                                   United States Court of Appeals,

                                              Fifth Circuit.

                                             No. 91–2848.

                J. Jesus Faustino AGUILAR–AYALA, et al., Plaintiffs–Appellants,

                                                    v.

                          Cecilio RUIZ, etc., et al., Defendants–Appellees.

                                            Sept. 25, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

        GOLDBERG, Circuit Judge:

        The government, in its campaign against the unlawful entry into the United States by foreign

nationals, had deployed a practice of detaining certain aliens as material witnesses for the criminal

prosecution of those persons charged with transporting them across the border. The detained aliens,

unable to reach an armistice with the government, returned fire with this lawsuit, contending that the

government's operation of detaining them indefinitely—rather than deposing and releasing

them—violated United States statutory and constitutional law. With the assistance of their generals

and subalterns of the bar, the aliens advanced mightily until the district court proclaimed their victory.

But though they won the war on the merits, they lost the battle for attorney's fees. The district court

concluded that the government's resistance t o the aliens' crusade was substantially justified, so it

declined to reward the warriors of the bar with all the spoils of war.



        The aliens appeal to this tribunal seeking reparations from the government in the form of

attorney's fees. Concluding that the time and effort expended by the warriors of the bar are the

anticipated casualties of war, we AFFIRM.



                                                    I.

        18 U.S.C. § 3144 provides for the detention of material witnesses in order to insure their
presence at a criminal proceeding. In its entirety, the statute provides:



       § 3144. Release or detention of a material witness

                If it appears from an affidavit filed by a party that the testimony of a person is material
       in a criminal proceeding, and if it is shown that it may become impracticable to secure the
       presence of the person by subpoena, a judicial officer may order the arrest of the person and
       treat the person in accordance with the provisions of section 3142 of this title [Release or
       detention of a defendant pending trial]. No material witness may be detained because of
       inability to comply with any condition of release if the testimony of such witness can
       adequately be secured by deposition, and if further detention is not necessary to prevent a
       failure of justice. Release of a material witness may be delayed for a reasonable period of
       time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal
       Procedure.

18 U.S.C. § 3144 (emphasis added). Under the statute, either the government or a criminal defendant

can effectuate the detention of a material witness upon a showing that such material witness will, in

all likelihood, be unavailable for the criminal proceeding. A material witness may not be detained,

however, if a deposition would suffice as an adequate alternative to the witness' live testimony at the

proceeding. That means, of course, that the deposition testimony must be admissible notwithstanding

any objections by the parties (t he government or the criminal defendant). If the deposition would

prove admissible over any objection under the Confrontation Clause of the United States Constitution

or the Federal Rules of Evidence,1 then the material must be deposed rather than detained.



       A witness seeking to be deposed and released in lieu of detention may move the district court

under Federal Rule of Criminal Procedure 15, which provides in relevant part:



       Rule 15. Depositions

               (a) When Taken. Whenever due to exceptional circumstances of the case it is in the
       interest of justice that the testimony of a prospective witness of a party be taken and
       preserved for use at trial, the court may upon motion of such party and notice to the parties
       order that the testimony of such witness be taken by deposition.... If a witness is detained
       pursuant to section 3144 of title 18, United States Code, the court on written motion of the
       witness and upon notice to the parties may direct that the witness' deposition be taken. After

   1
    See Fed.R.Evid. 804 [hearsay]. The deposition testimony is admissible as "substantive
evidence if the witness is unavailable, as unavailable is defined in Rule 804(a) of the Federal Rules
of Evidence...." Fed.R.Crim.P. 15(e).
       the deposition has been subscribed the court may discharge the witness.

Fed.R.Crim.P. 15(a). Read together, Rule 15(a) and § 3144 provide a detained witness with a

mechanism for securing his own release. He must file a "written motion," Fed.R.Crim.P. 15(a),

requesting that he be deposed. The motion must demonstrate that his "testimony can adequately be

secured by deposition," and that "further detention is not necessary to prevent a failure of justice."

18 U.S.C. § 3144. Upon such a showing, the district court must order his deposition and prompt

release. Id. ("No material witness may be detained" if he makes such a showing). Although Rule

15(a) is couched in the permissive "may," not the mandatory "shall," Fed.R.Crim.P. 15(a) ("the court

... may direct that the witness' deposition be taken"), it is clear from a conjunctive reading with §

3144 that the discretion to deny the motion is limited to those instances in which the deposition would

not serve as an adequate substitute for the witness' live testimony: that a "failure of justice" would

ensue were the witness released. See 18 U.S.C. § 3144. Absent a "failure of justice," the witness

must be released.



