*1 Governing Rules beas cases. See Section Aguedo GARCIA-MARTINEZ, Merbin Cases, Rule 11. But one would think Plaintiff-Appellant, reasoning ap- still Anderson
plies. of the differences None between civil habeas cases and other actions would DENVER, AND CITY COUNTY OF justify seem to less deference to fact find- Department, Denver Police Tom San ing by the federal trial court. AEDPA chez, capacity, Covey in his official (although does not address the matter it Hall, personal in his official and ca certainly limits the occasions for the dis- pacity, Abelino offi engage finding). trict court to in fact And personal capacity, cial and Jaime precedents none of our relies on the Castro, personal in his official and unique justify nature of habeas eases to capacity, Nutter, Joshua in his offi less deferential contrary, review. On the personal capacity, cial and and Chris Martinez, on case relied Castleber- Blessing, tian per in his official and ry authority, as itself relied on two nonha- capacity, Defendants-Appellees. sonal beas cases. Martinez said: No. 03-1069. solely
Since the record consists transcripts photograph, and the we are of Appeals, Court good position as as the trial court to Tenth Circuit. Nevertheless, evaluate the evidence. Dec. wholly even where the record is docu mentary scope our enlarged review is
only'to regard the extent that no need given
be the opportunity of the trial witnesses,
court to observe and in such
cases we nevertheless do not disturb the
findings unless we have definite and
firm conviction that a mistake has been
made. Casualty Mid-Continent Co. v.
Everett, (10th
Cir.[1965]); Industries, Sta-Rite Inc. v.
Johnson,
Cir.[1972]). Actually,
to what Martinez we would probably right. about *2 Iredale, engaged high-speed officers in a Diego, San Califor- chase of a Eugene G. nia, Plaintiff-Appellant. Toyota through 4Runner rush hour traffic surrounding downtown Denver and (Seth A. Rider with him Thomas S. Rice neighborhoods. began The chase brief), Rice, on the Senter Goldfarb & *3 drug enforcement officers learned that the Denver, Colorado, L.L.C., for Defendants- driver, Morales, and passen- Eduardo his Appellees Covey Hall and Christain Bless- Garcia-Martinez, ger, might be armed and ing. possession large in of a amount of cocaine. Cross, Cross, & Jonathan A. Sands During pursuit the seven-mile the officers Denver, Colorado, Sares, filed brief items, including saw several what later Defendant-Appellee Abelino Gutierrez. drugs, being turned out to be thrown from LUCERO, Judge, Before Circuit by the vehicle Garcia-Martinez. When the BALDOCK, and Judge, Senior Circuit finally officers cornered the in a vehicle TYMKOVICH, Judge. Circuit alley, they dead-end arrested both Morales and Garcia-Martinez. This arrest was TYMKOVICH, Judge. Circuit captured on video a local television Aguedo Merbin Garcia-Martinez station. brought rights a civil action under Garcia-Martinez claims that three DPD (2000), alleging § 1983 that Denver U.S.C. officers, Gutierrez, Abelino Christian in ar- police officers used excessive force Hall, Blessing, Covey and used excessive resting following high-speed him chase during by unnecessarily force the arrest through August the streets of Denver in striking gun him with the butt and Garcia-Martinez, a Honduran who wrestling ground. him to the The officers country illegally, in returned had been maintain ignored to trial. Garcia-Martinez prior Fearing to Honduras arrest returned, if he Garcia-Martinez failed verbal commands to exit the vehicle and trial, and, instead, appear sought arrest, physically making resisted their ac- introduce his in lieu of live testi- proper. tions mony. The district court denied this re- Morales and Garcia-Martinez were quest. charged conspiracy possess with co- jury police, After a found in favor of the granted caine. the district court After (1) raising appealed, he two issues: trial, Morales’s motion to sever Garcia- plaintiff who refuses to attend Whether proceeded alone to and in Martinez in may introduce his lieu of August jury guilty. 2000 a found him not under Federal Rule of Civil in the Because Garcia-Martinez was Unit- Procedure 32 and Federal Rule of Evi- arrest, illegally ed at the time of his States (2) 804; dence WThetherthe district court custody him to the the court released failing erred in to admit evidence that Immigration and Naturalization Services police several of the defendant officers had (now Citizenship Immigration and Ser- disciplined police been for violations of de- vices), déported him to his home which arising from the ar- partment procedures country of Honduras. jurisdiction Taking rest. under 28 U.S.C. unlawfully returned to (2000), § inquiries we answer both shortly depor- after this AFFIRM. negative May reentry tation. into I. Facts States, filed the United he suit under City County against U.S.C. August On Denver Police De- (“DPD” Denver; Department; Tom partment Department”) or “Police the Police Police, Sanchez, alien, gal the Chief of his official he told Gareia-Martinez that he present and the officers at his capacity; being risked imprisoned arrested and Gutierrez, arrest, including Officers Bless- up