Growing Consensus On Test For Compulsory Process Implications Of Deported Witness

Sixth Circuit abandons prior three-part "test for violations of compulsory process in the context of deported witnesses" in United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984), for a two-prong test “more in line with those stated by our sister circuits” requiring defendant to show "[1] the government has acted in bad faith, and, having made that showing, must then [2] make some plausible showing that the testimony of the deported witness would have been both material and favorable to his defense,” in United States v. Damra, __ F.3d __ (6th Cir. Sept. 15, 2010) (No. 08-4540)

Where an alien witness may be a crucial witness in a case, a defendant has a constitutional right to compulsory process so that deportation of the witness will not occur until after the witness's testimony is given. The Sixth Circuit recently considered a case in which the defendant contended that the government had deported the defendant's brother, a key witness to his defense on conspiracy charges, and therefore violated the defendant's right to compulsory process under the Sixth Amendment. The case provided the circuit the chance to "revisit" an earlier test it adopted and to adopt a two-prong test to bring it into line with holdings of the Supreme Court and the other circuits.

In the case, Defendant Damra was charged with evading corporate income taxes and, with his brother Fawaz, to conspiring to defraud the United States. Before charges were brought against the defendant, his brother Fawaz "had been found guilty of unlawfully obtaining citizenship" and was ordered deported. As trial of the defendant on on the tax avoidance and fraud proceeded, he sought testimony from his brother who he insisted would testify that he and the defendant had not conspired, as charged. This was not available since "Given national security concerns [the government] ... had been unable to give the district court or the defense any notice," and his brother was deported before the defendant's trial commenced. Defendant trial proceeded without the brother and the defendant was found guilty even though he took the stand and in part, denied conspiring with his brother.

The circuit rejected the defendant's contention that his trial had been undermined by the deportation of his brother, violating his Sixth Amendment right to Compulsory Process and having his brother as a witness at trial. As explained by the circuit:

Our case law involving compulsory process claims regarding deported witnesses is sparse; our leading (and only published) case is United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984), in which we applied the Supreme Court's holding in United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), similarly the only Supreme Court case on this precise subject. In light of the Supreme Court's subsequent ruling in Arizona v. Youngblood, 488 U.S. 51 (1988), however, we think it is appropriate to revisit McLernon, and to revise the test we laid out in that case to bring it into line with those of our sister circuits. Applying our revised test, we find that Damra cannot meet either the burden of demonstrating that the government acted in bad faith or the burden of demonstrating that [brother] Fawaz's testimony would have been material and favorable, and so necessarily cannot demonstrate that the government violated his Sixth Amendment rights.
Damra, __ F.3d at __.


The circuit assessed relevant Supreme Court cases and also noted a test used by four circuits, of which the Sixth Circuit would join. These circuits' test included "a threshold requirement that any defendant arguing violation of his right of compulsory process-or any constitutional violation involving the loss of potentially exculpatory evidence-show that the government acted in bad faith (in, for example, deporting a potential witness). These circuits included:

  • Second Circuit: Buie v. Sullivan, 923 F.2d 10, 11-12 (2d Cir. 1990) ("To establish a violation of the right to present a defense based on lost evidence, a defendant must show that the evidence was material and exculpatory, and that it was 'of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' Moreover, unless the defendant can show bad faith on the part of the state, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'") (citations omitted)
  • Seventh Circuit: United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000) (“If bad faith is shown, the defendant has satisfied the first prong of the Valenzuela-Bernal test, but he must still show that the evidence would be material and favorable to his defense.”) (citations omitted)
  • Ninth Circuit: United States v. Dring, 930 F.2d 687, 693-94 (9th Cir. 1991) (imposing a two-step test for compulsory-process claims in the context of deported witnesses, under which “the defendant must make an initial showing that the Government acted in bad faith and [then show] that ... the testimony of the deported witness would have been material and favorable to his defense....”)
  • Tenth Circuit: United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997) ("The burden is on the appellant to show that: (1) the government acted in bad faith by allowing a witness with potentially exculpatory information to depart; and (2) the voluntary departure of the absent witness prejudiced him by eliminating testimonial evidence that “would be both material and favorable to the defense.”)

The Sixth Circuit concluded its analysis by adopting the two element test:

"We think that these circuits have correctly analyzed the effect of Youngblood on Valenzuela-Bernal. Accordingly, to comply with this reading of these cases, we hereby modify our test for violations of compulsory process in the context of deported witnesses from the tree-prong test we stated in McLernon to a two-prong test more in line with those stated by our sister circuits: in order to demonstrate that the government has violated his right of compulsory process, a defendant must first make an initial showing that the government has acted in bad faith, and, having made that showing, must then make some plausible showing that the testimony of the deported witness would have been both material and favorable to his defense. Whether the defendant had an opportunity to interview that witness before deportation is relevant, but not dispositive, to the materiality and favorability determination; the defendant must demonstrate materiality and favorability either by some plausible avowal of how a witness may testify, or else by a plausible description of 'the events to which a witness might testify, and the relevance of those events to the crime charged.' Moreover, the defendant's unsupported word alone is not sufficient to demonstrate materiality and favorability where the defendant maintains only that the potential witness 'could explain' or 'might have testified' in some favorable fashion. In any case, no sanction is merited unless there is 'a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.'
Damra, __ F.3d at __ (citations omitted). The circuit then applied this two-part test, concluding that defendant Damra had failed to meet both elements and so relief would be denied. See Damra, __ F.3d at __.
Federal Rules of Evidence
PDF