U.S. v. Morales-Quinones

• Decision Date: 20 February 1987
• Docket Number: No. 85-2048,MORALES-QUINONE,D,85-2048
• Citation: 812 F.2d 604
• Parties: 22 Fed. R. Evid. Serv. 918 UNITED STATES of America, Plaintiff-Appellee, v. Miguelefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 604

812 F.2d 604

22 Fed. R. Evid. Serv. 918

UNITED STATES of America, Plaintiff-Appellee, v. Miguel MORALES-QUINONES, Defendant-Appellant.

No. 85-2048.

United States Court of Appeals Tenth Circuit.

Feb. 20, 1987.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Jennifer A. Salisbury, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., Albuquerque, N.M., was on brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN and SEYMOUR, Circuit Judges.

HOLLOWAY, Chief Judge.

A federal grand jury indicted the defendant Miguel Morales-Quinones and a codefendant Manuel Saenz-Garcia on four counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(2) ¹ and 18 U.S.C. Sec. 2. The four counts of the indictment were virtually identical except for the name of the aliens alleged to have been transported into the United States unlawfully. The aliens named as persons transported were as follows: Count I--Gregorio Ruiz-Botello; Count II--Maria del Carmen Botello-Morales; Count III--Jose Guadalupe Espino-Rios; and Count IV--Jose Marcos Gonzales-Saucedo.

After two days of trial the jury returned verdicts finding the defendant and his codefendant Saenz-Garcia guilty on all four counts. ² On appeal, the defendant asserts that the district court committed seven errors which call for reversal of his convictions. ³ After a review of the principal facts, we will address each of those issues.

I

The case began with a long distance telephone call placed on March 13, 1985, by a Some two years earlier, Agent Murphy had given his telephone number to Julia's brother Manuel Botello, asking Manuel to call him if he ever was going to be transported into the United States. Manuel agreed.

Government informant, Julia Botello-Hernandez, from Juarez, Chihuahua, Mexico, to Immigration and Naturalization Service (INS) Agent Henry C. Murphy in Albuquerque, New Mexico. She told Murphy that she and several members of her family were in Juarez and wanted to come to the United States. She told Agent Murphy that she had contacted a smuggler willing to transport them from Juarez to Albuquerque. She asked Murphy if he would pay the smuggler money to transport them. Murphy agreed.

Prior to Julia's call to Murphy, Manuel called Agent Murphy telling him that his sister was attempting to enter the United States and would call Murphy if she made contact with someone who could transport her. When Julia did call, Agent Murphy agreed to pay for the transportation to Albuquerque. The arrangement essentially was that Julia and her companions would get free transportation, identify the smugglers, work here a few months, and then voluntarily depart after the trial of the smugglers.

Later the same day that Julia called Agent Murphy, she and her son Gregorio Ruiz-Botello, her niece Maria del Carmen Botello-Morales, and a cousin of a cousin Jose Guadalupe Espino-Rios, met the codefendant Saenz-Garcia in Juarez and made arrangements to be transported from Juarez to Albuquerque. None of the aliens had documents which would allow them to legally enter the United States. The four aliens agreed to pay a total of $350 each. Julia and Jose Guadalupe Espino-Rios each paid the codefendant Saenz-Garcia $50 as a downpayment.

Jose Marcos Gonzales-Saucedo, a Mexican citizen, was also in Juarez on March 13, 1985, and made arrangements with the codefendant Saenz-Garcia to be unlawfully transported into the United States. Gonzales-Saucedo did not have documents which would permit him to enter the United States lawfully. He paid a $100 downpayment to the codefendant Saenz-Garcia.

On the evening of March 14 the codefendant Saenz-Garcia guided the Botello-Hernandez family, Espino-Rios, and Gonzales-Saucedo to the Rio Grande River. While still in Mexico before crossing the river, four of the aliens testified that they met the defendant. II R. 58-61, 98, 125-26, 162. The aliens further testified that the defendant asked them for the remaining amount of the money owed for the trip, but they refused to pay him. Id. at 58, 98-99, 125-26, 162.

The codefendant Saenz-Garcia guided the group of aliens across the river and into the United States. The defendant did not wade across the river with the group, but drove his car across a nearby bridge into the United States. The codefendant Saenz-Garcia then led them to a brown station wagon. The aliens packed into the station wagon with the codefendant Saenz-Garcia driving. The codefendant drove the entire trip to Albuquerque, while the defendant led the way in a separate blue small car. II R. 60, 128.

