United States v. Aguilar

• Decision Date: 25 November 2014
• Docket Number: No. SA-14-CR-223-XR,SA-14-CR-223-XR
• Parties: UNITED STATES OF AMERICA, v. JUAN AGUILAR, Defendant.
• Court: U.S. District Court — Western District of Texas

UNITED STATES OF AMERICA, v. JUAN AGUILAR, Defendant.

No. SA-14-CR-223-XR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

November 25, 2014

ORDER

On this day the Court considered Defendant Juan Aguilar's motion for a new trial. Docket no. 86. Defendant asks the Court to vacate the jury's guilty verdict pursuant to Federal Rule of Criminal Procedure 33. Aguilar's motion was timely filed after the Court granted him two extensions of time. FED. R. CRIM. P. 33(b)(2). For the following reasons, the Court DENIES the motion.

I. Background

Defendant Juan Aguilar was arrested for sexual abuse of a ward in violation of 18 U.S.C. § 2243(b) on February 26, 2014. The arrest stemmed from an incident on February 17, 2014 at the South Texas Detention Complex ("STDC" or "GEO"), where Aguilar was accused of knowingly engaging in a sexual act with a detainee over whom he had "custodial, supervisory, or disciplinary authority." Docket no. 3. STDC is a facility where detainees are held before trial by the Department of Homeland Security. Aguilar was an employee at STDC as a "kitchen clerk" at the time of the incident. He was accused of, and later admitted to, performing oral sex on adetainee, Jesus Andino Lanza, in a freezer in STDC's kitchen. The Court held a three day trial and a jury found Aguilar guilty of the charged crime. Docket nos. 65-73.

The one-count indictment was issued on March 19, 2014. Docket no. 19. That same day, the Government informed defense counsel that a possible material witness (Cristian Mauricio Calderon Flores), who the government had previously interviewed, was scheduled for deportation on March 27, 2104. The Government did not believe Calderon Flores was a material witness, but nevertheless notified defense counsel anyway. After email discussions, defense counsel sent her investigator, Juan Hernandez, to interview Calderon Flores at STDC. Following that interview, defense counsel declined to detain Calderon Flores as a material witness. See docket nos. 87-8 and 86, at 7. Defense counsel and her investigator kept in contact with Calderon Flores after his deportation.

At the Defendant's request, the case was continued twice, delaying trial. Docket nos. 28 and 31. At a docket call on September 4, 2014, Aguilar indicated he was ready for the trial set for September 15, 2014. On September 5, 2014, Aguilar requested the Court issue a subpoena for Calderon Flores.¹ Docket no. 44 (sealed and ex parte). On September 9, Magistrate Judge Primomo denied the subpoena because Calderon Flores is a foreign national residing outside the United States, and thus outside the Court's subpoena power. Docket no. 49 (sealed and ex parte). Due to a mistake in chambers, the Magistrate Judge then granted the request to issue a subpoena on September 10. Docket no. 50 (sealed). On September 11, 2014, the Magistrate Judge clarified his orders and rescinded docket no. 50.

The parties appeared in open court on September 11, 2014 to make arguments on the pending motions in limine. On Friday, September 12, Aguilar, then filed a motion to compeldiscovery, and verbally made a motion for continuance (arguing that the Government provided certain discovery late). The Court held a hearing that same evening where Aguilar argued for a continuance due to the denial of the Calderon Flores subpoena. The Government argued Calderon Flores was not a material witness, and his information, especially with regard to the custodial, supervisory, or custodial control element was not unique. The Court issued an oral order affirming the denial of the subpoena and denying a continuance because: 1) the Court lacked subpoena authority over Calderon Flores; 2) defense counsel had ample opportunity but declined to detain Calderon Flores as a material witness; 3) without an affidavit, the Court was unsure of the materiality of Calderon Flores's potential testimony; and 4) delaying the trial would prejudice the Government. The Court instructed the parties to work together to perhaps get Calderon Flores admitted into the country to testify or secure and admit an affidavit from him.

The morning of jury selection (September 15, 2014), Aguilar renewed his objection and motion for continuance due to Calderon Flores's absence. Aguilar advised the Court that he was unable to secure an affidavit from Calderon Flores or his admittance into the country. The Court again denied the continuance and proceeded with trial, where Aguilar was ultimately found guilty of violating § 2243(b). Docket no. 73. Aguilar filed his motion for new trial on October 29, 2014. Docket no. 86. The Government filed its response to the motion on November 11, 2014. Docket no. 87.

