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                        REVISED February 15, 2019

           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
                            USDC No. 3:16-CR-1340-1


Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: ∗
       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




       ∗
         Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set forth
in Fifth Circuit Rule 47.5.4.
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                                     No. 17-50465
failed to demonstrate the witnesses were unavailable. We vacate the judgment
and remand for proceedings consistent with this opinion.
                                            I.
      Driving a tractor-trailer with a refrigerated unit, Foster attempted to
cross the Sierra Blanca checkpoint around midnight on July 7, 2016. Border
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, wherein they identified Foster as the
person who let them into the trailer. They were cross-examined by defense
counsel. 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 e-mail
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 either released or
deported later that day. 1



      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,
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                                         No. 17-50465
       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
government’s motion, the agent assigned to Foster’s case began attempts to
contact Francisco-Maldonado and Hernandez-Ruiz the day after the district
court set Foster’s case for trial, and continued those efforts through February
14, 2017, the week before Foster’s trial. During that four-month period from
November through February, the government stated that it called Hernandez-
Ruiz six times, e-mailed Francisco-Maldonado four times, sent a letter to the
witnesses’ home addresses, and made some attempt to reach out to the
Mexican government, as well as to the witnesses’ attorney. The government
did not attach any documentary evidence in support of the above-mentioned
efforts. Nor did the government state that it made any attempt to contact
either individual during the three and a half months between their release
date in July and the scheduling of the trial in November. A few days prior to
trial, the district court granted the government’s motion to declare Hernandez-
Ruiz and Francisco-Maldonado unavailable.
       The trial went as follows: Foster filed a motion to exclude the videotaped
depositions on the ground that their introduction would violate his Sixth
Amendment right to confrontation because the government failed to
demonstrate that the material witnesses were unavailable. Although Foster
argued, among other things, that the efforts the government described in its




the government indicated Francisco-Maldonado was probably deported, but that it was
unsure about Hernandez-Ruiz.

       2 The district court initially set Foster’s trial date for January 30, 2017, but later reset
the trial for February 27, 2017.
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                                    No. 17-50465
motion were “not reflected on the record . . . in any place,” the district court
accepted the government’s factual representations and denied Foster’s motion.
      The Border Patrol agents who investigated and arrested Foster testified
that Foster attempted to drive the tractor-trailer through the checkpoint and
that they discovered six individuals inside the trailer’s refrigerated unit, two
of whom were Francisco-Maldonado and Hernandez-Ruiz. The Special Agent
from the U.S. Department of Homeland Security who interviewed Foster upon
his arrest testified that Foster initially denied having knowledge that
undocumented aliens were in his truck but eventually confessed to
transporting them for money. The agent also testified that Foster gave a
written statement to this effect. Next, the government presented Francisco-
Maldonado and Hernandez-Ruiz’s videotaped depositions, and Foster again
objected on Confrontation Clause grounds. Testifying in his own defense,
Foster claimed that he did not know there were individuals in his trailer and
that he gave a written statement only after being threatened and coerced by
investigators during the interview.
      The jury found Foster guilty of transporting aliens for commercial
advantage or private financial gain, but not guilty on the conspiracy count. The
district court sentenced Foster to 57 months of imprisonment, to be followed
by 2 years of supervised release. Foster timely filed a notice of appeal.
                                          II.
      Foster argues that the district court violated his Sixth Amendment
confrontation rights by allowing the use of Hernandez-Ruiz’s and Francisco-
Maldonado’s videotaped depositions. 3 We review Confrontation Clause




      3 Foster additionally argues that he had an inadequate prior opportunity to cross
examine the witnesses. Because we hold the witnesses were not “unavailable” for
Confrontation Clause purposes, we do not address this argument.
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                                 No. 17-50465
challenges de novo, subject to harmless error review. United States v. Tirado-
Tirado, 563 F.3d 117, 122 (5th Cir. 2009).
      The Confrontation Clause affords criminal defendants the right “to be
confronted with the witnesses against him.” U.S. CONST. AMEND. VI. The
Supreme Court has explained that the Confrontation Clause contemplates
      a personal examination and cross examination of the witness, in
      which the accused has an opportunity, not only of testing the
      recollection and sifting the conscience of the witness, but of
      compelling him to stand face to face with the jury in order that
      they may look at him, and judge by his demeanor upon the stand
      and the manner in which he gives his testimony whether he is
      worthy of belief.

