669 F.2d 1131 | 6th Cir. | 1982
Lead Opinion
This appeal concerns the compulsory process guarantee of the Sixth Amendment. The first question is whether the government may, by its unilateral action, make material witnesses in a criminal prosecution unavailable to the defendant. We hold that such action by the government violates constitutional rights of the defendant. The second question is what showing must be made by a defendant who has suffered this constitutional deprivation in order to entitle him to judgment dismissing the charges against him. These issues have arisen frequently in other circuits in prosecutions for transporting or harboring illegal aliens. The Ninth and Fifth Circuits have dealt with them on a number of occasions, and the Seventh Circuit has done so in at least one case.
I.
A.
The defendants Carlos Armijo-Martinez (hereafter Martinez) and his son, Carlos Ar-mijo-DeLeon (hereafter DeLeon) were arrested by agents of the Immigration and Naturalization Service (INS) near Pullman, Michigan on August 6, 1980. The agents had procured a search warrant for vehicles driven by the defendants on the basis of information that they were engaged in transporting illegal aliens to and from work on farms in the vicinity of Pullman. Both defendants are citizens of Mexico who have permanent resident alien status in the United States and live in the Pullman area. On the morning of the arrests INS agents saw a number of men getting into two vans, which .were then driven away from the loading point by the defendants. When the vans were stopped by the agents, the one being driven by DeLeon was found to contain 13 men and the one driven by Martinez containing five male passengers. All appeared to be Hispanic. Concluding that all the passengers were illegal immigrants, the INS agents placed the two defendants and the 18 occupants of the vans under arrest.
Later in the day of their arrest the defendants gave statements to the agents. DeLeon’s statement was written out by an agent in longhand and signed by DeLeon. The statement of Martinez was in question and answer form. Both statements contained admissions that the defendants knew their passengers were illegal aliens, and De-Leon’s statement added that he knew some of the aliens had been in the United States for about one year. The 18 occupants of the vehicles were also interviewed. All admitted that they were in the United States illegally. The 18 illegal aliens were
B.
On the day following the arrests a criminal investigator for the INS filed a complaint against each of the defendants. Both complaints listed four of the illegal aliens, two from each van, as material witnesses. On the same day, August 7, 1980, each defendant made an “initial appearance” before a magistrate who set appearance bonds. At this initial appearance each defendant requested that an attorney be appointed to represent him. The following day, August 8th, letters were sent to two attorneys notifying them that they had been appointed to represent defendants. It is undisputed that Norman Kravitz, appointed to represent DeLeon, received his notification of appointment on August 11th, and that Michael Sefton received notice on August 12, 1980 that he had been appointed to represent Martinez.
On August 7th the government also made motions in each case requesting the court to set a cash bond for each of the four illegal aliens named as material witnesses in the complaints and who were being detained. In accompanying affidavits the INS criminal investigator stated that unless safeguards were imposed to avoid flight of each of the material witnesses, “It would be impracticable to secure his presence by subpoena as he would be in a country outside the United States.” Bond for each of the witnesses was set at $1,000 and the four aliens were then committed to the Kent County jail as material witnesses. One of the four posted a $1,000 bond and was released on August 20th. The other three remained in jail for 43 days until bond was reduced to $50. At least one of the four was missing at the time of the hearing in district court. On August 8th the remaining 14 illegal aliens were sent by the government to Detroit, where they were offered, and accepted, voluntary departure in lieu of deportation. The 14 were then taken at government expense to El Paso, Texas, reaching there on August 10th. By August 12, 1980 all 14 were in Mexico.
C.
On August 13, 1980 a federal grand jury indicted DeLeon on 13 counts of transporting an illegal alien within the United States in violation of 8 U.S.C. § 1324(a)(2),
The defendants were arraigned on August 25th. On September 26th both defendants filed motions to require the government either to produce the 14 illegal aliens or dismiss the indictment. A hearing on these motions, which consisted of statements by opposing counsel, was held by the district court. The government conceded that none of the 14 illegal aliens had been available since their return to Mexico on August 12, 1980.
Attorney Sefton, representing Martinez, stated that one of his passengers who had been permitted to return to Mexico had been the spokesman for the group and was the one who had contacted Martinez about finding work for them. The testimony of this witness was required to establish Martinez’s claim that the five men had been working in a Chicago plant for a long time and had come to Michigan when the plant had closed. He also contended that the admissions in his client’s statement did not constitute a confession.
