United States v. Calzada

579 F.2d 1358

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 12, 1978
• Docket: No. 78-1043
• Status: Published

Opinions

SPRECHER, Circuit Judge.

The issue in this appeal brought by the United States is whether a defendant’s right to compulsory process under the Sixth Amendment of the United States Constitution is violated when the government deports material witnesses to the crime before the defendant has a reasonable opportunity to interview them.

I

The eight defendants-appellees were charged in an indictment on June 30, 1977, with conspiracy to transport and conceal illegal aliens in violation of 18 U.S.C. § 371; transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2);¹ and concealing illegal aliens in violation of 8 U.S.C. § 1324(a)(3).² The government's case as alleged in its indictment³ charged that the defendants, with the assistance of two undercover police officers, had picked up twenty illegal Mexican aliens in a desert in Arizona and taken them to Phoenix where they were concealed for a time until it was decided where they should be transported. Defendants eventually took the twenty illegal aliens to Joliet, Illinois, where they again were concealed until they were transported to Loekport, Illinois.

Thirteen of the twenty aliens were arrested ⁴ in Loekport on April 29, 1977. They were then taken to the Metropolitan Correctional Center in Chicago, Illinois, and interviewed by the government. On May 4, 1977, the government permitted two of the aliens who were juveniles to return to Mexico. On May 29, 1977, the government deported three more of the thirteen aliens, all of whom were adults. Some time later, the government released two more aliens who then departed from the United States.⁵ In the indictment issued on June 30, the government named the remaining six aliens as persons transported and concealed by the defendants. Thus, prior to the filing of the indictment, the government had acted affirmatively to make three of the thirteen aliens unavailable to the defendants and had permitted another four to become unavailable to them.

Three of the defendants moved to dismiss their indictments when they learned that potential witnesses, i. e., the unavailable aliens, were no longer subject to compulsory process. The district court held that the government’s action violated the defendants’ rights to compulsory process, thereby depriving them of a fair trial. The court therefore granted the motion to dismiss the indictment as to the three defendants and invited the other five defendants to file similar motions. They did so, and the district court dismissed their indictments. The government filed a motion for reconsideration which the district court denied. The government appeals the dismissal of the indictment against all eight defendants.⁶

II

The Supreme Court in Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), held that the right to compulsory process guaranteed by the Sixth Amendment is a fundamental element of due process of law, and as such it should be interpreted broadly. See generally Westen,

The Compulsory Process Clause, 73 Mich.L. Rev. 71, 113-15 (1974). In so holding the Court recognized that

[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.

388 U.S. at 19, 87 S.Ct. at 1923 (emphasis added).

The Ninth Circuit Court of Appeals, relying on Washington v. Texas, has concluded that the right to compulsory process for a defendant includes the

right to formulate his defense uninhibited by government conduct that, in effect, prevents him from interviewing witnesses who may be involved and from determining whether he will subpoena and call them in his defense.

United States v. Tsutagawa, 500 F.2d 420, 423 (9th Cir. 1974). See also United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971). Thus, the Ninth Circuit has concluded that if the government deports illegal aliens knowing that they are potential witnesses for those defendants who allegedly transported them, then the government violates the defendants’ rights to compulsory process. We agree with the Ninth Circuit because it seéms to us beyond serious dispute that the essence of the right to compulsory process is lost when the government can act through its deportation powers to deprive a defendant of the testimony of an eyewitness to the crime for which he or she is charged.

Having reached this conclusion, however, we should make clear that dismissal of an indictment is not required in every case in which a potential alien witness somehow escapes the subpoena power of a federal court. For instance, the Ninth Circuit has recognized that the government, with court approval, may release a juvenile illegal alien from custody in the interest of “human values.” United States v. Carrillo-Frausto, 500 F.2d 234, 235 (9th Cir. 1974)⁷ Also, the Ninth Circuit has held that the federal government is not obligated to keep potential witnesses who are not charged with a crime in custody to guarantee that they do not leave the country. United States v. Verduzco-Macias, 463 F.2d 105, 106 (9th Cir.) cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972).⁸ Finally, the Ninth Circuit has held that the defendants must show that the unavailable aliens might have been actual witnesses to the crime for which the defendants have been charged. United States v. McQuillan, 507 F.2d 30, 33 (9th Cir. 1974). Obviously, in a case such as ours, where the illegal aliens are the subject of the crime, the McQuillan requirement is readily satisfied. None of these exceptions, however, alters the basic prohibition against the government from deporting aliens who are material witnesses. In addition, none of the exceptions applies to this case. Thus, unless we are to adopt some rule different from that presently employed in the Ninth Circuit we must conclude that the district court’s dismissal of the indictment was appropriate.

