United States v. Juan Ramirez-Lopez

SILVERMAN, Before: ALARCON and Conclusion TEILBORG, Judges, Circuit District no set prove Homedics can of facts Judge.* con- its claim that the insurance support reasonably tract at issue can read be ORDER require against ACE to defend Homedics patent infringement. claims of Nikken’s 24, Opinion 2002, September filed Therefore, Homedics has failed to state slip op. appearing upon relief can granted. claim which (9th Cir.2002), may is withdrawn. It 12(b)(6). Fed R. See Civ. Pro. precedent by not be cited as or to this any court or district court Ninth dismissing The district court’s. order Circuit. Homedics’ is AFFIRMED. complaint

MONTANA TO LIFE RIGHT ASSOCIA

TION; Right Montana to Life Politi Daffin, Committee; cal Action Julie America, UNITED STATES Right President of Montana to Life Plaintiff-Appellee, Association, Plaintiffs-Appellants, v. RAMIREZ-LOPEZ, Juan Defendant- EDDLEMAN, ca Robert his official Appellant. County Attorney pacity as for Still County, Montana, water and as No. 01-50164. County representative class of Appeals, States United Court of

Attorneys Montana, in the State of et Ninth Circuit. al., Defendant-Appellee. Argued and 2002. Submitted March No. 00-35924. Filed Jan. 2003. Appeals, United States Court Ninth Circuit.

Filed Jan. Bohnet, Jr., Bopp, Bopp,

Eric C. James Bostrom, Haute, IN, &

Coleson Tere Ken- Rice, Helena, Gray, H. &

neth Jackson

MT, Plaintiff-Appellant. Helena, Morris, Attorney

Brian M. Gen- Office, Bond,

eral’s Sarah A. Office of General, Helena, MT,

Attorney for Defen-

dant-Appellee.

* zona, Teilborg, sitting by designation. The Honorable James A. United Judge District for the Ari- States District of

QPINION CEBULL, Judge. District (Ramirez-Lopez) Ramirez-Lopez Juan jury for of his conviction seeks reversal criminal violations U.S.C. (a)(1)(A)(ii), 1324(a)(1)(A)(i), § (alien (a)(2)(B)(ii) (a)(1)(B)(iv), smug profit, gling, smuggling alien resulting aliens transportation death). He was a term sentenced to (78) appeal, seventy-eight months. On issues, the Defendant raises number of (1) specifically, whether Defendant’s compulsory process process due rights were violated when the Govern ment removed witnesses from the United in before Defense Counsel could States terview them because either faith failed demonstrate bad case; prejudice to his Government or (2) improper inadmissible evidence and argument the Government occurred trial that would constitute reversible er (3) ror; tri errors occurred at cumulative (4) error; justify al reversible § 8 1324 is unconstitu whether U.S.C. light Supreme in tional U.S. Windsor, CA, Diego, Mark for S. San Jersey, ruling Apprendi Court’s v. New defendant-appellant. 530 120 S.Ct. 147 L.Ed.2d U.S. Parmley, John M. Assistant United (5) (2000); and whether evidence CA, Attorney, Diego, States San for the mens rea as relates death is a re plaintiff-appellee. quired finding guilt element in under 1324(a)(1)(B)(iv). § U.S.C.

FACTS 6, 2000, March Defendant-Appellant On Ramirez-Lopez was arrested with four- teen who had crossed border others GOULD, Before KOZINSKI and Circuit States Mexico into United from CEBULL,* Judges, Judge. and District through the mountains of eastern San Die- CEBULL; Opinion by Judge County. go During crossing, Dissent due to weather, Judge party KOZINSKI inclement a member of the * Cebull, tana, sitting by designation. The Honorable F. United Richard Judge States District for the District of Mon- Upon placement voluntarily intelligently in had not and hypothermia. died Appellant Ramirez-Lopez was and Lujam-Castro waived his Miranda custody, hospital (2) taken to the for frostbite and sub- rights; delay due to the in arraign- and During interviewed. his inter- sequently Further, gov- ment. he contends that the agents, he waived patrol view border rights ernment violated his under the Due Lujan- his Miranda rights as well as his Process of the Fifth Clause Amendment Castro deportable right to retain otherwise Compulsory and Due Process Clause of interview, During that same he witnesses. they deported the Sixth Amendment when being group. denied the leader of the exculpatory nine witnesses that had and agents patrol When border interviewed testimony regarding material his role group, the other fourteen members of the charged. the offense The denial of a mo- inculpated Ramirez- two of the members tion to dismiss based on a violation of group Lopez guide as the or leader of the rights constitutional is reviewed de novo. remaining exculpated while the members Lam, United States F.3d him, denying guide. that he was the Rath- (9th Cir.2001) (Sixth Amendment); United er, they guide stated that their had aban- Muro-Inclan, States v. doned or that did not have a them (9th Cir.2001) (Due Process). to the Defendant’s Lu- guide. Pursuant waiver, jam-Castro patrol the border re- Lujan- Waiver Miranda and A. turned all but five of the witnesses. The Rights Castro did not ascertain the exact Government deported home addresses of the witnesses. determining whether a volun Border Patrol officers retained two wit- tary intelligent waiver of Ramirez- inculpated Ramirez-Lopez nesses that Imjan-Castro rights Miranda Lopez’s exculpated three his involvement as had, the district court held an eviden guide. tiary hearing on the motion Defendant’s trial, Ramirez-Lopez Prior to made a suppress the waivers and a motion to dis number of motions in limine. Specifically, hearing, miss the indictment. At that Ra grounds he moved dismissal various mirez-Lopez argued that he did not waive (1) including involuntary waiver of his Miranda rights his nor did waive his (2) Lujan-Castro rights; Miranda and the Lujan-Castro right to retain otherwise de unconstitutionality charges against portable Ramirez-Lopez witnesses. ac Jersey; him in light Apprendi v. New that of his knowledges he advised (3) delay and the unreasonable between Lujan-Castro rights Miranda and and did custody arraignment. and The district waivers, voluntarily sign but he con both court denied the Defendant’s motions. knowingly tends that were not done or intelligently. ANALYSIS Ramirez-Lopez’s I. Were Due Process that at hear- Specifically, argues he Rights Compulsory Process Vio- ing, he testified that he had little edu- lated Re- When Government write; cation; that he could not read or moved Witnesses from the United just hospitalized that he had been Before Defense States Counsel feet; in another frostbite on his and that Could Them? Interview involving group a that case aliens seized area, day and in that the Gov- same same

Appellant Ramirez-Lopez contends witnesses, all eight ernment had detained that the district court erred when it failed (1) inculpatory informa- provided to dismiss the indictment because he all of whom (9th Cir.1979). More- tarily. 602 F.2d 877 in a different regarding tion Defendant over, case.1 a defendant not understand all need possible consequences that would flow Subsequent hearing, the district right waiving from in order to execute a Ramirez-Lopez’s motion to court denied Peterson, 924 valid waiver. Derrick v. Lujan-Castro suppress Miranda and (9th Cir.1990). review, Upon F.2d that The district court found waiver. that court did we find district not Spanish-speaking had fluent Government by finding that interviewing Ramirez-Lopez,' commit clear error Ra- agent Ramirez-Lopez was and under- responsive intelligently mirez-Lopez knowingly and him and questions asked of stood right deportable waived his detain alien Ramirez-Lopez any made no mention witnesses. during the

pain interview. Delay B. in Arraignment are re suppress

Motions to Percy, Ramirez-Lopez alleges that viewed de novo. United States v. Cir.2001). (9th F.3d On it failed to dis district court erred when facts, aforementioned the district court or, alternative, suppress in the in miss Ramirez-Lopez’s waivers held were delay in ar criminating statements due to knowingly, and volun intelligently made raignment. We review the district court’s tarily. A review the record reveals that clear ruling for error. United States court’s Ra findings supporting the district Padilla-Mendoza, (9th Cir. mirez-Lopez’s Miranda waiver were more 1998). Ramirez-Lopez was taken into cus Lujan- upholding detailed than those tody approximately 10:30 a.m. on March waiver. Given that the waivers Castro day, That con same the Mexican were made within the same interview and came and him. Also on spoke sulate frame, impute time we the district court’s day, agents spent trying time to iden Ramirez-Lopez’s findings Miranda to the body tify the dead that was found. At Lujan-Castro and hold the district waiver approximately agents gave 7:40 p.m, the court’s failure to make a more detailed warnings Ramirez-Lopez Miranda finding, Ramirez-Lopez’s Lujan as to began interviewing him. Prior to his ar waiver, Castro harmless. raignment, agents not did interview addition, Ramirez-Lopez con again. him Although did Lujan that when his tends he waived interview, at the not confess he did make coun right, Castro was not assisted incriminating Agents spent statements. sel and was not as to how informed day complaint the next preparing the might witnesses nor to what used facts interviewing multiple material witnesses. might testify. Whether a arraigned a.m. He was until 10:07 intelligently knowingly waiver was 8, morning March 2000. On of March is reviewed error. made for clear United 8, 2000, magistrate judge reviewed the (9th Amano, 801, States v. 229 F.3d 803 complaint proba Government’s and found Cir.2000). A reading of States v. United support. cause for its ble Lujan-Castro require reveals no stated the re Ramirez-Lopez contends ments that counsel is neces assistance of sulting delay of from cus almost 48 hours sary Lujan-Castro a before waiver of a had, tody arraignment clearly to right long can be as the waiver so is knowingly, intelligently purposes justified made and volun- of interrogation Matus-Leva, v. 1. United.States 311 F.3d 1214.

