U.S. v. Avila-Dominguez, AVILA-DOMINGUE

• Decision Date: 01 February 1980
• Docket Number: No. 78-5575,AVILA-DOMINGUE,A,78-5575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maximolbert Perez, Evangeline Salazar and Carolyn Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1266

610 F.2d 1266

56 A.L.R.Fed. 688

UNITED STATES of America, Plaintiff-Appellee, v. Maximo AVILA-DOMINGUEZ, Albert Perez, Evangeline Salazar and Carolyn Sanchez, Defendants-Appellants.

No. 78-5575.

United States Court of Appeals Fifth Circuit.

Feb. 1, 1980.

Herbert E. Cooper, Asst. Federal Public Defender, El Paso, Tex., for Avila-Dominguez.

Anthony C. Aguilar, El Paso, Tex., for Perez, Salazar & Sanchez.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before WISDOM, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This case involves multiple convictions for assisting Mexican aliens in illegally entering the United States. The most serious question is whether the convictions should be reversed because the Government deported potential witnesses before defendants' counsel could interview them. Acknowledging that the Government violated defendants' constitutional rights, we nevertheless affirm the convictions, partly because the case has an element of waiver of those rights, but more importantly because no suggestion has been made to this Court or the district court as to how the witnesses might have, in the slightest way, helped defendants in the defense of this case.

The facts on this controlling issue are undisputed. Acting on an informant's tip and surveillance, an Immigration and Naturalization Service (INS) agent stopped a pickup truck driven by defendant Perez and placed him under arrest. Perez opened the truck's camper shell at the agent's request, and twenty-two illegal aliens were discovered within. In the meantime, another INS agent arrested defendants Avila, Salazar and Sanchez in the nearby parking lot from which the truck had departed.

The twenty-two illegal aliens were taken into the custody of the INS and each was interviewed by an INS agent. The United States Attorney determined that eight of them would be detained as material witnesses, and a written statement was taken from each of those eight. The sole woman alien in custody and the two children accompanying her were granted voluntary return to Mexico on the day of defendants' arrests because of the inadequacy of detention facilities. Deportation proceedings were begun against the other eleven aliens and they were deported to Mexico ten days later. The dates are significant. The arrests occurred on April 22, 1978. Initial appearances were made and bonds were set on April 24. Defendants then had an attorney. The eleven aliens in question were deported on May 2.

At the preliminary hearing on May 3, an INS agent unintentionally misinformed defendants' counsel that nineteen aliens remained in custody, including the eleven who had actually been deported the previous day. On June 16, defendants moved for dismissal because of the Government's failure to provide the names of the deported aliens and make them available for interviews. The district court denied the motion to dismiss, but ordered the Government to furnish the names and addresses of the witnesses. The aliens resided in Mexico, however, and were not available to be interviewed or deposed by defendants' counsel.

Defendants Avila, Perez, Salazar and Sanchez were convicted of conspiracy, 18 U.S.C.A. § 371, to encourage or induce the entry of illegal aliens into the United States in violation of 8 U.S.C.A. § 1324(a)(4), and to transport those aliens within the United States in violation of 8 U.S.C.A. § 1324(a)(2). Avila was also convicted on six counts for violating 8 U.S.C.A. § 1324(a)(4), and Perez was convicted on eight counts for violating 8 U.S.C.A. § 1324(a)(2).

Deportation of Witnesses

Relying on United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), defendants argue the Government violated their Fifth Amendment right to due process and their Sixth Amendment right to compulsory process by deporting the potential witnesses before defendants were notified of their impending deportation and given an opportunity to interview them. In Mendez-Rodriguez, defendant was charged with violations of 18 U.S.C.A. § 371 and 8 U.S.C.A. § 1324(a)(2) and convicted on the basis of testimony of three aliens who had been detained in the United States pending his trial. In reversing the convictions, the Ninth Circuit held that defendant's Fifth and Sixth Amendment rights were violated by the deportation to Mexico of three Other alien witnesses before defendant had an opportunity to interview them. The court held the defendant was not required to show prejudice resulting from the unavailability of the deported witnesses. See also United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974).

