Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding D.C. No. 3:10-cr-01372-W-1
The opinion of the court was delivered by: Kozinski, Chief Judge:
Argued and Submitted January 11, 2012-Pasadena, California
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and William A. Fletcher, Circuit Judges.
Opinion by Chief Judge Kozinski
May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even 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. See United States v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003), withdrawn by United States v. Ramirez-Lopez, 327 F.3d 829 (9th Cir. 2003); Joint Motion to Remand Case to the District Court for the Limited Purpose of Dismissing the Indictment (Feb. 5, 2003); see also Henry Weinstein, Appeal Lost, Yet Freedom Won, L.A. Times, Apr. 23, 2003, at B1. We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.
On March 25, 2010, border patrol agents discovered a group of twelve illegal aliens hiding in the thick brush in Smith Canyon, an area along the United States--Mexico border that is unprotected by a fence. The agents determined they were Mexican nationals present in the United States without permission and took them into custody. Later that day, the agents picked up two sets of footprints that they recognized from Smith Canyon. They followed the tracks and eventually found Jonathan Leal-Del Carmen and Domingo Gomez-Aguilar. The agents arrested them on suspicion of alien smuggling.
That night, border patrol agents interviewed at least four of the aliens about Leal-Del Carmen and Gomez-Aguilar. One of them, Ana Maria Garcia-Garcia, identified Leal-Del Carmen in a photospread and said she had first seen him about two days earlier. When Agent Tomas Macias Jr. asked if Leal-Del Carmen gave orders to the rest of the group, she answered, "No, he didn't give orders." After the officer said "Pardon me?," she again stated, "He did not give orders." When the officer asked a third time "No?," she answered "No."*fn1
Three others identified Leal-Del Carmen as a leader or as someone with whom they made travel arrangements. The government kept these three as material witnesses*fn2 but deported Garcia-Garcia and the eight other aliens apprehended at Smith Canyon.*fn3
Leal-Del Carmen had not yet been arraigned, and thus was not represented by counsel, when Garcia-Garcia was deported. His lawyer thus had no opportunity to interview Garcia-Garcia, and the government didn't disclose that she had provided exculpatory testimony. Instead, defense counsel had to make several discovery requests, which eventually forced the government to turn over the videotaped interviews of its material witnesses.*fn4 This videotape included Garcia-Garcia's interview. On discovering her statements, Leal-Del Carmen moved to dismiss the indictment on the ground that the government had deported an exculpatory witness. The district court denied the motion. Leal-Del Carmen subsequently filed a motion in limine seeking to admit the videotaped statement of Garcia-Garcia, which the district court denied. At trial, the district court also declined to give Leal-Del Carmen's proposed missing-witness jury instruction.
The jury deliberated over the span of two days before delivering a split verdict. It convicted Leal-Del Carmen of three counts of bringing in illegal aliens without presentation in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and acquitted him of three counts of bringing in illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Leal-Del Carmen timely appeals.
"Whether grounded in the Sixth Amendment's guarantee of compulsory process or in the more general Fifth Amendment guarantee of due process, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010) (internal quotation marks omitted). The government undermined Leal-Del Carmen's opportunity to present a complete defense by deporting a witness it knew could give exculpatory evidence. Once Leal-Del Carmen's lawyer discovered that Garcia-Garcia told border agents that his client didn't give orders, he used every recourse to try to put this information before the jury, but the district court would have none of it. At each stage, the court-urged by the government- denied defendant's motions. ...