those aliens were Jose Manuel Francisco-Maldonado and Leandro Hernandez-Ruiz. Everyone relevant to this appeal was arrested. The government charged Foster in a two-count indictment for transporting aliens for commercial advantage or financial gain and conspiracy to do the same. The government conducted video depositions of Francisco-Maldonado and Hernandez-Ruiz on July 22, 2016. Both identified Foster as the driver of the tractor-trailer. During their depositions, the government advised the witnesses they might be needed for trial and, if so, that the government would allow them to reenter the United States and would pay for their travel expenses. The witnesses were asked to provide an address and telephone number where they could be reached in Mexico. Hernandez-Ruiz provided a home address and a telephone number. Francisco-Maldonado provided a home address and email address. Both testified under oath that they would return for Foster’s trial and that they would update their contact information if it changed. In exchange for their testimony, the government agreed to drop all criminal charges against them. Francisco-Maldonado and Hernandez-Ruiz were released from their halfway house that day. 1 On November 7, 2016, the district court issued an order setting Foster’s case for trial. 2 The week before trial, the government filed a motion to declare Francisco-Maldonado and Hernandez-Ruiz unavailable and to allow for the introduction of their videotaped depositions at trial. According to the 1 As the government concedes, it is unclear whether the witnesses “departed the United States pursuant to deportation, removal, or voluntary departure.” At oral argument, the government indicated Francisco-Maldonado was probably deported, but was unsure about Hernandez-Ruiz. 2 The district court initially set Foster’s trial date for January 30, 2016, but later reset the trial for February 27, 2017. 2 Case: 17-50465 Document: 00514761781 Page: 3 Date Filed: 12/14/2018 No. 17-50465 government’s motion, the agent assigned to Foster’s case began attempts to contact Francisco-Maldonado and Hernandez-Ruiz the ...
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