Ohio v. Roberts, 448 U.S. 56, 63–64 (1980) (overruled on other grounds by
Crawford v. Washington, 541 U.S. 36 (2004)) (quoting Mattox v. United States,
156 U.S. 237, 242–43 (1895)). But this right is not absolute. Indeed, “some
circumstances justify dispensing with confrontation at trial.” U.S. v. Allie, 978
F.2d 1401, 1406 (5th Cir. 1992). Out-of-court statements, like a videotaped
deposition, “may be introduced against a criminal defendant if the government
can ‘demonstrate the unavailability of the declarant whose statements it
wishes to use.’ ” Id. (quoting Roberts, 448 U.S. at 65–66). Our question in this
case is whether the government demonstrated that Francisco-Maldonado and
Hernandez-Ruiz were “unavailable.”
                                       A.
      “A witness is ‘unavailable’ for Confrontation Clause purposes if the
‘prosecutorial authorities have made a good-faith effort to obtain his presence
at trial.’ ” Id. (quoting Roberts, 448 U.S. at 74). “The lengths to which the
prosecution must go to produce a witness is a question of reasonableness.”
Tirado-Tirado, 563 F.3d at 123 (quoting Roberts, 448 U.S. at 74) (ellipsis
omitted); see also Aguilar-Ayala v. Ruiz, 973 F.2d 411, 418 (5th Cir. 1992)
(“[D]eposition testimony is admissible only if the government has exhausted
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                                 No. 17-50465
reasonable efforts to assure that the witness will attend trial.”). Although
“[t]he inevitable question of precisely how much effort is required on the part
of the government to reach the level of a ‘good faith’ and ‘reasonable’ effort
eludes absolute resolution applicable to all cases,” it is well established that,
“[b]ecause of the importance our constitutional tradition attaches to a
defendant’s right to confrontation, the ‘good faith effort’ requirement demands
much more than a merely perfunctory effort by the government.” Allie, 978
F.2d at 1406, 1408.
      The facts of this reasonableness inquiry in this specific case place it
somewhere in the middle of a spectrum bounded on one end by our precedent
in Allie (where it was held that the government did make a good faith effort to
obtain the presence of deported witnesses) and on the other end by our
precedent in Tirado-Tirado (where it was held that the government did not
make a good faith effort to obtain the presence of deported witnesses).
      In Allie, we held that the government satisfied the good-faith test
because it: (1) gave the witnesses the option of remaining in the United States
with work permits until trial; (2) told the witnesses that it would pay for their
return travel expenses; (3) issued a subpoena, as well as a letter to assist with
reentry; (4) obtained repeated assurances from the witnesses that they would
return prior to deportation; (5) remained in contact with the witnesses by
calling them in Mexico after the deportation; (6) informed border inspectors of
the witnesses’ anticipated arrival; and (7) issued checks to be given to the
witnesses for travel expenses. 978 F.2d at 1407.
      Similarly, in United States v. Calderon-Lopez, we found good faith where
the government: (1) prior to deportation, issued subpoenas and letters in which
apprised the witnesses that they might be required to appear at trial; (2) in the
letters, provided “explicit instructions” for gaining reentry; (3) informed the
witnesses that it would cover travel-related expenses; (4) provided contact
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                                  No. 17-50465
information; and (5) following deportation, made several attempts to contact
the witnesses and remained in contact with two of them. 268 F. App’x 279, 289
(5th Cir. 2008) (unpublished).
      On the other end of the spectrum, in Tirado-Tirado, the government’s
efforts did not meet the good-faith effort standard. Prior to deportation, the
government failed to make any concrete arrangements for the witness to
return, only orally informing the witness that his testimony would be required
if the case went to trial. 563 F.3d at 124. Furthermore, the government did not
serve the witness with a subpoena to assist in his reentry, and it did not make
any attempt to contact until more than five months after his deposition. Id. at
124. Only eight days before the trial was scheduled to commence did the
government attempt to contact the deported witness. During those eight days
the government attempted to reach the witness by phone, by letter, by
contacting the witness’s family members, by reviewing call logs from the
witness’s phone at the time of his arrest to identify potential leads, by checking
immigration and criminal records, and by subpoenaed financial records for
transactions made in the witness’s name. Although we noted these efforts were
“fairly exhaustive,” we nevertheless concluded the government did not meet its
good-faith burden because the efforts “were made at the last minute and
followed a long period during which the government apparently made no effort
to remain in contact with [the witness].” Id. at 125.
      We reached the same result in United States v. Guadian-Salazar, 824
F.2d 344 (5th Cir. 1987). After the government deposed the witnesses in that
case, it took them to the Mexican border, served them with subpoenas printed
in English only and a notice stating that, if their testimony was needed for
trial, the government would “make provisions for [them] to legally enter the
United States and to remain until the case is terminated.” Id. at 346. Although
the government’s agent provided his contact information and instructed the
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                                  No. 17-50465
witnesses to meet him at a specific port of entry on a specific date, the
government did not advance the witnesses any travel funds and did not await
the witnesses’ arrival at the agreed-upon port of entry. Id. In that case, we
accepted the government’s concession that the use of videotaped deposition
