Federal Evidence Review

Fourth Circuit holds that the use of pseudonyms for two El Salvadorian police officers without identifying their background information did not violate the Confrontation Clause based on a showing of actual danger to the officers and their families and the ability of the defense to effectively cross-examine the witnesses with the information provided, in United States v. Ramos-Cruz, _ F.3d _ (4th Cir. Jan. 18, 2012) (No. 08-4647)

Under what circumstances can the government use anonymous witnesses without violating the right to confront and cross-examine witnesses? A divided panel of the Fourth Circuit recently considered this issue in a gang prosecution.

In the case, defendant Ramos-Cruz was prosecuted for racketeering and related offenses based on his criminal conduct as a member of the gang La Mara Salvatrucha ("MS-13"). Before trial, the government requested that two El Salvadorian police officers be allowed “to testify under pseudonyms and without revealing their dates and places of birth and home and work addresses” based on safety concerns to the officers and their families. In support of the danger showing, the government submitted affidavits from the witnesses in camera. The district court noted that the same process had been approved in United States v. Zelaya, 336 F. App’x 355, 357-58 (4th Cir. 2009) (per curiam) (unpublished). The court held an ex parte hearing and questioned the witnesses to assess the danger. The court then granted the government’s motion. Following the defendant’s conviction by the jury, he claimed on appeal that the use of anonymous witnesses violated his rights under the Confrontation Clause as “he was not able to conduct independent research about the witnesses’ veracity.” Ramos-Cruz, _ F.3d at _.

A Fourth Circuit majority panel found no Confrontation Clause violation. The government met its burden to show that "the threat to the witness [was] actual and not a result of conjecture." Ramos-Cruz, _ F.3d at _ (quoting United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969); see also Chavis v. North Carolina, 637 F.2d 213, 226 (4th Cir. 1980) (noting "a trial court may limit cross-examination if the information sought could endanger the witness.")). The circuit found that its prior unpublished decision, although not binding, was “persuasive,” and incorporated much of the analysis from Zelaya. Ramos-Cruz, _ F.3d at _.

Through the affidavits submitted in camera and ex parte hearing, the government had established the existence of actual danger and had provided the substance of the proffered testimony about the operation of MS-13 which “did not involve Ramos-Cruz or his activities.” The trial court concluded there was a present danger that could result from the disclosure of the background information about the two witnesses. The circuit reviewed the sealed record and found no abuse of discretion. The defense was able to effectively cross-examine both witnesses based on the pretrial disclosure of the testimony.

The circuit rejected the defense claim that the anonymous information should not have been permitted since there was no showing that the defendant was responsible for any threats. The circuit “agree[d] with the D.C. Circuit that ‘[t]he appropriateness of using pseudonyms to protect witnesses does not depend on whether the threat to the witness comes directly from a defendant or from another source.’" Ramos-Cruz, _ F.3d at _ (quoting United States v. Celis, 608 F.3d 818, 832 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 620 (2010)). The showing in this case was not generalized:

The witnesses here, however, specifically explained the heightened level of danger to which El Salvadorians who testify against MS-13 in U.S. courts are subject. They then connected that threat to the specific investigative work they perform in El Salvador. We believe that this level of specificity is sufficient.

Ramos-Cruz, _ F.3d at _. The circuit also underscored “the limited focus of the witnesses’ testimony” which included “background information about the internal workings of MS-13 generally” and did not involve testimony about the defendant’s direct activities.

Circuit Judge Henry F. Floyd concurred in part, indicating that he did not believe the use of pseudonyms in the case was permitted under the Confrontation Clause. He noted that some courts have used protective orders to disclose the identities to allow the defense to complete an investigation but barred the disclosure of the identities to others. Ramos-Cruz, _ F.3d at _ (Floyd, J., concurring) (citing United States v. Celis 608 F.3d 818, 829-30 (D.C. Cir. 2010) (describing a district court’s protective order that allowed witnesses to testify using pseudonyms but required disclosure of their true names to defense counsel)). See also United States v. El-Mezain, No. 09-10560, 2011 WL 6058592, at *9 (5th Cir. Revised Jan. 2012) (“we conclude that there was a serious and clear need to protect the true identities of Avi and Major Lior because of concerns for their safety”); Siegfriedt v. Fair, 982 F.2d 14, 18 (1st Cir. 1992) (“it is readily apparent that all pseudonyms are not equal in the eyes of the Confrontation Clause”); United States v. Rangel, 534 F.2d 147, 148 (9th Cir. 1976) (informant was not “required to divulge his true name, home address, and phone number on the witness stand” as “the government made an adequate representation that the informant's life had been threatened, causing him to relocate his family”); United States v. Palermo, 410 F.2d 468, 472 (7th Cir. 1969) (“[W]here there is a threat to the life of the witness, the right of the defendant to have the witness' true name, address and place of employment is not absolute. However, the threat to the witness must be actual and not a result of conjecture. The government bears the burden of proving to the district judge the existence of such a threat.”) (citations omitted).

In his view:

Access to the true names of the government’s witnesses is critical to ensuring that a criminal defendant is able to rigorously test their testimony in an adversarial manner. As noted, effective cross-examination often entails challenging the witness’s credibility. Hence, the opportunity for effective cross-examination, which the Sixth Amendment guarantees, includes the opportunity to challenge the witness’s credibility. See [Delaware v.] Van Arsdall, 475 U.S.[ 673], 679-80 [(1986)]. But without a government witness’s true name, the criminal defendant is unable to perform the type of investigation—whether in court or out of court—necessary to be able to challenge his credibility. See Smith [v. Illinois], 390 U.S. [129,] 131 [(1968]. The criminal defendant cannot explore the witness’s background and qualifications to discover any facts that might reflect poorly on his credibility. See Alvarado [v. Superior Court], 5 P.3d [203,] 221 [(Cal. 2000)]. In effect, denying a criminal defendant knowledge of the true names of the government’s witnesses severely inhibits his ability to perform what is often the most potent aspect of effective cross-examination: impeachment. In my opinion, because completely forbidding a criminal defendant from learning a witness’s true name prevents the opportunity for effective cross-examination, it denies the defendant a fundamental aspect of a fair trial. [¶] My concerns with completely denying criminal defendants access to the true names of the witnesses testifying against them extend beyond practical consequences. Allowing the use of anonymous witnesses also undermines the perception that our criminal trials are open and even contests. Instead, it creates the impression that our criminal trials contain clandestine aspects that operate to provide the government with an upper hand. It does so by suggesting that convictions can be "based on the charges of . . . unknown—and hence unchallengeable— individuals," Lee [v. Illinois], 476 U.S. [530,] 540 [(1986)], even if they can be physically seen. Simply put, obtaining a conviction by using anonymous witnesses appears eerie and covert, and does not inspire confidence in the promise that our criminal trials are open and even endeavors.

Ramos-Cruz, _ F.3d at _ (Floyd, J., concurring).

There are not many cases involving anonymous witnesses, as reflected in the citations to older cases. The Ramos-Cruz case highlights some of the issues and steps a court may take in considering whether anonymous witnesses may be permitted.

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