Prosecutors Told to Stop Deporting Witnesses

     (CN) - The 9th Circuit slammed the U.S. attorney in San Diego on Friday for deporting a possible witness who could have undermined an alien-smuggling case.
     Border Patrol agents arrested Jonathan Leal-Del Carmen in 2010 with a group of suspected illegal migrants. Three members of the group fingered him as the leader, though one woman, Ana Maria Garcia-Garcia, said several times that he was not.
     The government secured the testimony of the witnesses against Leal-Del Carmen, but deported Garcia-Garcia before the suspect's arraignment.
     Later, Leal-Del Carmen's attorney forced the government to turn over the videotapes of the witnesses, and only then did he discover the possibly exculpatory testimony of Garcia-Garcia.
     Leal-Del Carmen unsuccessfully moved to dismiss the indictment, then lost his bid to have Garcia-Garcia's statement admitted. Senior U.S. District Judge Thomas Whelan also refused to issue a missing-witness jury instruction.
     A jury eventually found Leal-Del Carmen guilty of bringing in the aliens, but acquitted him of doing it for "financial gain."
     The 9th Circuit rebuked the handling of the case, noting that it contradicts the 2003 resolution of United States v. Ramirez-Lopez. In that case, the same U.S. Attorney's Office voluntarily sought to vacate a smuggling conviction for the same error.
     "We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel," Chief Judge Alex Kozinski wrote for a three-judge panel. "But whatever wisdom the United States attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today."
     The federal appeals court in Pasadena reversed Leal-Del Carmen's jury conviction on three counts of bringing in illegal aliens without presentation. On remand, the District Court must decide whether to retry Leal-Del Carmen or "dismiss the charges ... with prejudice, as a consequence of the government's conduct."
     There is no doubt that the government's actions prejudiced Leal-Del Carmen to a fatal degree, according to the court.
     "The government undermined Leal-Del Carmen's opportunity to present a complete defense by deporting a witness it knew could give exculpatory evidence," Kozinski wrote. "Once Leal-Del Carmen's lawyer discovered that Garcia-Garcia told border agents that his client didn't give orders, he used every recourse to try to put this information before the jury, but the district court would have none of it. At each stage, the court - urged by the government - denied defendant's motions. This prevented the jury from hearing anything at all about the testimony of Leal-Del Carmen's sole favorable witness, thereby depriving him of a 'meaningful opportunity to present a complete defense.'"
     If the District Court orders a retrial, "Leal-Del Carmen must also be allowed to present the videotape of Garcia-Garcia's testimony, the transcript or both, as well as any evidence of what the other eight witnesses said," Kozinski added.
     Kozinski also put the circuit on notice that such deportations will not be tolerated.
     "As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit," he wrote.