The view that the government asks this court to adopt is that there is no substantial violation of the defendants’ rights requiring dismissal of an indictment unless there is a showing of prosecutorial bad faith or undue prejudice to the defendant’s case. We disagree.

With regard to prosecutorial bad faith, we are of the opinion that failure to prove willful misconduct is irrelevant to determining the appropriateness of the district court’s dismissal of a defendant’s indictment. The right to compulsory process is not so much a bar against governmental misconduct as it is a protection of the defendant’s ability to present his or her case. Washington v. Texas, supra, 388 U.S. at 19, 87 S.Ct. 1920. As one commentator has noted:

Although earlier cases viewed dismissal as a penalty for official misconduct and imposed it only where the prosecutor lost or destroyed the evidence in “bad faith,” the recent cases recognize that dismissal also protects the defendant’s affirmative right to put on a defense. Accordingly, dismissal may be required even when the prosecutor has acted in good faith. .

Westen, supra at 174-75. Thus, we conclude that the policy behind the Sixth Amendment right to compulsory process cannot be fully protected if we require that prosecutorial “bad faith” be shown before a federal district court can impose an effective constitutional remedy.⁹ We therefore reject the government’s argument on this issue.

A much more difficult question arises with regard to whether prejudice to the defendants’ case must be shown prior to dismissal. Since the right to compulsory process is intended to protect a defendant’s ability to present a defense, it would seem in the abstract to be not unreasonable to expect a showing of specific injury to 'that interest before a court should conclude that the right has been violated. Viewed in context, however, it is quite clear that such a requirement applied to this case would emasculate the defendants’ rights to compulsory process. Since no defendant could ever be able to show with any degree of assuredness what a witness whom he has never interviewed might say on his behalf, a demonstration of prejudice will be impossible.

This problem has been recognized by the Ninth Circuit Court of Appeals in its Mendez-Rodriguez, supra, decision. There the court reasoned that

appellant was, by Government action, deprived of the opportunity to interview said witnesses. Appellant couldn’t know what these witnesses might say, if anything. We are in the same position as the appellant. We decline to indulge in any speculation that the interviews would, or would not, have been fruitful to the defense.

450 F.2d at 5. We agree with that analysis and therefore conclude that the defendant need not show prejudice to his or her case arising from the government’s violation of the right to compulsory process by deporting eyewitnesses to the crime at issue.

The government argues finally that this court previously has decided in United States v. Perlman, 430 F.2d 22 (7th Cir. 1970), that there must be a showing of prejudice or bad faith before a dismissal of an indictment is proper. In Perlman a co-conspirator in the sale of narcotics was deported prior to the defendant’s trial. The defendant was tried and found guilty. On review of that conviction, the court declined to reverse since the defendant could show neither prejudice nor prosecutorial bad faith.

We find it somewhat unusual that the government should place so much reliance on Perlman given the court’s statements in that opinion that the government’s conduct in deporting material witnesses while not “in bad faith” nonetheless should not be sanctioned judicially. 430 F.2d at 25. Moreover, Perlman is basically distinguishable from this case. The court’s analysis sought to determine whether the clear mistake on the government’s part was nonetheless “harmless” to the defendant in light of the facts of that case. The court correctly concluded that since the defendant after a full trial could not even “point to” anything that his co-conspirator might say that could assist his defense, there was no basis for reversing the conviction.

We, however, are faced with a much different factual and procedural context for deciding this case. The government has not heeded the admonishment of the Perlman court that

it would seem reasonable to require sufficient coordination between the various governmental institutions to permit notification thereafter and at least an opportunity for a defendant to determine himself whether any benefit might be derived from the testimony of his codefend-ant. This would permit the various interests to be balanced and would avoid embarrassment to the Government in the future.

Id. at 26 n. 5. Thus, unlike prior to Perl-man, the government was on notice that this court does not approve the practice of deporting material witnesses prior to giving a defendant an opportunity to interview them. It, however, failed to take adequate precautions to avoid this problem, and we therefore have little sympathy for the government’s argument that dismissal of an indictment is a drastic sanction for this inadvertent mistake.

