United States v. Zaragoza-Moreira, No. 13-50506 (Gettleman (N.D. Ill) with Reinhardt and Gould) ---
The Ninth Circuit reversed the denial of a motion to dismiss a drug-trafficking indictment, holding that the government violated the defendant's due-process rights when it destroyed a videotape of the pedestrian line at a port of entry, the footage of which could have supported the defendant's claim of duress. This opinion cautions the government to conduct plea negotiations against a backdrop of full disclosure of evidence requested by the defense, which did not happen here.
The defendant was seen in line at a port of entry in San Ysidro, California, standing shoulder to shoulder with another woman. This behavior led to the defendant being sent to secondary inspection, during which she admitted that she had packages of drugs taped to her body. A search revealed 340 grams of heroin and 420 grams of methamphetamine. In a post-arrest interview, she explained that she was trying to make it obvious while waiting in line that she didn't want to smuggle the drugs into the United States (her country of residence). She also explained that members of her family were pressuring her to bring the drugs into the country through the port of entry. Her traveling companion, the defendant also explained, was trying to calm her down the whole time.
The day after the arrest, the government filed a complaint charging the defendant with importation of methamphetamine and heroin. Defense counsel asked the government to preserve any videotaped recording of the events leading up to the arrest. Central to this case is the fact that the pedestrian line at the San Ysidro port of entry is under constant video monitoring. Once the defendant had been indicted, defense counsel filed a formal motion asking the government to preserve the video evidence because of its potential exculpatory value. The district court so ordered, but then the prosecutor learned that the agents who ran the port of entry had destroyed the video. So the defendant filed a motion to dismiss the indictment in light of the government's destruction of the video. After a hearing at which the defendant and the agents testified, the district court denied the motion to dismiss. The defendant then entered a conditional guilty plea in which she reserved her right to appeal the denial of the motion to dismiss.
The due-process standard to be applied here comes from California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988). To prevail on a claim that the government destroyed exculpatory evidence in violation of due process, the defendant must show that the evidentiary value of the evidence was apparent to the officers at the time of destruction, that he has no way of obtaining comparable evidence by alternate means, and that the government agents acted in bad faith. Here, the Ninth Circuit concluded that all three of these elements were met.
The district court correctly found that the video was potentially useful, because it would support the defendant's statements during her post-arrest interview that she was trying to draw attention to herself in order to claim duress as a defense to potential drug-smuggling charges. One element of the duress defense is that the defendant surrender upon reaching a point of safety, and a port of entry would arguably qualify as such.
But the district court erred on the other two prongs of the inquiry. The agents at the port of entry clearly should have known of the potentially exculpatory value of the video. The defendant's interview was replete with assertions about her behavior in line that could have supported a duress defense; indeed, these assertions were responses to repetitive questions on the interviewing agent's part. The Ninth Circuit felt that the agent's explanation -- retrieving the video was "just something I didn't think about doing" -- rang hollow. And just because other statements that the defendant made during her interview might have undermined the duress defense, that didn't diminish the usefulness of the video to making a duress defense at trial.
Nor was the agents' destruction of the video a mere oversight, part of the routine procedures of operating the port of entry. The agent admitted that she knew of the potentially exculpatory nature of the video, yet took no steps to preserve it. Yet her probable cause statement in support of the criminal complaint made no mention of the defendant's duress-related assertions. Moreover, once defense counsel had asked the prosecutor to preserve video evidence, the prosecutor should have relayed that request to the agents at the port of entry. Failing to do so arguably runs afoul of discovery obligations under Rule 16. And the fact that plea negotiations were taking place did not matter; "plea negotiations should be based on full disclosure of the requested evidence," the court reminded us, and even if plea negotiations were successful a duress defense could have mitigated the defendant's sentence. (She also suffered from cognitive deficits resulting from serious head injuries during her adolescence.)
Finally, there was no way for the defendant to obtain comparable evidence. Cross-examining the agents at trial would be no substitute for the video, particularly because none of the agents who inspected the defendant as she entered the United States observed her behavior while she was waiting in line.
Congratulations to AFPD Harini Raghupathi of Federal Defenders of San Diego, Inc.
The decision is here: