Aguilar-Ayala v. Ruiz

• Decision Date: 25 September 1992
• Docket Number: No. 91-2848,AGUILAR-AYALA,91-2848
• Citation: 973 F.2d 411
• Parties: J. Jesus Faustino, et al., Plaintiffs-Appellants, v. Cecilio RUIZ, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 411

973 F.2d 411

J. Jesus Faustino AGUILAR-AYALA, et al., Plaintiffs-Appellants, v. Cecilio RUIZ, etc., et al., Defendants-Appellees.

No. 91-2848.

United States Court of Appeals, Fifth Circuit.

Sept. 25, 1992.

Rehearing Denied Nov. 2, 1992.

Carter C. White, Costilla & Stapleton, Brownsville, Tex., for J. Jesus Faustino Aguilar-Ayala, et al.

David Ayala, Sp. Asst. U.S. Atty., McAllen, Tex., Marianne Tomecek, Chief Civ. Div., Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., for Cecilio Ruiz, etc., et al.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

GOLDBERG, Circuit Judge:

The government, in its campaign against the unlawful entry into the United States by foreign nationals, had deployed a practice of detaining certain aliens as material witnesses for the criminal prosecution of those persons charged with transporting them across the border. The detained aliens, unable to reach an armistice with the government, returned fire with this lawsuit, contending that the government's operation of detaining them indefinitely--rather than deposing and releasing them--violated United States statutory and constitutional law. With the assistance of their generals and subalterns of the bar, the aliens advanced mightily until the district court proclaimed their victory. But though they won the war on the merits, they lost the battle for attorney's fees. The district court concluded that the government's resistance to the aliens' crusade was substantially justified, so it declined to reward the warriors of the bar with all the spoils of war.

The aliens appeal to this tribunal seeking reparations from the government in the form of attorney's fees. Concluding that the time and effort expended by the warriors of the bar are the anticipated casualties of war, we AFFIRM.

I.

18 U.S.C. § 3144 provides for the detention of material witnesses in order to insure their presence at a criminal proceeding. In its entirety, the statute provides:

§ 3144. Release or detention of a material witness

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title [Release 18 U.S.C. § 3144 (emphasis added). Under the statute, either the government or a criminal defendant can effectuate the detention of a material witness upon a showing that such material witness will, in all likelihood, be unavailable for the criminal proceeding. A material witness may not be detained, however, if a deposition would suffice as an adequate alternative to the witness' live testimony at the proceeding. That means, of course, that the deposition testimony must be admissible notwithstanding any objections by the parties (the government or the criminal defendant). If the deposition would prove admissible over any objection under the Confrontation Clause of the United States Constitution or the Federal Rules of Evidence, ¹ then the material must be deposed rather than detained.

                or detention of a defendant pending trial].  No material witness 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
                

A witness seeking to be deposed and released in lieu of detention may move the district court under Federal Rule of Criminal Procedure 15, which provides in relevant part:

Rule 15. Depositions

(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition.... If a witness is detained pursuant to section 3144 of title 18, United States Code, the court on written motion of the witness and upon notice to the parties may direct that the witness' deposition be taken. After the deposition has been subscribed the court may discharge the witness.

Fed.R.Crim.P. 15(a). Read together, Rule 15(a) and § 3144 provide a detained witness with a mechanism for securing his own release. He must file a "written motion," Fed.R.Crim.P. 15(a), 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 a failure of justice." 18 U.S.C. § 3144. Upon such a showing, the district court must order his deposition and prompt release. Id. ("No material witness may be detained" if he makes such a showing). Although Rule 15(a) is couched in the permissive "may," not the mandatory "shall," Fed.R.Crim.P. 15(a) ("the court ... may direct that the witness' deposition be taken"), it is clear from a conjunctive reading with § 3144 that the discretion to deny the motion is limited to those instances in which the deposition would not serve as an adequate substitute for the witness' live testimony: that a "failure of justice" would ensue were the witness released. See 18 U.S.C. § 3144. Absent a "failure of justice," the witness must be released.

These provisions for deposing material witnesses detained pending trial--as applied to undocumented aliens--are the focus of this case.

II.

To successfully prosecute persons unlawfully transporting undocumented aliens into the United States, the Department of Justice, through the United States Attorney's Office for the Southern District of Texas ("the government"), engaged in the practice of detaining some undocumented aliens as material witnesses for the criminal prosecution of the alleged alien smugglers. As authority for the detentions, the government relied on 18 U.S.C. § 3144.

Two Mexican nationals, allegedly detained by the government as material witnesses pursuant to § 3144, brought this lawsuit to challenge the government's practice.

The two aliens were arrested in Falfurrias, Texas, on November 14, 1987, shortly after they entered this country illegally. They were allegedly detained as material witnesses in connection with the prosecution of persons charged with smuggling them into the United States. Through appointed counsel, the two aliens moved the district pursuant to Rule 15(a) of the Federal Rules of Criminal Procedure for an order requiring the government to secure their testimony through deposition and release them, rather than detain them until trial. A United States Magistrate Judge granted their motion, ordering the government to depose and release them within seven days. Not yet deposed eight days later, the Magistrate Judge ordered their release on an unsecured $5,000 appearance bond. Before the aliens were liberated, however, they were transferred to the custody of immigration officials for deportation proceedings. An immigration judge promptly entered an order of deportation, and the two alien-witnesses waived their rights to appeal. Their deportation was delayed, however. According to the government, the aliens were further detained under the Immigration and Nationality Act. The aliens maintain that they were detained by the government under the material witness detention statute, 18 U.S.C. § 3144, to insure their presence at the alien-smuggling prosecution.

Still in custody, the aliens filed the instant action on January 27, 1988 as a "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief--Class Action" in the United States District Court for the Southern District of Texas. Invoking 18 U.S.C. § 3144, Federal Rule of Criminal Procedure 15(a), and the Fifth Amendment to the United States Constitution, they challenged the government's practice of detaining alien-witnesses rather than deposing and releasing them. In their prayer for relief, they requested that the court certify a class and enjoin the government from detaining alien-witnesses for longer than ten days where a deposition would adequately preserve the criminal defendant's right to confrontation under the Sixth Amendment. They narrowly tailored their prayer for relief in accordance with the provisions of § 3144 and Rule 15(a). The plaintiffs also requested an award of attorney's fees.

Not long after they filed their original petition/complaint, the two aliens were released from custody, presumably because the government no longer needed them: The government had disposed of the underlying criminal prosecution for which the aliens were originally detained as material witnesses. ² The two aliens nevertheless proceeded with the lawsuit, seeking leave to amend their petition/complaint on March 11, 1988 to add several more named plaintiffs who were then presently being detained as material witnesses. ³ As to all named plaintiffs and the potential class-plaintiffs, the amended complaint alleged that alien-witnesses were being detained rather than deposed in the absence of a judicial determination that (1) their testimony could not adequately be secured by deposition and (2) their further detention was necessary to prevent a failure of justice. (3 R. 324)

The government moved to dismiss the case on several grounds. It argued that the plaintiffs were being detained, not under § 3144, but under the Immigration and Nationality Act (citing 8 C.F.R. 215.3(g)) "Recognizing the need for a comprehensive plan," the district court entered a standing order on July 15, 1988, governing the handling of material witnesses in the ...