The assistant United States attorney argued that the statements of the defendants, which the government considered to be confessions, were directly contrary to the claimed need for the witnesses, since both defendants admitted they knew the people they were transporting were illegal aliens. The government attorney pointed out that counsel for the defendants had taken no steps to depose the four detained witnesses because they wanted these witnesses to testify at the trial. Actually Kravitz had interviewed three of the detained witnesses prior to the hearing. Arguing a theory of waiver, the prosecutor stated that interest of defense counsel in the 14 aliens who had returned to Mexico “heightened” only when they learned that the 14 were gone. The government attorney expressed her concern about the due process rights of persons who are detained for long periods as witnesses without being charged with an offense. At the conclusion of her statement the prosecutor admitted to the court that the government would be unable to produce any of the 14 for trial.
D.
The district court expressly found that the defendants had not waived their right to the testimony of the 14 missing witnesses. The court found that the witnesses became unavailable before defense counsel had an opportunity to interview them or attempt to delay their voluntary departure. Further, the defendants could not know what these persons might say about their cases because of the lack of opportunity for their lawyers to interview them. Since the 14 were eyewitnesses to the events which were the basis of the charge, they were material witnesses. Under these circumstances the district court found that the missing witnesses could conceivably benefit the defendants and that counsel had made at least the “slightest suggestion” that testimony of the 14 would be helpful to both defendants. The court found that the confessions were immaterial to his decision since the defendants could not be convicted on the basis of the confessions alone. Concluding that the Sixth Amendment right of the defendants to compulsory process had been denied by the unilateral act of the government, the district court granted the motions and dismissed the indictments, and the government appealed.
II.
The district court stated that it was applying the rationale followed by the Ninth
In United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974), the court was confronted with a similar set of facts. Out of 39 illegal aliens arrested in a raid, all but four were released to Mexico before the defendants or their attorneys had an opportunity to interview them. All of the 35 who were released had either been interviewed by government agents or had testified before a grand jury before returning to Mexico. The remaining four were either paroled into the United States or kept in custody. In affirming the district court’s dismissal of the indictments, the court stated:
The trust of Mendez-Rodriguez is to prevent the basic unfairness of allowing the government to determine which witnesses will not help either side and then to release those witnesses, for all practical purposes, beyond the reach of the defendant. Compare United States v. Romero, 469 F.2d 1078 (9th Cir. 1972), cert. denied 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973). The vice lies in the unfettered ability of the government to make the decision unilaterally. The Sixth Amendment guarantees a defendant the right to subpoena favorable witnesses. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019 (1967). Here, the government placed witnesses, who may have been favorable to the appellees, outside the power of our courts to require attendance. In Mendez-Rodriguez we held that this same act denied the accused due process because it interferred with his ability to defend himself from criminal charges. 450 F.2d at 4-5. A defendant has the right to formulate his defense uninhibited by governmental conduct that, in effect, prevents him from interviewing witnesses who may be involved and from determining whether he will subpoena and call them in his defense.
Having based our decision in Mendez-Rodriguez on the Fifth and Sixth Amendments, we must be careful not to make an artificial distinction which in actuality fails to mandate a different constitutional result.
Id. at 423.
United States v. Valenzuela-Bernal, 647 F.2d 72 (9th Cir.), cert. granted, - U.S. -, 102 S.Ct. 501, 70 L.Ed.2d 377 (1981), involved an indictment for transporting a single illegal alien. However, at the time of the defendant’s arrest three illegal alien passengers from his vehicle were captured. All were interrogated and none offered any information exculpatory of the defendant. Two of the aliens were deported to Mexico and the one named in the indictment was detained. In discussing its earlier decision the court set forth the essential elements of Mendez-Rodriguez as distilled from a survey of its “progeny”
In its only reported decision on the subject the Seventh Circuit has adopted the rule and reasoning of the Ninth. In United States v. Calzada, 579 F.2d 1358 (7th Cir.), cert. dismissed, 439 U.S. 920, 99 S.Ct. 294, 58 L.Ed.2d 266 (1978), the court made it clear that dismissal is not required in every case where a potential alien witness somehow becomes unavailable. However, upon finding that the government had acted affirmatively to make three of 13 alien witnesses unavailable, the court in Calzada concluded that dismissal was required. The court also held that the defendant was not required to show prejudice, since such a requirement would “emasculate the defendants’ right to compulsory process” in cases of this kind.
Since no defendant could ever be able to show with any degree of assuredness what a witness whom he has never interviewed might say on his behalf, a demonstration of prejudice will be impossible.
Id. at 1362.
While agreeing with the Ninth and Seventh Circuits that a criminal defendant’s constitutional rights are violated when an alien is deported
III.
