A three-member panel of the 9th Circuit appeals court sharply chastised the office of the U.S. attorney in San Diego on Friday for deporting a witness whose testimony could have weakened its alien-smuggling case against Jonathan Leal-Del Carmen. A jury in San Diego convicted him of three counts of alien-smuggling but acquitted him of doing so for profit.

Border Patrol agents arrested Leal-Del Carmen in March 2010 with a group of suspected illegal immigrants. In videotaped interviews with agents, three of the immigrants said Leal-Del Carmen was the leader, but one of them, Ana Maria Garcia-Garcia, said several times that he was not. The agents secured the testimony of the three witnesses against Leal-Del Carmen, but deported Garcia-Garcia before Leal-del Carmen was arraigned.

Only after Leal-Del Carmen’s attorney forced the government to turn over the videotapes did he learn about Garcia-Garcia’s exculpatory testimony. A poor Mexican woman likely trying to evade the notice of authorities, she was impossible to locate. Leal-Del Carmen moved to dismiss the indictment, then to have Garcia-Garcia’s videotape played for the jury, and finally for the jury to be told why her testimony was unavailable for trial. Senior U.S. District Judge Thomas Whelan denied all of Leal-del Carmen’s efforts to get the testimony before the jury.

The 9th Circuit rebuked Whelan on all these points, ruling that the videotape should have been played and the jury told that the government deported Garcia-Garcia knowing her testimony would hurt its case. The appeals court reversed Leal-Del Carmen’s conviction and ordered the District Court to decide whether to retry him (and allow him to present Garcia-Garcia’s testimony) or to “dismiss the charges...with prejudice, as a consequence of the government’s conduct.” 

Referring to a 2003 case holding that the government may not deport witnesses it knows have testimony or evidence that would be helpful to a criminal defendant, Chief Judge Alex Kozinski also had choice words for the U.S. attorney’s office in San Diego. “We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.”

In order to reach its decision, the 9th Circuit panel found that the U.S. attorney’s office had acted in bad faith and harmed Leal-Del Carmen’s case to a fatal degree. “The government undermined Leal-Del Carmen’s opportunity to present a complete defense by deporting a witness it knew could give exculpatory evidence,” wrote Kozinski.

Kozinski also put federal prosecutors throughout the large Ninth Circuit—which covers California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Alaska and Hawaii—on notice that there will be no tolerance for such deportations. “As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit.”

-Matt Bewig

To Learn More:

Prosecutors Told to Stop Deporting Witnesses (by Tim Hull, Courthouse News Service)

U.S. v. Leal-Del Carmen (9th Circuit, 2012) (pdf)

Quick Deportations Help Accused Criminals (by David Wallechinsky and Noel Brinkerhoff)