Deporting The Exculpatory Witness

In bringing aliens without presentation case, defendant's Fifth Amendment Due Process right to present a complete defense and Sixth Amendment right to Compulsory Process were violated when the government deported a witness whom, it knew, could give exculpatory evidence concerning whether the defendant led the aliens into the country as charged, vacating conviction because these errors were not harmless, in United States v. Leal-Del Carmen, 697 F.3d 964 (9th Cir. Aug. 13, 2012) (No. 11-50094)

Writing for the Ninth Circuit, Chief Judge Kozinski recently noted a question whose answer the circuit had "assumed" was "self-evident" if not long resolved: "May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even been appointed?" The court's decision to reverse and remand the case should leave little mistake that the answer was "no."

In the case, twelve illegal aliens were taken into custody near the border for being in the United States without permission. Several hours later, the border patrol "picked up two sets of footprints that they recognized" from the earlier apprehension. Following the prints, the agents arrested the defendant Leal-Del Carmen and another suspect. In processing the defendant and the other illegal aliens seized that day, the agents was able to find one of them (Garcia-Garcia) to chose the defendant "in a photospread and said she had first seen him about two days earlier." When specifically asked three times, she also provided information that the defendant "did not give orders" to the group. However, three other of the detainees provided the government testimony that the defendant had served as their "leader or someone with whom they made travel arrangements" into the country.

Essentially the government failed to deport the three detainees who had identified the defendant as a leader of the group to facilitate its prosecution of the defendant. On the other hand, the detainee who specifically denied that the defendant had served as a leader, was deported but a video was retained of the detainee's discussion with the agents in which she denied the defendant served as leader. In trial the defendant cited several violations of his rights, including representation by appointed counsel when the government deported the exculpatory witness and gaining access to the taped interview of the witness's statement that the defendant was not a leader. Upon conviction the defendant appealed, suggesting that the government's treatment of the defendant was inconsistent with United States v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003), withdrawn by United States v. Ramirez-Lopez, 327 F.3d 829 (9th Cir. 2003) (government should refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel).

The circuit quickly identified the case as involving application of a test the circuit used to:

evaluate whether the government’s deportation of an alien-witness amounts to a constitutional violation. First, the defendant must show that the government acted in bad faith. There is no violation where the executive has made a “good-faith determination” that the alien-witness possesses no evidence that might exculpate the defendant. Second, the defendant must demonstrate that deportation of the witness prejudiced his case. “To prevail under the prejudice prong, the defendant must at least make ‘a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.”
United States v. Leal-Del Carmen, 697 F.3d 969-70 (noting United States v. Dring, 930 F.2d 687, 693-94 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73 (1982)))

Employing this "two-part" test, the circuit readily found both parts satisfied. First, the circuit noted that the government's deported the possibly exculpatory witness, but it had no problems retaining the three prosecution witnesses from deportation. The circuit warned that the requirements of the constitution counseled a different approach:

Once the government is aware that an alien has potentially exculpatory evidence, it must treat that person as a material witness and give defense counsel the opportunity to interview him and make a reasoned determination whether to seek his retention pending trial. This means the witness may not be deported before defense counsel has been retained or appointed and has had a fair opportunity to interview him.
United States v. Leal-Del Carmen, 697 F.3d 970. Included in this were a set of complementary practices to facilitate the proper treatment of a material witness's evidence once the defendant is represented by counsel. This included:
  • Once Defense Counsel Enters Case: Defense counsel can "advise[ ] the government that the [material] witness may be useful to the defense, [so that ]he may not be deported until defense counsel indicates he is no longer needed.
  • Continuation Of Deportation: The circuit also noted that the government could decide it is vital to "deport the witness notwithstanding defense counsel’s wishes." In this case, the government "must obtain permission from the district court on a showing of good cause, which defense counsel must have the opportunity to oppose," so that the defense was provided "the opportunity to cross-examine the witness and preserve the testimony for trial".
United States v. Leal-Del Carmen, 697 F.3d 970-71.

The second element of the two part test for deporting a material witness involves the defendant being unable to show the deported witness's testimony, plausibly, "would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." United States v. Leal-Del Carmen, 697 F.3d 971 (citing United States v. Valenzuela-Bernal, 458 U.S. at 873)). The circuit noted that this element was also satisfied as the defendant showed that the deported witness's statement was "material, favorable, and not cumulative." In part, this was because the government needed to show that the defendant had been a leader in order to convict him of the charges and the deported witness's statement "said nothing at all that incriminated Leal-Del Carmen and three times explicitly denied he [defendant Leal-Del Carmen] gave orders. This could not be cumulative of any other evidence because it was the only evidence the government had that, if believed by the jury, could cast doubt on the government's contention he was the leader, based on testimony from the three government witnesses who had not been deported.

In March of 2011, the Federal Evidence Blog noted a case that raised other questions on the witness deportation issue. FRE 804(a)(5) Duty To Use "Reasonable Means" To Procure Witness. There, we noted that in United States v. Yida, 498 F.3d 945 (9th Cir. Aug. 16, 2007) (No. 06-10460), we looked at a different aspect. There, the circuit noted the need to exclude prior trial testimony of a cooperating witness whom the government had deported (without notifying defense counsel or the trial court). This was found to violate the FRE when the "government had not shown that the deported witness was unavailable under FRE 804(a)(5)," agreeing with the First Circuit that “[i]mplicit . . . in the duty to use reasonable means to procure the presence of an absent witness” under FRE 804(a)(5) “is the duty to use reasonable means to prevent a present witness from becoming absent.” United States v. Leal-Del Carmen provides a broader view, delving into the constitutional implications of deporting a witness, rather than its implications for the Federal Rules of Evidence.

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Federal Rules of Evidence
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