A.
All courts which have considered the issue agree that a constitutional violation
B.
The government urges us to require a showing of prejudice and argues that the defendants in the present case have failed to establish prejudice because they have not made the “slightest suggestion” of what testimony of the missing witnesses might be helpful to them. Though some showing of prejudice is required, we agree that a “very low threshold” properly defines the burden of a defendant in these cases. The inescapable fact is that no one knows what a witness may have observed or heard until he or she has been interviewed.
Chief Justice John Marshall confronted the scope of the compulsory process clause while sitting as a circuit judge in the treason and misdemeanor trials of Aaron Burr.
In one of the few eases in which the Supreme Court has dealt with the compulsory process clause, Chief Justice Warren wrote in Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967):
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
We conclude that the district court properly determined that the defendants DeLeon and Martinez had made sufficient showing of prejudice. They articulated the
C.
The government also argues that we need not decide this case on the basis of decisions by other courts in illegal alien cases. It maintains that there are controlling principles from other types of prosecutions which should guide us. The government relies particularly upon this court’s decision in United States v. Barker, 553 F.2d 1013 (6th Cir. 1977). In Barker the defendants subpoenaed several government employees who had been engaged in investigating the crime with which they were charged. Though the court issued the subpoenas at government expense pursuant to Rule 17(b), Fed.R.Crim.P., they were never served by the marshal, and the witnesses did not appear. This court held that the defendants were deprived of a fair trial. Though written reports of the investigations by these witnesses were available, the defendants were found to have made a showing that their live testimony was necessary to an adequate defense. The court stated the test for determining “necessity” under Rule 17(b):
.. . the appropriate standard is whether defendants have alleged that the witnesses will testify about facts that are relevant to any issue in the case.
Id. at 1021.
It can hardly be argued that eyewitness evidence in a criminal prosecution is not “relevant to any issue in the case.” Though Barker was decided under Rule 17(b), the court noted that Sixth Amendment rights were involved. To the extent that constitutional rights were considered in Barker, we find nothing in its holding or its discussion of the issues which is inconsistent with our holding in the present case. In Barker the witnesses sought to be subpoenaed had submitted written reports which set forth the results of their investigations. Even though the defendants could have relied upon these reports, the court held they were not required to do so, but were entitled to have live testimony at their trial. The instant case presents a much stronger showing of necessity. Because the government made it impossible for the defendants or their attorneys to know what testimony might be forthcoming from the missing witnesses, the showing of need for the witnesses made at the hearing was sufficient.
The government also relies on United States v. Mosca, 475 F.2d 1052 (2d Cir.), cert. denied, 412 U.S. 948, 93 S.Ct. 3003, 37 L.Ed.2d 1001 (1973). In that case the government had facilitated the departure of a potential witness from the United States. However, in considering motions for a new trial, following guilty verdicts, the district court ordered the witness’s testimony to be taken before an American Vice-Counsul in London, England and directed the government to reimburse defendants’ counsel for the expenses of attending. After reading the entire deposition, the court of appeals determined that the defendants had failed to show any prejudice from their inability to call the missing witness to testify at trial. Under these circumstances the court found that any denial of the defendants’ right to compulsory process was harmless error. 475 F.2d at 1058 n. 15. Mosca cannot be deemed authority for reversing the
D.
Finally, the government contends that even if a constitutional violation was shown in this case, the drastic remedy of dismissing the indictment was not justified. This argument rests almost entirely upon the recent decision of the Supreme Court in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). Morrison involved the violation of a different Sixth Amendment guarantee — the right to counsel. There agents of the Drug Enforcement Agency talked with a defendant out of the presence of her retained counsel and attempted to undermine the attorney-client relationship. The court of appeals held that this Sixth Amendment violation required dismissal. The Supreme Court reversed, holding that remedies for violation of Sixth Amendment rights “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” 449 U.S. at 364, 101 S.Ct. at 668. After reviewing a number of its earlier decisions the Court summarized its past treatment of infringements of the right to counsel as follows:
Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant’s right to counsel and to a fair trial.
Id. at 365, 101 S.Ct. at 668 (emphasis added).
The holding in Morrison was:
.. . absent demonstrable prejudice or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.2
Id. at 365-66, 101 S.Ct. at 668 (emphasis added). We have emphasized the language in Morrison which we feel distinguishes it from the present case. Where any less drastic remedy than dismissal will preserve a defendant’s right to a fair trial, society’s interest in the administration of criminal justice requires that the less drastic remedy be employed to that end. However, when the constitutional violation is such that the criminal proceedings cannot go forward without continuing the violation, dismissal is the appropriate remedy. This is such a case. The adverse impact of the government’s unilateral action upon these criminal proceedings cannot be removed by any remedy short of dismissal. We believe the district court tailored relief appropriate to the continuing prejudicial effect of the violation.