1151 Deportation unreason C. The Witnesses was the indictment for dismissal of of or, not in Violation Ramirez-Lo- delay very at the unnecessary able and pez’s Right Compulsory to Due Pro- least, any incriminating suppression of cess As Ra may have made. statements cause probable his

mirez-Lopez received Ramirez-Lopez contends that hours, 48 he carries determination within the district court erred when denied his the border proving burden of fight motion to dismiss in of the Govern delayed unnecessarily patrol agents having deported ment material witnesses him. interrogate River hearing order right Compulsory in violation of his Due 44, 111 500 S.Ct. McLaughlin, side v. U.S. right and Fifth Process Amendment (1991) 1661, (citing 114 L.Ed.2d 49 Ger Due Process. United States v. Valenzue 854, 103, 420 95 S.Ct. Pugh, 858, 3440, stein v. U.S. la-Bernal. 102 S.Ct. U.S. (1975)). (1982). 43 L.Ed.2d 54 73 L.Ed.2d also He contends that the district court erred when denied 5(a) Procedure Federal Rule of Criminal his motion to have the statements of the making an arrest requires officer “[a]n jury. material witnesses read ... arrested under a warrant take the [to] an indictment should be dis Whether delay person unnecessary without before missed for failure of the Government magistrate available nearest retain alien witnesses is reviewed de novo. Poyck, judge....” United States Van Armenta, 304, United States v. (9th Cir.1996). require- This F.3d (9th Cir.1995). Ramirez-Lopez contends against presumption ment is balanced that there was a reasonable likelihood that by magistrate complaint that a reviewed testimony of the removed witnesses judge pre- within 48 hours of arrest could have affected the trier of fact and Riverside, 500 at sumed reasonable. U.S. deporting act his the Government’s bears 111 S.Ct. 1661. Defendant of his potential witnesses was violation showing any delay “the burden Valenzuela-Bernal, process rights. due unreasonable.” Id. 874, 102 at S.Ct. 3440. 458 U.S. delay in The district court found that the parties agree Both that the mere arraignment was reasonable due to the of a witness the Govern deportation interviewed, number of witnesses to be a violation of the ment does not constitute Ramirez-Lopez’s need for medical treat- Process Compulsory Due Clause ment and the circumstances behind or of the Due Process Sixth Amendment crossing death of one of the border mem- Id. of the Fifth Amendment. Clause conclusion, the dis- reaching bers. In its the burden falls on the defendant Rather that, after significant trict court found it showing” that “plausible to make a evening of March the interview on the deportation of a witness Government’s no further inter- agents conducted question wishes to whom the defendant prior arraignment. with him views testimony that would have deprived him of case, of this we find the the circumstances defense, favorable to his been material and County delay was not unreasonable. ways merely “in cumulative to Riverside, 56-57, 500 U.S. S.Ct. witnesses.” Id. at testimony of available 1661; Ac- Poyck, 77 F.3d at 288-89. Van 873, 102 S.Ct. 3440. cordingly, we find that the district court sup- on a Valenzue denying prevail did not err in the motion In order to claim, Ramirez-Lopez must sat pre- of la-Bernal press the statements on the basis (1) initial isfy two-prong test of an show- delay. arraignment 1152 testimony people acted in bad leader. The of more that the Government

ing (2) faith; guide conduct in that this resulted that was not the or leader would Ramirez-Lopez’s case. Unit have prejudice been cumulative. v. U.S. Tafollo- (9th Cir.1990). (9th F.2d Dring, Cardenas, v. 693 ed States 897 F.2d 976 Cir.1991). Ramirez-Lopez contends deported have Since the witnesses would in light are prongs satisfied both likely given testimony, most the same of nine material deportation Government’s their district court’s refusal to admit allegedly testi witnesses who would Bring statements consistent in his favor. fied state holding, Valenzuela-Bernal’s as the Ra ments would have been cumulative. prong, Ramirez-Lo Reviewing first has failed how the mirez-Lopez to show showing of that a bad faith is pez contends deported were witnesses’ testimonies actually required under Valenzuela-B not Thus, “merely more than cumulative.” Rather, Ramirez-Lopez argues ernal. scope showing prej of absent a more substantial of that this misunderstood Court ruling Supreme in Valen in Ramirez-Lopez the U.S. Court’s udice than has made Ramirez-Lopez case, contends zuela-Bernal. this not under he is entitled to relief Bring, require in this added Court Bring. had the ment that the Defendant burden Additionally, Ramirez-Lopez showing make a bad faith the Gov that the district when contends court erred existed. Ramirez- ernment where none denied his motion admit the state requirement Lopez argues that this ex exculpatory light ments of his witnesses in scope Supreme of the U.S. ceeded deportation. their The record reflects holding in Valenzuela-Bernal. Court’s interviews, pa that after their the border true, Ramirez-Lopez’s argument if Even is trol made notes officers which contained Bring binding is on this irrelevant because from At statements taken the witnesses. intervening panel Supreme absent an hearing issue, Ramirez-Lopez on this en banc Court or Ninth Circuit decision. sought reports admission these contain v. F.2d Gay, United States ing the un deported witnesses’ statements Cir.1992). (9th der exception the ‘catch-all’ of Federal Further, define need not we Rule of Evidence 807. The district court in precise contours faith” con of “bad deported found the witnesses unavailable Ramirez-Lopez has text because failed rule, hearsay under the but denied Ra requisite prejudice prong establish the mirez-Lopez’s motion to the state admit required by To establish Bring. preju deported ments of the nine witnesses dice, at Ramirez-Lopez must least make grounds statements would plausible testimony “a showing that pre A district cumulative. court’s order deported would have been cluding testimony evidentiary certain anis defense, material and to his favorable ruling subject to review for an abuse of ways merely not cumulative to the testi Ravel, discretion. United States mony of Bring, available witnesses.” (9th Cir.1991). F.2d F.2d at 693-94 (quoting Valenzuela-Ber Presently, Ramirez-Lopez contends nal, 458 U.S. at 102 S.Ct. 3440 (1982)). ruling district court’s was erroneous Ramirez-Lopez was aided contrary Rules because the Federal testimony of the alien three witnesses who as well as Due Process deported face of Evidence were his Lu waiver; jan-Castro they testified trial Clause of the Fifth and the Amendment guide Compulsory was not Process of the Sixth Clause

1153 subject perjury. to penalty witness or witnesses’ and of Id. Amendment. The case, patrol present in the border In the has statements found no evidence been notes, evidence, into would presented if admitted to these the Court state- hearsay report containing the have been a ments were made under oath Ra- hearsay deported witnesses’ statements. mirez-Lopez has not directed court to (“ 801(c) ‘Hearsay’ is a See Fed.R.Evid. any other that establishes that evidence statement, than one by other made possess guarantees the statements of testifying at the declarant while trial or Aside from the trustworthiness. district hearing, prove offered in evidence cumulative, ruling deported court’s of asserted.”). truth of the matter These in witness statements contained the border admitted, reports, hearsay-with- if contain fall within patrol’s notes do not interview in-hearsay. Federal Rule of Evidence 805 hearsay exception the “catch-all” of Fed. states, “[H]earsay hearsay included within R.Evid. 807. On the aforementioned hearsay is not under the rule if excluded grounds, we find that the district court did part con- each of the combined statements denying in not abuse its discretion exception hearsay forms an to the motion to dismiss. issue, hearing on this Ra- rule.At a reports these mirez-Lopez argued II. Did the Err in District Court Ad- exception hearsay met the of the residual mitting Ramirez-Lopez’s State- rule Rule of under Federal Evidence 807 Trial; Refusing ments at at and should be admitted. Trial Grant New Testimo- Witness; ny of a Government sought Hearsay evidence to be ad Jury Allowing Consider mitted Rule 807 must have circum under Allegedly Improper Argument and stantial guarantees trustworthiness Commentary by Dur- Government equivalent exceptions the listed ing Rebuttal? hearsay States v. rule. United Sanchez- (1998) Lima, 545, (citing 161 F.3d 547 J*0Jp(b) A. Evidence Fowlie, 1059, United States v. F.3d Ramirez-Lopez contends that (9th Cir.1994)). Furthermore, the district not precluding court erred (1) must be evidence of a mate statements testimony witness from a Government re (2) fact; probative rial be more on the him garding against threat made point any for it is offered than which other Ramirez-Lopez. A trial court’s decision to can proponent procure evidence which is reviewed admit exclude evidence for efforts; (3) through serve reasonable an abuse of States v. discretion. United general purposes of the Rules of Evi (9th Alatorre, F.3d Cir. justice by dence and the interests its 2000) admit decision to trial court’s Id.; admission into evidence. Fed.R.Evid. prior pursu acts evidence of crimes or bad hearing, Ramirez-Lopez 807. At 404(b) ant to the Rule of Evidence Federal strong arguments made the three of discretion. is reviewed for abuse Unit presented prongs argu of Rule but no (2000). Chea, ed States v. 231 F.3d “circumstantial ment support for an Such decisions will be reversed guarantees of of the wit trustworthiness” only abuse of if such discretion nonconsti- statements, nesses’ as stated in Fowlie. error, not, likely tutional more than affect Sanchez-Lima, Id. the Court admitted Ramirez, ed the verdict. States witnesses, United videotaped statements (9th Cir.1999). How part, it found that the statements after ever, object if party fails to admission possessed guarantees of trustworthiness evidence, of that evidence because the declarants were under oath admission 1154 trial cannot out merit. A threat at be only plain for error. Johnson

is reviewed (1997). States, “inextricably intertwined” with a 466 viewed as 500 U.S. v. United transportation profit for of ille- charge of testimony of the Govern- During the therefore cannot be con- gal aliens and witness, Alvardo, Jose material ment’s purview of falling strued as outside him testimony from elicited Government 404(b). Ra- just prior testifying, stating that by moving him mirez-Lopez threatened demonstrating Ramirez- Evidence forth direction finger in a back and his guilt is admissible Lopez’s consciousness say anything. indicating to Alvardo not to 404(b) if de under Fed.R.Evid. the court objec- Ramirez-Lopez’s attorney made no proba is more termines the evidence testimony, but regarding at trial tion a prejudicial tive than under Fed.R.Evid. that the threat was “other now contends balancing of threats test. Evidence are not “intrinsic” “wrongs” acts” or potential wit Ramirez-Lopez against Ramirez- charges in the indictment. satisfied, ness, balancing if this test is can alleges that these statements consti- Lopez guilty knowledge. Ortiz- be used to show prior “bad acts” under Federal Rule tute (9th Gomez, Sandoval v. 404(b) therefore, of Evidence the Gov- Cir.1996). such, question As then him provided ernment should have reason- turns on whether the Government should testimony. In the alter- able notice of this its given Ramirez-Lopez notice to of. native, Ramirez-Lopez argues that even testimony regarding intent to elicit allegation notice the was baseless pretrial had made a re threat since he and, true, only if could be admitted even 404(b) quest for all evidence. showing propen- purpose for the limited that once the There is no doubt Govern- response, In sity activity. for criminal information, ment discovered this contends that the threats oc- Government could have asked for a sidebar and in- only moments before the witness curred formed the district court of the threat and testify. towas attorney ques- time to allowed defense Alvardo was led into the court- When 404(b) dic- tion the witness Rule would break, during room he sat in the back requirement. tate under the notice interpreter. spoke with the On the was in failure the Government do so stand, Alvardo that while he was states However, error. since the Defense attor- there, sitting Ramirez-Lopez turned 404(b) ney objection failed to make a Rule wagged finger around and his index at him request for lack of notice and the district unspoken attempt an to silence his testi- give court to exclude the evidence or mony. any The Government contends instruction, jury limiting this Court re- directly defect in the record is attributable plain for error. views United States object. Ramirez-Lopez’s failure to Olano, 725, 734, 113 S.Ct. U.S. (1993). 123 L.Ed.2d 508