testimony violated the defendant’s right to confrontation. Id. at 347.
      In this case, under the totality of circumstances presented on the record
before us, we hold that the government’s efforts to secure the presence of
Hernandez-Ruiz and Francisco-Maldonado for trial was closer to the efforts in
Tirado-Tirado than to those in Allie, and the government therefore did not
meet the good-faith standard to establish the unavailability of the witnesses.
      The government notes that deporting a material witness before trial may
nevertheless be consistent with good faith efforts. This is true, and we
recognize that the government may sometimes have competing obligations
between enforcing immigration laws and ensuring criminal defendants receive
the protections provided for them under the Sixth Amendment. Nonetheless,
if the government elects to deport a witness prior to trial, and if it wants to use
that deported witness’s testimony in the trial, then it should undertake
reasonable measures, under the circumstances, that are likely to ensure that
the witness will return for trial. The Constitution permits nothing less.
      In this case, the government made no attempt to verify or confirm the
authenticity or workability of the witnesses’ contact information, nor did the
government make any attempt to obtain additional collateral contact
information. Instead, the government merely informed Hernandez-Ruiz and
Francisco-Maldonado that their testimony might be needed if Foster’s case
went to trial, and that it would take care of travel arrangements if that turned
out to be the case. Furthermore, after the government released or deported the
witnesses, it failed to even make an attempt to remain in contact with them
for over three months. Each of the above-mentioned factors, standing alone,
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                                  No. 17-50465
may not demonstrate a lack of good faith or reasonable effort in all cases. The
lengths to which the government must go to produce a witness is a question of
reasonableness that will vary from case to case. In this case, however, the
government’s efforts, when taken in the aggregate, were not reasonably
sufficient to procure the availability of the witnesses at trial.
      To be sure, some of the government’s conduct was indicative of a good-
faith effort to secure the witnesses’ physical presence, such as telling the
witnesses that the government would cover travel-related costs and
exchanging contact information. But those efforts do not remedy the harm done
in this case by deporting the material witnesses without verifying their contact
information or even attempting to remain in contact for more than three
months. Under these circumstances, the government virtually assured the
absence of Hernandez-Ruiz and Francisco-Maldonado from trial, and their
videotaped depositions should not have been admitted. “The right of
confrontation may not be dispensed with so lightly.” Barber v. Page, 390 U.S.
719, 725 (1968).
                                        B.
      We must also note the problems presented by the government’s failure
to provide evidentiary support for many of the measures it claims to have
undertaken. In its motion to declare the material witnesses unavailable, the
government represented that it sent e-mails and letters, made phone calls, and
sought help from the Mexican government and the witnesses’ attorney. But
there is not a shred of evidence documenting these measures: The record
contains no copies of the e-mails, letters, or other correspondence the
government purportedly sent, nor is there any catalog of phone records. We
have previously questioned the propriety of relying on such representations in
the unavailability context. See United States v. Acosta-Ruiz, 481 F. App’x 213,
217 n.3 (5th Cir. 2012) (unpublished) (“Although we do not reach the issue of
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                                  No. 17-50465
whether the Government can rely on the representations of its attorney to
establish its good faith in procuring a witness’s testimony for Confrontation
Clause purposes, we note that such reliance is extremely disfavored.”).
      We thus again take the opportunity to question the government’s
reliance on the unsworn representations of its attorney to establish good faith
for purposes of the Confrontation Clause. As noted in Acosta-Ruiz, given that
our review is de novo and the good-faith inquiry is inherently fact-bound and
turns on reasonableness, the lack of such documentary evidence presents
“great practical difficulties for us as a reviewing court.” Id. After all, the
government’s burden is an evidentiary one, so it only makes sense to require
the government to produce evidence in support of its efforts. See Roberts, 448
U.S. at 74–75 (“As with other evidentiary proponents, the prosecution bears
the burden of establishing [unavailability].”).
      We have eschewed reliance on such unsworn assertions in both the
sentencing and speedy-trial contexts. See United States v. Jones, 475 F.3d 701,
705 (5th Cir. 2007) (“The unsworn assertions of the government’s attorney do
not provide a sufficiently reliable basis for a defendant’s sentence.”); United
States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002) (“The Government argued
in its opposition that it was diligent, offering reasons for its delay and
explaining efforts to track Cardona down, but did not support its memorandum
with a single shred of evidence then or at the later hearing. . . . The
Government’s arguments in brief are not evidence.”); see also Skyline Corp. v.
Nat’l Labor Relations Bd., 613 F.2d 1328, 1337 (5th Cir. 1980) (“Statements by
counsel in briefs are not evidence.”).
      Notwithstanding our serious doubts as to whether the government’s
unsworn statements are adequate to carry its burden under the Confrontation
Clause, we need not answer the question here because the government’s pre-


