United States v. Tariq

Decision Date25 August 1981
Docket NumberCrim. No. W-81-092.
Citation521 F. Supp. 773
PartiesUNITED STATES of America v. Sheikh Mohammad TARIQ.
CourtU.S. District Court — District of Maryland

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Russell T. Baker, Jr., U. S. Atty., Paul R. Kramer, Deputy U. S. Atty., Baltimore, Md., for the Government.

Fred Bennett, Federal Public Defender, Paul F. Kemp, Asst. Federal Public Defender, Baltimore, Md., for defendant.

WATKINS, Senior District Judge.

I

This matter is before the Court on defendant Tariq's Supplemental Motion to Dismiss Count I and also on the Government's Motion for Court to Reconsider/Rehearing Dismissal of Count II. The defendant's motion will be granted and the Government's motion will be denied.

Sheikh Mohammad Tariq was charged with harboring two illegal aliens, Ali Hussain and Farid Ud-din, in violation of 8 U.S.C. § 1324.1 Count I charges that the defendant harbored Ali Hussain, while Uddin is the subject of Count II. The factual setting of the case is relatively simple.2 On February 17, 1981, agents of the United States Immigration and Naturalization Service (hereinafter referred to as "INS") went to Showell Farms, which is located in Maryland, in order to apprehend certain illegal aliens. While at Showell Farms, the agents took Zahid Hussain, an illegal alien, into custody, and they questioned, but did not arrest, Ali Hussain. Later that day the INS agents determined that, despite his assertions to the contrary, Ali Hussain was actually an illegal alien. On February 18, 1981, the INS agents began to search for Ali Hussain. They received information from Zahid Hussain that Ali Hussain might be found at the defendant's residence in Berlin, Maryland. The INS agents drove to Berlin and enlisted the aid of the local police chief. Chief Mays told the agents where the defendant lived, and along with one of his deputies, accompanied INS agents Graber and Simmons as they went to the defendant's residence.

At the time that the agents went to the defendant's home, they were looking only for Ali Hussain and had no reason to suspect the defendant of any crime. When the agents and police arrived at the defendant's residence they split into groups. Although the testimony of the INS agents at the suppression hearing was unclear, it is certain that, at a minimum, agents and police went to both the front and back doors of the house. After some delay, the defendant "invited" the agents and police into the house,3 which was owned by the defendant's father-in-law, Mr. Showell. The defendant occupied a bedroom in the house.

In the living room, the agents engaged in a protracted discussion with the defendant, who, apparently, was not free to leave. This discussion included, inter alia, questions concerning Ali Hussain. The agents informed the defendant that Ali Hussain was an illegal alien; that it is a crime to harbor an illegal alien; and that to lie to the agents concerning the presence of Ali Hussain would constitute the crime of harboring an illegal alien. The defendant denied knowing Ali Hussain and also stated that he was alone in the house; however, the agents became suspicious when they heard noises coming from a closed bedroom. See also n. 3, supra. The type of noise which the agents heard was not described to the Court.

Agent Simmons requested permission to use the defendant's telephone in order to obtain a search warrant. The defendant gave Simmons permission to use the telephone; however, the noise of other conversations in the living room interfered with agent Simmons' telephone call. Therefore, she gestured toward the defendant's bedroom with the telephone handset so as to request permission to move the telephone into the bedroom. The defendant nodded his acquiescence, thereby consenting to the intrusion. When agent Simmons moved into the defendant's open bedroom, she found three suitcases in plain view. The suitcases had tags on them which bore the names of Ali Hussain, Farid Ud-din, and Zahid Hussain,4 and agent Simmons was able to read the names on the tags without difficulty. Confronted with this evidence, the defendant recanted in part, admitting that he knew Ali Hussain but still denying that Ali Hussain was present.

The defendant had also told the agents that he did not know how to contact Mr. Showell, the owner of the house, and that the locked bedroom belonged to Showell's son. Purely by coincidence Mr. Showell arrived at the house. The agents reported that Mr. Showell stated that the defendant knew how to contact him, knew that Showell's son had moved out of the house, knew that a friend of the defendant rented the bedroom,5 and also knew that he, Showell, had a key to the room. Mr. Showell unlocked the door of the bedroom which Ud-din rented.6 The agents found Ali Hussain kneeling by a bed and they took him into custody. Ali Hussain silently pointed toward the bed, and this caused the agents to look under the bed, where they found Farid Ud-din, who was then arrested. At this time the defendant was also arrested and informed of his Miranda rights.7 The arrest occurred on February 18, 1981 and the Federal Public Defender was appointed to represent the defendant on that same day. Tariq was charged with two counts of violating 8 U.S.C. § 1324 by harboring Ali Hussain and Ud-din. The indictment was filed on February 24, 1981. On February 19 and February 24, 1981, Ud-din and Ali Hussain were interviewed by INS agents and sworn ex parte statements were taken from them. These affidavits and statements were not formal depositions. Apparently, Zahid Hussain was not interviewed. On February 24, 1981, Ali Hussain, Zahid Hussain, and Farid Ud-din were deported to Pakistan.8 Paul Kemp, Esquire, Assistant Federal Public Defender, entered his appearance on February 27, 1981, three days after the deportation and nine days after his office had been appointed as counsel.9