The Government further contends 404(b) Olano, evidence, Supreme explained Court the threat was error, plain must concerning since the threat was evidence that to correct for there charged merely an actual error and not a waiver the crime and therefore “inextri Moreover, cably rights. intertwined.” United States v. War Id. the error must be Cir.1994). (9th ren, Here, “clear” or “obvious” under current law and F.3d rights” charged with trans the error must “affect substantial pro- portation profit illegal aliens into the in that it affected the outcome of the resulting ceedings. find Id. This must now bal- United States death. We Court contention is with- ance between the Government’s failure to Government’s time and re- a mistrial Ramirez-Lopez’s required failure to give notice district reversal now. quires whether the object and determine the evidence admitting in decision court’s reviews the district This Court plain in error. was rulings objections on for abuse of court’s a denial of a held that This has Court Ortland, States v. discretion. United may be deemed a mistrial error motion for (9th Cir.1997). that Given F.3d discretion, not an abuse harmless and questioning by the Government the line evi allegedly improper on when based place emphasis not intended to on was under past actions of a defendant’s dence was member and the statement deceased object 404(b), failed to if the defendant that the dis inadvertently, made we find to strike or to move contemporaneously in trict court did not abuse its discretion Guerrero, v. testimony. United States denying the motion for a mistrial. (9th Cir.1984). 1342, 1347-48 Ac 756 F.2d Ramirez-Lopez failed to since cordingly, Misconduct False Prosecutorial C. contemporaneously to Government object During Closing Argu- Assertions testimony regarding the Alvardo’s ments lYitness threat, the district court’s decision we find Ramirez-Lopez con appeal, On trial was not deny the motion for new it that the district court erred when tends in error. prose- allowed the commit Government during closing argu cutorial misconduct Err in Re- B. the District Court Did objec rulings A court’s ment. district Light fusing a Mistrial in to Grant misconduct alleged prosecutorial tions to Witness Reveal- the Government an of discretion. are reviewed for abuse Jury a Member ing to the That Sarkisian, v. 197 F.3d States United Group Died? (9th Cir.1999). Specifically, Ramirez- trial, the district court to the Prior argu during closing that Lopez alleges of the that the fact a member had ruled ment, made statements the Government during crossing was group had died (1) had been threat that defense witnesses and, prejudicial subsequently, extremely (2) ened; organization was a criminal there it at trial. Al any mention of precluded case, Ramirez- in and that involved had been told though the witnesses organization; of that Lopez part member, deceased make no mention of the (3) incorrectly asserted the Government trial, in examination at in the course of his failed to ask counsel had that defense question, Govern response to an unrelated when, fact, in had. Ra he question crucial nondescript made a ment witness Alvardo that these state mirez-Lopez contends group that a member statement total, ments, prosecutorial in amounted sidebar, Ramirez-Lopez subse At died. concedes misconduct. The Government a mistrial. The district quently moved for fact that defense misstated non statement to be court found Alvardo’s question a crucial had not asked counsel Ramirez- descript and denied his motion. fact, had, committing when, therefore testimony to moved for the Lopez neither govern But the misconduct. prosecutorial cautionary ask for a stricken nor did he harmless.2 this error to be ment contends brief, no case In his he cites instruction. the first contention Regarding position that support of his law had been defense “witnesses” nature of the evidence prejudicial extreme ER 255- you, appear disoriented.” they just lost and Argument Why didn't 2. was: (Sada) group, to question? "Did ask threatened, objected prosecutor’s remarks ‘so in Ramirez-Lopez on whether trial with fected the unfairness as grounds that there was no evidence of resulting make the conviction a denial of during response, the trial. ” process.’ Whitley, Hall v. due conclusory makes a statement Government (9th Cir.1991) (quoting Donnelly saying that since did 637, 642, DeChristoforo, 416 U.S. witness, appropriate threaten a (1974)). 1868, 40 L.Ed.2d 431 In re S.Ct. argument make the Government to viewing light the record in the of these that “witnesses” had been threatened. standards, we cannot conclude that Granted there was evidence Ramirez- prosecutorial Government’s misconduct of Lopez did threaten one the Govern- the trial unfairness” that “so infected with witnesses, expand but to that evi- ment’s Ramirez-Lopez suffered a violation of his argue Ramirez-Lopez dence best, process rights. prosecu- due At prose- than is threatened more one witness torial conduct was harmless error. The cutorial misconduct. jury present trial throughout was and As to the second contention that capable, amongst have been would them Ramirez-Lopez part larger was a of a selves, to ascertain what was said at trial organization, the states that Government weigh the closing argu Government’s presented revealing evidence was at trial Therefore, accordingly. ments we find smuggling being pro that this service was the district court did not abuse it cost, group going vided at a regarding prosecutorial discretion miscon Angeles points to Los north and that rulings during closing arguments. duct any arrangements did not make III. Did the District Err Court Not Ramirez-Lopez they going nor were Reversing Ramirez-Lopez’s Con- evidence, pay him. From this the Govern Light viction of the Cumulative Ramirez-Lopez ment inferred that Error That Occurred at Trial? part larger organization. of a As the Gov a regarding larger argues ernment’s statements that even reversal, single if no organization upon were based reasonable error warrants evidence, cumulative effect of these errors at trial so from the inferences we find that cure, prejudiced only him that the when the district court did its not abuse discre overall, cases, viewed is reversal. In some overruling Ramirez-Lopez’s tion in ob although single no trial error examined jection as to that issue. States v. United sufficiently prejudicial isolation is to war (9th Cabrera, 1243, 201 F.3d 1250 Cir. reversal, rant the cumulative effect of mul 2000); Nash, United States v. 115 F.3d tiple may prejudice errors still a Defen (9th Cir.1997). 1431, 1439 (9th Frederick, v. dant. U.S. 78 F.3d 137 Although some of the statements Cir.1996) Green, (citing United States v. during made ar closing the Government’s (9th Cir.1981)). 648 F.2d 587 there Where guments prosecutori can construed be trial, are a number of errors at “a balkan- misconduct, ultimately, al must Court ized, issue-by-issue harmless error review” decide Ramirez-Lopez’s pro whether due analyzing is far less effective than rights by prosecuto- cess were so violated overall effect of all the in the errors con rial misconduct it would render a trial text of the evidence introduced at trial “fundamentally unfair.” v. Darden Wainw against the defendant. United States v. 168, 2464,

right, 477 106 (9th U.S. S.Ct. 91 Wallace, 848 F.2d Cir. (1986). 1988). L.Ed.2d 144 appellate court Finally, alleged “whether the er must review the record prejudiced right] “to determine rors to a [defendant’s Jersey, v. New Apprendi § under of upon in turn depends trial fair . 147 L.Ed.2d 120 S.Ct. [case] the Government’s 530 U.S. strength (2000). prosecu [him; stronger alleges the statute He against ] case, likely that defendant separately the less tion’s out the substantive crime sets or miscon by error prejudiced permits would be possible penalties and from the Nadler, 698 F.2d v. duct.” United States circum penalties in certain increased (9th Cir.1983). review the district court’s stances. We novo. States of the claim de United denial case, alleged errors present In the Cir.2000). (9th Jones, claims considered toward may trial that be (1) prosecutori- are cumulative error wholly without merit. argument This during closing argument; al misconduct within the literal This case does not come (2) wit- testimony of the reasoning, be- Apprendi, nor its terms (3) threatened; the testi- being ness sentencing does not involve cahse this case group had died mony that a member that in- judge decided factors A crossing. review during the border statutory penalty beyond the crease the that the Government reveals the record Id., 530 120 S.Ct. maximum. U.S. Ra- strong against case relatively had a testimony of They had mirez-Lopez. Ra- and observed agents who interacted 1324(a)(l)(B)(iv) § Unconstitu- V. Is testimony of wit- mirez-Lopez; they had tionally Vague? that, Sada, from who stated ness Sheila Ramirez-Lopez contends that 8 observation, Ramirez-Lopez conducted her 1324(a)(2) unconstitutionally § is U.S.C. leader; himself like he was is mens rea at vague because there no party crossing the border had members of in ... fac “resulting to the death” tached guided that testifying held that the rele The district court tor. Balancing through the mountains. them unconstitutionally was not vant subsection trial committed at any errors that were Jones, novo. vague. review de We strength of the Government’s against the proscribes alien F.3d at 513. Section case, any cumulative error we find that, provides when smuggling and not at best and does was harmless error any in the death of smuggling “result[s] a reversal of his conviction. warrant penalties apply.3 will increased person,” Ramirez-Lopez’s Motion to Dis- IV. 1324(a)(l)(B)(iv>. Supreme § U.S.C. the Indictment Based on