       These provisions for deposing material witnesses detained pending trial—as applied to

undocumented aliens—are the focus of this case.



                                                  II.

       To successfully prosecute persons unlawfully transporting undocumented aliens into the

United States, the Department of Justice, through the United States Attorney's Office for the

Southern District of Texas ("the government"), engaged in the practice of detaining some

undocumented aliens as material witnesses for the criminal prosecution of the alleged alien smugglers.

As authority for the detentions, the government relied on 18 U.S.C. § 3144. Two Mexican nationals,

allegedly detained by the government as material witnesses pursuant to § 3144, brought this lawsuit

to challenge the government's practice.



       The two aliens were arrested in Falfurrias, Texas, on November 14, 1987, shortly after they
entered this country illegally. They were allegedly detained as material witnesses in connection with

the prosecution of persons charged with smuggling them into the United States. Through appointed

counsel, the two aliens moved the district pursuant to Rule 15(a) of the Federal Rules of Criminal

Procedure for an order requiring the government to secure their testimony through deposition and

release them, rather than detain them until trial. A United States Magistrate Judge granted their

motion, ordering the government to depose and release them within seven days. Not yet deposed

eight days later, the Magistrate Judge ordered their release on an unsecured $5,000 appearance bond.

Before the aliens were liberat ed, however, they were transferred to the custody of immigration

officials for deportation proceedings.      An immigration judge promptly entered an order of

deportation, and the two alien-witnesses waived their rights to appeal. Their deportation was

delayed, however. Acco rding to the government, the aliens were further detained under the

Immigration and Nationality Act. The aliens maintain that they were detained by the government

under the material witness detention statute, 18 U.S.C. § 3144, to i nsure their presence at the

alien-smuggling prosecution.



        Still in custody, the aliens filed the instant action on January 27, 1988 as a "Petition for Writ

of Habeas Corpus and Complaint for Declaratory and Injunctive Relief—Class Action" in the United

States District Court for the Southern District of Texas. Invoking 18 U.S.C. § 3144, Federal Rule

of Criminal Procedure 15(a), and the Fifth Amendment to the United States Constitution, they

challenged the government's practice of detaining alien-witnesses rather than deposing and releasing

them. In their prayer for relief, they requested that the court certify a class and enjoin the government

from detaining alien-witnesses for longer than ten days where a deposition would adequately preserve

the criminal defendant's right to confrontation under the Sixth Amendment. They narrowly tailored

their prayer for relief in accordance with the provisions of § 3144 and Rule 15(a). The plaintiffs also

requested an award of attorney's fees.



        Not long after they filed their original petition/complaint, the two aliens were released from
custody, presumably because the government no longer needed them: The government had disposed

of the underlying criminal prosecution for which the aliens were originally detained as material

witnesses.2 The two aliens nevertheless proceeded with the lawsuit, seeking leave to amend their

petition/complaint on March 11, 1988 to add several more named plaintiffs who were then presently

being detained as material witnesses.3 As to all named plaintiffs and the potential class-plaintiffs, the

amended complaint alleged that alien-witnesses were being detained rather than deposed in the

absence of a judicial determination that (1) their testimony could not adequately be secured by

deposition and (2) their further detention was necessary to prevent a failure of justice. (3 R. 324)



        The government moved to dismiss the case on several grounds. It argued that the plaintiffs

were being detained, not under § 3144, but under t he Immigration and Nationality Act (citing 8

C.F.R. 215.3(g)), which, according to the government, allows for the detention of aliens for a period

of up to six months following an order of deportation. In this connection, the government contended

that the aliens failed to exhaust their administrative remedies. The government opposed the

cert ification of a class on the ground that plaintiffs did not satisfy the typicality requirement, see

Crawford v. Western Electric Co., 614 F.2d 1300 (5th Cir.1980), and because the case was moot by

virtue of the fact that the two original named-plaintiffs were release from custody. Relying on the

permissive language in Rule 15(a), the government also suggested that a standing order of general

applicability would be inappropriate because the propriety deposing a material witness instead of

detaining him must be determined on a case-by-case basis. The government expressed particular

concern over satisfying the "unavailability" requirement of Fed.R.Evid. 804. Finally, the government

   2
     One of the defendants pled guilty, and the government dismissed the indictment with respect
to the codefendant.
   3
     One of those detainees had already been deposed, but was being detained until trial by order
of the district court on motion by the criminal defendant. (2 R. 321) Another newly named
plaintiff-alien-witness was awaiting a ruling on his motion for release on personal recognizance or
alternatively for an order requiring that he be deposed and released, which he had filed ten days
earlier. No hearing had been set. Two other newly named plaintiff-alien-witnesses, having moved
for an order requiring their deposition and release, were being detained on a $5,000, ten percent
bond that they could not afford: The Magistrate Judge declined to order that their depositions be
taken.
argued, based on its reading of Rule 15(a), that the detained witness would have to demonstrate

"exceptional circumstances" to justify the deposition.



