                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         FEB 03 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




VINCENT FORBES,                                  No. 13-57189

              Plaintiff - Appellant,             D.C. No. 8:11-cv-01330-JGB-AN

 v.
                                                 MEMORANDUM*
COUNTY OF ORANGE,

              Defendant,

  and

DANIEL VILLA, Deputy,

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                       Argued and Submitted January 8, 2016
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 4
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,** Senior
District Judge.

      The district court did not abuse its discretion when it denied Vincent Forbes’

request to introduce Edward Gonzales’ deposition testimony at trial. See

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 909 (9th Cir. 2008). Nor did

the court abuse its discretion when it denied Forbes’ motion for a new trial based

on the same alleged error. See Jorgensen v. Cassiday, 320 F.3d 906, 918 (9th Cir.

2003).

      We will assume, without deciding, that the district court erred when it ruled

that Gonzales had not been validly served with a trial subpoena. Forbes’ counsel

did not know at the time he served the subpoena on Gonzales that Gonzales would

be out of custody on the date he had been subpoenaed to testify. As a result, it is

unclear whether Forbes’ counsel was required to tender witness fees at the time of

service under Federal Rule of Civil Procedure 45(b)(1). See 28 U.S.C. § 1821(f).

      Even assuming valid service of the subpoena, Gonzales’ deposition

testimony was not admissible under Federal Rule of Civil Procedure 32(a)(4)(D) or

Federal Rule of Evidence 804(b)(1) unless Forbes demonstrated that Gonzales was

“unavailable”—meaning that Forbes had not been able to procure Gonzales’

         **
             The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
                                                                             Page 3 of 4
attendance at the trial by subpoena or through other reasonable means. The district

court permissibly concluded that Forbes failed to make this showing. Several

weeks before trial began, Forbes learned that Gonzales would be released from

custody and did not yet have a place to live. However, Gonzales informed Forbes’

counsel that he thought he would be residing at a sober living facility run by

Owens Place in either Huntington Beach or Costa Mesa. Before trial began,

Forbes’ counsel attempted to locate Gonzales and was unable to do so. When

called upon to explain to the district court what efforts he had made to locate

Gonzales, Forbes’ counsel failed to assert that he had checked the most obvious

location: the Owens Place facilities in Huntington Beach and Costa Mesa. Given

that failure, the district court did not abuse its discretion in concluding that Forbes’

counsel’s other actions to locate Gonzales fell short of reasonably diligent efforts

to secure the Gonzales’ attendance.

      For the same reason, the district court did not abuse its discretion in refusing

to admit Gonzales’ deposition testimony under Federal Rule of Civil Procedure

32(a)(4)(E). That provision requires a showing of “exceptional circumstances”

that justify use of the deposition in lieu of live testimony. The district court

permissibly concluded that Forbes’ counsel failed to do as much as he should have

done to ensure Gonzales’ attendance at trial—in particular, looking for Gonzales at
                                                                         Page 4 of 4
the only location Gonzales had stated he might be found. The inability to secure

Gonzales’ live testimony at trial cannot be attributed to “exceptional

circumstances.”

      AFFIRMED.
