                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0694n.06

                                            No. 08-5962                                    FILED
                                                                                       Oct 22, 2009
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
CHUN YA CHEUNG,                                   )    EASTERN DISTRICT OF KENTUCKY
                                                  )
       Defendant-Appellant.                       )


       Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges.


       SUTTON, Circuit Judge. Chun Ya “Jerry” Cheung appeals his conviction for conspiring to

harbor illegal aliens, alleging that testimony about conversations with those aliens and the admission

of a video deposition of one of them violated his Sixth Amendment right to confront the witnesses

against him. Finding one claim waived and no harm stemming from the other, we affirm.


                                                  I.


       In 2006, Cheung opened the Empire Buffet restaurant in Crescent Springs, Kentucky, which

he eventually owned in partnership with his cousin, Chun Dong Shi. Cheung owned several similar

Chinese restaurants in the area, and he provided much of the capital and expertise to set up the

Empire Buffet, but he left the day-to-day operations to Shi and Shi’s wife, Xiu Yun Wang. Cheung
No. 08-5962
United States v. Cheung

spent most of his time at the other restaurants, though he came in to help at the Empire Buffet from

time to time.


       In 2007, local police and officials from Immigrations and Customs Enforcement (ICE) began

an investigation in nearby Villa Hills, Kentucky, after a neighbor reported a suspiciously large

number of people living in a single-family home owned by Shi and Wang. At about 10:00 each

morning, a white van licensed to the Empire Buffet would appear at the house, and a large number

of individuals would enter the van to go to the Empire Buffet. Every night the van would return at

about 10:00 or 10:30. Agent Roger Werner of ICE observed the same pattern at another restaurant

Cheung owned in Florence, Kentucky: A white van would take workers from a house to the

restaurant and back at roughly the same times as the Empire Buffet van would.


       On October 16, 2007, local police and Agent Werner stopped the Empire Buffet van en route

to the restaurant, then searched the house where the workers had been living. Four of the passengers,

as well as another person the police found in the house, were illegal immigrants from Mexico.


       Agent Werner went to the restaurant and asked to speak to the manager. Wang directed him

to Cheung. When Agent Werner asked for the workers’ I-9 forms, Cheung had none. Although he

later produced some I-9 forms, Cheung never produced any forms for the five individuals in

question. The Empire Buffet, it also turned out, had not paid unemployment taxes on the wages of

any of these individuals.




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       ICE later discovered a sixth illegal immigrant, Juan Garcia Martinez, who worked at the

Empire Buffet. Instead of staying in Shi and Wang’s house, Martinez lived in an apartment

apparently rented by Cheung across the street from the restaurant. Martinez pleaded guilty to

misdemeanor entry without inspection, and the government held him beyond the expiration of his

sentence on a material witness warrant. To allow Martinez to be released, the government deposed

him on video shortly before trial, giving Cheung a chance to cross-examine Martinez before

Martinez returned to Mexico.


       Cheung stood trial on charges of harboring Martinez, see 8 U.S.C. § 1324(a)(1)(A)(iii), and

for conspiring to harbor illegal aliens, see id. § 1324(a)(1)(v)(I), for commercial advantage or private

financial gain, see id. § 1324(a)(1)(B)(i). At trial, the government presented the testimony of Agent

Werner, a local police detective, Shi, Wang, Shi and Wang’s neighbor, the landlord of the apartment

leased by Cheung and an employment insurance tax auditor for the Commonwealth of Kentucky, as

well as the deposition of Martinez. The defense presented Cheung, a former INS official who taught

Cheung how to fill out I-9 forms after Werner’s visit to the restaurant and an accountant who

reviewed Cheung’s files. The jury acquitted Cheung of harboring Martinez, but it convicted him of

conspiring to harbor illegal aliens.


                                                  II.


       “In all criminal prosecutions,” the Confrontation Clause says, “the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. If the


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government wishes to introduce the “testimonial” statements of an absent witness against a

defendant, the Clause requires the government to prove that the witness is not available to testify and

that the defense had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541

U.S. 36, 68 (2004). Cheung argues that the government violated his confrontation rights twice:

when Agent Werner testified about the immigration status of several aliens he interviewed and when

it played the deposition of Martinez.


                                                  A.