II. Analysis

Aguilar moved the Court to grant a new trial under the Fifth and Sixth Amendments and Rule 33, arguing his due process rights were violated when the Court did not postpone trial toallow more time for Aguilar to secure Calderon Flores's appearance and testimony for trial. Aguilar argues Calderon Flores was a necessary witness for trial and the Government's actions regarding Calderon Flores violate the Sixth Amendment's Compulsory Process Clause.

He further argues that: (1) he had no independent authority to bring Calderon Flores to the United States; (2) Calderon Flores was a material and necessary witness; (3) the Government improperly impeded him from securing Calderon Flores by not fully cooperating with his request to parole Calderon Flores into the United States²; (4) the Court erred in not subpoenaing Calderon Flores; (5) defense counsel did not waive Aguilar's right to Calderon Flores's testimony when she failed to secure Calderon Flores as a material witness despite knowing his deportation was imminent; and (6) Aguilar should not be found to have waived his right to a necessary witness under these circumstances because such a ruling would violate public policy.

A motion for new trial under Rule 33 permits the Court to grant a new trial "if the interest of justice so requires." FED. R. CRIM. P. 33(a). In the Fifth Circuit, a new trial "should not be granted 'unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.'" United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004)).

A. Compulsory Process

The Sixth Amendment provides a criminal defendant the right to offer the testimony of favorable witnesses and "to have compulsory process for obtaining witnesses in his favor." U.S. CONST. amend. VI; Washington v. Texas, 388 U.S. 14, 19 (1967). A defendant has the right to the government's assistance in compelling favorable witnesses to testify. Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) ("Our cases establish, at a minimum, that criminal defendantshave the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.").³

However, the Compulsory Process right is not absolute. United States v. Campbell, 874 F.2d 838, 851 (1st Cir. 1989). A defendant's Compulsory Process rights are violated only when (1) the Government's acts or omissions prevented a witness' testimony, and (2) the testimony prevented would have been material and favorable. United States v. Valenzuela-Bernal, 458 U.S. 858, 866 (1982); United States v. Perez, 217 F.3d 323, 326 (5th Cir. 2000); United States v. Theresius Filippi, 918 F.2d 244, 247 (1st Cir. 1990).

i. Action attributable to the Government and waiver

For Aguilar's Compulsory Process right to be violated the Government's actions or omissions must have caused the witness to not testify. See United States v. Weddell, 804 F.2d 1343 (5th Cir. 1986). Aguilar argues that the Government impermissibly interfered with Calderon Flores testifying at trial because: (1) the Court did not subpoena Calderon Flores, which would have given Aguilar the ability to parole Calderon Flores into the United States;⁴ and (2) the Government refused to provide "meaningful assistance" to Aguilar and "put up impediments" into paroling Calderon Flores into the United States.

First, the Court was correct and did not violate Aguilar's Compulsory Process right when it denied issuing a subpoena for Calderon Flores. The Compulsory Process right does not apply to alien witnesses residing outside the United States. See United States v. Zabaneh, 837 F.2d1249, 1259-60 (5th Cir. 1988). Courts cannot issue subpoenas to non-citizens residing outside the United States. See 28 U.S.C. § 1783; Relational, LLC v. Hodges, 627 F.3d 668, 673 (7th Cir. 2010) (citing United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir. 1993)). Therefore, the Sixth Amendment right to Compulsory Process is not violated when a district court does not issue a subpoena to an alien witness residing outside the United States. See 28 U.S.C.A. § 1783; United States v. Greco, 298 F.2d 247, 251 (2d Cir. 1962) ("[T]he Sixth Amendment can give the right to compulsory process only where it is within the power of the federal government to provide it. Otherwise any defendant could forestall trial simply by specifying that a certain person living where he could not be forced to come to this country was required as a witness in his favor.").

Here, the Court found it did not have subpoena power over Calderon Flores because he was a foreign national residing outside the United States. See docket no. 49; see also docket no. 64. Therefore, the Court's refusal to issue a subpoena to compel Calderon Flores's appearance was not an action attributable to the Government that denied Aguilar's Compulsory Process right because the Court could not properly issue the subpoena. Contrast with Bennett v. Scroggy, 793 F.2d 772, 776-77 (6th Cir. 1986) (holding without explanation that Compulsory Process right was violated when the district court refused to grant an overnight continuance to allow defendant...