United States v. Mendez-Rodriguez

• Decision Date: 03 December 1971
• Docket Number: No. 71-1238.,71-1238.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel MENDEZ-RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.2d 1 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Manuel MENDEZ-RODRIGUEZ, Defendant-Appellant.

No. 71-1238.

United States Court of Appeals, Ninth Circuit.

July 13, 1971.

Rehearing Denied December 3, 1971.

Edward A. Infante, of Pedersen & Flowers, San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Robert H. Filsinger, Chief, Crim. Div., Catherine A. Chandler, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before JERTBERG, DUNIWAY and KILKENNY, Circuit Judges.

JERTBERG, Circuit Judge:

By indictment filed December 17, 1969, appellant was charged:

1) In Count One with conspiracy to smuggle aliens into the United States, in violation of 18 U.S.C. § 371, and 8 U.S.C. § 1324. One overt act of said conspiracy alleged that appellant transported, in the Southern District of California, aliens Juan Espinosa-Nunez, hereinafter Nunez; Remberto Ordorico-Gomez, hereafter Gomez; and Ramon Guerrero-Berumen, hereafter Berumen.

2) In Counts Two, Three and Four with transporting, within the Southern District of California, alien Nunez (Count Two); alien Gomez (Count Three); and alien Berumen (Count Four), in violation of 8 U.S.C. § 1324 (a) (2).

Appellant, an indigent, represented by court-appointed counsel, pleaded not guilty to all the charges contained in the indictment, and was tried to a jury. At the close of the Government's case, and on motion of his counsel, Count Two (Nunez) was dismissed. The jury returned guilty verdicts on the remaining counts. Appellant was committed to the custody of the Attorney General for a period of three years on each count, the sentences to be served concurrently. Imprisonment for all but two months was suspended, and appellant was placed on probation for three years.

Appellant, represented by court-appointed counsel on this appeal, prosecutes the same in forma pauperis.

Appellant's only specification of error on this appeal is stated by him as follows:

"The trial court erred in denying Defendant\'s motion for a dismissal of the charges against him when it appeared that the Government had returned three eyewitnesses to the offense for which Defendant was charged, to Mexico before Defendant had an opportunity to interview them."

Appellant does not question the sufficiency of the evidence to sustain his conviction. He does not bring into question any ruling or action of the district court, made during the course of the trial, except the refusal of the court to dismiss the indictment for the reason alleged in his specification of error. For such reasons we deem it necessary to set forth herein only those matters which place in proper context the basis for appellant's specification of error.

Following the return of the indictment, upon learning that there were six Mexican male passengers riding in appellant's car at the time of his arrest, appellant's counsel moved the district court for an order requiring the Government to disclose to appellant the names and whereabouts of the three who were not mentioned or named in the indictment, and to require the Government to produce them at the time and place of appellant's trial, or in the alternate, to dismiss the indictment.

A hearing was held on said motion on January 29, 1970. Government counsel stipulated that after the Immigration and Naturalization Service, hereafter Service, had interviewed said three persons following the arrest of appellant, said persons were returned by the Government to Mexico. Government counsel stated that it would be impossible to produce said persons at the trial since they were in Mexico and the Government was without power to subpoena them for the trial. He further stated that it was appellant's burden to produce said witnesses at the trial but that he would furnish appellant with the names of such persons and such addresses in Mexico as the Government possessed.

The court denied appellant's motion requiring the Government to produce said persons at the trial but ordered the Government to furnish appellant with the names of such persons and such addresses in Mexico as the Government possessed. Appellant's alternate motion to dismiss the indictment was denied.

By letter dated March 5, 1970, Government counsel furnished to appellant's counsel the following information:

"The names and addresses of the unavailable alleged `witnesses\' in the above-entitled case are the following:

1. Felipe Barrientos-Tapia Domocilio Conocido Pomalquaro, Panadiquaro Michoacan, Mexico

2. Roberto Hernandez-Novarro Calle Aldama #90 Ahuacaltan, Nayarit, Mexico

3. Santos Casas-Ceballos Calle Reforma (No number) Jerez, Zacatecas, Mexico"

The letter further stated:

"The available witnesses will be available for interview on the morning of trial if they are willing to discuss the case at that time."

On April 21, 1970, appellant filed a motion to dismiss the indictment on the ground, inter alia, that the conduct of the Government in returning to Mexico three eyewitnesses to the offense for which appellant was charged, before appellant was afforded the opportunity to interview them, constituted a denial of rights guaranteed to the appellant under the Fifth and Sixth Amendments to the Constitution of the United States.

An evidentiary hearing on appellant's motion was held in the district court on May 14, 1970.

It appears from the transcript of the testimony at such hearing that it was and had been the policy of the Service, in the Southern District of California in cases of the type before the court, that when several or more aliens are apprehended while being illegally transported in the Southern District, three or four of them are detained and held in the Southern District as material witnesses so as to be available at the trial of the person charged with such illegal transportation, and to interview the remaining aliens who had been apprehended and then return them to Mexico. The reason assigned for such policy is to avoid the financial burden which would otherwise fall upon the Government in retaining and supporting such persons until the occurrence of the trial of the person accused of illegally transporting them, which period of time, because of the congested court calendars in the Southern District of California, might be five or six months or longer.

The above policy was carried out in the instant case. Following the arrest of appellant, three of the six Mexican male passengers in the station wagon (Nunez, Gomez, and Berumen), were detained as material witnesses and by the Service were placed as farm workers on farms in the Coachella Valley, some 115 miles from San Diego, where they remained until appellant's trial. One-half of the wages earned by them during such period was paid currently, and the other one-half was retained and paid to them when they appeared as witnesses in appellant's trial. The remaining three, after being interviewed by the Service, were by the Government returned, or permitted to return, to Mexico.

The transcript of the hearing discloses that after appellant had been furnished the names and addresses of the three aliens who had been returned to Mexico, counsel for appellant caused, under date of April 10, 1970, letters of inquiry to be written and mailed to the Chiefs of Police of the Mexican communities in which they were purportedly residing, inquiring as to the presence of such persons in such community. Appellant's counsel received answers from two of the letters stating, in substance, that the person inquired about could not be located and was unknown in the community. No reply was received in response to the third letter.

The district court denied appellant's motion to dismiss the indictment.

Said motion was renewed at the commencement of appellant's trial on May 26, 1970, and again denied.

On trial the Government's case consisted of the testimony of Nunez, Gomez, and Berumen, and an inspector of the Immigration and Naturalization Service.

In substance, each of the aliens testified that he was a citizen of Mexico and had no papers permitting him to enter the United States; that on December 8, 1969, six Mexican males, including themselves, entered the United States on foot, from Mexico, near Tecate, California; that the group was guided by a Mexican National known as "Skinny;" that the group walked for approximately three hours in California after crossing the border, and stopped beside a highway. Shortly a station wagon, driven and solely occupied by the appellant, stopped and the six men entered the car which proceeded in California until the car was stopped at Temecula, California, and appellant was arrested by the Service.

The Immigration Inspector testified that after informing appellant of the charge against him and of his constitutional rights, appellant, in substance, stated to him that while returning to Los Angeles from a visit to Tijuana, Mexico, he stopped at Oceanside, California, early in the morning of December 8, 1969, for coffee and went into a bowling alley there,...