Judge Erred in Excluding Border Patrol Tapes

     (CN) – The 9th Circuit vacated an immigration conviction and sentence after finding that the trial judge did not listen to the Border Patrol dispatch tapes he refused to admit into evidence.
     Border Patrol picked up Jose Augustine Muniz-Jaquez near Otay Mesa, Calif., in 2010, and charged him in San Diego with being a deported alien in the United States.
     Hoping to contradict the arresting agent’s testimony as to exactly where Muniz-Jaquez was arrested, the defense requested discovery of dispatch tapes from the incident. U.S. District Judge John Houston denied the motion, found Muniz-Jaquez guilty and sentenced him to 70 months in prison.
     The federal appeals court in Pasadena reversed on Monday, noting that Houston had declared the tapes immaterial without first reviewing their contents.
     “Without listening to the tapes, the District Court repeatedly questioned their exculpatory or material quality, characterizing arguments in favor of production as speculative,” Judge Alfred Goodwin wrote for a three-judge panel.
     “This was not a fishing expedition,” Goodwin added.
     “Defense counsel here made clear that he sought the tapes to potentially further an official restraint defense, as well as for possible use in impeaching the agent,” he wrote.
     “The tapes could have been crucial to Muniz-Jaquez’s ability to assess the reliability of … [the] testimony and to cross-examine … effectively, both important issues in his defense,” Goodwin added.
     The panel remanded the case back to San Diego with orders for the government to produce the recording and for the court to consider “any motions the production may generate, including any motion for a new trial.”

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