The Seventh Circuit adopted the rule of Mendez-Rodriguez in United States v. Calzada, 579 F.2d 1358, Cert. dismissed, 439 U.S. 920 (1978). That decision affirmed the district court's dismissal of indictments against eight defendants because seven of thirteen potential alien witnesses had been made unavailable by the Government for interviewing by defendants. The court based its decision solely on the right to compulsory process, and rejected the Government's argument that defendants would be entitled to relief only on a showing of either prosecutorial bad faith or prejudice to defendants.

The effect of Government conduct such as this has not heretofore been addressed by our Court. The opinion in Uribe v. United States, 529 F.2d 742 (5th Cir. 1976), specifically reserved the issue for later determination:

Because of our resolution of this question, we need not decide whether we agree with the Ninth Circuit that due process is denied when the Government deports potential witnesses before the defendant has an opportunity to interview them. United States v. Mendez-Rodriguez, 9 Cir. 1971, 450 F.2d 1.

529 F.2d at 743 n. 3.

We agree with the Ninth and Seventh Circuits that a criminal defendant's constitutional rights are violated if an alien witness is deported before the defendant is given an opportunity to interview the witness. The reasoning of those cases appears sound and we adopt it as our own, without repetition here. We disagree, however, with the automatic reversals and indictment dismissals which occurred in those cases.

We base the affirmance of these convictions on two rationales. First, defendants' interest in the deported aliens heightened once they were unavailable, and the case is flavored with an element of waiver, even though defendants' conduct is not clothed with a full-dress waiver of a constitutional right. Cf. United States v. Lujan-Castro, 602 F.2d 877 (9th Cir. 1979) (defendant knowingly waived right to have alien witnesses retained in the United States).

Defendants were arrested and the illegal aliens taken into custody on April 22, 1978. Complaints issued against defendants on April 24, notifying them of the crimes with which they were charged. That same day defendants were represented by counsel at initial appearances before the court. More than a week after the initial appearances, on the tenth day after defendants' arrests, the eleven aliens were ordered deported to Mexico by a special inquiry officer of the INS.

Although defense counsel asserted that he had inquired about the names and location of the aliens on or about April 24, the district judge noted that defense counsel failed to show that he had made any efforts to follow up that informal inquiry.

A requirement that defendants act diligently to preserve the testimony of illegal aliens must be imposed in the circumstances of these cases. Otherwise, the great burden and expense of detaining and housing alien witnesses is borne by the Government, while defendants delay the simple efforts involved in locating and interviewing them. Although detention methods involving parole or work programs rather than incarceration would be less burdensome to the Government, these entail the risk of escape by the alien, defeating the purposes of both detention for trial and deportation. See United States v. Verduzco-Macias, 463 F.2d 105 (9th Cir.), Cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972).

Defendants could have preserved the testimony of the eleven deported aliens by making a prompt formal request for their names and whereabouts. If there had been insufficient time to interview all the witnesses, a postponement of their deportation could have been sought. Any alien believed by defendants to be able to give exculpatory testimony could have been detained in this country until trial.

Since we believe, however, that the better procedure for protecting the constitutional rights here involved would be for the Government to give notice of prospective deportation and a reasonable opportunity for defense counsel to interview the witnesses, we are not comfortable with resting an affirmance on the ground of waiver alone.

The second and more compelling rationale for this decision is that not the slightest suggestion has been made as to what testimony helpful to defendants these witnesses could offer. We are in general accord with the proposition set forth in Mendez-Rodriguez and Calzada that to obtain relief in a case of this kind, the defendant need not show prejudice arising from the violation with "any degree of assuredness." 579 F.2d at 1362. But we agree with the dissents in both of those cases that reversal is not warranted where the "record is completely devoid of anything which would suggest that the testimony of any one, or more, of the deported persons would have been helpful" to the defendants, 450 F.2d at 6, and that "it does not seem too much to require that they offer at least a plausible theory" of how the testimony of the witnesses would be helpful to the defense. 579 F.2d at 1365. The purpose of a criminal trial is to produce evidence which shows the truth. The purpose of criminal procedure is to assure that end through fair means. It is important to remember that the...