Federal Court Blasts U.S. Attorney for Deporting Witnesses

Monday, September 17, 2012
Laura Duffy, U.S. Attorney for the Southern District of California

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)


Kay Sieverding 11 years ago
I was imprisoned by DOJ for 5 months with no opportunity to present any witnesses at all. According to 18 USC section 3046 you are at least supposed to be able to present witnesses at a bail hearing, and everyone is supposed to get a bail hearing if they are held for more than a few days, but I was not allowed to have a bail hearing. I don't have a criminal record. I wasn't charged with a crime. There wasn't a government prosecutor. No one signed an oath or affirmation. The witnesses against me weren't sworn and I wasn't allowed to ask them questions. I was told in Federal Court that I didn't have a right to an attorney because I wasn't accused of a crime. The federal public defender wrote to me in jail that his office couldn't meet with me because I wasn't charged with a crime. Anyone can download the transcript from PACER, District of Colorado case 02-cv-1950 document 884. I sued DOJ and DOJ claimed that it did it on purpose and that a criminal charge isn't needed to detain someone using the Prisoner Tracking System and the Joint Automated Booking System. These cases were in the District of Columbia 09-0562 and 11-01032. DOJ did publish Notices in the Federal Register saying that the purpose of the PTS is to manage detentions of Federal Prisoners who are held pending a criminal proceeding and that the categories of individuals whose records should be in JABS are alleged criminal offenders and no one else but they misrepresented the Federal Register in Court in order to get my claims dismissed. I was accused of being a vexatious litigant, but I wasn't. I sued for deprivation of rights under color of law. The defendants claimed that everyone had immunity even for intentional and criminal acts, even for a prosecutors defamatory statements at a press conference (see S.C. Buckley v. Fitzsimmons). Judge Edward Nottingham was assigned. He dismissed my case but didn't write an opinion. He awarded attorney fee shifting without stating his authority, with no Rule 11(c)(6) orders and without Rule 11 motions. When I tried to get a hearing on the merits from a different federal judge, the defendants simply asked the Judge to imprison me and DOJ didn't require an AO472 form for detention without a trial or sentence. I was born in the U.S. and my father was a WWII veteran. I guess you can tell I am still really really upset about this. I'm still pursuing it in Court and I have nightmares about it. I just can't understand why DOJ acts this way. http://usmsinternalinvestigation.blogspot.com/

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