        "Recognizing the need for a comprehensive plan," the district court entered a standing order

on July 15, 1988, governing the handling of material witnesses in the Brownsville Division of the

Southern District of Texas. Following the lead of the Western District of Texas,4 the district court's

order, as paraphrased herein, required, among other things:



                that counsel be appointed to represent material witnesses;

                that the witness, the government, or the criminal defendant can move the court to
        order that the material witness be deposed, said motion to be referred to a United States
        Magistrate Judge for disposition;

               that a deposition shall be ordered absent conclusive proof that the release of the
        material witness would result in a failure of justice;

                that the deposition be conducted within ten (10) days of the magistrate's order
        requiring it and that the witness be released within twenty-four (24) hours after the deposition
        is subscribed and signed [if the witness has not waived signing];

               that a decision by the magistrate to detain the material witness pending trial rather
        than depose him, or overruling any objection to the deposition procedure shall be reviewable
        by the District Court; and

                that the material witness be released after forty-five (45) days, absent a district court
        ruling that further detention is necessary.

See J. Jesus Faustino Aguilar–Ayala, et al. v. Cecilio Ruiz, et al., No. CA–B–88–12 (S.D.Tex. July

15, 1988) (unpublished order) (attached hereto as an Appendix). More than anything, the district

court order established a procedural framework for implementing the material witness detention

statute. Other than commanding that the material witness be released after forty-five days and

specifying certain time limitations, the district court's standing order, like the plaintiffs' prayer for

relief, tracked the requirements of § 3144 and Rule 15(a).




   4
   See In re Class Action Application for Habeas Corpus ex rel. All Material Witnesses in the
Western District of Texas, 612 F.Supp. 940 (W.D.Tex.1985)
        The district court eventually adopted the standing order as the final judgment of the court.

At no time did the district court address the merits of the government's motion to dismiss. Nor did

it resolve the factual dispute over whether the aliens' continued detention was based on the material

witness detention statute or the Immigration and Nationality Act.



        Notwithstanding all of the government's protestations leading up to the entry of the order, the

government did not move the court to vacate the standing order, did not oppose its adoption as a final

judgment of the court, and, curiously, did not take an appeal from it.5 In a post-judgment motion for

attorney's fees under the Equal Access to Justice Act, the district court held that the government's

position both before and during the litigation was substantially justified in light of the lack of clarity

of the law on this issue:



        18 U.S.C. §§ 3144 and 3142 provide for the detention of material witnesses in a criminal
        case. Neither section sets a time limit for such detention. The issue of whether continued
        detention violates the rights of aliens was unresolved at the time of the lawsuit. The Court's
        Standing Order was essentially a matter of first impression which required aggressive
        representation by both parties. The Court therefore finds that the Government's position in
        this action was substantially justified.

J. Jesus Faustino Aguilar–Ayala, et al. v. Cecilio Ruiz, et al., No. CA–B–88–12 (S.D.Tex. June 3,

1991) (unpublished order) (emphasis added). Accordingly, the district court declined to award

attorney's fees to the plaintiffs. Plaintiffs appealed.



                                                   III.

        Before we address the sole issue before us—whether the district court correctly concluded

that the government was substantially justified in adopting a practice of detaining material witnesses

and resisting the instant litigation—we think it necessary to identify an issue that is not before us. The

government did not appeal from the final judgment adopting the district court's order. We are not

called upon, therefore, to assess its validity. However, because we must evaluate the strength of the

   5
    At oral argument, the government counsel explained that the government did not appeal the
standing order because it concluded that it could "live with it."
government's position in response to this litigation, our opinion may be read as expressing a view on

the propriety of such a standing order. We caution the reader that it should not. We decide only the

limited question before us and that is all.



                                                    A.

        The Equal Access to Justice Act, 28 U.S.C. § 2412(d), provides for an award of attorney's

fees for the prevailing party and against the government if the government's position with respect to

the litigation was not "substantially justified." Perales v. Casillas, 950 F.2d 1066, 1072 (5th

Cir.1992) (applying Commissioner INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 2319, 110

L.Ed.2d 134 (1990)). "Substantially justified" means "justified in substance or in the main—that is,

justified to a degree that could satisfy a reasonable person." Id. at 1073 (quoting Pierce v.

Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988)). "A "substantially

justified' determination properly focuses on the governmental misconduct giving rise to the litigation,

as well as on the government's litigation position." Id. (citing Jean, 496 U.S. at 165, 110 S.Ct. at

2323; SEC v. Fox, 855 F.2d 247, 251–52 (5th Cir.1988)). Unless the government's position leading

up to, and in response to, the litigation has a "reasonable basis both in law and fact," the district court

should award attorney's fees to the prevailing party, absent "special circumstances" which would

make an award unjust. Id. A district court's determination that the government's position was

substantially justified (or not so) is reviewed by this court under the deferential "abuse of discretion"

standard, except that "underlying conclusions of law are reviewed de novo and conclusions of fact

are reviewed for clear error." Id. at 1072–73 (citing Pierce, 487 U.S. at 562, 108 S.Ct. at 2548–49;

Fox, 855 F.2d at 251).



                                                    B.

        The district court's decision to deny an award of attorney's fees was premised on its

assessment that the "issue whether continued detention [under 18 U.S.C. § 3144] violates the rights

of aliens was unresolved at the time of the lawsuit." In a literal sense, that legal conclusion was
correct. At the time the government was detaining the aliens as material witnesses, this court had not

yet expressed a firm opinion on the legality of such det entions and the propriety of employing the

deposition procedure. The Western District of Texas had a similar order in place at the time, but this

court had not reviewed it head-on. We did reverse a criminal conviction in one case, however, on

the ground that a Rule 15(a) / § 3144 deposition taken pursuant to the Western District's standing

order was not admissible. See United States v. Guadian–Salazar, 824 F.2d 344 (5th Cir.1987). The

government seizes on that opinion to justify its resistance to the deposition procedure.



        At the urging of the defendant-appellant and the government in Guadian–Salazar were

reversed the conviction on Confrontation Clause grounds. The defendant-appellant argued, and the

government conceded, that the deposition testimony procured in accordance with the Western

District's standing order, was inadmissible because the government made no showing that the

alien-witnesses were "unavailable." See Ohio v. Roberts, 488 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65

L.Ed.2d 597 (1980) (testimony from preliminary hearing admissible at trial over Confrontation Clause

objection where declarant was unavailable);        Fed.R.Evid. 804(b)(1) (deposition testimony is

admissible over hearsay objection if, inter alia, witness is unavailable). We were unimpressed by the

government's efforts in that case to secure the witnesses' presence at trial. As in the case at bar, the

material witnesses were undocumented aliens. By order of the district court, the alien-witnesses were

deposed by the government and subjected to cross-examination by the defendant. Following the

deposition, the government transported the alien-witnesses to the border, served them with a

subpoena, notified them that they were needed as witnesses at trial, and instructed them to appear at

the border on a specified date so that they could be transported to the trial. However, the

government advanced them no money to fund their return (knowing that they resided several hundred

miles from the border), did not contact them during the intervening month before trial, nor was any

government agent present at the specified location on the relevant date. Under those facts, we held,

and the government conceded, that the government failed to carry its burden of establishing that the

witnesses were truly "unavailable," and, thus, the admission of the deposition testimony was reversible
error. Guadian–Salazar, 824 F.2d at 346–48.



        We did not, in Guadian–Salazar, rule upo n the validity of the Western District's standing

order, primarily because the briefs on appeal did not address significant questions germane to our

review. Among other omissions in the government's brief, we identified the government's failure to

explore alternatives to extended detention or deportation of alien-witnesses such as "paroling" the

witnesses into the community pending trial. Id. at 348. We were concerned that the government had

not discussed "the framework of 18 U.S.C. § 3142, a comprehensive procedural provision enacted

by Congress to guide judicial officers in considering ... the conditional release or continued detention

of material witnesses." Id. Moreover, we observed that "relevant agency regulation mandate that

no alien material witness shall depart, or attempt to depart from the United States unless the

prosecuting authority consents to his departure." Id. (citing 8 C.F.R. § 215.2(a) (1987)). Indeed,

the government has taken the position in this litigation that it is entitled to, and in fact did, detain the

alien-witnesses following the deportation order as an administrative penalty.