showed to trial. He recommended Hall, in their individual and offi- ing, and Gareia-Martinez settle the case. The rec- alleging that the officers capacities, cial shows, however, magis- ord also force. had used excessive judge trate told the defendant eventually anything dismissed court would not do to precipitate The district except allega- the excessive force all claims Garcia-Martinez’s arrest at trial. Gareia- against Blessing, and Hall tions Martinez, a standing who was then under capacities. January in their individual On order, deportation returned Honduras 23, 2003, jury returned a verdict favor shortly thereafter. *4 individual defendants. Gareia- of these January Prior to trial in Garcia- appeals, arguing now that the Martinez attorney designated Martinez’s and sub- legal district court made two incorrect rul- portions depo- mitted of Garcia-Martinez’s ability frustrated his ings present that testimony sition to the district court. his case. attorney Garcia-Martinez’s claimed this testimony should be admitted at trial un- Deposition II. to Admit Failure der the Federal Rules of Civil Procedure Testimony and the Federal Rules of Evidence be- argument first is cause Gareia-Martinez was out of the that the district court should have admit country and therefore unavailable for trial. testimony deposition ted his under Federal In response, the defendants submitted 32 and Rule of Civil Procedure Federal counter-designation deposition testi- Rule of Evidence 804 because he was “un mony, as well as a motion in oppos- limine at the of trial. available” time We review ing the deposition admission of the disallowing the district court’s decision testi- of mony, arguing for abuse discre that Gareia-Martinez was Control, tion, Coletti v. Cudd Pressure 165 not “unavailable” under Federal Rule of (10th Cir.1999), the dis 32(a)(3)(B) Civil Procedure because he had interpretation trict court’s of the federal procured by voluntarily his own absence rules de novo. United States v. Medina- leaving country. (10th Cir.1996). Estrada, The arguments district court heard on this during day issue the first of trial. The Background A. Procedural judge concluded that was The is procedural background important inadmissible because pro- Gareia-Martinez argument. Sep- to our review of this unavailability. cured his own The court gave tember Gareia-Martinez a de- rejected argument counsel’s that Gareia- position preparation for trial on his Martinez faced the Catch 22 choosing of Later, completion 1983 claims. after the staying between in the United States for trial, of discovery magistrate but before' trial risking imprisonment or leaving judge mandatory presided over settle- the United States and losing opportu- ment According conference. to Gareia- nity testify trial. The court ob- appeal, Martinez on while he and his coun- served, “I presented have not been with sel magistrate judge were alone with the any authority proposition for the conference, during judge asked actually way there is no for him to obtain immigration Gareia-Martinez about his temporary visa in order to come magistrate judge status. When the dis- into this covered that Gareia-Martinez purposes attending ille- for
H91 ted). plain meaning “procure” The court thus concluded that hearing.” to attend Garcia-Martinez’s “decision not bring Rule is “to about” or “to cause espoused if it was for the reason even happen.” Webster’s Third New Inter- consequences that he was afraid of the Dictionary (Philip national Babcock remaining in the might he suffer 2002). Gove, ed., illegally, not near or [was] question The next a party’s whether justifying a close to determination voluntary absence from trial fits within the purposes using unavailable for the [was] plain meaning of the rule. It does not. deposition.” yet this circuit has While address a We conclude that the district court did plaintiffs voluntary absence at trial in con applying not abuse its discretion in Feder- proffer nection with a of deposition testi al Rule of Civil Procedure 32 and Federal mony, other circuits and commentators Rule of Evidence 804 to facts. these have requires concluded that the rule proponent “demonstrate] B. Federal Ride Civil Procedure 32(a)(3) procured court that he ha[s] his own absence.” Clarendon 274-278 Fairfield Deposition testimony ordinarily inad- *5 (1st Dwek, 990, v. Trust 970 F.2d 995 32(a) hearsay, missible although Rule cre- Cir.1992) (citations omitted). See also exception hearsay ates an to the rules. 695, Flynn, Vevelstad v. 230 F.2d 702 Indus., Inc., Angelo v. Armstrong World Cir.1956) (noting party that since the “vol (10th Cir.1993). 957, 11 F.3d 962-63 Un- States, untarily left the United and as the 32(a): der Rule found, trial willfully court absented him witness, deposition The whether or self, the court’s refusal to consider the party, may by any party not a be used deposition may well have been in accor any if purpose the court finds: ... Rule.”); provisions dance with the of the 7 (B) that the greater witness is at a Moore, al., James Wm. et Moore’s Federal than place distance 100 miles from the of (3d ed.2003). Practice 32.24[5] Other hearing, trial or or is out of the United States, hold that party cases the mere fact a appears unless it the ab- procured by sence the witness was more than 100 the miles from the courthouse of party offering deposition. the ... require does the district court to auto matically party’s deposition. admit a See 32(a)(3) added). Fed.R.Civ.P. (emphasis Airlines, Inc., Polys v. Trans-Colorado proponent The of the deposition bears the (10th Cir.1991). 