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                                  No. 17-50465
deportation shortcomings and its failure to maintain contact with the material
witnesses following their release proves fatal to the government’s case.
      Having determined that the admission of Hernandez-Ruiz and
Francisco-Maldonado’s videotaped deposition testimony violated Foster’s right
to confrontation, we next ask whether the error was harmful.
                                        C.
      “A defendant convicted on the basis of constitutionally inadmissible
Confrontation Clause evidence is entitled to a new trial unless it was harmless
in that there ‘there was [no] reasonable possibility that the evidence
complained of might have contributed to the conviction.’ ” United States v.
Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). “The government bears the burden of
establishing the error is harmless beyond a reasonable doubt.” Id.
      The government argues that it meets its burden by pointing to other
evidence in the record to support conviction, such as the testimony of
government agents who were present when Foster attempted to cross the
Sierra Blanca checkpoint, as well as Foster’s confession. However, the
government misunderstands the nature of our harmlessness inquiry here. In
the context of a Confrontation Clause violation that arises from the
introduction of inadmissible testimony in a direct criminal appeal, “[o]ur focus
is on the possibility of harm arising from [the inadmissible testimony] and not
necessarily on the possibility of its relationship to other evidence.” Id. See also
Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir. 1993) (noting that “the
reviewing court must concentrate on the evidence that violated [the
defendant’s] confrontation right, not the sufficiency of the evidence remaining
after excision of the tainted evidence”) (emphasis added).




