United States District Court, S.D. California
WILLIAM Q. HAYES, Judge.
The matter before the Court is the Objection to Release of Material Witnesses (ECF No. 60) filed by Defendant Sofia Martinez.
Defendant is charged in an indictment with conspiracy to bring in illegal aliens for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371. The Government alleges that Defendant was part of an organization that smuggled individuals from Mexico into the United States in violation of the immigration laws using a variety of means, most notably jet skis. Included in the discovery provided to the Defendant by the Government is an event which took place on February 12, 2103. On that date, Arturo Torres-Mondragon and Jose Luis Lopez-Corona were arrested illegally entering the United States by jet ski. Torres-Mondragon and Lopez Corona were released and returned to Mexico after their initial arrest. After Torres-Mondragon and Lopez Corona were connected to the alleged conspiracy in this case, look-outs were placed in TECS to alert the Department of Homeland Security in the event that they attempted to return to the United States.
On May 9, 2014, in separate events, Torres-Mondragon and Lopez-Corona attempted to re-enter the United States. They were detained and are currently being held as material witnesses in this case.
On May 22, 2014, video-taped depositions were held for Torres-Mondragon and Lopez-Corona. Defendant Martinez and her counsel were present at each deposition along with counsel for the material witness. Counsel for the Government and Counsel for the Defendant conducted a full examination of each material witness. The relevance of the testimony for the Government is the statements by the material witnesses that they illegally entered the United States on February 12, 2014, and that they are Mexican citizens. Neither Torres-Mondragon nor Lopez-Corona identified Defendant Martinez as someone involved in their attempted entry into the United States on February 12, 2013.
Trial for Defendant Martinez will begin on September 3, 2014.
CONTENTIONS OF THE PARTIES
Torres-Mondragon and Lopez Corona contend that the opportunity to cross-examine them at the deposition was adequate, that each material witness testified that under oath that he never had any dealings with Defendant Martinez, and that each material witness has indicated that he is willing to return for trial. Torres-Mondragon and Lopez Corona asserts that there is no legal reason for their continued detention and the resulting hardship to their families.
Defendant Martinez objects to the release of the material witnesses on the grounds that their release will infringe her confrontation rights under the Sixth Amendment of the United States Constitution. Defendant asserts that the Government is continuing to disclose discovery and investigate the case. Defendant contends that her opportunity to cross-examine these material witnesses is not adequate where the theory of the defense may change at any point prior to trial.
The Government contends that the release of the material witnesses does not violate Defendant's confrontation right. The Government asserts that Defendant had all reports and other discovery related to the February 12, 2013 event prior to the May 22, 2014 deposition. The Government asserts that the testimony of Torres-Mondragon and Lopez Corona is limited to the fact of their illegal entry and their citizenship and that the Defendant has fully examined these facts at the deposition. The Government asserts that no future discovery materials will effect the fact that Torres-Mondragon and Lopez Corona did not identify Defendant.
RULING OF THE COURT
18 U.S.C. § 3144 provides in part that "[n]o material witnesses may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure." 18 U.S.C. § 3144.
In Torres-Ruiz v. United States District Court, 120 F.3d 933 (9th Cir. 1997), the Court of Appeals concluded that the extraordinary relief of mandamus was justified in the case of "[t]he continued detention of  material witnesses, whose testimony could be adequately preserved by videotaped deposition and whose families are suffering hardship as a result of [their] continued detention. Id. at 936. The Court of Appeals explained that "Rule 15(a) and § 3144 provide a detained witness with a mechanism for securing his own release. He must file a written motion'... requesting that he be deposed. The motion must demonstrate that his testimony can adequately be secured by deposition, 'and that further detention is not necessary to prevent ...