       The trouble with Cheung’s first argument is that he consented to Agent Werner’s testimony.

Early on, the defense moved to exclude any statements the aliens had made to Agent Werner about

their immigration status, but both sides came to an agreement about the issue before trial: Agent

Werner would not testify “about the statements made during the administrative processing or the

initial interview,” but he would introduce printouts from ICE’s central index system describing the

particular individuals as “Entry Without Inspection.” 3/31/08 Pretrial Conf. Tr. 3–5. When the

government moved at trial to admit the printouts for Agent Werner to narrate, the defense said it had

“[n]o objection.” Tr. 71. Cheung thus waived any challenge to this testimony.


       Cheung insists that Agent Werner overstepped the agreement by testifying not only to what

the documents said but also to his conversations with the five individuals. Agent Werner described

each of the five aliens he encountered on October 16, 2007. For the first one, he testified that,

“[w]hen the file was created, [that person] was listed as EWI, which is entry without inspection.”


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Tr. 73. As Agent Werner progressed through the list, however, he described the status of the other

four more tersely: “He’s also entered without inspection. . . . He also entered—EWI. . . . He’s also

entered without inspection. . . . He also entered without inspection.” As to the last four individuals,

Cheung says, Agent Werner’s testimony violated the Confrontation Clause, because testimony about

“actual status,” as opposed to the status “when the file was created,” must have been “based upon

[Agent Werner’s] interrogation of these men.” Cheung Br. 13. Invoking United States v. Cromer,

389 F.3d 662 (6th Cir. 2004), Cheung adds that Agent Werner’s interrogation produced testimonial

statements, because “a reasonable person in the position of the Mexican-nationals would understand

that any statements they made could be used against the employers and themselves.” Cheung Br.

15.


       The distinction between “actual status” and status “when the file was created” is a fine

one—so fine that Cheung did not object when Agent Werner shifted from one phrasing to the other.

As we read the transcript, Agent Werner’s testimony does not to refer to the interviews with the

aliens but to the ICE documents that Cheung permitted Agent Werner to reference. In context,

“[h]e’s also entered without inspection” most naturally refers to the alien’s status “when the file was

created,” which is the way Agent Werner described the first alien and which in short-hand form

suggests a continuation of the same qualification. Imprecise perhaps, but it was not improper.


       Even assuming that Agent Werner went beyond the agreement by repeating information from

his interviews with the aliens and even assuming that the interviews were testimonial, all for the sake

of argument, we could not reverse the district court for failing to stop Agent Werner on its own

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initiative absent plain error. Yet any error was not “clear and obvious” but was at best “subject to

a reasonable dispute,” Puckett v. United States, __ U.S. __, 129 S. Ct. 1423, 1429 (2009), for the

reasons already given. And because Agent Werner conveyed essentially the same information—the

aliens’ entry status—whether he testified from the documents or from his conversations with them,

any error would not have “affected the outcome of the district court proceedings.” Id. (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)).


       One more point before we turn to Cheung’s second argument. In debating whether a

statement is testimonial, lawyers for the government and the defense have made a habit over the last

few years of citing Cromer for this proposition:

       The proper inquiry . . . is whether the declarant intends to bear testimony against the
       accused. That intent, in turn, may be determined by querying whether a reasonable
       person in the declarant’s position would anticipate his statement being used against
       the accused in investigating and prosecuting the crime.


389 F.3d at 675. That may be the appropriate way to define “testimonial” in non-interrogation

settings, see Crawford, 541 U.S. at 51-52; Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.

Ct. 2527, 2531–32 (2009), but it is not the way the Court defined “testimonial” hearsay in Davis v.

Washington, 547 U.S. 813 (2006). See id. at 822 (holding that whether a statement made in response

to interrogation is testimonial depends on whether the objective purpose of the interrogation was “to

establish or prove past events potentially relevant to later criminal prosecution” or “to meet an

ongoing emergency”). The statements at issue in Cromer did not arise from a governmental

interrogation but from a confidential informant. 389 F.3d at 667–68, 675. The Cromer articulation


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of “testimonial” hearsay is perfectly reasonable in that setting and is consistent with Crawford, but

it does not seem to match Davis’s later definition of the term in the context of a governmental

investigation or interrogation, as occurred here. Now that we have this additional guidance from the

Supreme Court in the context of law enforcement questioning, litigants may wish to invoke Davis

or at least explain why it does not apply.


