Sunday, September 16, 2012

Case o' The Week: Ninth Skeptical of Alien Encounter - Leal-Del Carmen, Mat Wits, and Discovery

"The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.

  But there’s another legal chutzpah story. A man goes to a lawyer and asks: 'How much do you charge for legal advice?'

  'A thousand dollars for three questions.'

 'Wow! Isn’t that kind of expensive?'

 'Yes, it is. What’s your third question?'


        Chief Judge Alex Kozinski and Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale Law Journal 463 (1993), available here.  

   The federal government of the United States has thoughtfully provided these authors with a third example of this useful term. United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. Set. 14, 2012), decision available here.

Players: Decision by CJ Kozinski, joined by Judges Reinhardt and W. Fletcher. Big victory for San Diego Ass’t Defender Harini Raghupathi.  

Facts: Leal-Del Carmen was one of twelve undocumented aliens found hiding near the border. Id. at *1. (At least) four aliens were interviewed; three identified Leal-Del Carmen as the smuggler. Id. The fourth alien told agents – three times – that Leal Del-Carmen had not given orders to the group. Id. Before Leal Del-Carmen was appointed counsel this exonerating witness was deported. The three inculpatory alien witnesses were kept in the U.S.. Id. 

The district court refused to dismiss the indictment, refused to admit the video of the exculpatory witness’s statement, and refused to give a missing witness instruction. Id. 

Leal-Del Carmen was charged with alien smuggling, and the jury deliberated over two days before delivering a split verdict. Id. at *2.    

Issue(s): “May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has ever 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.” Id. at *1.

Held: “The government’s wrongful deportation of a witness with exculpatory evidence, coupled with the district court’s evidentiary errors, deprived Leal Del-Carmen of a fair trial and his constitutional right to present a defense. This right includes, at a minimum, the right to put before a jury evidence that might influence the determination of guilt. Because we’ve found a violation of the right to present a defense, we must reverse the guilty verdict unless the government convinces us the error was harmless beyond a reasonable doubt. We’re not convinced.” Id. at *8 (internal citation and quotations omitted).

Of Note: The Chief’s palpable frustration stems from settled law on the removal of exculpatory material witnesses. Id. at *1. So sharp is this frustration that Chief Judge Kozinski characterizes a government argument as “close to the classic definition of chutzpah.” Id. at *7.

Beyond the sheer enjoyment of a good Kozinski opinion, however, the case is worth a close read for important holdings on discovery. That great 2010 Stever opinion figures prominently in the CJ’s analysis -- Leal-Del Carmen joins Stever in the Ninth’s line of admirable law on the Sixth Amendment right to present a defense. See generally here.

How to Use: Do you think it odd that the border agents interviewed only four of these alien witnesses – but (allegedly) not the eight others in the group? The Ninth does too. Id. at *1 n.3 (“We find it suspicious that the government would interview some of the witnesses but not the others.”) 

Happily, the government is now ordered to give all statements of all witnesses, or sworn declarations from the agents explaining what really happened, and declarations describing what interview notes or recordings have been discarded or destroyed. Id. The orders of footnote three are a welcome template for attacks on cherry-picked interviews -- a template that would convert nicely to a proposed order in district court.  
For Further Reading: The progressive Fourth Circuit (?!?) is ahead of the Ninth in the correct interpretation of the important “acceptance of responsibility” guideline, USSG § 3E1.1. The Ninth has unfortunately held that the government can withhold the third point (designed to protect trial resources) if a defendant pleads guilty and preserves an appeal

We’re on the wrong side of a 2-1 circuit split, but three jurists have just invited a petition for rehearing en banc. United States v. Vanegas-Ortiz No. 12-10135 (9th Cir. Sept. 7, 2012) (mem.), available here

OBJECT when a client pleads to preserve an appeal and is denied a reduction of the third offense level for acceptance. For a history of this issue in the Ninth, see collection of blogs here

Poster of Churchill from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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