IV.
We have held that the defendants in the present case crossed over the “very low threshold” for showing prejudice. Society’s interest in avoiding aborted criminal prosecutions can be served by a change in the government’s procedures following arrests for violation of 8 U.S.C. § 1324. The government could adopt the practice of giving immediate notice to counsel for defendants in such cases of its intent to deport or grant voluntary departure within a certain time to illegal aliens who are material witnesses. Counsel could be told of the proposed date of deportation or departure and informed that the witnesses would be available for interviews until that date. Having given notice, the government would furnish appropriate facilities for the interviews.
The district court’s practice of notifying counsel by mail of their appointment added to the problem in the present case. Here counsel had no opportunity to talk with the eyewitnesses because they were either in Mexico or at the border when counsel were notified of their appointments. The better practice would be to notify counsel by telephone immediately after the appointments are made so they will be able to move quickly in any case where the government intends to deport or facilitate the departure of alien witnesses. We will not hesitate to apply waiver principles where it appears that a defendant or counsel have not acted diligently to learn whether the persons scheduled for departure are actually “witnesses in his favor” whom he is entitled to obtain by compulsory process under the Sixth Amendment. However, when a defendant has been deprived by unilateral action of the government of any opportunity to learn what the testimony of a material witness would be, if available to testify, we hold that the requirement of prejudice is satisfied by a showing which identifies the relevant issues about which the missing witness might reasonably be assumed to have knowledge. A finding that a defendant could conceivably benefit from the testimony of such a witness is not foreclosed by ex parte statements of such witnesses to government agents where counsel for the defendant had no opportunity to cross-examine.
The judgment of the district court is affirmed.
. 8 U.S.C. § 1324(a)(2) (1976) provides:
(a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
(2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law; any alien, including an alien crewman, not duly admitted by an immigra-
tion officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.
. The court discussed several of its opinions where dismissal was denied because the government had not taken unilateral action to make witnesses unavailable, the defendants had an opportunity to interview the witnesses before they became unavailable, or the missing persons were not potential witnesses to the criminal act. All of the cases were distin
. We agree with the Ninth Circuit that there is no distinction between deportation of an alien witness and the government’s facilitating the return of a witness to a foreign country voluntarily where its action prevents a defendant from interviewing the witness before trial. See United States v. Gonzales, 617 F.2d 1358, 1363 (9th Cir.), cert. denied sub nom. Patel v. United States, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980).
. See Western, The Compulsory Process Clause, 73 Mich.L.Rev. 73, 101-108 (1974).
There is no claim that there was continuing prejudice which, because it could not be remedied by a new trial or suppression of evidence, called for more drastic treatment. ...
. We consider the dissent’s reliance on Morrison to be misplaced. In Morrison it was possible to “neutralize the taint” of the constitutional violation and then proceed with the trial. That opportunity was not presented in this case. Because the eyewitnesses had already been put beyond the reach of the defendants and their counsel by unilateral action of the government, the Sixth Amendment rights of the defendants could be preserved only by dismissal. The dissent, like the government, attributes too little importance to the role of defense counsel. As the Supreme Court said in Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966), “The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” (Footnote omitted).
Dissenting Opinion
dissenting.
I agree with the majority that in its efforts to deal promptly with a large number of illegal aliens, the government in this case inadvertently violated defendants’ rights to compulsory process under the Sixth Amendment. I respectfully disagree with the majority’s conclusion that dismissal of the indictments is the appropriate remedy on the record now before us. In United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981), a unanimous Supreme Court held that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate” as a remedy for even a deliberate violation of constitutional rights (emphasis added.)
The majority “conclude[s] that the district court properly determined that the defendants DeLeon and Martinez had made sufficient showing of prejudice” to warrant dismissal of the indictments, at 1137. The District Court refused to inquire whether the missing witnesses would be of help to defendants. It made no findings of fact on whether defendants were actually prejudiced in the case. Defendants did not testify at the hearing held on defendants’ motion to dismiss the indictment. Nor did they file affidavits. The only claim of prejudice was a suggestion by counsel for De-Leon that, according to his client, the missing witnesses might testify that the aliens still remaining in this country showed him evidence of their lawful status here. This statement of DeLeon through his counsel was not subject to cross-examination. It was not made under oath. No protection existed against the possibility that DeLeon was lying or that there was no basis for his supposition.