At the arraignment on March 6, 1981, the United States Attorney provided defense counsel with copies of the sworn statements of Ali Hussain and Farid Ud-din. On March 17, 1981, defense counsel began10 to search for Ud-din and Ali Hussain, and he discovered that they had been deported, three days before he had entered his appearance and before he was able to interview them.

Neither the Government nor defense counsel has attempted to locate the deported aliens. Presumably, they are in Pakistan, or perhaps India. It is undisputed that the deportees are outside the jurisdiction of this Court.11

II

The issue before the Court is whether the defendant's fifth amendment right to due process and his sixth amendment rights to compulsory process and confrontation12 were violated by the Government's unilateral deportation of Ali Hussain, Zahid Hussain, and Farid Ud-din on February 24, 1981, and if so, whether the indictment should be dismissed.13 The leading case on this issue, United States v. Mendez-Rodriguez, 450 F.2d 1 (9 Cir. 1971) has been followed, United States v. Calzada, 579 F.2d 1358 (7 Cir. 1978), cert. dismissed, 439 U.S. 920, 99 S.Ct. 294, 58 L.Ed.2d 266 (1978), limited, United States v. Martinez-Morales, 632 F.2d 112 (9 Cir. 1980), distinguished, United States v. Hung, 629 F.2d 908, 928-29 (4 Cir. 1980); United States v. Verduzco-Macias, 463 F.2d 105 (9 Cir. 1972), cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972); United States v. Mosca, 475 F.2d 1052, 1060 (2 Cir. 1973), cert. denied, 412 U.S. 948, 93 S.Ct. 3003, 37 L.Ed.2d 1001 (1973), explained, United States v. McQuillan, 507 F.2d 30 (9 Cir. 1974), and reaffirmed, United States v. Valenzuela-Bernal, 647 F.2d 72 (9 Cir. 1981); United States v. Lujan-Castro, 602 F.2d 877, 878 (9 Cir. 1979) (per curiam), cert. denied, 444 U.S. 945, 100 S.Ct. 306, 62 L.Ed.2d 314 (1979).

In Mendez-Rodriguez, the district court denied a motion to dismiss the indictment, and after the defendant was convicted, the Ninth Circuit reversed. The three-count indictment charged the defendant with conspiracy and transportation of illegal aliens. Three of the six aliens who were allegedly transported by the defendant were deported by the Government, before defense counsel was able to interview them, in order to avoid the financial burden of detaining the illegal aliens for six months or longer while the defendant awaited trial. Cf. 18 U.S.C. § 3161 (Speedy Trial Act: 70 day limit). The Ninth Circuit held that the deportation violated the defendant's rights to due process and compulsory process. It was clear that the defendant had been prejudiced at trial by the premature deportation because his version of the incident differed from the INS version and the deportees might have corroborated the defendant's version; however, the court explicitly stated that a defendant need not show that the deportees' testimony would have been favorable to him because it was impossible for the defendant to ascertain what the deportees might have said if they had been interviewed before trial or called as witnesses. 450 F.2d at 5.

Mendez-Rodriguez demonstrates that the question before a court on a motion to dismiss due to a premature deportation is not one of the sufficiency of the evidence.14 In Mendez-Rodriguez, the appellant did not question the sufficiency of the evidence. Nevertheless, the conviction was reversed because the Government had interfered with the defendant's ability to prepare his own case. Accord, Castillo, 615 F.2d at 882. But cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900) (confrontation clause violation is harmless if evidence of guilt is overwhelming).

The Fourth Circuit has not ruled on the precise issue which is now before this Court, see United States v. Hung, 629 F.2d 908 (4 Cir. 1980); however, the Fourth Circuit's opinion in Bray v. Peyton, 429 F.2d 500 (4 Cir. 1970) (per curiam), is applicable. In Bray, the district court denied a petition for a writ...

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