U.S. v. Schaefer

• Citation: 709 F.2d 1383
• Decision Date: 18 July 1983
• Docket Number: No. 82-3008,82-3008
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Steve SCHAEFER, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1383

709 F.2d 1383

UNITED STATES of America, Plaintiff-Appellant, v. Steve SCHAEFER, Defendant-Appellee.

No. 82-3008.

United States Court of Appeals,

Eleventh Circuit.

July 18, 1983.

Terrance A. Bostic, Asst. U.S. Atty., Tampa, Fla., Carolyn L. Gaines, Atty., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Edwin Mulock, Bradenton, Fla., James Birkhold, Bradenton, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

The government appeals the dismissal of an indictment for conspiracy, importation and possession of marijuana because the government deported prior to trial and prior to any defense questioning an illegal alien who was a prospective witness in defendant's trial. The district court rendered its decision after our decision in United States v. Avila-Dominguez, 610 F.2d 1266, (5th Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 242, 66 L.Ed.2d 113 (1980), but before the Supreme Court's decision in United States v. Valenzuela-Bernal, 458 U.S. ----, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Because we conclude that the defendant failed to meet the standard set forth in these cases as to the showing required to obtain dismissal of an indictment, we reverse.

It is quite apparent that a number of cases will need to be decided before the principles enunciated in Valenzuela-Bernal and Avila-Dominguez come sharply into focus. Because of that, we here contrast the facts of those cases with the situation here in order to show why this case is a little different and poses a slightly different problem. Then we give the reasons why the indictment should not have been dismissed in this case.

In the Fifth Circuit case of Avila-Dominguez, an Immigration and Naturalization service agent stopped a pickup truck which contained 22 illegal aliens. All were taken into custody and interviewed, but only eight were detained as material witnesses in the prosecution of defendant for transporting illegal aliens into the country, while the other 14 were permitted to return or deported to Mexico. We held that a defendant's constitutional rights are violated if an alien witness is deported before the defendant is given an opportunity to interview the witness. We further held, however, that dismissal of the indictment is not required when the defendant has failed to offer some plausible theory of how the testimony of the missing witness would have been helpful to the defense. 610 F.2d at 1269-70.

In Valenzuela-Bernal, the Supreme Court reversed the Ninth Circuit requirement that the indictment must be dismissed if the deported alien's testimony could "conceivably" have benefited the defendant, a standard that could be met whenever the alien was an eyewitness to the crime. 458 U.S. at ----, 102 S.Ct. at 3443-44, 73 L.Ed.2d at 1199. In that case, Border Patrol officers stopped a car driven by the defendant, an illegal alien himself, with other illegal aliens as passengers. An Assistant United States Attorney concluded the three apprehended passengers possessed no evidence material to the prosecution or defense of Valenzuela-Bernal for transporting illegal aliens, and deported two of them. The Supreme Court held that the indictment should not have been dismissed because the defendant did not make "a plausible showing that the testimony of the deported witness would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." 458 U.S. at ----, 102 S.Ct. at 3449-50, 73 L.Ed.2d at 1206.

In both cases, the defendant was clearly present throughout the commission of the crime. Schaefer suggests here, however, that the deportee might cast doubt on his presence at the site of the marijuana offloading. A brief review of the facts is helpful to understand the basis of our decision that defendant has not met the required standard.

In December 1981 a boat filled with marijuana left Colombia for Florida. Its crew included at least three foreign nationals, Alberto Coleone, Vernon Royer and Ainsley Thomas. The defendant, Steve Schaefer, allegedly helped the crew members unload the vessel's cargo once the boat arrived in American waters. Coleone, Royer and Thomas then went to a motel where they awaited the aid of their co-conspirators in arranging their return to their home countries. When their funds ran out in February 1982, they turned themselves over to the authorities.

From the second photographic spread they were shown, Royer and Thomas identified defendant Schaefer as one of the unloaders. The picture of defendant used in the second spread showed him with a mustache, as he allegedly appeared on the night of the unloading. The photograph in the first spread, from which Royer and Thomas could not identify defendant, pictured defendant without any facial hair.

Coleone testified before the grand jury that indicted the defendant and described a co-conspirator who had a mustache. He did not review any photographic spreads. He did not identify defendant. Apparently because he could not speak English, law enforcement officers interviewed him on only one occasion.

The Assistant United States Attorney in charge of the case decided that he could not in good faith continue to detain Coleone as a material witness, since a language barrier existed, Coleone had not come into contact with some of the suspected co-conspirators, and he had been on board the boat a shorter period than either Royer or Thomas, both of whom spoke English. Accordingly, on April 22, 1982, eight days after the indictment and four days after defendant's arrest, Coleone was turned over to the Immigration and Naturalization Service for deportation, which occurred shortly thereafter.

The district court, applying our decision in Avila-Dominguez, accepted defendant's argument that the deported witness might be unable to identify defendant or might be able to say defendant was not involved in the offloading operation. The district court reasoned:

Obviously, therefore, it is at least a plausible theory that his defense will be dependent, in part, if not in the main, on the question of the reliability of the eyewitness identification of the material witnesses who remain, and it is entirely possible, perhaps even probable, given the equivocation of these other witnesses, that if Mr. Coleone was available, he would be unable to identify the Defendant, and although it's speculative, it's possible he might even be able to make a positive statement that this Defendant is not one of those who was seen offloading the marijuana.

In short, it seems to me that as to his case Mr. Coleone was and is, indeed, a material witness, the loss of whom sufficiently demonstrates a likelihood of prejudice so that the Rule of Avila-Dominguez applies and requires the dismissal of the Indictment as to him and his motion is granted for those reasons and the Indictment as to him will be and is dismissed.

We treat the theories of possible testimony separately. First, that the witness might testify he is unable to identify the defendant seems hardly favorable. He testified before the grand jury that the...