miss “that, a matter of due as Court has held Unconstitutionality §of 1324 Un- give that fails to a criminal statute process, Apprendi. der fair notice ordinary intelligence person a conduct is forbidden contemplated that his to dismiss the Ramirez-Lopez moved statute, that it indefinite or is so unconstitutionality by on the indictment based (B) subparagraph 1324(a)(1) person violates who, provides, in relevant A 3. Section shall, (A) respect to whom for each alien in part: occurs— such a violation (A) Anyperson who— alien, (i) knowing person is an that a (iv) subpara- a violation of the case of bring the United brings attempts to to or (ii), (iii), (iv), (v) (A)(i), resulting in graph or per- any whatsoever such States in manner any punished be person, the death designated port place a other than a son at any years term of imprisoned death for or designated entry place or other than life, both. under Title or for fined 1324(a)(1). Commissioner § 8 U.S.C. (a)(l)(B)(iv) separate a encourages arbitrary and erratic arrests does mens convictions, vagueness.” is void for v. requirement. rea United States Rodri Franklin, 379, 390, 99 (9th Colautti v. 439 U.S. guez-Cruz, 255 F.3d Cir. (1979) (internal 675, 58 L.Ed.2d 596 S.Ct. 2001). Therefore, only mental state omitted). citations quotation marks and (a)(l)(B)(iv) required under subsection that, Ramirez-Lopez argues because the immigration an intent to violate laws portion in ... “resulting death” knowledge being the individuals explicit require- statute has no mens rea smuggled illegal Nguyen, are aliens. See ment, According vagueness. is void for 73 F.3d at 894. See also States v. United Ramirez-Lopez, person charged a (9th Cir.2002) Matus-Leva, 311 F.3d 1214 violation of that could be sub- subsection (holding for these reasons that the lack of ject penalties to increased even if the re- separate rea requirement mens sub sulting nothing to do with death (a)(l)(B)(iv) section does not render void Ramirez-Lopez’s smuggling. argument vagueness). lacks merit. Contrary Ramirez-Lopez’s argument, Although we have held that “criminal (a)(l)(B)(iv)’s separate subsection lack of a requiring offenses no mens rea have a requirement mens rea does not render status,” generally disfavored United States portion vague- the statute void for (9th Cir.1995) Nguyen, First, ness. it is clear from the statute’s (citations quotation and internal marks “resulting” use of the word defen- omitted), we have found that section 1324 subject dant would not an increased requirement, namely does have mens rea penalty in a case where death occurred alleged smuggler intended to vio- smuggling totally in the course of but was immigration late the laws. Id. at 894. smuggling. to the unrelated The term that, In Nguyen, this Court has stated “resulting” unequivocally incorporates a premise We start from the basic requirement puts per- causation and thus definition of the elements of a criminal ordinary intelligence sons of on notice legislature, offense is entrusted to the penalties may apply they increased if allow particularly in the case of federal smuggling exposed those are crimes, solely which are creatures of life-threatening during conditions Thus, in determining statute. what Second, process. smuggling there is no required prove mental state is a viola- danger that this subsection will chill con- (a)(l)(B)(iv)], tion of [subsection the fo- conduct, stitutionally-protected Frank- cus of our inquiry is the intent of Con- cf. lin, 439 U.S. at 99 or that it S.Ct. (internal gress. Id. at quotation 890 subject persons will be used to omitted). engaging marks and citations wholly innocent conduct criminal liabili- Moreover, “in determining the intent of ty, Nguyen, 73 F.3d 893. Subsec- cf. Congress, language we look first to the of (a)(l)(B)(iv) only provides tion increased Here, language the statute.” Id. penalties to criminally those who have the subsection at issue indicates that it smuggled intending aliens to violate the requirement, does not have a mens rea immigration laws. It thus reaches no con- accompanying whereas subsections do stitutionally-protected or innocent conduct. requirements. Compare have mens rea 8 1324(a)(l)(B)(iv) reject Ramirez-Lopez’s vagueness § We U.S.C. with 8 U.S.C. 1324(a)(l)(B)(i). circumstances, challenge § and affirm In such the district court in proper respects. is to conclude that subsection all upward court’s ad Ap- The district Err in the District Court Did VI. Upward justice Ad- under Eight-Level justment for obstruction plying an Sentencing under justment clear error. § is reviewable for 3C1.1 Christman, Guidelines? v. F.2d States United (9th Cir.1990). The district court’s 2Ll.l(b)(6)(4), a section Under sentencing phase in the findings factual upward ad eight-level an may apply court error, but must be reviewed for clear any person if are justment to the sentence of the preponderance the offense. U.S.S.G. evi supported in the course of died Fox, 2Ll.l(b)(6)(4). suggest has v. § This Court F.3d dence. United States re Cir.1999). a mens rea of recklessness (9th ed that U.S.S.G. under impose an enhancement quired to enhance § allows for two-level 3C1.1 2Ll.l(b)(6)(4). Rodriguez-Cruz, section Ramirez^-Lopez’s offense lev base ment sentencing, the dis at 1059. At el, the Ramirez- if the Court finds that Ramirez-Lopez had trict court found impeded or Lopez “willfully obstructed or Moreover, the circum recklessly. acted impede the administration of attempted to appear to be smuggling here stances of the investigation, prosecu justice during the Rodriguez-Cruz, al similar to those instant offense.” sentencing tion or of the here. less factual detail though there is 4(a) 3C1.1, spe § comment note U.S.S.G. circum present 255 F.3d at 1057-58. “threatening.” cifically includes case of similar to the stances are also finding made a The district court Herreror-Rojas, wherein States United threaten the witness Ramirez-Lopez did and this granted, court also the district finger and that by wagging his un affirmed, upward adjustment an Court 2L1.12(b)(5) that the conduct reasonably inferable § for intentional der U.S.S.G. testimony. creating substantial risk We ly recklessly intended to influence or injury death. 243 F.3d bodily serious decision find that the district court’s Cir.2001). (9th Therefore, we find Ramirez-Lopez a two-level enhance- give properly relied that the district court error, given the testi- was not clear ment 2Ll.l(b)(6)(4) federal sen section mony at trial. presented eight- an guidelines imposing in tencing AFFIRMED. person a adjustment because upward level in course of the offense. died KOZINSKI, dissenting: Judge, Circuit err ad- the District Court Did VII. imagine the conversation only can One Ramirez-Lopez’s justing Offense lawyer Ramirez-Lopez and his between Upwards Levels Based Level Two filed: opinion after of Justice? on Obstruction Juan, good I have news Lawyer: that the two- Ramirez-Lopez contends news. bad jus- for enhancement obstruction level OK, ready. I’m Give Ramirez-Lopez: that Ra- testimony at trial tice based first. me the bad news prior a mirez-Lopez threatened witness is that the Ninth Lawyer: The bad news accusation than mere trial was no more your convic- Circuit affirmed up- an upon relied for and should not be spend you’re going tion and further departure. ward prison. in federal many years witness Alva- states that the Government’s Oh, man, that’s terri- Ramirez-Lopez: untrustworthy at to be was shown rado disap- I’m so ble. in lied on the stand allegedly trial when you But said pointed. questions. to defense counsel’s response too, good there’s here and which news ones right? send back. Yes,

Lawyer: very excellent news! I’m Lawyer: Hey, worry, dude. The

excited. you. did it all for OK, Ramirez-Lopez: ready I’m They everyone, they talked to news, good

some let they kept took notes and me have it. help witnesses that would best Well, Lawyer: goes: here it You’ll be your Making you case. sure

happy that you to know had a had a fair trial was their num- perfect They got you trial. priority. ber one square! fair and Ramirez-Lopez: kidding, man. No Ramirez-Lopez: can that How be? They did all that for they keep

Didn’t me me? jail days for two Lawyer: They great did. a sure Is this letting without me country or what? a judge see law- OK, now, Ramirez-Lopez: I see it but yer? they Weren’t thing there’s one supposed to take me still confuses me. judge right before that, Lawyer: What’s Juan? away? see, Ramirez-Lopez: govern- You Yes, Lawyer: they sure were. But it’s ment took all those you OK because didn’t show great help notes to you. that it harmed We have me, just so we’d know saying here in America: No guys what all those harm, no foul. said. Ramirez-Lopez: you What do mean no them, Lawyer: Right, they I saw harm? There were very Clear, good were notes. guys my par- twelve specific, gram- detailed. Good ty who said I wasn’t syntax. told, mar and All I’d guide, say great those were some sent nine of them back notes. to Mexico. Ramirez-Lopez: Yeah, And twelve of those

Lawyer: Seeing but so what? I guys all said wasn’t judge sooner wouldn’t have guide. helped you. Ramirez-Lopez: judge Lawyer: The could Absolutely! have government Our

given lawyer me a and never hides the ball. The my lawyer could have government Iraq or Af- guys ghanistan talked to those or one of those Migra this, before the places might sent do but not them back. guys you ours. If twelve said guide, everybody weren’t the Lawyer: difference that What would about it. knows have made?. Ramirez-Lopez: My lawyer Ramirez-Lopez: Except could have I jury. the notes, figured trial,

taken was there at the guys keep out which and I remember the picture a different ten the saw jury never they just if seen offi- notes. And guys testified notes of nine cers who jury told never I saying wasn’t twelve guide. That wouldn’t guys fourteen long. taken too have I me said with were Wrong again, Juan! Those Lawyer: guide. wasn’t hearsay and in notes were Lawyer: Right. admit country we don’t jury supposed Ramirez-Lopez: Isn’t hearsay. have all the facts? come? Ramirez-Lopez: How Some facts all the facts. Lawyer: Not writing what Lawyer: guys down cumulative, others are are said could the witnesses are facts both hearsay. Some amade mistake. hearsay. and cumulative mean, maybe like Ramirez-Lopez: You you say that Ramirez-Lopez: Can of those twelve one plain English? said, guys “Juan was Lawyer: No. guide,” and the jury supposed Ramirez-Lopez: The Immigration from guy I whether to decide a mistake and made not, guide down, “Juan wrote you think right? Don’t guide”? was not the have had they might Lawyer: Exactly. if doubt reasonable right again, they’d Ramirez-Lopez: heard You’re happened the fourteen probably twelve of my party said guys I just way. bet it wasn’t me? Im- guys from those down, think that migration You’d wrote Lawyer: He-he-he! law go to only you if didn’t wasn’t “Juan Lawyers judges school. even when guide,” makes no dif- know It better. loud said witnesses jury at all ference clear I was says it or witness whether one ex- guide just— say it. witnesses a dozen fair me. tra fact, many too put on you if kind Absolutely, that’s Lawyer: witnesses, they get mad might they are. guys you you prison send very lucky to be Ramirez-Lopez: You’re time. wasting their just like working guys you did So the that. removing those big favor my I thank that. Lawyer: Amen to nine before every Sunday in lucky stars up case. your could screw church. you mean. Ramirez-Lopez: I see what now feel a lot better Ramirez-Lopez: I the about But how you’ve explained that Surely the notes? really This is it to me. got- jury have would system a pretty good crepancy the attention of the district you have here. What sought just court and enough to introduce call you do it? impeach statement, agent’s evidence to the Lawyer: process. very Due We’re but the court have of would none it—the of it.

proud agent’s statement remained uncorrected and unrebutted. * * * if Imagine the shoe were on the other question at the of heart this case is corporate A suspected foot: defendant of simple important: May the Unit- both criminal conduct interviews some of its get ed States rid of witnesses it knows employees, and careful notes takes show- provide helpful the would evidence de- ing employees that the aware were of by putting in fendant a criminal case those activity. investiga- criminal Before federal beyond power witnesses of the court witnesses, tors can corpora- talk beyond the reach of defense counsel? foreign tion whisks most of them to a land all prior In cases where witnesses were they beyond power where are a prosecution pending, removed with no trial, corporation United States. At say; knew those might one what witnesses opposes the introduction of the inculpatory they helpful could have been as to the notes, arguing interview that are Here, prosecution the defense. we have hearsay And, and cumulative. when a cor- contemporaneous showing interview notes testifies, porate officer suggests he that twelve of the fourteen witnesses ar- some of rested with the removed witnesses would the defendant made state- provided unequivocally exculpating exculpatory ments him as to evidence. only of fact in the issue case—whether any Is happen there doubt what would expedition’s guide than rather in such Any corporation a case? that tried guided. p. one of'the See 1171 n. 14 infra. pull a stunt quickly like this would find Yet nine exculpating of those witnesses itself justice, indicted for of obstruction were from removed the United States be- and the inculpatory notes would be or- appointed fore defense counsel was produced dered and introduced at trial. I before the district court had an opportuni- imagine can no other result. ty to govern- consider matter. The Should the outcome different because ment did not even trouble to obtain contact the entity put beyond witnesses witnesses, information for those frustrat- power of the court is the United ing all efforts defense to find them. Indeed, I States? think not. the United This is enough, gets bad but it much subject obligations States is to far more trial, At worse. the fact that twelve a criminal case than the defendant. Not fourteen individuals traveling who were only subject is it overarching duty with defendant him exonerated was care- objectivity fairness and recognized such fully jury. hidden from the No witness Berger States, cases as v. United 295 U.S. testify fact, was allowed to to this and the 78, 88, (1935), 55 S.Ct. 79 L.Ed. 1314 fact, interview were suppressed.

