The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the motion to dismiss the indictment and the motion to suppress statements filed by the Defendant Lucia Romero-Gomez. ECF No. 58-1 and 58-2.
On August 24, 2009, government agents stopped the Defendant Lucia Romero-Gomez entering the United States through the San Ysidro Port of Entry. Defendant was the driver and sole visible occupant of a Dodge pickup truck. Two individuals were found by law enforcement agents concealed behind the driver's seat lying on top of one another, Felix DiazSandoval and Jesus Larios-Mejia.
Defendant was arrested. Defendant was informed of her Miranda rights, and signed a form entitled "WARNING AS TO RIGHTS" which included a "WAIVER." ECF No. 59-1 at 2. Defendant was interviewed and made statements to law enforcement agents.
Customs and Border Protection officers conducted a videotaped interview of the two individuals concealed behind the seat of Defendant's vehicle. Felix Diaz-Sandoval stated that he was a citizen and national of Mexico who agreed to pay $3500 to be smuggled into the United States. Diaz-Sandoval stated that he was loaded into the vehicle and heard a woman's voice as they were waiting in line, but could not identify the Defendant. Agents retained Diaz-Sandoval as a material witness. Jesus Larios-Mejia stated that he was a citizen and national of Mexico who agreed to be smuggled into the United States. Larios-Mejia stated that he was loaded into the vehicle in a carport prior to crossing the border, and that he saw an English-speaking woman next to the vehicle wearing blue jeans but did not see her face. After the interview, Larios-Mejia was granted voluntary departure.
On October 16, 2009, a videotaped deposition of Felix Diaz-Sandoval was conducted. At the deposition, Diaz-Sandoval stated that the Defendant was present when he was loaded into the vehicle. Diaz-Sandoval stated that she spoke to him in English when he entered the vehicle and that she told him not to move as they approached the port of entry.
1. Motion to Dismiss Indictment
Defendant contends that the Court should dismiss the indictment on the grounds that government agents deported one of the two material witnesses found behind the driver's seat. Defendant contends that the Government has deprived her of her right to a fair trial though its intentional release of an eyewitness. The Government asserts that the Defendant has not made any showing of bad faith by the government agents or prejudice to the Defendant's case.
The right to retain a deportable alien witness is based upon the Fifth Amendment guarantee of due process of law and the Sixth Amendment guarantee of compulsory process for obtaining witnesses in one's favor. See United States v. Medina-Villa, 567 F.3d 507, 516 (9th Cir. 2009). In United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991), the Court of Appeals explained:
In cases of constitutionally guaranteed access to evidence, wherein the Government loses potentially exculpatory evidence, the Supreme Court applies a two-pronged test of bad faith and prejudice.... Under this two-pronged test, the defendant must make an initial showing that the Government acted in bad faith and that this conduct resulted in prejudice to the defendant's case. To prevail under the prejudice prong, the defendant must at least make 'a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.'
Id. quoting United States v. Valenzuela Bernal, 458 U.S. 858, 873 (1982). "To establish that the government acted in bad faith, [the defendant] must show either that the Government departed from normal deportation procedures or that the Government deported [the witness] to gain an unfair tactical advantage over him at trial." Medina-Villa, 567 F.3d at 517-518 (quotation and citation omitted).
In this case, government agents tape recorded interviews with the two material witnesses and allowed one of the witnesses voluntary departure. There is no showing that government agents deported the material witness to gain an unfair advantage or that the agents departed from normal deportation procedure. The Court concludes that there are no facts to support an inference of bad faith by government agents and no facts to ...