        It is clear that our decision in Guadian–Salazar did not resolve, one way or the other, the

conditions under which deposition testimony would prove admissible under the statutory framework,

bearing in mind the constitutional limitations imposed by the Confrontation Clause on the admissibility

of hearsay testimony. Although we reversed the district court for admitting the deposition in that

case, we did not hold that such depositions are categorically inadmissible under the Confrontation

Clause. Quite to the contrary, we intimated that such a deposition would pass muster under the Sixth

Amendment provided that the government satisfied its burden of making the necessary showing of

unavailability.



        In a more recent decision stemming from the standing order at issue in this case, we clarified

that the government bears the burden of proving the witness' unavailability as a predicate to the

admission of the deposition testimony. United States v. Martinez–Perez, 916 F.2d 1020, 1023 (5th
Cir.1990). We reversed the conviction in Martinez–Perez because the Government adduced no

evidence that the alien-witness, who had been released from detention following the deposition, was

unavailable to testify at trial: The government "introduced no evidence of any efforts to procure [the

witness'] presence.... [The witness] was never subpoenaed to appear at trial and ... never tendered

a witness fee." Id.; see also United States v. Lopez–Cervantes, 918 F.2d 111 (10th Cir.1990)

(reversing criminal conviction where government failed to establish alien-witness' unavailability);

United States v. Fuentes–Galindo, 929 F.2d 1507 (10th Cir.1991) (same, following

Lopez–Cervantes). But see United States v. Rivera, 859 F.2d 1204, 1206–09 (4th Cir.1988)

(concluding that alien-witnesses, who voluntarily left the country after they were deposed and

released, were "unavailable," rendering their deposition testimony admissible despite the fact that the

government approved the deposition procedure, released the aliens, and made no effort to secure their

presence at trial), cert. denied, 490 U.S. 1020, 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989); United

States v. Terrazas–Montano, 747 F.2d 467, 469 (8th Cir.1984) (holding that the deposition testimony

of alien-witnesses who had engaged in a hunger strike to protest their detention was admissible on

account of their unavailability even though the government deported them, knowing that the

witnesses would not return, and made no effort to secure their appearance at trial).



       The Tenth Circuit, confronted with the same question presented to this court in

Martinez–Perez and Guadian–Salazar—whether the district court had erred in admitting the

deposition testimony of an alien-witnesses—affirmed a criminal conviction. United States v.

Eufracio–Torres, 890 F.2d 266 (10th Cir.1989), cert. denied, 494 U.S. 1008, 110 S.Ct. 1306, 108

L.Ed.2d 482 (1990). The district court in that case permitted the government to depose the

alien-witnesses over the objection of the criminal defendant. The court also denied the defendant's

motion to detain the witnesses pending trial and ordered their release. Before the witnesses were

transferred to the custody of INS, the government served them with trial subpoenas, instructed them

on how to return for trial and how to obtain the necessary travel funds. Although the witnesses

promised to return, they did not appear at trial. Following an evidentiary hearing on the issue of the
alien-witnesses' unavailability, the district court admitted the deposition testimony over objection,

concluding that the witnesses were truly unavailable and that the government had made good-faith

(i.e., reasonable) efforts to secure their presence at trial. The Tenth Circuit affirmed, reasoning that



        The law does not require the government to utilize an absolute means of attempting to assure
        the appearance of a witness, only a reasonable means. The facts of this case establish the
        government utilized reasonable means to assure the attendance of the witnesses. The fact that
        the means utilized were unsuccessful does not mean that the government's efforts were not
        made in good faith.

Eufracio–Torres, 890 F.2d at 270.



        We gather from these cases that deposition testimony is admissible only if the government

has exhausted reasonable efforts to assure that the witness will attend trial. The ultimate success or

failure of those efforts is not dispo sitive. So long as the government has employed reasonable

measures to secure the witness' presence at trial, the fact that the witness has nevertheless failed to

appear will not preclude the admission of deposition testimony. Such a witness will be deemed

"unavailable," Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980);

Fed.R.Evid. 804(a), and the deposition is admissible over the defendant's Confrontation Clause and

hearsay objections.