1163 lin, 44, 56, 1661, 111 500 U.S. S.Ct. 114 Is the knows exists? the defendant (1991).3 majority 49 But the is duty of fairness and candor L.Ed.2d government’s delay not agents wrong one of its to to conclude that the it allows satisfied when just government prosecutor knows because testify way in a that the unreasonable 1 government did not the time to further agents the free use is incorrect? Can Ramirez-Lopez. Maj. op. at interrogate of fundamental fair- obligation itself empower itself to 1151. Riverside held that unreasonable and candor—and ness delay “delays purpose for the of destroy exculpatory evidence and conceal includes getting gathering justify a evidence to exculpatory additional witnesses — arrest, ill delay educated a motivated will poorly from a de- signed waiver individual, delay understanding against has no of what the arrested fendant who 56, at up? delay’s for sake.” 500 U.S. S.Ct. giving he is added). (emphasis busy too to While specific my points I discuss below to a federal courthouse take defendant majority difference with various —the away, agents an only half hour were ways in which I believe the United States busy remaining not too to interview duty court failed their to district Ramirez-Lopez, pick aliens arrested with every I’m not sure that this defendant.2 and, they keep wanted to out the ones would, alone, standing one these errors to arrangements make to return the rest upon But the errors build merit reversal. defense counsel could talk Mexico before point where I cannot one another to to them. join concluding my colleagues in that Ra- I mirez-Lopez’s trial was fair. must sooner, arraigned Had defendant been respectfully dissent. therefore say morning on March 6th or the 7th, lawyers appointed have had he would Delay Arraignment I. in the day, lawyers and the could have on custody government’s permission Ramirez-Lopez was taken into obtained 6, any of talk to the before them presented magis- on March but witnesses that, later, Failing they days deported. could judge trate until two on March were majority right sought that Ramirez- an order that 8. The they had a deported not be until chance Lopez showing had the burden of unreasonable, speculate on We need not delay because his first talk them. they appointed, de- point: than 48 this After were appearance court occurred less prevent move to (although just bare- fense counsel did indeed hours after his arrest until deportation' of the witnesses ly). County McLaugh- See Riverside tigers job, fighting like for their client say I rather than "false” be- 1. “incorrect” agent in cause I have no reason to believe the preserving splendid appeal. record Rather, appears question lied. far more likely he was confused or had a mistaken government estimates that Ramirez-Lo- 3.The Nevertheless, the statement was recollection. pez at 11:00 a.m. on March was detained incorrect, question clearly no and there’s gave government until 11:00 2000. That government lawyer knew it. In such cir- bring the court a.m. March 8 him before cumstances, has a I believe hearing. probable cause The record for a duty let correct the record and not hearing suggests began on March 8 that his See, e.g., Napue v. Illi- misstatement stand. nois, just approximately 53 minutes 10:07 269-70, a.m.— U.S. 79 S.Ct. delay pre- would have become before (1959). L.Ed.2d Riverside, sumptively See unreasonable. Benja- Windsor and 2. Defense counsel Mark U.S. at 111 S.Ct. contrast, Coleman, by min did marvelous them, and the district Supreme recognized could talk court Court also this grant did the order —but it came too late. right in United States v. Valenzuela-Ber p. See 1167-68 nal, 858, 3440, 458 U.S. 102 S.Ct. infra. (1982), L.Ed.2d 1193 where considered whether, to tell for sure had It’s hard duty whether this was violated a when earlier, appointed they counsel been could criminal explain defendant couldn’t how they to the have talked witnesses before testimony helped lost would have his de But deported.4 bring were counsel did Court, clarifying fense. The Mendez-Rod following a and motion weekend it’s entire- that, riguez, held that a ly possible been Fifth Sixth they appointed had Amend earlier, presumed ment violation will not be in twenty-four they even hours could every preceding have filed the motion on the case where were witnesses removed Friday. Whether this would have government, only been but where is, again, soon enough unclear. But defen- showing defendant makes a not —albeit dant plausible has at least raised a theory, very specific showing the removed —that one that factual develop- deserves further witnesses could have in a way testified delay appointment ment. If in the been would have “both material and favor delayed counsel issuance the district 873, able to the defense.” at Id. 102 S.Ct. staying deportation court’s order of the (which likely) quite witnesses and if an Dring, United States v. 930 F.2d 687 preceding Friday, order issued the March (9th Cir.1991), we interpreted Valenzuela- 10, timely prevent would have been that, Bemal and held in order to obtain (which deportation possible), is at least reversal on government’s based remov- certainly then would defendant have shown potential witnesses, al of defense a defen- prejudice delay. Coupled from dant must show that government acted below, may other errors discussed “ ‘[Ujnless in bad faith: a criminal defen- well be sufficient undermine our confi- dant can show bad faith part on the in dence verdict. police, preserve failure to potentially use- ful evidence does not constitute denial Deportation II. of the Witnesses ” process due of law.’ Id. at 695 (quoting ago, More than three decades in United 58, Youngblood, Arizona v. 488 U.S. Mendez-Rodriguez, States v. 450 F.2d 1 (1988)). 109 S.Ct. L.Ed.2d (9th Cir.1971), we govern- held that Mendez-Rodriguez, What Valenzuela- may ment deport not alien witnesses who Dring Bemal and common is that might help the defense. at 5. Id. This is they are all cases where no one knew what hardly a proposition; remarkable it flows said, witnesses would have ineluctably, merely not from the govern- been to testify. available None were cases specific duty ment’s of fairness toward government where the defendants, got rid of criminal but from the more general provide it knew duty exculpatory of all could litigants evi- destroy evidence or put beyond particularly significant material witnesses dence. This is the reach of the court. light Dring, of footnote 7 of which discuss- record, 4. As best I can tell from the defendant whether made counsel informal efforts to talk arraigned at 10:07 bringing a.m. March to the witnesses before the motion. presumably appointed counsel was At hearing, the March 13 Wednesday This time. was a represented any that it did not know whether brought stay counsel deporta- motion of the witnesses were still in the United States following tion of Monday, the witnesses opposed Ramirez-Lopez’s attempts to March stay 13. The deportation. record does not reflect their (citations omitted) 693 n. 7 faith” under 930 F.2d at meaning “bad of es the original). (emphasis in Youngblood: then, Dring, the According to Mendez- predecessor access and its Youngblood only Rodriguez applies line of cases to potentially the loss of cases involved Thus, by govern- the ques- innocent removal of aliens evidence. the exculpatory government the re- to the ment.5 Cases where faith was essential tion of bad contrast, exculpa- provide it can way in moves aliens knows By of inquiry. Court’s tory analyzed pursuant evidence are the Maryland and v. Brady v. United States developed Brady, in in standard such failed to disclose Agurs, Government the say ques- together all it exculpato- be cases—let’s which it knew to evidence —“the Dring, faith Thus, question tion of bad irrelevant.” ry. [is] the of bad faith n. 930 F.2d at 693 7.6 irrelevant. 866, else, See, Valenzuela-Bernal, triggers id. the violation. See at e.g., 458 U.S. at what

