U.S. v Leal-Del Carmen, No. 11-50094 (09-14-12) (Kozinski with Reinhardt and W. Fletcher).

The 9th emphatically holds that the government cannot deport a witness who has exculpatory evidence before the defendant is given counsel and informed.  The defendant was charged with alien smuggling.  When one of the material witnesses was questioned whether the defendant had given orders, she said "no", and kept on saying "no" to the repeated question.  The witness was deported before the defendant had been appointed counsel.  The government only disclosed this videoed testimony after repeated requests.  The government then opposed all attempts by defense counsel to get this evidence before the jury.  The 9th expressed its disappointment with the government's actions, chiding them that they should have dismissed the case as it did in a previous identical instance.  It was not going to happen again.  The 9th made clear that it violated due process for the government to deport such a witness knowing there is exculpatory evidence and not getting waiver from counsel.  The court further expressed its ire at the government's blocking of defense counsel's efforts to introduce such evidence.  The 9th stressed that the trial court abused its discretion in precluding such evidence under the catch-all exception and erred in refusing a missing witness instruction. The trial court should have recognized the relevancy of the evidence, and not concentrated on some of the weaknesses. In vacating and remanding, the 9th concluded:

When we confronted the very same issue in Ramirez-Lopez, we understood the government’s commendable course of action subsequent to our opinion—seeking vacatur of the opinion and dismissal of the charges against Ramirez-Lopez —as a commitment that it would refrain from deporting witnesses favorable to the defense without first giving defense counsel an opportunity to interview them. We were therefore surprised to see this same issue coming out of the same district, and to learn that the Assistant United States Attorney who argued the case was seemingly unaware of the office’s mea culpa in Ramirez-Lopez.  As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit.

[16] On remand, the district judge shall decide whether to dismiss the charges against Leal-Del Carmen with prejudice, as a consequence of the government’s conduct. Should the district court permit a retrial, it shall determine whether the eight other deported witnesses were interviewed by govern- ment agents and, if so, what they each said. The government shall provide testimony or declarations from border agents as to whether they interviewed the remaining members of the group and whether they took notes or otherwise recorded the statements. See note 3 supra. Leal-Del Carmen must also be allowed to present the videotape of Garcia-Garcia’s testimony, the transcript or both, as well as any evidence of what the other eight witnesses said. Leal-Del Carmen shall also be entitled to a missing-witness instruction as to Garcia-Garcia and, depending on what the district court finds, to the other eight deported witnesses as well.

Congratulations to Hariri Raghupathi of the Federal Defenders of San Diego for the win.