The group arrived in Albuquerque on March 15. On arrival Julia Botello-Hernandez gave the defendant Agent Murphy's phone number. The defendant called Murphy, identifyng himself as Miguel Morales and asking Murphy for the $950 payment. The defendant stated that he could be found at the Regal Inn parking lot. Murphy responded that it would take some time to get the money but to wait for him at the lot. The telephone conversation was taped and admitted into evidence along with a transcription as Government Exhibit Nos. 2 and 5.

After the telephone conversation Murphy directed INS Agent Mario Salinas to go to the Regal Inn parking lot in a surveillance van and set up a video camera. III R. 205. Shortly after the video camera was set up, Agent Murphy arrived at the Regal Inn parking lot. Murphy observed a station wagon full of people and a blue and white AMC Gremlin with one occupant. Id. at 225. Murphy approached the station wagon.

The codefendant Saenz-Garcia got out of the driver's seat of the station wagon. Simultaneously the defendant got out of the Gremlin.

A conversation ensued between Murphy and the defendant. The conversation was recorded by a video camera and a tape recorder planted on Agent Murphy. The video cassette was entered into evidence as Government Exhibit No. 1. The audio tape and the transcription of the audio tape were also admitted into evidence as Government Exhibit Nos. 3 and 6. A copy of the audio tape transcript is included in the Appendix to this opinion.

During the recorded conversation, Agent Murphy asked why the group was a day late. The defendant responded that he had to repair the car while on the road the day before. Murphy asked if they had any trouble crossing the river. The defendant responded no. Murphy asked how much he owed the defendant. The defendant responded $950 since the aliens had already paid him $100. Murphy said that he had only $500 in cash and asked if he could make a check out for the remainder. The defendant responded that a check would be fine and that it should be made out to Miguel Morales of Longmont.

Thereupon the defendant and the codefendant Saenz-Garcia were arrested. The aliens in the station wagon were also arrested, but their cases were handled administratively as proceedings against illegal aliens. Agent Murphy arranged six-month stays in the United States for Botello-Hernandez, Botello-Morales, Ruiz-Botello, Espino-Ruiz, and Gonzales-Saucedo, on the condition that they testify at trial and voluntarily return to Mexico at the end of six months. Three Mexican alien men who were also occupants of the station wagon voluntarily departed and returned to Mexico.

The defendant did not testify at trial but relied on the codefendant's testimony that the defendant was not in Mexico. He also utilized his counsel's cross-examination and his theory that he did not see the aliens until he came on them in Albuquerque having car trouble. The video did show the station wagon hood up at the parking lot and the codefendant putting new oil in the vehicle.

II. THE DEPARTURE OF EYEWITNESS DE LA HOYA-MEDRANO

The defendant contends that the district court erred in failing to dismiss the indictment because the Government gave one of the illegal aliens, Manuel de la Hoya-Medrano, immediate voluntary departure when that material witness stated to INS agents that he did not see the defendant in Mexico, in El Paso, during the trip from El Paso to Alburquerque, or in Alburquerque. I R. 5; III R. 285. The Government granted voluntary departure before the defendant's counsel had an opportunity to interview or subpoena the witness. The district court denied the motion to dismiss the indictment finding "that the Motion is not well taken...." I R. 30.

The seminal Supreme Court decision on the deportation of an alien eyewitness is United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). There the Court found that "the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien eyewitnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution." Id. at 872, 102 S.Ct at 3449. The Court stated the standard for determining whether the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment has been violated: "A violation of these provisions requires some showing that the evidence lost would be both material and favorable to the defense." Id. at 873, 102 S.Ct. at 3449. See also United States v. Saintil, 753 F.2d 984, 987 (11th Cir.1985); United States v. Schaefer, 709 F.2d 1383, 1385-86 (11th Cir.1983).

At the outset we must determine whether the facilitation of a voluntary departure is equivalent to deportation in these circumstances. We note that the Sixth Circuit had no problem reaching the We now must decide whether the defendant here made a plausible showing that de la Hoya-Medrano's testimony would have been both material and favorable to the defense. De la Hoya-Medrano stated to an INS agent that he did not see the defendant during the trip, in Mexico, El Paso, or in Alburquerque. III R. 285. The theory of the defense was that the defendant did not travel to Mexico, to Texas, or to any other point south of Albuquerque. We note that in Valenzuela-...