         Nevert heless, we are satisfied that the government was not patently unreasonable in

concluding that the detention of alien-witnesses was the only means of guaranteeing the admissibility

of their testimony. The government could have entertained a legitimate concern that its good-faith

efforts to secure the witness' presence at trial, if unsuccessful, would not be enough to overcome the

Sixth Amendment right of the criminal defendant to confront his accusers, in which case the

deposition would be excluded. After all, the witnesses were undocumented aliens subject to

deportation (and criminal sanction) in connection with their entry into this country. They were hardly

motivated to stick around for trial to testify against the persons (perhaps friends) who assisted them

in crossing the border. The government might reasonably doubt that the aliens would remain within
the reach of judicial process during the pendency of trial and that the governm ent would have to

demonstrate extraordinary efforts to secure the witnesses' appearance at trial to insure the

admissibility of the deposition testimony. Of course, this opinion should allay the government's fears,

putting to rest any lingering confusion over the admissibility of deposition testimony.



        We do not mean to suggest that an alien-witness may never be detained pending trial. The

statutory framework provides for the continued detention of a witness where his release would result

in a "failure of justice." 18 U.S.C. § 3144. Either party, upon the requisite showing, can effectuate

the detention of a material witness pending trial. While we make no attempt to catalog any or all of

the possible justifications which might warrant continued detention, we note that in some cases the

need for the criminal defendant to confront the witness at trial (rather than at deposition) might

outweigh the material witness' liberty interest in being released immediately. No doubt, few

defendants regard trial by deposition as an adequate substitute for confronting the witness in the

presence of the jury. Only through live cross-examination can the jury fully appreciate the strength

or weakness of the witness' testimony, by closely observing the witness' demeanor, expressions, and

intonations. Videotaped deposition testimony, subject to all of the rigors of cross-examination, is as

good a surrogate for live testimony as you will find, but it is still only a substitute. Even the advanced

technology of our day cannot breathe life into a two-dimensional broadcast.



        Trial by deposition steps hard on the right of criminal defendants to confront their accusers.

To be sure, deposition testimony is not routinely admissible: Only upon the exceptional showing of

necessity (i.e., unavailability) will a court be justified in admitting such testimony over the defendant's

objection. When a particular witness' testimony is the linchpin of the government's case, or when the

witness' credibility is severely in doubt, the continued detention of that witness might be necessary

to avert a "failure of justice," especially if the continued detention would be relatively brief.



        We recognize that a "failure of justice" is more likely to ensue when the criminal defendant,
as opposed to the government, is denied the guarantee of having the witness present at trial. It would

be the rare case, indeed, in which the government could establish the inadequacy of the deposition

procedure and hence the potentiality of a "failure of justice." After all, the criminal defendant, not

the government, has a constitutional right to confrontation. The government, to be sure, only objects

to the deposition procedure on account of the risk that the deposition testimony will not be admitted

over the defendant's Confrontation Clause objection.         Other t han voicing that concern, the

government interposes no global objection to the deposition procedure. Nor can we envision any.



          The government is uniquely capable of taking reasonable measures to insure that the witness

will appear at trial. As we indicated in Guadian–Salazar, the government can "parole" the

alien-witness into the community (rather than deport him) so that he will remain within the reach of

judicial process; or at the very least, the government can provide the deported alien-witness with the

wherewithal to arrange and finance his return to court for trial. A criminal defendant ordinarily

cannot.



          We make this point to underscore our conviction that undocumented aliens have an overriding

liberty interest in not being detained as material witnesses, when the deposition procedure serves as

an adequate alternative to prolonged detention. When a witness has been detained solely at the

insistence of the government, we can conceive of comparably few instances in which the government's

preference for live testimony over deposition testimony would outweigh the witness' right to be free

from continued detention.



          With the caveat that the law o n the admissibility of material witness depositions is now

well-settled, we conclude that the district court did not abuse its discretion in finding that the

government's position with respect to its conduct leading up to the litigation was "substantially

justified."
                                                  C.

       Standing orders like the one here at issue have come under attack by other courts. The Tenth

Circuit, in particular, has repeatedly expressed its dismay with a standing order employed by the

United States District Court for New Mexico. See United States v. Lopez–Cervantes, 918 F.2d 111

(10th Cir.1990); United States v. Fuentes–Galindo, 929 F.2d 1507 (10th Cir.1991). The standing

order in place in New Mexico, however, is different in several significant respects from the one at

issue here: It authorizes a Magistrate Judge to order the depo sition of a witness-detainee in the

absence of a Rule 15(a) motion, and in the absence of a § 3144 affidavit establishing that the witness'

testimony is material and that the witness' presence at trial could not be obtained by subpoena. The

Tenth Circuit has twice reversed criminal convictions on the ground that the standing order fails to

properly implement the requirements of Rule 15(a) and § 3144, thus rendering the depositions, taken

pursuant to the order, inadmissible. Lopez–Cervantes, 918 F.2d at 113; Fuentes–Galindo, 929 F.2d

at 1509–10. The court has communicated its concern that under the standing order, "the magistrate

is compelled to follow the procedure without assessing the particular circumstances of the case."