941 F.2d 1410 Rath proving burden of it is admissible er, 32(a). “may consider all the 963; under 11 Angelo, Rule F.3d at States, Allgeier relating party’s see also v. circumstances to the ab United (6th Cir.1990) (“The party seeking sence determine whether the to admit a deposition prove Moore, at trial must may supra; In used.” see also requirements of Rule have re Air at Int’l Stapleton Crash Disaster met.”). been Denver, Colo., 15, 1987, Airport, on Nov. (D.Colo.1989). F.Supp. 1501-02 rule,
In we start with applying preference for a witness’s attendance plain meaning. starting point its “[T]he “key at trial is axiomatic. factu When always language of the itself. If [rule] “credibility” al issues” at trial turn on the the language unambiguous, is clear and witness, prefer of the “demeanor” we plain meaning of the controls.” [rule] Quarrell, of fact to finder observe (10th Cir.2002) (internal especially, citation of true omit- the witness. This is Moore, plaintiff. granting is the tion the defendants’ motion in when the witness limine. supra. authorities stand for the All of these 80f(a) Federal Rule Evidence C. of sig- trial court retains
proposition that Rule applying nificant provides discretion Federal Rule of Evidence 804 In the face of these party. an absent independent ground for the admission authorities, argues 804(b)(1) deposition testimony. of Rule at “procure” his own absence he did not permits party testimony by to admit country- he did not leave the trial because exception hearsay as an to the from his own unavaila- to benefit order rule when as the declarant is “unavailable However, hearing testimony bility. A witness.” declarant is “unavailable” the circum- attorneys regarding from both or she departure, stances (5) from hearing is absent and the that Garcia-Martinez the court concluded proponent a statement has been un- absence from trial brought about own procure able to the declarant’s attend- by choosing to leave the and thus ance ... process or other reasonable 32(a). eligible to‘invoke Rule he was not means. agree. A declarant is not unavailable as a wit- hand, Applying Rule 32 the facts refusal, exemption, ness if claim of lack it is that Garcia-Martinez meant obvious memory, inability, or absence is due own at trial. re- cause his absence procurement wrongdoing to the or of the suggests “good sponse, Garcia-Martinez proponent pur- of a statement for the application faith” to the exception pose preventing the witness from at- *6 apply. rule Even if such an ex- should tending testifying. or available, ception cannot invoke it we added). (emphasis Fed.R.Evid. may on this record. While have had party wishing deposition to introduce a good failing appear at tri- reasons for under this rule bears the burden of show al, abundantly it clear from this record ing unavailability. v. United States Eufra made scant effort Garcia-Martinez . (10th cio-Torres, 266, 890 F.2d 269 Cir. arrangements appear to make other 1989). trial or to make temporarily for himself testimony. remote In these available' for Garcia-Martinez claims he was un circumstances, proponent of the testi- available for trial because his absence was mony plaintiff pro- — Garcia-Martinez — not “for the purpose preventing the trial cured his own absence from without testify witness from attending [himself] or offering that he could not return evidence 804, ing,” simply but rather Fed.R.Evid. to the States or that he had no United problems avoid arrest. There are several testifying. alternative means of First, sponsor with this claim. “[t]he testimony may declarant’s former not cre per do not establish a se rule that
We
any plaintiff
unavailability
ate the condition of
and then
procures
who
his own absence
from
eligible
refuge
trial is not
to seek
in benefit therefrom.” United States v. Kim
ball,
(5th
here,
Cir.1994);
Rule 32.1
cannot
15
conclude
howev-
F.3d
55-56
see
er,
Peterson,
that the district court abused its disere-
also
100 F.3d
authority suggesting
exception,
express
We have found no
such
tion of such an
we
no
exception
opinion
exception
exists'. While the facts of this
as to whether such an
ex-
or, not,
applica-
case do
warrant the creation or
be
ists
should
created.
(2d Cir.1996). Secondly, although
ly have been denied. Nor did
13-14
he demon
a
provide
the federal rules
mechanism
strate that
testimony,
alternatives
deposition testimony, they
the admission of
video-conferencing,
such as
via
“long-established principle
do not alter the
only explanation
were unavailable. The
testimony by deposition
is less desir Garcia-Martinez’s
absence
from trial
testimony.”
able than oral
Salsman v.
comes from
attorney
statements of his
Witt,
Cir.1972);
see
at
evidentiary
district court
hear
Disaster,
F.Supp.
also In re Air Crash
Thus,
ing.
