United States v. Eristello Sesena Provencio, United States of America v. Filiberto Lizola-Rodriguez

Appellants appeal from their convictions for violation of 8 U.S.C. § 1324 (a)(2) (transporting aliens). On August 27, 1976, the lawyer for the five detained alien witnesses moved for their release. Counsel for appellants was present and stated that there was no objection to having the depositions of the aliens taken and having them released. The depositions were taken on August 31 and September 3, 1976. Counsel for appellants did not stipulate to the use of the depositions at trial. In fact, the aliens were not released and were still available at the time of trial. Without objection by counsel for appellants, the depositions were used at the trial on September 9.

Two questions are presented on these appeals: (1) Was the introduction of the depositions without any proof that the deposed witnesses were unavailable and without a stipulation permitting the use of the depositions plain error? (2) Did the defendants waive their right to confront witnesses by reason of their counsel’s course of conduct anteceding the trial and/or by their counsel’s failure to object to the use of the depositions at the trial?

The testimony of these declarants in their pretrial depositions is, of…