5. 110, ("[Suppression immigration poli 96 S.Ct. 2392 of evi- ("Congress’ 102 S.Ct. 3440 in ... dence results constitutional error be- cy discussed practical and the considerations evidence, of of not the cause the character the that the Government had above demonstrate prosecutor.”); see also Cali- character of the passen good deport [defendant’s] reason to 489, Trombetta, 479, 467 U.S. 104 they gers possessed it concluded that no once fornia 2528, (1984). 413 S.Ct. 81 L.Ed.2d prosecution the de evidence relevant the or (em obviously situation is different where charge." criminal [defendant's] fense of 872, destroyed can added)); lost or before it material is phasis id. at 102 S.Ct. 3440 There, (”[T]he knows for sure examined. no one Branch responsibility of the Executive (if impact any) might on the what it have had immigration policy faithfully to execute the circumstances, it's less reason- trial. such by Congress prompt adopted justifies the de preserve everything police to able to force illegal-alien upon portation witnesses the of evidentiary might sig- have "conceivable good-faith determination that Executive's 58, nificance,” Youngblood, 488 U.S. at 109 possess no evidence defendant favorable 333, violation S.Ct. or to find constitutional (emphasis prosecution.” add a criminal only speculate that he where defendant can (" ed)); Dring, at ‘[U]nless 695 grafted a Court therefore suffered harm. The can show bad faith on the criminal defendant Brady requirement rule— faith onto the bad part preserve poten police, failure to only value the evi- applicable where the of tially does not constitute a evidence useful " the extent of ”limit[] dence wasn't clear—to process (emphasis of denial of due law.' police’s obligation to reasonable ... added)). of to that class cases confine[ ] bounds and it sense, given perfect purpose This makes justice clearly of most where the interests rights of standard and the involved: Bra- it, i.e., police cases require those in which dy of a wasn't concerned the "misdeeds that the conduct indicate themselves their "avoiding] prosecutor,” an unfair but with exonerating form a basis for evidence could 87, at Brady, 373 U.S. trial to accused.” the defendant.” Id. 1194; Youngblood, see also 488 U.S. S.Ct. (”[T]he good clear, at 109 S.Ct. 333 or bad faith perfectly faith is not rele- To be bad fails of the State irrelevant when State [is] case we know the evi- vant in this because exculpa- to the defendant material disclose exculpatory. But even if bad faith dence was added)). relevant, tory (emphasis The defen- evidence.” as the district court and were both assume, any clearly fair be- appear dant's trial doesn't become more my colleagues there government good explicitly intentions As Court cause bad here. faith destroyed dispositive Youngblood-. presence evidence. or ab- when "The stated Hence, necessarily we the evidence was ex- turn where know faith ... must sence bad any- knowledge exculpatory police’s culpatory, there's no reason focus on the resulting lost at the time was thing but "the harm to the defendant value of the evidence n, *, nondisclosure,” Agurs, destroyed.” Id. 109 S.Ct. 333. United States v. from no S.Ct. And there is doubt U.S. 104 n. harm, exculpatory (1976) destroying evidence nothing knew it was L.Ed.2d 342 —that This, course, is our case. Defendant who didn’t actually only deported here not has shown point him out a guide. helped case, witnesses would have his but you Defense Did counsel: inform him did so notes taken govern- based on some the witnesses said agents ment who interviewed the wit- guide? he was agents’ nesses. knowledge While Agent Yes, I Nieto: did. a matter imputed could be of law to the Defense And what say counsel: did he States, prosecutor Giglio v. under United respect holding to on to 150, 154, 405 U.S. 92 S.Ct. 31 L.Ed.2d those witnesses? (1972), Kyles Whitley, 514 U.S. Agent Nieto: He said we hang should 438, 115 S.Ct. L.Ed.2d 490 on to at least three people more (1995), here, necessary this is not because identify who could not Mr. Ra- agents brought the matter to per- guide. mirez aas sonal attention of the Assistant United States Attorney: Okay. Defense you counsel: Did tell Mr. In deciding Defense counsel: which Parmley many how of the aliens keep aliens and which to that stated he was not the Mexico, send back to you did guide, that Mr. Ramirez was consult with the United States guide? not the Attorney’s Office? Agent Nieto: Yes. Yes, Agent Nieto: I did. Defense counsel: And how many was you Defense counsel: Who did consult that? with at the United States At- Agent Nieto: It approximately 13. torney’s Office? Defense counsel: Thirteen altogether

Agent Parmley. Nieto: John With guide? said he was not the you Defense counsel: Did consult with Agent Nieto: Yes. you him your before made deci- Defense counsel: And he you told sion? hold on to three of those? Yes, Agent I Nieto: did. Agent Nieto: Yes. you Defense And did give counsel: him your impression as to which If this can testimony be taken at face you aliens wanted keep in value—and the government has said noth- States? United ing suggest Agent Nieto was mis- Yes, Agent I Nieto: did. puts taken —it case squarely within Defense counsel: And what you did footnote 7 of Dring. tell The gets AUSA

him at that time? call from an agent in the field who tells Well, him Agent initially, group Nieto: there is a as a stan- twelve wit- nesses practice, making dard we who are keep two—we statements that exculpate all involved, prime suspect, interview the aliens agent and the two, keep asks guidance we strongest about what to do with that can them. support Does our the AUSA tell agent: brought case. I these to “Those are all potential witnesses, John defense Parmley, and he said you that he heaven forfend that send them back keep would like us to additional before defense counsel has had a chance to deported when p. the witnesses. See 1166— 67 infra. Matus-Leva, to case of United States v. Or, say: go “I’ll to them.” does

talk (9th Cir.2002) I F.3d get U.S.App. if can right away and see court so he talk lawyer appointed can panel, LEXIS also decided our defense deported.” are the witnesses before kept government eight all the alien “Wow, are kinds of maybe: those Or who, perhaps not coincidental witnesses — very helpful would be statements incriminated all in that ly, the defendant video audio Be sure to the defense. insults our intelli case. jury go that if to trial the tape them so we by suggesting that it could not and gence Or, “Be perhaps: them.” can consider every keep single might did not alien who very your agents take sure that fellow helped case in It sent its court. back so there careful and detailed notes protection it did view the rest because to what the wit- any doubt as won’t equal rights priority. defendant’s as an Or, just you “If do possibly: nesses said.” kept As for claim that it 'the three its back, to sure have to send the witnesses defense, for the the short best witnesses for them in Mexico get contact information job is answer is that it not within the will be to find that defense counsel able so figure INS to out description agent of an them.” will undermine the which witnesses best says nothing of sort. The the AUSA prosecution of individuals government’s say “Keep he is: the two What does charged violating immigration the us, help three that the help pick defendant agents a certain lack of laws. INS have rest and the rest back.” Send the send say objectivity might even conflict of —one beyond reach of the court back? Put the figuring interest —in out which witnesses help prosecutor the knows can help the from the fact that defense. Aside case? I’ve never heard of defendant’s to they lawyers, are I have assume I thing and am astonished such in it. just their weren’t Which is hearts conduct, to approved such district court lawyers, agents, not INS why appoint we my colleagues pan- say nothing of represent in court. to defendants el.7 may sat- government’s The lame excuses by government justify The to itself tries my isfy colleagues the district court and clam claiming the Mexican was Consulate who, unfortunately, the are faced with for of the aliens. It also oring return the closing door after problem barn by it big claims did favor judicial But is one mare has fled. there for his keeping the three best witnesses problem in a officer who considered no all There is eyewash. case. This is Magistrate This is much different context: authority to government had doubt the Brooks, an B. who issued Judge Ruben any it mate keep and all aliens considered deportation of the aliens staying order of its criminal laws. rial to the enforcement time it wasn’t clear whether at a when fact, kept the aliens who incrimi In it two deported. they magis- been others, all Ramirez-Lopez, plus three nated gov- judge not satisfied with the trate was protest the yet Mexico did not detention picked Security related ernment’s assurances the U.N. Council. testimony”). superseded oral That case One cases a short-lived of our made attempt distinguish unconvincing oral testi- Whitley, S.Ct. by Kyles 514 U.S. mony types Unit- of evidence. See which, from other (1995), in the 131 L.Ed.2d Velarde-Gavarrete, F.2d ed States v. context, testimony doc- treated oral same (9th Cir.1992) (rejecting "the distinction umentary exactly way. the same See evidence 'actually exculpatory' ‘potential- between 453-54, 115 S.Ct. 1555. id. at applied to ly exculpatory’ as terms are these defense, deported govern- best witnesses nor was he witnesses were after the they might provide fears that send a ment had learned that could cowed Mexico helpful evidence the defense. regiment of Federales to rescue the aliens. See Rather, F.2d at 878. entirely did sensible aliens detained thing long ordered the facts, —he Lujan-Castro Limited to its is a enough for counsel to talk to them. defense troublesome, entirely bit but understandab late, magis- It turned out to be too but the government le.8 The makes arrests often judge’s significant trate order is because it where there who are numerous individuals beyond doubt that establishes defendant theoretically could as witnesses. serve prejudiced government’s haste domestic, is Where crime there is no returning the witnesses to Mexico. Had keep persons custody; need to those kept just them government here few enough for the obtain enough days longer long for a defense prosecu contact information so both the — lawyer appointed to be and submit the tion and the defense can track down them adjudication matter to know court to see whether anything have useful —we speak would him the granted right say. The situation is much diffi more And, any to those witnesses. after such cult where the witnesses are aliens who debriefing by lawyers, gov- illegally; defense entered the United States there ernment would have had no are numerous cases such excuse for where scores of See, here; choosing e.g., to aliens are involved. whom retain decision United the Ramirez-Jiminez, States v. by would have F.2d been made defense counsel (9th Cir.1992) (fifty-one aliens); and, it, government if the United contested the Trinidad, (9th States v. 660 F.2d 387 Cir. That, course, district court. of the is law- 1981) aliens). (twenty-three wit These way ful orderly proceed. and to can’t nesses be released into the United Lujan-Castro III. The Waiver States, because are illegally; here but it quite expensive oppressive is and to v. Lujan-Castro, United States keep them all in custody until trial on the (9th Cir.1979), which holds that a crim- possibility theoretical may that the defense suspect may inal waive his right have choose to call them as witnesses. See government deportable the retain aliens Valenzuela-Bernal, at U.S. behalf, may who be witnesses on his is cut S.Ct. 3440. from the same cloth as Mendez-Rodri- guez, Dring. Valenzuelar-Bemal and Like Lujan-Castro is best com- viewed as a cases, other Lujan-Castro these dealt with mon-sense accommodation between theo- a situation where the defendant had made retical perfection keep- and the realities of showing deported no that the witnesses ing large custody numbers aliens for present any evidence; exculpatory could long periods purpose. of time for useful no certainly there no indication that the government the Wfiiere no has reason to presupposes judgment It troublesome because it formed about whether to waive the laya absolutely that with defendant —one no important right prevent government the legal training familiarity and little with our putting beyond from witnesses the reach of legal system knowing a ever make and —can Nevertheless, the court and defense counsel. intelligent decision about whether witnesses Lujan-Castro what accept that's and holds I provide helpful can evidence to the defense. it, long so as it’s confined the situation It seems to me that one would have know government where the does not know that the understand, least, very and at the ele- provided exculpatory witnesses would have any possible ments crime and defenses evidence. anything before one make an could like in- very now A case such as this—the case anything can offer the witnesses believe defense, it makes considera- consid helpful presents very to the different before us— waiver ear- to obtain defendant’s non-spe ble sense generalized than the and erations be taken back the individuals can ly so that guaranteed by Mendez-Rodri right cific across the border. Consider, example, a where guez. for case government where, finds underwear stainéd as much different