Deciding without the benefit of Morrison, the District Court reviewed eases from the Fifth, Seventh, and Ninth Circuits that have dealt with this same issue, all of which, of course, were also decided before Morrison.
It is difficult to imagine a case where it would not be “conceivable” that a missing eyewitness could help a defendant or where the “slightest suggestion” of such help could not be made. Because the District Court did not consider the likelihood the missing witnesses could actually benefit the defendants, its decision cannot be the equivalent of a finding that the defendants were prejudiced, unless “prejudice” is defined so broadly as to be meaningless. The majority’s treatment of the District Court’s opinion makes it clear that automatic dismissal of the indictment is required whenever the government has made eyewitnesses unavailable.
I can think of no better way to illustrate the error in the majority’s opinion than
The only suggested defense available to the defendants is that they did not- have knowledge that the four remaining aliens were here illegally. Although counsel for DeLeon claimed to have interviewed the two remaining aliens his client is charged with transporting, he did not claim that those aliens, who would best know whether they showed DeLeon any documentation, would support DeLeon’s claim that they showed him documentation of their lawful presence here. In his brief on appeal De-Leon admits that these remaining aliens would not support him.
Further, both Martinez and DeLeon gave lengthy confessions admitting that none of the aliens had any papers showing their lawful presence in this country, admitting that the defendants knew the aliens they transported were here unlawfully, and detailing defendants’ extensive involvement with the illegal aliens. The majority attaches little significance to the confessions because they are not conclusive of guilt and defendants have the right to try to convince the jury of their unreliability. This is true but is not dispositive on the issue of prejudice. Unless some challenge is made to the confessions they at least demonstrate how unlikely it is that any of the unavailable witnesses would testify that the aliens still here did show the defendants documentation of their lawful presence. This is especially true if the remaining aliens will not themselves corroborate the defense. The confessions could appropriately be challenged at a hearing on prejudice, but no such hearing was held.
Martinez’s case is particularly striking. Although counsel for DeLeon suggested how his client might be harmed by the removal of the witnesses, no significant claim has been made that the missing witnesses would be of any use to Martinez.
The majority asserts without explanation that no remedy short of dismissal would cure the prejudice caused by unavailable witnesses. In Morrison, supra, 449 U.S. at 364, 101 S.Ct. at 668, the Supreme Court stated:
Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.
I would remand this case to the District Court for a hearing on whether either defendant has demonstrated prejudice or substantial threat thereof by the departure of the aliens. Defendants should be required to make some threshold showing that the departed aliens could provide evidence material to their defense. The court could then require the government to show by a preponderance of the evidence that defendants were not prejudiced under the totality of the circumstances. If specific prejudice is identified the District Court should consider whether a sanction less severe than dismissal of the indictments can provide the necessary cure.
I fully endorse the majority’s admonition to the District Court to act more promptly where defendants are in custody in notifying appointed counsel of their appointments.
. The majority distinguishes Morrison on the ground that here, unlike in Morrison, any prejudice cannot be remedied by a sanction short of dismissing the indictment. At 1139, 1140 n.5. Under Morrison, though, a finding of prejudice is a necessary prerequisite to dismissal of the indictment, or to any other remedy for that matter. 449 U.S. at 365, 101 S.Ct. at 668; id. at n.2. As set out below, I disagree with the majority on whether prejudice was shown here. On the necessity of some showing of actual prejudice before dismissal of an indictment is warranted, Morrison is not distinguishable from this case.
. I am aware of only one case decided after Morrison that addresses the question we have here. In United States v. Valenzuela-Bernal, 647 F.2d 72 (9th Cir. 1981), the Ninth Circuit, without even mentioning Morrison, followed its precedent to dismiss an indictment despite the absence of any significant showing of prejudice. The Supreme Court has granted certiorari in this case. - U.S. -, 102 S.Ct. 501, 70 L.Ed.2d 377 (1981).
. The District Court misinterpreted the Fifth Circuit’s holding in Avila-Dominguez. The court refused to dismiss the indictment because the defendant did not make the “slightest suggestion” that an unavailable witness would help him. This is not the same as holding that dismissal would be granted where a defendant did make the slightest suggestion of a possible benefit.
. The one statement made on behalf of Martinez was made by his attorney who only said that he would like to talk to the now unavailable illegal alien who arranged to bring the other aliens to Michigan. Counsel did not explain how this talk would be of any benefit at all to his client’s defense.