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9th Circuit Does Not Find Government's Chutzpah Appealing

By: James W. Kraus
September 27, 2012

In 1993, Ninth Circuit Judge Alex Kozinski co-authored an article for the Yale Law Journal, wherein the authors explained the term “Chutzpah.”  See Alex Kozinski and Eugene Volokh, Lawsuit Shmawsuit, 103 Yale L.J. 463 (1993).  Although the authors offered no formal definition for the term, as demonstrated in the opinion of a panel of the Ninth Circuit, one of the co-authors, knows it when he sees it.  In United States v. Leal-Del Carmen 2012 W.L. 4040253 (C.A. 9 Cal.), now Chief Judge Kozinski saw it clearly in the government’s deportation of a material witness favorable to the defendant. and he and the rest of the panel did not approve.

In Leal-Del Carmen, the Ninth Circuit reversed the conviction of Jonathan Leal-Del Carmen on charges of bringing in illegal aliens without presentation in violation of 8 U.S.C. §1324(a)(2)(B)(iii).  In doing so, the court ruled that the government had undermined the defendant’s opportunity to present a complete defense, in violation of the Fifth and Sixth Amendments, by deporting a witness that the government knew could give exculpatory evidence.  The court further found that the district court abused its discretion first by refusing to admit a video or transcript of the deported witness’ testimony, and denying a missing-witness instruction.

Jonathan Leal-Del Carmen was arrested by border patrol agents after a group of 12 illegal aliens had been detained along the United States-Mexico border.  Following his arrest, border patrol agents interviewed at least 4 of the aliens about Leal-Del Carmen and another individual who had been arrested.  One of those witnesses, Anna Maria Garcia-Garcia, identified Leal-Del Carmen in a photo spread.  When a border agent asked if Leal-Del Carmen gave orders to the rest of the group, she answered, “No, he didn’t give orders.”  After the officer said, “Pardon me?” she again stated, “He did not give orders.”  When the officer asked a third time, “No?,” she answered, “No.”

In similar interviews, three other detainees identified Leal-Del Carmen as a leader or someone with whom they made travel arrangements.  The government kept those three as material witnesses, but deported Garcia-Garcia and the 8 other aliens that had been apprehended.  Leal-Del Carmen had not yet been arraigned and thus was not represented by counsel when Garcia-Garcia was deported.

After several pre-trial discovery requests, the government finally turned over videotapes of the interviews of its material witnesses, which included the interview of Garcia-Garcia.  On discovering her statements, Leal-Del Carmen moved to dismiss the indictment on the ground that the government had deported an exculpatory witness.  The district court denied the motion.  Leal-Del Carmen then filed a motion in limine seeking to admit the videotape statement of Garcia-Garcia, which the district court denied.  At trial, the district court also declined to give Leal-Del Carmen a proposed missing-witness jury instruction.

In its review, the Ninth Circuit  cited its previously established two-part test in determining whether the government’s deportation of an alien-witness amounted to a constitutional violation under either the Sixth Amendment right to compulsory process or the Fifth Amendment right to due process.  The court indicated that (1) defendant must show that the government acted in bad faith and (2) that deportation of the witness prejudiced his case, citing United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991).  It explained that once the government is aware that an alien has potential exculpatory evidence, it must treat that person as a material witness and give defense counsel the opportunity to interview him and make a reasoned determination whether to seek his retention pending trial.  Based on the circumstances, the Court found that Leal-Del Carmen demonstrated prejudice because Garcia-Garcia’s testimony was material, favorable, and not cumulative.  The court explained that testimony that Leal-Del Carmen didn’t give orders was material to his alleged role as the expedition’s guide, reasoning that Leal-Del Carmen could have been found guilty only if the jury believed that he was leading the group, rather than himself being led by someone else.

The court rejected the government’s argument that Garcia-Garcia’s statements were merely cumulative to the testimony of available witnesses.  While acknowledging that under United States v. Lujan-Castro, 602 F.2d 877, 878-79 (9th Cir. 1979) (per curiam), the government may ask a criminal defendant to relinquish his rights to retain deportable witnesses, it stated that it can only do so if the waiver is knowing and intelligent.  It found that that the district court’s ruling that Leal-Del Carmen had waived his right to retain the witnesses was unsupported, given the failure of the government to produce a signed waiver.

The court also found that the district court had abused its discretion in denying Leal-Del Carmen’s motion in limine to have the video tape of the interview played at trial, along with a presentation of a transcript of the same. It wholly rejected the district court’s conclusion that Garcia-Garcia’s testimony was not material, indicating further that materiality was not even the standard that should have been applied to that motion.  Rather, the only standard on the motion in limine was that the evidence be relevant, and admissible hearsay.  Of course, the statements by Garcia-Garcia were relevant and the court found that the video was admissible under the forfeiture by wrongdoing hearsay exception, citing F.R.E. 804(b)(6).

The court further found that the district court abused its discretion in rejecting Leal-Del Carmen’s request for a missing-witness instruction, finding that Garcia-Garcia, as an individual lacking a lawful immigration status was subject to the federal government’s exclusive authority to parole her into the country to testify.  Chief Judge Kozinski, writing for the panel, having meticulously outlined rejections of all of the government’s arguments and disapproval of its actions in this matter, finally expressed exasperation when addressing the government’ argument that it wasn’t responsible for Garcia-Garcia’s absence because it no longer knew where to find her.  That argument, Chief Judge Kazinski wrote, “comes close to classic definition of Chutzpah.”  Not surprisingly, that argument was rejected, and the conviction was reversed.