Case o' The Week: New Blood for Youngblood - Zaragoza-Moreira and Trombetta (Lost Evidence) Issues
Homeland Security has spent billions of dollars on high-tech surveillance, with cameras that can secure inculpatory video evidence to obtain federal convictions for border crimes.
(A shame that they forget to add the button that preserves exculpatory evidence).
United States v. Zaragoza-Moreira, 2015 WL 1219535 (9th Cir. Mar. 18, 2015), decision available here.
Players: Decision by D.J. Gettleman, joined by Judges Reinhardt and Gould. Admirable victory for AFD Harini Raghupathi, Federal Defenders of San Diego, Inc.
Facts: Estefani Zaragoza-Moreira was shot in the head when she was 13, leaving her with severe cognitive problems. Id. at *1. Now an adult, Zaragoza was searched at the border and packages of drugs were found taped to her body. Id. In a recorded interview with an agent she explained that she had been pressured to bring the drugs by men in a cartel, who had threatened her family. Id. at *2. Zaragoza explained that she had tried to draw attention to herself and make herself obvious in the pedestrian line, by throwing her passport on the ground, trying to loosen the packages, and by being removed from the line by her drug-handlers. Id.; id. at *5. She explained that she was scared of the “dangerous” people and of the female handler who was in line with her.
The border pedestrian line is videotaped; five days after the complaint was filed the defense sent a letter to the AUSA seeking preservation of all video evidence. Id. at *2. Despite that letter, the border line video was destroyed roughly a month after the defense request. Id. at *3. Though HSI Agent Ashley Alvarado had interviewed the defendant, she made no attempt to preserve the video. Id. at *5.
Zaragoza moved to dismiss the indictment: when the motion was denied she entered a conditional plea.
Issue(s): “Zaragoza argues that the government’s failure to preserve the Port of Entry video footage from the morning of her arrest violated her due process right to present a complete defense.” Id. at *3.
Held: “[W]e conclude that the district court committed clear error by finding that the apparent exculpatory value of the . . . video was not known to Agent Alvarado and that the government, therefore, did not act in bad faith in failing to preserve the evidence. Because we have determined that Agent Alvarado knew of the potential usefulness of the video footage and acted in bad faith by failing to preserve it, Zarazoga’s due process rights were violated. We . . . reverse and remand . . . with directions to dismiss the indictment.” Id. at *8.
Of Note: Zaragoza is a seminal decision in the Trombetta / Youngblood line, and a must-read for “destroyed evidence” cases. In a thoughtful analysis, Judge Gettleman deconstructs the “apparent exculpatory,” “potentially useful,” and “bad faith” tests that weave through this line. Id. at *4-*5. He points out that the exculpatory value of the videos was readily apparent to Agent Alvarado. Id. at *5. He also rejects government claims that the destruction of the video was just reckless or negligent. Id. at *6. It was no defense for the government that Zaragoza could testify to duress: forcing her to do so by destroying the videos “runs afoul of Zaragoza’s Fifth Amendment right against self-incrimination.” Id. at *8.
Critically, the Court puts the AUSA squarely in the middle of the analysis, because the video was destroyed after the defense discovery letter was sent. Id. at *7.
Potent stuff, and the best “lost evidence” opinion in the Ninth since United States v. Silvilla, 714 F.3d 1168 (9th Cir. 2013); see blog here.
How to Use: Trumpet Zaragoza’s language on discovery obligations: “We reject this argument that plea negotiations somehow excused the AUSA’s lack of action following receipt of the [defense] letter [seeking preservation of the videos]. When discovery is requested by the defendant, as was the case here, plea negotiations should be based on full disclosure of the requested evidence . . . Moreover, when the government fails to comply with preservation requests and allows evidence to be destroyed, it likely runs afoul of its discovery disclosure requirements under Fed.R.Crim.P 16.” Id. at *8 (emphasis added).
Simple language, profound import. A worthy introductory quote for discovery demand letters and discovery motions.
For Further Reading: Applications are open until April 17 for the ND Cal C.J.A. panels. Materials can be found on the Court’s website, or the FPD’s site here
Image of border surveillance from http://shannononeil.com/blog/read-of-the-week-sbinet-and-failed-border-technologies/
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org