Fuentes–Galindo, 929 F.2d at 1510.6



       In marked contrast, the standing order adopted by the Southern District of Texas carefully

implements the requirements of both Rule 15 and § 3144. To trigger the process, either party or the

witness must make a motion. The court must then order the deposition "absent conclusive proof that

the release of the material witness would result in a failure of justice." To give meaning to the term

"reasonable period," the standing order imposes certain time limitations. See 18 U.S.C. § 3144

("Release of a material witness may be delayed for a reasonable period of time until the deposition

of the witness can be taken."). Unlike the standing order in New Mexico, the one at issue here


   6
    The court was troubled that "nothing in the standing order ... requires that "exceptional
circumstances' be found." Fuentes–Galindo, 929 F.2d at 1510. It would appear that the court
was intimating that the deposition procedure is only appropriate upon a showing of "exceptional
circumstances." That suggestion does not square with the plain language of the rule as applied to
detained witnesses. Witnesses detained under § 3144 are explicitly excepted from demonstrating
exceptional circumstances to effectuate their own deposition. See Rule 15(a).
endeavors to comport with the statutory language. We offer this observation only because it weighs

against the government in our determination of whether it was "substantially justified" in opposing

the litigation. The plaintiffs narrowly tailored their prayer for relief to fit within the statutory

framework, and, yet, the government resisted.



        But the government's resistance to the complaint was directed primarily toward the standing

of the particular plaintiffs bringing the action. In addition to its trepidation over the admissibility of

material witness depositions, the government contended that although the plaintiff-alien-witnesses

who brought this lawsuit were originally being detained as material witnesses, their continued

detention (after the Magistrate Judge ordered that they be deposed) was premised on the Immigration

and Nationality Act. In other words, the government disputed the factual assertion that plaintiffs

were being detained as material witnesses.7 This factual dispute was never resolved by the district

court, because the standing order, which was later adopted as the final judgment, concluded this

litigation before the district court resolved the factual questions presented by the parties.



        We are satisfied that the government's opposition to the complaint, based on the factual

assertion that the aliens were not detained under § 3144, was not an unreasonable litigation stance.8

The government asserted that the plaintiffs who brought this lawsuit did not have standing to

challenge detentions under § 3144 because they were not held as material witnesses beyond the point

in time that the Magistrate Judge ordered their depositions. If that was true in fact, then it would

have called into question the jurisdiction of the district court to award plaintiffs the relief they

requested.9 Such a defense to the lawsuit itself would have had a "reasonable basis both in law and

   7
    Plaintiffs do not dispute that until a magistrate orders the depositions, undocumented aliens
can be detained under § 3144 as material witnesses.
   8
    We do entertain serious doubts about the strength of the other arguments advanced by the
government in their motions to dismiss, but conclude that, on the whole, the government's
position during the litigation was not unreasonable.
   9
     The government has not appealed from the final judgment, however, so we are without
jurisdiction to reach that issue.
fact," rendering the government's legal position "substantially justified." See Perales, 950 F.2d at

1073.



                                                   IV.

        At the inception of this litigation and before, the terrain was not sufficiently explored that all

legal strategists would inveigh the tactics and maneuvers of the government. It is our present view

that the government's position was vulnerable to attack. But it is also our view that the government's

arsenal was not so lacking in ammunition that it could predict the capture of its redoubt.



        The district court did not abuse its discretion in declining to award attorney's fees. The

judgment below is AFFIRMED.



                                              APPENDIX

                          IN THE UNITED STATES DISTRICT COURT

                          FOR THE SOUTHERN DISTRICT OF TEXAS

                                    BROWNSVILLE DIVISION

      J. Jesus Faustino Aguilar–Ayala, Rosalio Luna–Zavala, Ernesto Cantu–Lucero, Alvaro
Cantu–Rios, Gamaliel Perez–Savedra, Edgar Odilio de Leon–Lopez, Hector Ines Pena–Alvarado,
Edith Consuelo Grisales–Castano, and Claudia Maria Angelica Gomez, on their own behalf and on
behalf of all others similarly situated

                                                   vs.

