U.S. v. Calzada

• Citation: 579 F.2d 1358
• Decision Date: 14 July 1978
• Docket Number: No. 78-1043,78-1043
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David L. CALZADA, Victor Crespolara, Gerald Dee Matthews, Patrick Martin Whittaker, Richard Allen Whittaker, Eliseo Balcazar-Rangel, Maria de Los Angeles Reyes-de Balcazar, Joel Tellez-Romero and John Doe, also known as Luis(an adult male of Spanish descent), Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1358

579 F.2d 1358

UNITED STATES of America, Plaintiff-Appellant, v. David L. CALZADA, Victor Crespolara, Gerald Dee Matthews, Patrick Martin Whittaker, Richard Allen Whittaker, Eliseo

Balcazar-Rangel, Maria de Los Angeles Reyes-de Balcazar,

Joel Tellez-Romero and John Doe, also known as Luis(an adult

male of Spanish descent), Defendants-Appellees.

No. 78-1043.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 1978.

Decided July 12, 1978.

As Amended July 14, 1978.

Joseph Hosteny, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.

Nancy Schaefer, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.

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 indictment ³ 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 Lockport, Illinois.

Thirteen of the twenty aliens were arrested ⁴ in Lockport 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 seems 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....