The situation is crime, a here, wit- semen the scene of sex government knows that would be nesses have information it and finds not to match the tests read I do not helpful to defense. destroy proceeds then defendant —and govern- for Lujan-Castro as a license report. and test sample When this evidence, destroy undermine Bra- ment to defense, govern is discovered help that dy dispose of witnesses signed by presents ment a waiver— prosecution. hurt the defense and appointed— before counsel was defendant Lujan-Castro may reading agrees government A careful that where he room no con its leaves other rationale get crime and rid up clean the scene of the terms, its held Lujan-Castro, by clusion. any clothing and other materials does may rights that a waive the defendant I imagine not useful. can’t consider by Mendez-Rodriguez. to him guaranteed any court—would consider our court —or case, That 602 F.2d at 878-79. See waiver sufficient to cover general turn, defendant entitled held exculpatory evidence. knowing destruction deportable retain have the 57-58, Youngblood, 488 U.S. at Cf . witnesses, whether not defendant least, very 333. At the that case 109 S.Ct. showing can make very raises different issues to what useful to the defense. have information knowing intelligent waiv constitutes not Lujan-Castro F.2d at 5. did See 450 police than the case where the er address, because address —and could general cleanup of performed a the crime by raised its facts—what the issue was not that no reason to believe the scene with to the required is for a defendant waive destroyed rele any have being materials government to the specific right more vance to the defense.9 it and make available evidence preserve rel- Lujan-Castro I do not find Because defense, i.e., the helpful to the knows is case, no it makes difference evant to our to evi rights the “access guaranteed not the waiver was obtained Valenzuela-Bernal, whether or dence” cases. 867, 102 voluntarily.10 The waiver knowingly at U.S. S.Ct. Valenzuela-Bernal, 872, U.S. Lujan-Castro See at the waiver does not 9. Because diminish, excuse, properly way govern Had defendant been any the S.Ct. 3440. or in informed, may signed waiver. he not have the responsibility to disclose evidence ment’s sign imagine who I can few defendants would Brady, at exculpatory, see 373 U.S. knows is government destroy allowing the to evi waiver preserve or to such 83 S.Ct. used, they helpful know could be to them. evidence can be see dence in a form in which it Trombetta, 104 S.Ct. U.S. though don't think it affects the Lujan-Castro waiv 10. Even I suspects presented with a outcome, waiv- is from that the reasonably govern far obvious er assume that the can Ramirez-Lopez doesn't knowingly deport er here valid. ment wouldn’t witnesses him, agent that the read the waiver exculpatory Waivers contest that made statements. signed he it. But there is hardly and he admits that are therefore "know like the one here anyone explained to him rep ing”: request no evidence that Implicit in the waiver made sure that he government know what the waiver meant or doesn't resentation that the right scope the the nature and of exculpatory understood the had information. witnesses long enough what the for government didn’t cover in United States de- simply them, entitled, counsel interview the least here. Defendant was under fense did cases, up can do to make for the harm is to let Brady/Trombetta line of to have we jurors what know those witnesses preserve, for review his government they if would have had testified. counsel, said government witnesses knew Cf 804(b)(6). Fed.R.Evid. him. He not waive could exonerate did right.11 deportation But even if of the aliens had lawful, I have difficulty been considerable The Interview Notes IV. the district court’s with decision exclude above, I light difficulty In have no the interview and all other evidence home, go understanding nesses without the as witnesses. didn't make If he the connec- abilify present effect have that would on to his letting that tion the aliens return meant home a defense. behalf, having testify the to not aliens on his may knowing then the waiver not have been government right 11. Even if the that were the intelligent: merely or Rather than misunder- witnesses, exculpatory waiver extends to I’m waiver, standing consequences the of a he government not at all sure the that could ask right to would failed understand the sign defendant a such waiver without dis- itself. closing exculpatory whatever material knew government the easily at time. The could problem by The lack of a is exacerbated the Brady’s against suppressing undermine rule finding by My colleagues the district court. exculpatory evidence if it could document rely evi- finding on the court’s that district Ra- admissible, destroy dence in a form that isn’t mirez-Lopez's Miranda waiver was valid. only (the evidence Lujan- the and then turn over the But that waiver was recorded wasn't), remaining to the Castro one we have a idea inadmissible material defen- so better right Brady only explained. operates how that dant. not to let the was The Miranda de- exists, right a waiver also easier fendant know what evidence but involves that’s also known; certainly widely give understand and more him a chance to use that evidence in may Ramirez-Lopez that have understood the court. developed pieces that all these bits and the sus- mortar binds agents nonetheless INS and then guide testimony that he was the went picion together of evidence the—is agents (at what doing law enforcement about ini- the two witnesses who least alien supporting to do: find evidence are trained tially) defendant guide.13 identified as the They up theory of case. came their the was, problem overwhelming The the num- some, nothing but to write home with ber of in that same denied people group lodge thought The owner of a she about: guide.14 that defendant was Ramirez-Lopez front at the of the saw government’s largely Given the circum- they agent One said group as walked. case, terribly convincing not stantial and speak Ramirez-Lopez attempted for the jury can we assurance that the say with they caught; after different group were swayed, not would have been been Ramirez-Lopez agent seemed told thirteen of fourteen witnesses say the others on what and was coach traveling with who were defendant —in- talkative, yet tried to hide in the the most cluding every single one of nine that asked if group crowd when was deported were was defendant also guide. had a Government witnesses —denied me, guide? plainly To answer claimed that he was “better dressed” for simple no. It is common that wit- sense trip. None of observations con- these other, nesses reinforce undermine each clusively that defendant was establishes facts, juries and often determine the explained, guide, many were con- any particular case basis of what witness or refuted defendant’s or on tested says, big testimony Their find—the but on how well the of the cross-examination.12 example: lodge perfectly owner 14.Just clear the evi- 12. For observed to be about time, dence excluded: the court group only Ra- a short while lead; mirez-Lopez was but Francisco Servin-Hernandez: Said in the others testi- guide halfway that, group’s gone guide after the had abandoned fied through trip them, group various of the took members Andres Martinez: Ramirez- Corona Identified being group. at the front of the As for turns group, but Lopez as a member of the clothes, Ramirez-Lopez's jack- he did have a guide not its et, alien, did at other but so least one (different alien): Andres Corona-Martinez many group were dressed for the simply Claimed that crossed weather; tellingly, wore of his friends and that there six likely a profes- shoes—not a choice tennis guide no through guide for sional a trek the snow—(cid:127) recognize Delgado-Ballejo: Luis Couldn't many while aliens wore boots. Nor could the guide group lineup photo of the from testify single find witness to picture that included defendant’s defendant him or when coached others de- Diego Juan Hernandez: Identified Servin they were interviewed in the field. part group but stated fendant as guide that he was not say "initially'’ I one of these wit- because Recognized Luis Alberto Gonzales-Jimenez: original that his nesses testified trial state- defendant, say didn't was the but he misunderstood, been ment had that de- guide guide. was not He fendant the had been Suggested the Lopez Jose Carmena: Luis asked, lead, explained, in the he who was not claiming guide during the trip, left guide, he group's who was the had identi- come back but never returned would spent he’d fied because time Miguel Garcia-Almanza: Identified Ramirez- response group. at the head the group who Lopez a member of as questioning by prosecutor, persistent during this alien who helped the died that, guide unequivocally testified to his trip, witness not as the but knowledge, Ramirez-Lopez was saw Arturo Alcaraz-Ambriz: Said he never give group anyone directions to the guide. witnesses harmonizes with that of many people various Defense counsel: How others and with circumstantial evi- in group altogether? were this dence. believe, Agent Senior: I apprehended,

Here, unequivocally one witness testified there were somewhere around guide; that defendant was the another had something might un-

said have been Altogether? Defense counsel: identifying derstood as defendant as the Agent Senior: That’s correct. explained, trial guide, but at rather con- vincingly, that this isn’t what he had

meant; three other witnesses —two in Defense Only counsel: two of them ever their teens—testified defendant wasn’t the identified Mr. Ramirez as the guide. jury go How would about re- guide 14; group this solving among eyewit- conflict that correct? jury nesses? If the were led to believe— Agent Senior: No. I believe more than they surely were—that this division of two identified him as guide. representative group views was as a Defense counsel: You believe one of whole, they could well conclude that defen- them? coach, dant managed possibly or intimidate, some of Agent the witnesses. This I Senior: believe more than two. conclusion is much harder to reach if the Defense counsel: One or two? jury everyone learns that group— Agent Senior: No. More than two. single exception of the witness Defense counsel: More than two? government who testified for the —had Agent Senior: That’s correct. separate stated in independent inter- government agents views with that defen- Defense counsel: What are their names? dant guide. Coaching was not the thirteen Agent I Senior: couldn’t you tell their obviously witnesses is much harder than names. four, coaching three very and the fact Defense counsel: You believe more than accusing witness stood alone at two did? trial could well have cast doubt on his Agent Senior: Yes. credibility.

Which is why doubtless very worked so hard to create the illusion Defense counsel: you What makes think presented at trial were that more than one or two iden- representative whole, group of the aas him? tified and that pointed the witness who the fin- Agent talking Senior: From to the other ger at defendant was but one of several in agents at the time. group Indeed, to do one so. Defense counsel: From talking to the agents INS precisely testified to this ef- agents? other fect: Agent Senior: That is correct. Defense counsel: your What is under-

standing of what the word

“several” means? you Defense counsel: tell [D]id [Ra- Agent Senior: Several would be more mirez-Lopez] that 12 of the 14

than one or two. people being held said he was Defense counsel: More than one or two? guide not the group? of that Agent Senior: That is you correct. Did tell him that? just prejudicial sorry. you thought he was I am Could wasn’t Agent Senior: question? the repeat case. to his you tell Did him—Did