Cecilio Ruiz, Supervisory Detention Officer of the U.S. Immigration and Naturalization Service;
OMER SEWELL, District Director of the U.S. Immigration and Naturalization Service; B.S.
BAKER, United States Marshal; EDWIN MEESE, Attorney General of the United States; HENRY
ONCKEN, United States Attorney for the Southern District of Texas

                                         C.A. NO. B–88–012

                                          Filed July 15, 1988

                                                ORDER

        On this the 15th day of July, 1988 came to be considered the issues raised by the Plaintiffs in

this class action habeas corpus petition. The Court has reviewed the pleadings and has fully
considered the law applicable to the detention of material witnesses. The Court has also carefully

considered the peculiar factual circumstances of the detention of material witnesses in this Division,

where such witnesses are typically undocumented aliens who are rarely able to meet the conditions

of their release.



        Section 3144 of Title 18 of the United States Code provides that material witnesses who

cannot meet the conditions of their release be detained only if (1) their testimony cannot be

adequately secured by deposition, and (2) a failure of justice would result from releasing the witness

from custody after his or her deposition has been taken. The statute additionally provides that such

witnesses may be detained "for a reasonable period of time" until the witness' deposition can be taken

pursuant to Rule 15 of the Federal Rules of Criminal Procedure. Rule 15 provides that upon written

notice of a material witness and upon notice to the parties, the Court may direct that his or her

deposition be taken, and after the deposition is subscribed, that the witness be discharged.



        Recognizing the need for a comprehensive plan governing the disposition of material

witnesses in the Brownsville Division, and in order to effectuate the terms and purposes of 18 U.S.C.

§ 3144, the Court hereby enters the following Order:



        1) IT IS HEREBY ORDERED that the United States Attorney shall furnish twice monthly

to this Court, pursuant to Rule 46(g), Fed.R.Crim.P., a list of individuals incarcerated as material

witnesses. The list shall contain the name of the defendant and the cause number, the name of the

material witness, and the date his incarceration began.



        2) Counsel who are appointed to represent material witnesses pursuant to 18 U.S.C. §

3006A(a)(1)(B), shall promptly attempt to secure the release of such individuals either by bond

pending trial or otherwise pursuant to 18 U.S.C. § 3142 or by securing their testimony for trial by

deposition. Failure of counsel to do so shall preclude compensation for services rendered.
        3) A motion to take the deposition of a material witness can be filed by the witness, the

defendant, or the United States Attorney. Said motion shall be referred to and disposed of by the

United States Magistrate who is the duty magistrate in this Division on the day the motion is filed.

The deposition shall be conducted within ten (10) days of the Magistrate's Order requiring it.



        4) The deposition shall be recorded either stenographically or by videotape, or both. Unless

all parties waive signature by the witness of the deposition, the court reporter shall prepare the

transcript and deliver to the witness for his or her review as soon as possible, in any event no later

than five (5) days after the date the deposition is taken. Once the deposition is subscribed, or if the

signing is waived, the witness must be released within twenty-four (24) hours thereafter.



        5) The duty Magistrate's Deputy Clerk shall be responsible for notifying all parties, including

the United States Marshal and an interpreter, if necessary, o f the deposition and for arranging the

recording services. It is not necessary for the Magistrate to preside over the taking of the depositions

as rulings on objections to testimony shall be made by this Court at time of trial.



        6) If the material witness or the defendant is the moving party, the deposition costs shall be

paid by the witness or the defendant, respect ively, if he has retained counsel. In all other cases,

deposition costs shall be paid by the United States Attorney.



        7) No objection to the use of the deposition procedure in lieu of retention in custody of

material witnesses for trial shall be entertained absent conclusive proof that the release of the witness,

in a particular case, would result in a failure of justice. If such an objection is made by any party, it

shall be in writing detailing the reasons why a failure of justice would result in that particular case.

Said objection shall be presented to the United States Magistrate and heard by him before the taking

of the deposition of that particular material witness.
        8) The deposition procedure must be pursued unless further detention is necessary to prevent

what is conclusively proven to be a failure of justice. A decision by the Magistrate to retain a material

witness in custody pending trial is reviewable by this Court upon written motion by the witness.

Similarly, a decision by the Magistrate denying an objection to the deposition procedure by any party

is reviewable by this Court upon written motion.



        9) In the absence of a District Court ruling that further detention is necessary, any material

witness in custody shall be released by the Attorney General of the United States after forty-five (45)

days of incarceration, without further notice to the parties. This Court will monitor the list of

material witnesses to assure no one is retained in custody for more than forty-five (45) days.



        It is so ORDERED.



        DONE at Brownsville, Texas this 15th day of July, 1988.



          /s/ Filemon B. Vela

  FILEMON B. VELA

  United States District Judge