Garcia-Martinez has not dem
been,
always
at
1502. “The
has
good
onstrated that “a
faith effort was
is,
substitute,
and still
treated as
sec made to obtain the
presence
declarant’s
at
ond-best,
original
not to
used when the
using
reasonable means.” United
Salsman,
is at hand.”
On *8 correctly court held that the fact the DPD the he made in the trial arguments same disciplined violating the officers for fire argues the were court. He first records they procedures not relevant because showed the defen- arms admissible under instance, party It noted that neither has 4.For trial Garcia-Martinez's should be copies provided court with of the actual you counsel asked "And believe records, disciplinary so our review of the rec- you behaved in manner consistent with regarding ord this issue is limited to review- training you the believed as a Denver [sic] transcript. ing the district police responded officer?” Gutierrez affirma- tively. pro- 3. We failed to note that Garcia-Martinez vide either the district court or this court with copies procedures at issue. testimony impeach Rule 613 to the officers’ IV. Conclusion they police acted in accordance with We affirm the district court’s refusal to procedures. plaintiffs deposition admit the in lieu of disciplinary live and defendants’ argument third records. adopted allegations is that the officers the disciplinary
contained the records LUCERO, dissenting.' J. signing, accept penal “I the recommended found, ty.” district court and we I respectfully DISSENT from II Section agree, that the statements the records today’s opinion, on the issue of Garcia’s1 adopted by not the officers because were availability for trial.2 I agree neither any they wrongdoing, declined to admit trial, procured his own absence from only penalty imposed by and the accepted nor that he made an showing insufficient underlying Department, facts good-faith effort be available for Coppola, it. States v. See United testimony. procured His absence was (10th Cir.1975) (holding 769 n. that a by government. the United States In Au- only adoptive admitted as an statement gust of officers of Immigration “if appears admission it the accused under deported Naturalization Gar- Service unambiguously stood and assented to Honduras, cia to and at all times relevant statements”). those action, to this he has under a remained Finally, Garcia-Martinez maintains that standing deportation order. It is true he disciplinary records show that Officer left the on his own filing improperly approached Gutierrez the vehi action, present the law but is no less com- cle, supporting thus an inference that Offi pulsory complies someone who with its caused the cer Gutierrez situation esca reprisal dictates under fear of than for late and the need to use force. created someone who waits for the pow- corrective The district court noted that Garcia-Mar er of the state to do it for him. argument appears attempt tinez’s to be an good-faith As to Garcia’s effort to be disciplinary to introduce the records as majority gives great available at opinion expert evidence “in lieu of testimo weight “attempt to his failure to to obtain ny.” agree. Even if such evidence temporary country,” visa to reenter the marginally were relevant to the issue of legal significance. but this is It is without force, excessive is not en reasonably disputable a fact not that some titled admit the documents without first (a position one in Garcia’s male awith laying adequate spon an foundation for a entries; arrest, history of unlawful soring testify regarding witness previous standing deporta violation of a Thus, documents. This he did not do. order) tion would been denied. Fed. have require Garcia-Martinez did not fulfill the require [party R.Evid. “does not ments of Rule see Black v. M & W offering testimony] to utilize an absolute Co., Gear Cir. attempting appear means of to assure the 2001), and we cannot conclude the district witness, only ance of a failing court abused its reasonable discretion admit these records. means.” Eufracio-Tor *9 plaintiff appellant agree majority’s holding I refer to the 2. I in the same with the district court did not abuse its discretion in manner he refers to himself in the briefs filed allowing of in evidence defendant officers’ before us. disciplinary history, and therefore JOIN Sec- opinion. tion III of the (10th Cir.1989).
res, cannot have envisioned rules
The federal arrest break law risk party he tilt at testify, nor that windmills he tried.
show that denies Garcia
Today’s decision pres he had to
only opportunity realistic deprives day him of his
ent his case. It im granting risks state officials
court and illegal immigrants of for abuses
punity filing between deported or are
who leave and trial. Decisions the lower
of suit of discretion for abuse reviewed
must overturned cases “manifest v. American
injustice.” Pandit Honda Co., Cir.,
Motor
1996). case, and I This to me is such from the respectfully
therefore DISSENT today’s opinion. II
section America,
UNITED STATES
Plaintiff-Appellee, SANCHEZ-CRUZ,
Andres
Defendant-Appellant.
No. 04-2008. Appeals, Court of
Tenth Circuit. 21, 2004.
Dec.