On the record before us, we cannot say that the district court erred in finding that the defendants’ constitutional rights to compulsory process had been violated, nor that it abused its discretion in concluding that the only reasonable remedy for that violation was the dismissal of the indictment. The district court concluded that defendants could not receive a fair trial because of the government’s conduct, and we find no basis upon which to disagree with that conclusion.¹⁰

For the reasons stated above, therefore, we affirm the judgment of the district court dismissing the indictment against all eight defendants.

AFFIRMED.

1 . That section makes it a crime for

[a]ny person . . . who ... (2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports . within the United States . . . any alien

8 U.S.C. § 1324(a)(2).

[a]ny person, . . . who ... (3) willfully or knowingly conceals, harbors, or shields from detection, ... in any place, including any building or any means of transportation . any alien .

2 8 U.S.C. § 1324(a)(3).

3 . In a case such as this where the district court dismissed the indictment, we must accept as true the facts alleged in that indictment. See United States v. South Florida Asphalt Co., 329 F.2d 860 (5th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 149, 13 L.Ed,2d 87 (1964).

4 . Apparently seven of the illegal aliens escaped either before or during the arrest in Loekport, Illinois.

5 . The parties engaged in a substantial dispute over the defendants’ conduct in relation to one of the aliens who was believed to have left the country but who was subsequently located. Apparently the government believes that the defendants’ handling of this witness demonstrates how little concern the defendants had for interviewing these witnesses. Our review of the record, however, discloses that the defendants made a good faith effort to both interview that witness and to guarantee his presence for the trial. We find no fault on either side arising from the fact that that witness escaped the country. That witness is not the basis for our holding that the indictment should be dismissed.

6 . Three of the defendants, Matthews, Calzada and Tellez-Romero, argue that the government failed to preserve its right to appeal as to them. We agree with the government that it reasonably relied on the district court’s remarks at the time the court dismissed the indictment as to these defendants in delaying the filing of a notice of appeal. See Thompson v. I.N.S., 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964); Martinez v. Trainor, 556 F.2d 818, 820 (7th Cir. 1977). In this situation, we do not believe that the government has lost its right to appeal.

7 . Although the district court, in part, relied upon the release of the two juvenile alien witnesses in dismissing the indictment, we decline to decide whether their release alone would have sufficed to justify the court’s action. We do note that unlike the situation in Carrillo-Frausto, supra, the aliens were sent back to Mexico by the government and not by a magistrate. Whether that fact is significant, we need not decide.

8 . The record does not make clear the circumstances surrounding the release of the last two prospective alien witnesses. We do not know whether they were merely released from custody as was the case in Verduzco-Macias, supra, or whether they were deported. We, however, need not rely upon their release as the basis for our decision since we know that the government did deport three of the aliens before the defendants had reasonable opportunity to interview them. See note 10 infra.

9 . We do not mean to imply that the question of “bad faith” is not a factor in a decision whether to dismiss an indictment. Certainly if a district court should conclude that the government has acted in “bad faith” in withholding evidence or concealing it, then dismissal might be the only appropriate action. All that we are deciding is that a finding of “bad faith” or prosecutorial misconduct is not a precondition to dismissing an indictment if the government deports a material witness.

10 . Much space in the briefs for both parties is spent arguing about whether the defendants acted with sufficient dispatch after their arrests to protect their interest in retaining the illegal aliens as witnesses. Basically, the government argues that defendants had plenty of time to interview all of the witnesses before they were deported.

This question, however, was raised before the district court and it held that the “[d]efen-dants’ failure to request the Government to retain custody is understandable” (Memorandum Opinion, Nov. 16, 1977 at 9). The court reached this conclusion on the basis of the short time between defendants’ arrests and the deportation of the two juvenile witnesses and the three adult witnesses.

We need not rely on the release of the juvenile aliens as the basis for our decision because it is clear that defendants were not given a reasonable opportunity to interview the three adult aliens who were deported without notice to the defendants less than a month after the arrests, and several weeks prior to the issuance of the indictment in the federal district court. With regard to those witnesses, there is nothing in the record that suggests that the defendants declined to protect their rights. We therefore agree with the district court’s conclusion that defendants through no fault of their own were deprived of a reasonable opportunity to interview the three material witnesses.