United States v. Jose Antonio Diaz , 156 F. App'x 223 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 29, 2005
No. 05-11712 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-10036-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO DIAZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 29, 2005)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jose Antonio Diaz appeals his conviction for attempting to smuggle an
illegal alien into the United States, in violation of 8 U.S.C. § 1324(a)(2)(A),
arguing (1) that his Fifth and Sixth Amendment due process rights were violated
when the government delayed his first appearance to repatriate potential defense
witnesses in Cuba, and (2) that the district court abused its discretion in failing to
conduct an evidentiary hearing to determine if the government acted deliberately to
deprive Diaz of his rights to compulsory due process.
Diaz first argues that the district court erred in failing to dismiss his
indictment on account of the government’s deliberate delay in presenting him to a
magistrate that allowed it to repatriate all the potential defense witnesses without
making a good faith evaluation of their potential testimony. We review a district
court’s denial of a motion to dismiss an indictment for abuse of discretion. United
States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.), cert. denied, 125 S.Ct. 208(2004). The U.S. Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process for obtaining
witnesses in his favor . . . .” U.S. Const., amend. VI. More than the mere absence
of testimony is necessary to establish a violation of the right. United States v.
Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193(1982). A defendant must make some plausible showing of how the testimony
would have been both material and favorable to his defense. Id. Evidence is
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material if there is a reasonable likelihood that it would have affected the judgment
of the trier of fact. United States v. Bagley, 473 U.S. 667, 681-82, 105 S.Ct. 3375,
3383, 87 L.Ed.2d 481 (1984).
Federal courts possess authority to dismiss an indictment in the case of
governmental misconduct. United States v. Michael, 17 F.3d 1383, 1386 (11th
Cir. 1994) (citations omitted). However, this is a disfavored remedy and should
only be utilized in the most egregious of cases. Id. (citations omitted).
Upon review of the record and consideration of the parties’ briefs, we find
no reversible error. The burden of showing that a repatriated witness had
exculpatory testimony rested with Diaz, and he failed to meet it. The fact that
some of the Cuban nationals believed that they were traveling all the way to the
United States on one vessel instead of two was not exculpatory. Such testimony
does not undermine the fact that Diaz retrieved 15 Cuban nationals from an island
in the Bahamas and was attempting to transport them to the United States. Further,
in light of Diaz, and the other accused smugglers’ admissions that they were
smuggling family members into the United States, as well as the fact that many of
those retrieved were relatives of the accused smugglers, there is not a reasonable
likelihood that this testimony would have affected the judgment of the trier of fact
so that it would have found the meeting at sea to be a rescue of a sinking vessel,
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which coincidentally carried their families.
Next, Diaz argues that the district court abused its discretion when it failed
to conduct an evidentiary hearing to determine whether the government acted
deliberately to delay Diaz’s appearance before a magistrate. We review the district
court’s refusal to conduct an evidentiary hearing for abuse of discretion. See
United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir. 1986). In determining
whether there has been a violation of Rule 5(a) of the Federal Rules of Criminal
Procedure, which relates to initial appearances, we must look at the reason for the
delay. See United States v. Purvis, 768 F.2d 1237, 1239 (11th Cir. 1985).
However, a delay of a week between an arrest and first appearance has been held to
not be a violation, even when that arrest follows a lengthy detention by the INS
[now Department of Homeland Security]. United States v. Noel, 231 F.3d 833,
837 (11th Cir. 2000). Also, routine detentions by the INS do not trigger the
Speedy Trial Act, however, such detentions can run afoul of the law when the
primary or exclusive purpose is criminal prosecution. Id. (citations omitted). The
party seeking an evidentiary hearing on the government’s motive must present
some evidence, as generalized allegations of misconduct are not sufficient to
warrant a hearing. See Wade v. United States, 504 U.S. 181,186, 112 S.Ct. 1840,
1844, 118 L.Ed.2d 524 (1992) (substantial assistance sentencing motion).
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Diaz proffered evidence of other defendants in the district court’s recent
history who had been accused of similar crimes and whose detention periods
before their first appearances were shorter than his. The government stated that
Diaz was held in administrative detention while it was seeking guidance from the
National Security Council (“NSC”) on how to proceed regarding his codefendant,
Ruben-David Gomez-Borosso. Diaz did not contest that the Coast Guard needed
authorization to bring Gomez-Borosso into the United States, or that Diaz was a
permanent resident alien who could be subject to administrative detention. He did
not even assert that the other cases involved administrative detentions contingent
on NSC clearance. He only alleged an improper motive on the part of the
prosecution based on the possible existence of a new Justice Department policy, of
which he offered no proof. Thus, the district court did not abuse its discretion in
denying his motion for an evidentiary hearing.
AFFIRMED.
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