CA9 finds government improperly deported material witness.

United States v. Leal-Del Carmen, No. 11-50094 (9th Cir. Sept. 14, 2012) (Kozinski, C.J.) — In an opinion highly critical of the government’s misconduct, the Ninth Circuit reversed a conviction for alien smuggling and remanded for a new trial where, even before counsel for the defendant had been appointed, the government deported a material witness who told Border Patrol officers that the defendant wasn’t a smuggler.

The opinion begins:

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? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant. See United States v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003), withdrawn by United States v. Ramirez-Lopez, 327 F.3d 829 (9th Cir. 2003); Joint Motion to Remand Case to the District Court for the Limited Purpose of Dismissing the Indictment (Feb. 5, 2003); see also Henry Weinstein, Appeal Lost, Yet Freedom Won, L.A. Times, Apr. 23, 2003, at B1. We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.

The defendant was accused of alien smuggling after Border Patrol agents found a group of 12 aliens hiding in a canyon on the international border in southern California. The agents interviewed four of the aliens, and recorded these interviews. One of the four interviewed aliens told the agents three times that the defendant here had not been giving orders to the group, while the other three identified the defendant as a leader of the smuggling operation. All four interviews were recorded. The government retained in the country the three aliens who could testify in support of its case against the defendant and deported the others, including the one whose testimony could favor the defendant.

All of this happened before the defendant had even been arraigned — or had counsel appointed for him in the alien-smuggling case. Once counsel was appointed, “several discovery requests” were required to obtain the recordings, which ultimately revealed the exculpatory statements. The district court denied the defendant’s motion to dismiss the indictment because the government had deported an exculpatory witness, as well as a motion in limine to admit the recorded statements of the exculpatory material witness. The district court also declined to instruct the jury regarding the missing witness. The jury convicted the defendant of alien smuggling, finding that he had failed to present the aliens for inspection at a designated port of entry but not that he had smuggled aliens for financial gain.

1. The court held that the government violated the defendant’s due process rights by deporting the only material witness it interviewed who gave favorable testimony. See generally United States v. Dring, 930 F.2d 687 (9th Cir. 1991). The court found that the government had acted in bad faith because it interviewed the material witness and then deported her after she gave exculpatory statements to a Border Patrol agent. “The government is uniquely empowered to deport witnesses and thus put them outside the reach of defense counsel and the district court. It may not use that power to give itself an unfair advantage.” And the deportation was prejudicial to the defendant’s case, because her testimony could have led the jury to acquit him.

2. The district court erred when it found that the defendant had waived his right to interview the material witness. See generally United States v. Lujan-Castro, 602 F.2d 877 (9th Cir. 1979) (per curiam) (holding that a defendant may waive his right to interview deportable material witnesses, but that such waiver must be knowing and intelligent). The government never produced a signed waiver form (which undermines the district court’s finding that the defendant signed a waiver). To be sure, the defendant did tell the Border Patrol agents that he didn’t want any of the material witnesses retained in the country. But he also said that the agents didn’t tell him that the material witnesses had made conflicting statements about whether he was a leader of the smuggling operation. Thus even if telling the agents he didn’t want any of the material witnesses retained was equivalent to waiving his constitutional right to present favorable evidence, he didn’t make a knowing and intelligent waiver of that right.

3. The district court also erred by rejecting the defendant’s other efforts to put the material witness’s favorable statements before the jury. It didn’t matter that the witness’s testimony wasn’t “material” to the defense (the basis for the district court’s denial of the motion in limine), for evidence need only be relevant to be admissible, see Fed. R. Evid. 402, and admitting these recorded statements would not have been overly prejudicial or wasted the court’s time, see Fed. R. Evid. 403. The statements were admissible hearsay under the forfeiture-by-wrongdoing exception. See Fed. R. Evid. 804(b)(6). The district court also should have instructed the jury to draw an inference adverse to the government because of its failure to produce the material witness to testify for the defendant. See United States v. Noah, 475 F.2d 688 (9th Cir. 1973). It’s the government’s fault that the material witness wasn’t available for trial, because it knew that she had exculpatory information and deported her anyway. “For the government to say that it isn’t responsible for her absence because it no longer knows where to find her comes close to the classic definition of chutzpah.”

4. Finally, none of the district court’s errors were harmless beyond a reasonable doubt because the verdict was split (the jury found no selfish motive, just a failure to present the aliens for inspection) and the material witness’s testimony might have swayed the jury to acquit.

5. On remand, the court ordered the district court to decide whether to dismiss the indictment with prejudice as a sanction for the government’s misconduct. Should the district court decide to retry the defendant, it must determine whether the Border Patrol agents had interviewed any more of the material witnesses (footnote 3 of the opinion expresses doubt about whether the Border Patrol agents credibly testified about their interview procedures) and if so whether those statements were recorded or otherwise memorialized. The district court was also instructed to give the defendant the missing-witness instruction at retrial.