United States v. George Foster, 910 F.3d 813

Foster was charged with transporting undocumented aliens after agents found six people in his refrigerated tractor-trailer; two material witnesses were Francisco-Maldonado and Hernandez-Ruiz.
The government took videotaped depositions of those two witnesses (July 22, 2016), obtained their sworn assurances under counsel that they would return for trial, then released them to Mexico in exchange for dismissal of charges.
The government later moved to declare the witnesses unavailable and to admit their videotaped depositions at trial; the district court granted the motion based on government representations (few or no documentary proofs were submitted).
At trial the government played the videotaped depositions; Foster objected under the Sixth Amendment Confrontation Clause and was convicted on the transporting count.
The Fifth Circuit evaluated whether the government made a good-faith, reasonable effort to secure the witnesses’ live testimony (i.e., proved unavailability), and whether any Confrontation Clause error was harmless.

Issue	Foster's Argument	Government's Argument	Held
Whether the government demonstrated the witnesses were "unavailable" under the Confrontation Clause	Government failed to make reasonable, good-faith efforts: it released/deported witnesses without verifying contact info or maintaining contact for months	Government took reasonable steps: obtained sworn assurances at deposition, promised travel assistance, and attempted contact after trial date was set	Admission of videotaped depositions violated the Confrontation Clause because the government’s efforts (no verification of contact info, no efforts to keep witnesses in U.S., long lapse without contact, and lack of documentary proof) were not reasonably diligent
Whether the Confrontation Clause error was harmless	The videotaped testimony materially contributed to conviction; error not harmless	Other evidence (agents’ testimony and Foster’s confession) sufficed to convict	Error was not harmless: government relied on the videotaped testimony in closing and jury questions focused on that testimony, so conviction vacated and case remanded for new trial

Ohio v. Roberts, 448 U.S. 56 (articulates that out-of-court statements may be admitted if declarant is shown to be unavailable)
Crawford v. Washington, 541 U.S. 36 (reframed Confrontation Clause doctrine; overruled Roberts in part)
Mattox v. United States, 156 U.S. 237 (historical statement on right to face-to-face confrontation)
Barber v. Page, 390 U.S. 719 (Confrontation Clause protections cannot be dispensed with lightly)
United States v. Allie, 978 F.2d 1401 (5th Cir.) (examples of government steps that satisfied good-faith/unavailability)
United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir.) (government’s last-minute or delayed efforts can fail the good-faith test)
United States v. Mann, 590 F.2d 361 (1st Cir.) (duty to use reasonable means to prevent a witness from becoming absent)
United States v. Aguilar-Ayala, 973 F.2d 411 (5th Cir.) (deposition testimony admissible only if government exhausted reasonable efforts to secure witness)