Defense counsel: majority upholds The the exclusion of people him that you inform the grounds, the notes on neither which two released, be 12 of that would terribly first of convincing. The these is say people would and had those “cumulative.” that the evidence is The that not agents to he was said however, cumulative, suggests a term guide group? of that Did the redundancy, especially needless where the him inform of that? you in additional will result “undue evidence Agent That would have been Senior: delay” or of time.” Fed.R.Evid. “waste incorrect. however, Redundancy, 403. means that counsel: It would have been Defense provides the additional information no ad- based on what? incorrect points jury, ditional data relevant the Agent my understanding, Senior: listen to are forced to evidence people was more in the there identify nothing that could him as that tells at all new. This is group them guide. surely jury not The the case here. was impression left with definite that the the testimony This was elicited defense representative of witnesses at trial were cross-examination, counsel so this is not cherry-picked group, the whole present- counsel government a case where testimony government’s possible what to be false to make the best ed he knew case. Indeed, perfectly willing I’m the court.15 Letting the jury remaining the know what agent thought that the himself believe brought said would have truth. The re- telling he was the fact light jury one fact of which additional mains, however, testimony was simply The one was not aware: witness witness, only one untrue —there was against who defendant was also testified witness, unequivocally one who identified only or who would could have witness guide. judge, The defendant as the so; group alone done he stood this; all prosecutor, counsel knew defense jury that a fourteen. I have to believe indeed, everyone, except jury. The difficulty accepting have would more certainly government aware that iso- was those testimony witness’s under circum- lating incriminating witness be would believing misled into stances than if it was case, why fought harmful which is it to its that he was several who could have one of keep the out. tooth nail to information say can testified to effect. Nor one Indeed, high- admitted this evidence would have presenting testimony ly probative nature when unduly been burdensome time-consum- “get fair trial” argued that wouldn’t interview ing. agents’ persuasive majority’s is the Even less trustworthiness comes from fact bootstrap argument that the evidence was when the statement is contempora- uttered properly hearsay excluded as inadmissible neously sensation, likely with the it is less notwithstanding Fed.R.Evid. 807.16 The that it is fabricated. The presum- same is majority apparently Utterance, concedes that all but ably true of Excited FRE met, requirements 803(2). one of FRE 807’s are exception being the one whether the state- mental, emotional, existing Then or carry guarantees ments “circumstantial of condition, 803(3). physical FRE Presum- equivalent trustworthiness” to those of ably guarantee of trustworthiness here hearsay statements admissible under FRE people is that wouldn’t he they about how majority points or 804. The to a case feel. guarantees

where we held such existed personal family history, Statement tape where evidence was on and of- 80h(h). FRE Presumably people seldom oath, fered under and notes that the state- birth, things he about adoption, legiti- like ments here were not made under oath and macy, relationship by blood or the like. that “Ramirez-Lopez has not directed the And are seldom mistaken about them any court to other evidence that estab- either. lishes that the possess guaran- statements Maj. op. tees trustworthiness.” at 1153 cursory As even a examination of these Fowlie, (citing United States v. hearsay exceptions clear, guar- makes (9th Cir.1994)). antees of trustworthiness that attach to many hearsay exceptions are noth- course, Of FRE 807 does not require ing foolproof. People like no doubt lie ah question the statements in have been mental, the time about their emotional or made hearsay under oath. Most of the physical condition, family history, or even statements admissible under FRE 803 or present impressions. Yet, their sense oath, 804 are not made under if statements of this kind fall under well- requirement were a hearsay, for all then established exceptions hearsay to the rule. hearsay most admitted in the federal guarantees of trustworthiness need be courts would altogether. be excluded We nowhere near as certain as giving evidence must hearsay examine the list of excep- indeed, only under one of the hear- tions and guaran- consider what kinds of oath— say exceptions, 804(b)(1), FRE requires tees of generally trustworthiness are the statement be made deemed under oath. sufficient. Let’s look at a few exceptions rely Most on much examples: less reliable guarantees of trustworthiness. 803(1). Present impression, sense FRE obviously task, The statement then, need not have Our conducting when an 807 oath; been made guarantee under analysis, go is to down the hearsay list of bootstrap argument 16. This is a judge because the der FRE clearly 807—as the here did district court didn’t exclude the evidence on nothing not—we have to which to defer. For Rather, this basis. simply the district court know, all we had the district court understood found that repeat the evidence would the sto- wrong ruling, that he was in his "cumulative” ry that already prepared other witnesses were may he have admitted the evidence under ("That's just tell. cumulative. More isn't affirming FRE 807. judge’s the district better.”) course, necessarily FRE has ruling ground on a different from that which and, good bit of discretion built into it if the actually employed, majority perform- discretion, judge district exercises that we are ing the function of the trial court and the required to defer degree. to it to a substantial appellate court all at once. judge But if ruling the district makes no un- telling memory that the truth when his one or more are exceptions, find analogous to the statements fresh. somewhat guaran-

here, the and determine whether in phrase difference lies the second approximately are tees of trustworthiness adopted by made or “shown to have been Taking the Rules of Federal the same. the ... reflect that knowl- witness and to running our the shelf and Evidence off edge correctly.” The basis for this re- list, finger the we soon come index down likely that quirement is more the sub- it’s highly analo- exception across an is something is stance of the statement true — good I think it’s It’s so gous indeed. the no remembers —if the longer witness in full: quoting worth thinking witness does remember A Recollection. memoran- Recorded when made or statement was accurate he concerning or matter dum record Here, adopted state- it. the witnesses’ had which a witness once knowl- about captured in the notes of INS ments were has recollec- edge but now insufficient agents, not the notes of the witnesses testify fully tion to the witness enable And no there’s indication themselves. accurately, to have been and shown the these notes ex- witnesses reviewed or adopted made or the witness when pressly adopted them as true. Yet we still fresh in the witness’ the matter was the pretty good have to believe that reason knowledge memory and to reflect accurately reflect the statements what admitted, correctly. If memoran- time, aliens and that believed may read into evi- dum record be capture as agents’ notes these statements may but not itself be received as dence given. were conducted and The interviews by an an exhibit unless offered adverse memorialized individuals trained to be party. accurate; moreover, complete they un- and 803(5). parse Rule Fed.R.Evid. Let’s government’s against case dermined terms, carefully. admits By its it state- no prime suspect, there’s reason to so recollection ments that record witness’s by bias, agents, re- think the motivated witness of matters about which the once inaccurately. The ported them given and at a knowledge, had that were lie, and would no obvious reason fresh in the time when the information was lying to have understood that law enforce- these memory. require- witness’s All of dangerous.17 ment authorities could well fit perfectly ments statements of roughly consistent The statements were They witnesses here: were interviewed other, mutually reinforcing. with each and shortly after the event and did claim Indeed, any of was the if the declarants failure recollection. only actual he would have been the guide, our exception This differs from situation by pointing motive one with a First, is no indica- respects. in two there finger group— else at someone question here that the witnesses tion one, why might explain which well rather, memory; have lost their one, only of defendant’s fellow travelers who have been mis- witnesses themselves him as guide. identified This, however, seem to placed. doesn’t good having the Is this as statements statements; reliability bear really. made oath? But when under Not whether the witness now remembers what hearsay compared to of the other likely it no that he some he said makes more interrogated principles of economics— propensity separately of the best-known 17. The See, e.g., Ax- prisoner’s Robert suspects the truth snitch each other dilemma. to tell (1984). well-known, elrod, Cooperation given rise one The Evolution out is so has was, exceptions discussed above—matters majority by excluding about errs this crucial people lie all the time—this is not evidence. which I a hard concluding bad at all. time guarantees of trustworthiness that significantly are

attach to these statements applicable than those to the run-of-

weaker hearsay exception under FRE

the-mill They neatly

or 804. seem to fit within the hearsay exception.

catch-all America, UNITED STATES of majority’s evidentiary What makes Plaintiff-Appellee, ruling accept even harder to is what rests in the balance. has v. right present

clear Sixth Amendment MANCHESTER FARMING evidence on his behalf: PARTNERSHIP, Defendant-Appellant. right testimony to offer the of wit- America, United States of nesses, attendance, compel and to their Plaintiff-Appellee, necessary, plain if right terms the v. defense, present right pres- ent the version defendant’s of the facts Land, Inc., Lone Pine Defendant- prosecution’s jury well as the to the Appellant. may so decide where the truth America, United States of right

lies.... This is a fundamental ele- Plaintiff-Appellee, process ment of due of law. Texas, 14, 19,

Washington v. 388 U.S. 1920, (1967); S.Ct. 18 L.Ed.2d 1019 see Farm, Inc., Priest Butte Defendant- Mississippi, also Chambers v. Appellant. 410 U.S.

284, 294, 93 S.Ct. 35 L.Ed.2d 297 01-30414, 01-30415, Nos. 01-30416. (1973) (“The rights to confront and cross- Appeals, United States Court of examine witnesses and to call Ninth Circuit. one’s own behalf long recog been nized as essential process.”). to due Al Argued and Submitted Nov. 2002. though right directly doesn’t alter the Filed Jan. balance in determining whether out-of- court statements are reliable —either

they’re trustworthy they’re not—it

should affect a court’s discretion whether

to admit evidence when balance is

close and the evidence is “critical to [the] Chambers,

defense.” 410 U.S. at (“where

S.Ct. 1038 rights constitutional di

rectly affecting the guilt ascertainment of implicated,

are hearsay may rule applied mechanistically to defeat justice”).

ends of Here it undoubtedly notes specific but obligation under the more evidence was introduced misled the provide all exculpatory defendant jury about missing what control, evidence within its Brady see cross-examination, would have said: On Maryland, 373 U.S. 83 S.Ct. agents confidently one the federal re- (1963). ported L.Ed.2d 215 govern- Should the deported some those defendant, inculpated ment be able to its Brady obligation which we know is avoid not true. Defense counsel called this dis- by destroying exculpatory evidence before

Notes

notes concluding district court abused many of about how the aliens defen- refusing to admit the in- its discretion group dant’s identified defendant as the other terview notes and evidence guide. Remember the factual scenario: identify who of witnesses failed to number Defendant fourteen were ar- others Ramirez-Lopez culprit. The reason as a group attempting rested as while hearsay problem in the first we have foot; they cross the had been border place government is that the removed wit- caught unexpected in an snowstorm and jurisdiction defendant) from so nesses the court’s (including some suffered frost- testify. bite; It as a big could strikes me party one died. member De- deny uniform, to then admission the wit- gotcha epaulettes fendant wore no leader; the witnesses ness statements because are miter marking him the he had “Hello, name-tag inscription: unavailable. Because the no duty keeping my your its I’m guide!” breached the witnesses name is Juan. fact, right waiving. when at the silent asked to remain does not mean he also waiver, hearing right if he understood the motions understood his to retain witnesses for agent Ramirez-Lopez enough answered good his defense. It is thus not waiver, signed told him that if he majority point finding to the Miranda aliens return home to other could Mexico shrug off the district court's failure to ("[The agent] gave me for me this reason Lujan-Castro finding specific amake as harm- sign paper go could so that less error. far It was from harmless if defen- else."). anything to Mexico. I didn't know only signed dant the waiver because he hardly This under- shows thought doing would let the detained so wit- right stood he had a to retain those aliens

notes INS Surely, if this were introduced. evidence read into record could been leaving jury impression with the false than spent half an time hour—far less or less pool of witnesses more evidence haggling should over whether evenly thought those who de- split among guide and those who admitted. fendant was the interrupt people, other government certainly would Though [Defendant] didn't them in terms of what ... he would coach leaning misperception sup- mind on this Now, people say. you some come heard During closing port theory its the case. say They he did that to in here. them, didn't arguments, example, argued: the AUSA people. group but it was a

Case Details

Case Name: United States v. Juan Ramirez-Lopez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 10, 2003

Citation: 315 F.3d 1143

Docket Number: 01-50164

Court Abbreviation: 9th Cir.