United States v. Magdalene Dixon

MEMORANDUM

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), “[notwithstanding 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…