                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 12 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   15-10229

               Plaintiff-Appellee,               D.C. No.
                                                 4:14-cr-01809-JGZ-CRP-1
 v.

MAGDALENE FAITH DIXON,                           MEMORANDUM*

               Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                            Submitted August 10, 2016**
                              San Francisco, California

Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,*** District
Judge.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
      Magdalene Dixon was convicted, after a jury trial, of transportation of an

illegal alien for profit, in violation of 8 U.S.C. § 1324(a)(1). She challenges the

admission at trial of the videotaped deposition of a material witness, admitted on

the ground that the declarant was unavailable because he was deported

immediately following the deposition. Dixon argues that use of the prior recorded

testimony pursuant to 8 U.S.C. § 1324(d) violates the Confrontation Clause of the

Sixth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo whether the Confrontation Clause was violated. United States v. Bowman,

215 F.3d 951, 960 (9th Cir. 2000).

      Under 8 U.S.C. § 1324(d), “[n]otwithstanding any provision of the Federal

Rules of Evidence, the videotaped . . . deposition of a witness to a violation of

subsection (a) of this section who has been deported . . . may be admitted into

evidence in an action brought for that violation if the witness was available for

cross examination and the deposition otherwise complies with the Federal Rules of

Evidence.” Admission of the deposition comports with the Sixth Amendment’s

Confrontation Clause “where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.” Crawford v. Washington,

541 U.S. 36, 59 (2004). “A witness is considered unavailable for purposes of the

Confrontation Clause if the prosecutorial authorities have made a good-faith effort


                                           2
to obtain his presence at trial.” Forn v. Hornung, 343 F.3d 990, 995 n.3 (9th Cir.

2003) (internal quotation marks omitted). The lengths to which a prosecutor must

go to establish good faith is a question of reasonableness. Ohio v. Roberts, 448

U.S. 56, 74 (1980), abrogated on other grounds by Crawford, 541 U.S. 36.

      The district court properly found the witness to be unavailable because the

government made good faith, reasonable efforts to secure his attendance at trial,

including sending two letters via the witness’s counsel and offering to pay for the

witness’s expenses to appear. Dixon does not claim on appeal that she didn’t have

an opportunity to cross-examine the witness at the deposition. The district court

did not err in admitting the videotaped deposition under 8 U.S.C. § 1324(d).

      AFFIRMED.




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