                                                 B.


       Cheung preserved his second argument, but it meets the same fate. Showing the video

deposition of Martinez, he contends, violated his confrontation right because Martinez was

“available” for Sixth Amendment purposes. After Martinez asked to be released from his material

witness warrant, the government video-recorded a deposition of his testimony and the defense cross-

examined him. Then, over the defense’s objection but with the court’s approval, the government

“released” or “deported” him approximately four days before trial. 3/21/08 Pretrial Conf. Tr. 13–16.

(It is not clear whether he was merely “released,” U.S. Br. 22, or “deported,” U.S. Br. 17; see also

3/21/08 Pretrial Conf. Tr. 11 (“removed”).)


       For a witness to be “unavailable,” the government must “have made a good-faith effort to

obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724–25 (1968). A good-faith effort,

however, is not an ends-of-the-earth effort, and “‘[t]he lengths to which the prosecution must go’”

to obtain a witness generally amount to “‘a question of reasonableness,’” Ohio v. Roberts, 448 U.S.

56, 74 (1980) (quoting California v. Green, 399 U.S. 149, 188 n.22 (1970) (Harlan, J., concurring)),


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overruled on other grounds by Crawford, 541 U.S. 36; compare Barber, 390 U.S. at 723, and United

States v. Tirado-Tirado, 563 F.3d 117, 123–25 (5th Cir. 2009), with United States v. Allie, 978 F.2d

1401, 1407 (5th Cir. 1992); cf. United States v. Eufracio-Torres, 890 F.2d 266, 270 (10th Cir. 1989).


       We need not delve into the “unavailability” inquiry today, however, because any error in

admitting the deposition did not harm Cheung’s case. See Chapman v. California, 386 U.S. 18, 24

(1967). In gauging the risk of harm, the question is not what Cheung would have gained from

confronting the witness at trial; it is what Cheung lost from having the deposition admitted. See Coy

v. Iowa, 487 U.S. 1012, 1021–22 (1988). If a jury still would have convicted Cheung on the

conspiracy charge “on the basis of the remaining evidence,” id. at 1022, any error is harmless.


       No harm occurred based on the admission of the Martinez deposition. Had the jury convicted

Cheung of harboring Martinez, to be sure, that would be another story. For then, it would be difficult

to say that the admission of Martinez’s deposition was harmless, because the testimony went directly

to that charge. Yet the jury acquitted Cheung on the harboring charge, and—given Agent Werner’s

testimony regarding the entry status of Martinez and the other aliens—the deposition had little

bearing on his one conviction: conspiring to harbor an alien.


       As to that charge, the existence of the conspiracy was not in doubt; the only question was

whether Cheung joined it. All of the evidence concerning Cheung’s involvement in the conspiracy

came from sources other than the video deposition. Shi testified that he felt Cheung was his boss,

and that Cheung told Shi and Wang to buy a home to house workers there. Shi testified that Cheung


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helped him to negotiate the rates with the employment agency from which the illegal workers came.

Wang testified that Cheung knew they kept all of the workers at her home, and that the restaurant

was paying her and Shi to house them. Wang testified that there were illegal workers at the Empire

Buffet from the beginning, when Cheung was most involved in that restaurant. Although Shi signed

most of the restaurant’s checks, Cheung also signed a number of them. Agent Werner testified about

similar housing and transportation patterns he saw at another restaurant Cheung owned, suggesting

the employment practices of the two restaurants were no accident.


       To the extent Martinez’s deposition had any bearing on Cheung’s involvement in the

conspiracy, moreover, it helped Cheung. Martinez testified that, although he had worked at the

restaurant for 20 days, he saw Cheung there just once (and never anywhere else). Otherwise, the

deposition contained little information—due to the brevity of Martinez’s employment with the

restaurant and due to the reality that Martinez spoke Zapotec, making it difficult for him to learn

much from his co-workers and making it hard to communicate what little he knew through a

Spanish-speaking interpreter. Because excluding the Martinez deposition would not have helped

Cheung’s case on the conspiracy charge, any error in admitting the deposition was harmless.


                                                III.


       For these reasons, we affirm.




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