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                                       No. 17-50465
       In this case, the government placed significant reliance on the
inadmissible testimony when making its closing argument. 4 Even more
importantly, however, the only evidence that the jury asked to reexamine while
it was deliberating concerned the videotaped depositions at issue. The jury
specifically asked to re-watch the portion wherein the defendant was identified
as the person who let the aliens into the trailer. As such, and notwithstanding
all the other evidence introduced at trial suggesting Foster’s guilt, the
government cannot demonstrate beyond a reasonable doubt that the
videotaped depositions at issue here did not contribute to Foster’s conviction.
                                             III.
       The judgment is VACATED, and this matter is REMANDED for
proceedings consistent with this opinion. We need not address Foster’s
asserted error concerning the admission of evidence pursuant to Federal Rule
of Evidence 404(b), and we do not comment on the sentence.




       4  Statements made by the prosecution in its closing argument relating to the
videotaped depositions at issue here included:
        (1) “Consider the material witnesses, those videotaped interviews and those people
saying, Yup, I’m undocumented. I’m not here legally. He was the driver of the vehicle. He
waved us into the trailer and we got into the trailer that he was driving.”
        (2) “One important note that I do need to make to you. After watching the video
depositions -- and you have the full video depositions in evidence. All you need to do is ask to
view them and ask to read the full video deposition transcripts.”
        (3) “Please be aware that each witness, video deposition witness, testified alone while
the other witness waited in the hallway, just like in court today.”
        (4) “The first corroboration of the video deposition witness is the fact that their
testimony was extremely consistent with one another. They told you the story of how they
got in the van, and they both identified the Defendant and explained how the Defendant
waved them in.”
        (5) “Next, did the video deposition witnesses impress you as honest? Remember the
first witness, Mr. Francisco Maldonado, the 19-year-old. He seemed to be an intelligent young
man and he recalled the events clearly, and he just answered the questions posed to him. Mr.
Hernandez-Ruiz, the second witness. He was more of a salt-of-the-earth type of witness. And
he told you during his deposition that, You know, what? I'm just a simple field worker.”
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                                  No. 17-50465
STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
      I share the majority’s concern that material witnesses who depart the
United States before trial may not return to testify. But, as the majority
opinion acknowledges, our cases do not require the government to keep
witnesses who are foreign nationals in the country until trial. See United States
v. Tirado-Tirado, 563 F.3d 117, 124–25 (5th Cir. 2009) (“[D]eporting a witness
may still be consistent with ‘good faith’ and ‘reasonable’ efforts to procure the
witnesses’ availability at trial.”); United States v. Allie, 978 F.2d 1401, 1407
(5th Cir. 1992) (refusing “to adopt a per se rule” requiring the government “to
coercively detain the witnesses in the United States”).
      In light of this precedent, I cannot agree that the government failed to
engage in good faith efforts to ensure these foreign national witnesses’
availability for trial. “The lengths to which the prosecution must go to produce
a witness . . . is a question of reasonableness.” Tirado-Tirado, 563 F.3d at 123
(quotation omitted). Here, Foster had the opportunity to cross-examine each
foreign national witness at his deposition. In addition, the government secured
each foreign national’s assurances, with counsel present and under oath, that
(1) he understood his presence at trial might be required; (2) he agreed to travel
to Texas for trial; (3) he had provided the case agent with his contact
information; (4) he agreed to update his contact information with his attorney
or the case agent if it changed; and (5) he understood that the government
would arrange for and pay for his travel back to the United States. Such sworn
statements, with counsel present, serve as a vital form of verification in our
legal system. See, e.g., Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn
declarations in open court carry a strong presumption of verity.”).
      Thereafter, the government began its efforts to contact the witnesses as
soon as the district court set a trial date, and made multiple attempts to reach
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                                       No. 17-50465
each witness. 1 Cf. Tirado-Tirado, 563 F.3d at 125 (explaining that the
government should have made arrangements with the witness once the trial
date was set, “or at least [sought] to contact him more than one week prior to
trial”). Although it may be better practice to remain in continuous contact with
material witnesses after they leave the country, the three-and-a-half months
that elapsed between the witnesses’ depositions and the government’s first
attempts to contact them was not an unreasonably long period of time.
       If the foreign national witnesses were willing to return to the United
States to testify, the government’s efforts were reasonably calculated to
communicate the importance of their testimony and to ensure their presence
at trial. If the foreign national witnesses were not willing to return for trial, I
am not convinced that taking additional steps to verify their contact
information or to reach out to them earlier would have made a difference.
        In United States v. Calderon-Lopez, 268 F. App’x 279 (5th Cir. 2008), we
held that the government made reasonable efforts to secure the presence of
four material witnesses at trial even though the witnesses were deported. Id.
at 282, 289. As the majority opinion emphasizes, the government in that case
was able to remain in contact with two of the witnesses. Id. at 289. But the
government lost contact with the other two witnesses whose video depositions
were played at trial. Id. at 283–84, 289. Further, unlike in this case, the
government does not appear to have secured the witnesses’ explicit assurances
that they would return for trial. Id.; cf. Allie, 978 F.2d at 1407 (noting that the
government got the witnesses’ assurances that they would return to testify).


       1  As the majority opinion observes, the only evidence in the record of the government’s
efforts to contact the witnesses in Mexico comes from the representations of counsel. But
Foster did not argue in his brief that these representations are inaccurate or that the district
court erred in accepting the government’s representations without requiring further
documentary evidence.
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                                  No. 17-50465
Again, the witnesses here not only made assurances that they would return,
but they did so under oath and with counsel present. The majority and I may
disagree about whether securing sworn assurances is more or less likely to
ensure a witness’s presence at trial than attempting to remain in continuous
contact with the witness after deportation. But this disagreement does not
render the government’s approach in this case unreasonable.
      Although “[o]ne, in hindsight, may always think of other things” that
could have been done, and perhaps should have been done, the government
must demonstrate only that its efforts satisfied its duty of good faith. Ohio v.
Roberts, 448 U.S. 56, 75–76 (1980), overruled on other grounds by Crawford v.
Washington, 541 U.S. 36 (2004); see also United States v. Aguilar-Tamayo, 300
F.3d 562, 566 (5th Cir. 2002) (“We do not suggest that it is necessary for the
government to take all of the steps referenced in Allie to establish that it acted
reasonably to secure a witness’ presence.”). The district court concluded that it
was “satisfied that the Government has made every effort that they can to get
these witnesses here, believe me.” Because I see no reversible error in this
conclusion, I respectfully dissent.




                                       15
