U.S. v. Vasquez-Gonzales, VASQUEZ-GONZALE
| Decision Date | 27 August 1981 |
| Docket Number | VASQUEZ-GONZALE,No. CA,A,CA |
| Citation | 654 F.2d 628 |
| Parties | UNITED STATES of America, Appellant, v. Pilarppellee. 80-1347. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John G. Hawkins, Tucson, Ariz., argued for appellant; Rhonda L. Repp, Asst. U. S. Atty., Tucson, Ariz., on brief.
Stephen C. Villareal, Tucson, Ariz., argued for appellee; Bernardo P. Velasco, Asst. Federal Public Defender, Tucson, Ariz., on brief.
Appeal from the United States District Court for the District of Arizona.
Before GOODWIN and BOOCHEVER, Circuit Judges, and PALMIERI, * District Judge.
Vasquez-Gonzales was charged with transporting illegal aliens. The district court dismissed the indictment pursuant to United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), based on the government's deportation of certain aliens, whom the court found to be potential material witnesses. Because we have concluded that the court erred in making that finding, we reverse.
On February 10, 1980, Boarder Patrol agents commenced surveillance of the Longhorn Motel in Douglas, Arizona. About 7:00 a.m. the next day they arrested eight illegal immigrants who were occupants of room 6 of the motel.
As the agents were leaving the motel area about 7:20 a.m., a taxi pulled up. The agents asked the driver if he had picked up anyone at the motel the previous day. He indicated that he had transported a group of aliens from room 6 of the Longhorn Motel in Douglas to room 41 of Motel 6 in Tucson.
The agents then took the aliens, who were in their custody, to the Border Patrol station in Douglas, arriving about 7:45 a.m. One of the agents, Esteban Roman, called another agent in Tucson, Manuel Escobedo, about 8:35 a.m., and told him about the information received from the taxi driver. Roman also related that a group of aliens from the Longhorn Motel had been arrested and that the aliens reportedly in Tucson might be part of that group.
After being questioned, all eight of the aliens arrested at Douglas were released, the first about 8:00 a.m., the last about 9:00 a.m.
Escobedo and another agent went to Motel 6 to investigate, arriving about 9:10 a.m. They continued their observation of room 41 throughout February 11, eventually following the occupants to the Tucson International Airport. There Vasquez-Gonzales and Ponce-Figueroa were arrested, along with the six illegal aliens they were apparently seeing off, about 1:00 a.m. on February 12.
On March 11, 1980, Vasquez and Ponce were indicted for transporting "on or about February 12, 1980, at or near Tucson, in the district of Arizona," the six aliens, knowing them to be illegally in this country, in violation of 8 U.S.C. § 1324(a)(2). 1
Ponce and Vasquez filed pretrial motions to dismiss the indictment on the ground that the aliens apprehended at the Longhorn Motel in Douglas were material witnesses whose release to Mexico by the government violated the defendants' rights under the fifth and sixth amendments. After hearing oral argument on the motions, the district judge found that the group of aliens who were apprehended in room 6 of the Longhorn Motel in Douglas on the morning of February 11 were material witnesses or potential material witnesses.
The court reasoned that, at the time the aliens apprehended in Douglas were released, the government had reasonable suspicion to believe that they were part of the group reported to be in Tucson, and that it would not have been an unreasonable burden for the government to hold the eight aliens for a short time, until the likelihood and imminence of an arrest were assessed. The court, therefore, granted the defendants' motions. In its April 16, 1980 order dismissing the indictment against Vasquez and Ponce, the court held that, because the Border Patrol was actively investigating who transported the aliens arrested in Douglas at the time it released them, its failure to detain the aliens as potential material witnesses for a reasonable period of time required dismissal.
On May 12, 1980 the Government filed a timely notice of appeal from the order of dismissal as to Vasquez. 2
I. THE MENDEZ-RODRIGUEZ AUTHORITY
In Mendez-Rodriguez, six people were in the car driven by the defendant, who was charged with transporting illegal aliens. After interviewing the passengers the government released three of them for return to Mexico without affording the defendant an opportunity to interview them. Mendez-Rodriguez contended that he was driving in his station wagon near Oceanside, California and had merely picked up some men wanting a ride without knowledge that they were without proper papers. The court reversed his conviction on the basis of his contention that he was denied due process when the three witnesses were made unavailable by the conduct of the government.
Subsequent cases have refined the Mendez-Rodriguez requirements. Those requirements were distilled in United States v. Martinez-Morales, 632 F.2d 112, 114-115 (9th Cir. 1980) (citations omitted) as follows:
The facts and factors underlying Mendez-Rodriguez were set out in United States v. McQuillan, 507 F.2d 30, 32-33 (9th Cir. 1974): (1) the then policy of the United States in alien smuggling cases of keeping select alien eyewitnesses while returning others to Mexico without affording the defense an opportunity to interview them and ascertain whether any would be able to give testimony favorable to the defendant; (2) the absence of any...
To continue reading
Request your trial
- Carter v. CMTA-Molders & Allied Health and Welfare Trust, CMTA-MOLDERS
-
U.S. v. Moreno, 95-10002
...at 695. We review the denial of the motion to dismiss based on the deportation of Castillo for clear error, United States v. Vasquez-Gonzales, 654 F.2d 628, 630 (9th Cir.1981), and find Moreno moved for leave to subpoena, at government expense, the former owners of the gun he was accused of......