United States v. Verduzco-Macias

• Decision Date: 10 October 1972
• Docket Number: 72-1153.,No. 71-2937,71-2937
• Citation: 463 F.2d 105
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert VERDUZCO-MACIAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edwin Lloyd CORTELYOU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

463 F.2d 105 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert VERDUZCO-MACIAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Edwin Lloyd CORTELYOU, Defendant-Appellant.

Nos. 71-2937, 72-1153.

United States Court of Appeals, Ninth Circuit.

June 15, 1972.

Certiorari Denied October 10, 1972.

Matthew Lees (argued), Philip A. De Massa, San Diego, Cal., S. Randolph Seymour, Van Nuys, Cal., of Federal Defenders, Inc., David Berman, San Diego, Cal., for defendants-appellants.

Donald F. Shanahan, Asst. U.S. Atty. (argued), Stephen G. Nelson, Asst. U.S. Atty., Harry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before KOELSCH and TRASK, Circuit Judges, and BYRNE,^* District Judge.

Certiorari Denied October 10, 1972. See 93 S.Ct. 173.

TRASK, Circuit Judge:

These appeals are from appellants' respective criminal convictions for violating the Immigration & Nationality Act of 1952, 8 U.S.C. § 1101 et seq. Appellant Verduzco was adjudged guilty on all counts of a five count indictment, charging him with four counts of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a) (2), and one count of conspiracy to violate that subsection in contravention of 18 U.S.C. § 371. Appellant Cortelyou was convicted on all counts of a nine count indictment, charging eight counts of transporting illegal aliens and one count of conspiracy to violate 8 U.S.C. § 1324.

The cases were consolidated for purposes of appeal because they present a common question regarding the effect on appellants' convictions of farming out illegal aliens apprehended in this country, who might have been material witnesses to crimes against the immigration laws, and who subsequently left the farms, becoming unavailable for defense questioning and use at trial.

Cortelyou was arrested when border patrol agents found eight illegal aliens in the camper compartment of the pickup truck he was driving. All eight aliens were placed on farms; three left before trial. Cortelyou's counsel had not been able to interview the unavailable aliens, and no statements from them were included in the stipulated facts upon which Cortelyou's case was decided. Statements from the five available aliens were so used.

Four aliens were in the car driven by Verduzco's alleged co-conspirators when they were apprehended. One of these aliens was placed in Juvenile Hall and was available to and did testify at Verduzco's trial. The other three aliens were placed on farms where they did not remain. Verduzco's counsel did not have an opportunity to interview the unavailable aliens, and no statements from them were used at Verduzco's trial.

Appellants argue that their cases are governed by United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir.1971). There, six aliens were found in defendant's car at the time of his arrest. Three were placed on farms and were present to testify against defendant at his trial; three were returned to Mexico by the government. This court held that the government's action in returning these witnesses to Mexico, and thereby placing them beyond the reach of the subpoena power of the trial court, was in violation of defendant's right to due process. His conviction was reversed.

Mendez-Rodriguez is different from the cases before us. After the aliens involved in Mendez-Rodriguez and in these cases were discovered unlawfully within the United States by the border patrol agents, the government had three alternatives: (1) charge the aliens with violation of 8 U.S.C. § 1325; (2) deport them immediately under 8 U.S.C. § 1251; or (3) allow them to remain in this country until the trials, and then deport them. With respect to the aliens involved in Mendez-Rodriguez, the second course was chosen; with respect to the aliens involved in the cases before us, the third course was chosen. The government did not itself take action which would remove the witnesses from the subpoena power of the court. In fact, the government took positive steps in order that the aliens would be available to testify at appellants' trials; they were farmed out and half their pay withheld pending their appearances at the trials.

Three of the eight aliens so placed in Cortelyou's case left the farms; all three of the aliens so placed in Verduzco's case departed. But the government did not physically move them from the jurisdiction of the court and did not actively facilitate their leaving. Appellees argue that this distinction between these cases and Mendez-Rodriguez is crucial and determinative. Cf. United States v. Peyton, 454 F.2d 213, 214 (9th Cir. 1972). We agree.

Under 18 U.S.C. § 3149,

"if it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpena, a judicial officer shall impose conditions of release pursuant to section 3146."¹

The material witness is treated like a person accused of a noncapital crime. 18 U.S.C. § 3146 provides that personal recognizance or release on an unsecured bond shall be the presumptive determination in all cases. Other conditions cannot be imposed unless the bail-setting judicial officer determines that such release "will not reasonably assure the person's appearance . . . ." If he does make that determination, he must then consider each of the prescribed conditions in the order of priority listed in the statute; he may impose a combination of such conditions if one is insufficient.

Some of the conditions listed in Section 3146 are: (1) release in the custody of some responsible person or organization; (2) restrictions on travel, associations or place of abode; (3) a returnable cash deposit, not to exceed 10 percent of the bond set; and (4) "any other condition deemed reasonably necessary to assure appearance . . .," such as part-time custody.

18 U.S.C. § 3149 also provides that a material witness who is unable to comply with the conditions of release under Section 3146 shall not be detained "if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice."

These provisions clearly favor release of the material witness over his detention, Bail Reform Act of 1966, § 2, 1966 U.S.Code Cong. & Adm.News 241, in cases where Section 3149 is invoked. However, in the cases before us, it appears that the unavailable aliens had departed the farms before either appellants' counsel had an opportunity to invoke 18 U.S.C. § 3149 or Fed.R.Crim.P. 46(b).

In the absence of the instigation of that procedure, we are cited to no statutory requirement that the court, sua sponte, or the Immigration & Naturalization Service take steps to place the aliens in protective custody. The means used in these cases, the farming out of the aliens, induced them to make themselves available until trial or until defense counsel could take whatever steps he would under Section 3149 or Fed.R. Crim.P. 46(b); the aliens were able to perform the farm labor they were seeking, and half their wages was withheld pending their appearances at the trials.² The records in these cases do not disclose the particular procedures followed, and no counsel was able to furnish any enlightenment to this court. It is clear, however, that the trial court was correct in determining that these cases are not controlled by Mend...