U.S. v. Tsutagawa

• Decision Date: 26 April 1974
• Docket Number: Nos. 73-2863,73-2888,s. 73-2863
• Citation: 500 F.2d 420
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Seihichiro TSUTAGAWA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Chihiro TAKAMATSU, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 420

500 F.2d 420

UNITED STATES of America, Plaintiff-Appellant, v. Seihichiro TSUTAGAWA, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. Chihiro TAKAMATSU, Defendant-Appellee.

Nos. 73-2863, 73-2888.

United States Court of Appeals, Ninth Circuit.

April 26, 1974, Rehearing Denied Aug. 28, 1974.

David P. Curnow, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellant.

William N. Sauer, Jr. (argued), Carlsbad, Cal., Howard B. Frank (argued), San Diego, Cal., for defendants-appellees.

Before MERRILL, GOODWIN and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

The grand jury returned a separate indictment against each appellee charging the harboring and concealing of illegal aliens in violation of 8 U.S.C. 1324(a) (3). Motions to dismiss the indictments were granted by the district court because all but four of the apprehended aliens were released and sent back to Mexico by the government. The government contends that the district court erred in applying United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), because in the present case the aliens were apprehended incident to a grand jury investigation directed towards unknown ranch owners and foremen supervising the employed illegal aliens rather than incident to an arrest. We reject the contention and affirm.

The United States Attorney's office, in connection with a proposed grand jury investigation, devised a plan whereby the Border Patrol agents, when they made their usual checks at ranches and farms, would be armed with grand jury subpoenae to be served on supervisory personnel in the area where illegal aliens were discovered or apprehended. The Border Patrol agents were also given a list of questions to ask apprehended illegal aliens in an effort to determine, among other things, whether farm supervisors or owners concealed or harbored them. The answers were to be given to the United States Attorney before the grand jury started taking testimony. The Border Patrol was instructed to send those illegal aliens with no information back to Mexico.

Three farms in San Diego County were selected as targets for the grand jury investigation. Both of the appellees were foremen at one of these farms. On June 12, 1973, Border Patrol agents raided the three farms and apprehended 39 aliens; after an initial interview, 20 of these were released to Mexico. The following day, the remaining 19, together with reports of their field interrogations, were referred to the United States Attorney's office for further questioning. After all 19 aliens had been interviewed by the United States Attorney's office, six more were released to Mexico. The remaining 13 testified before the grand jury. Subsequent to testifying all of the aliens were released, except for four aliens who had been apprehended at the farm where the appellees were employed as foremen. These four were either paroled into the United States or kept in custody.

Tsutagawa was served with a subpoena the day the aliens were apprehended. That very day, the United States Attorney was advised by a local attorney that he represented Tsutagawa as well as the owner of the farm. Two days later, Tsutagawa testified before the grand jury and named Takamatsu as a foreman and as a result, he was also served with a subpoena and subsequently testified before the grand jury.

At no time were appellees or their attorneys given the opportunity to interview the 35 aliens prior to their return to Mexico. Appellees made an unsuccessful effort to find these expelled aliens in Mexico.

The government attempts to distinguish Mendez-Rodriguez on three grounds. First, it contends that in the present case, as distinguished from Mendez-Rodriguez, there was not a known defendant at the time the aliens were apprehended. Rather, the person to be indicted would not be determined until the completion of the grand jury investigation. The government notes that only two of the nine foremen and owners testifying before the grand jury were actually indicted. It further points out that a week had elapsed after the apprehensions before the evidence was complete as to Tsutagawa, and two weeks as to Takamatsu, at which time both indictments were returned.

Since government investigators are not equipped with crystal balls to determine unexpected or unforeseen results, there may be some circumstances in which Mendez-Rodriguez will not apply. However, this is not such a case. Before the apprehensions, the government had a reasonably small, known and identifiable number of targets, although...