United States v. Jonathan Leal-Del Carmen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-50094
Plaintiff-Appellee,
v.  D.C. No.
3:10-cr-01372-W-1
JONATHAN LEAL-DEL CARMEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted
January 11, 2012—Pasadena, California
Filed September 14, 2012
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
William A. Fletcher, Circuit Judges.
Opinion by Chief Judge Kozinski
11237
UNITED STATES v. LEAL-DEL CARMEN 11241
COUNSEL
Harini P. Raghupathi, Federal Defenders of San Diego, San
Diego, California, for the defendant-appellant.
Laura E. Duffy, United States Attorney, and Bruce R. Castet-
ter and David P. Curnow (argued), Assistant United States
Attorneys, San Diego, California, for the plaintiff-appellee.
OPINION
KOZINSKI, Chief Judge:
May the government deport an illegal alien who can pro-
vide exculpatory evidence for a criminal defendant before
counsel for that defendant has even been appointed? We
believe the answer is self-evident, as the government recog-
nized in an earlier case where it moved to vacate a conviction
after it deported witnesses whose testimony would have
exculpated defendant. See United States v. Ramirez-Lopez,
315 F.3d 1143 (9th Cir. 2003), withdrawn by United States v.
Ramirez-Lopez, 327 F.3d 829 (9th Cir. 2003); Joint Motion to
Remand Case to the District Court for the Limited Purpose of
Dismissing the Indictment (Feb. 5, 2003); see also Henry
Weinstein, Appeal Lost, Yet Freedom Won, L.A. Times, Apr.
23, 2003, at B1. 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. 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.
I. FACTS
On March 25, 2010, border patrol agents discovered a
group of twelve illegal aliens hiding in the thick brush in
11242 UNITED STATES v. LEAL-DEL CARMEN
Smith Canyon, an area along the United States–Mexico bor-
der that is unprotected by a fence. The agents determined they
were Mexican nationals present in the United States without
permission and took them into custody. Later that day, the
agents picked up two sets of footprints that they recognized
from Smith Canyon. They followed the tracks and eventually
found Jonathan Leal-Del Carmen and Domingo Gomez-
Aguilar. The agents arrested them on suspicion of alien smug-
gling.
That night, border patrol agents interviewed at least four of
the aliens about Leal-Del Carmen and Gomez-Aguilar. One of
them, Ana Maria Garcia-Garcia, identified Leal-Del Carmen
in a photospread and said she had first seen him about two
days earlier. When Agent Tomas Macias Jr. asked if Leal-Del
Carmen gave orders to the rest of the group, she answered,
“No, he didn’t give orders.” After the officer said “Pardon
me?,” she again stated, “He did not give orders.” When the
officer asked a third time “No?,” she answered “No.”1
Three others identified Leal-Del Carmen as a leader or as
someone with whom they made travel arrangements. The
government kept these three as material witnesses2 but
1
Macias: Oh, but he, number 5 [Leal-Del Carmen], was he in
front of the group, was he behind, did he give orders, what did
he do?
Garcia: No, he didn’t give orders.
Macias: Pardon me?
Garcia: He did not give orders.
Macias: No?
Garcia: No.
Macias: Who, who gave orders, the orders?
Garcia: It is that I don’t know.
2
The government’s three witnesses later moved to have their testimony
taken by deposition because their continued detention in the United States
pending Leal-Del Carmen’s trial was a hardship for their families. A mag-
istrate judge granted the motion as to two of the witnesses, whose sworn
and cross-examined testimony was presented to the jury by videotape. One
remained and testified in person at trial.
UNITED STATES v. LEAL-DEL CARMEN 11243
deported Garcia-Garcia and the eight other aliens appre-
hended at Smith Canyon.3
Leal-Del Carmen had not yet been arraigned, and thus was
not represented by counsel, when Garcia-Garcia was
3
It’s not clear from the record whether border agents interviewed the
eight other aliens in the group. At a motion hearing, Leal-Del Carmen’s
attorney asked the government to produce any statements taken from those
witnesses: “I can’t tell whether there was actually a statement taken, even
if it was unrecorded, for the other eight material witnesses. . . . I have no
statements from these eight individuals at all.” The Assistant United States
Attorney represented that he was not aware of any statements but would
turn them over if they could be found. Defense counsel apparently never
received any statements, because in his jury summation he argued, “And
for the nine other witnesses we have no idea because nobody bothered to
question them, or ask them or see what they knew.”
We find it suspicious that the government would interview some of the
witnesses but not the others. It’s also curious that the testimony of the sin-
gle exculpatory witness happened to be included on the tape with the
inculpatory witnesses. The government argued before the district court
that a border agent made the video of Garcia-Garcia’s interview because
he believed her testimony wasn’t exculpatory and wanted to show he
wasn’t “hiding anything.” But the agent couldn’t have known what
Garcia-Garcia would say before she said it. Either the agent made videos
of all the witnesses but preserved only some, or he first interviewed them
without a video recorder and then replicated some of the interviews on
tape. Either alternative leaves us skeptical that the government did not
question the eight other aliens it apprehended.
The Assistant United States Attorney disavowed that there were audio
or video recordings of the eight others, saying he “inquired about that spe-
cific point,” but he produced no sworn statement to that effect from any
of the agents involved. Nor does the record disclose any evidence as to
notes the agents may have taken in connection with the witness interviews.
It’s possible that the agents made such notes but did not produce them
because they did not believe them to be exculpatory. Should the district
court permit a retrial, the government shall provide defendant with all
records of interviews with the aliens in Leal-Del Carmen’s group, as well
as sworn declarations from the agents who interviewed the group stating
clearly which aliens the agents spoke with and which ones, if any, they did
not. See page 11257 infra. The declarations shall also state whether any
interview notes or recordings have been discarded or destroyed.
11244 UNITED STATES v. LEAL-DEL CARMEN
deported. His lawyer thus had no opportunity to interview
Garcia-Garcia, and the government didn’t disclose that she
had provided exculpatory testimony. Instead, defense counsel
had to make several discovery requests, which eventually
forced the government to turn over the videotaped interviews
of its material witnesses.4 This videotape included Garcia-
Garcia’s interview. On discovering her statements, Leal-Del
Carmen moved to dismiss the indictment on the ground that
the government had deported an exculpatory witness. The dis-
trict court denied the motion. Leal-Del Carmen subsequently
filed a motion in limine seeking to admit the videotaped state-
ment of Garcia-Garcia, which the district court denied. At
trial, the district court also declined to give Leal-Del Car-
men’s proposed missing-witness jury instruction.
The jury deliberated over the span of two days before deliv-
ering a split verdict. It convicted Leal-Del Carmen of three
counts of bringing in illegal aliens without presentation in
violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and acquitted him of
three counts of bringing in illegal aliens for financial gain in
violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Leal-Del Carmen
timely appeals.
4
We were surprised to learn that the Justice Department required
defense counsel to make discovery requests rather than voluntarily and
promptly turning over discovery materials. Since most criminal defense
lawyers are appointed, see Caroline Wolf Harlow, Bureau of Just. Stat.,
Defense Counsel in Criminal Cases 1 (2000), the cost of preparing discov-
ery requests is generally paid with public funds. See 18 U.S.C.
§ 3006A(a), (i). It’s difficult to understand how the Justice Department
justifies imposing this expense on taxpayers and the court, or reconciles
it with the government’s duty of fairness in criminal cases. See Berger v.
United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the
representative not of an ordinary party to a controversy, but of a sover-
eignty whose obligation to govern impartially is as compelling as its obli-
gation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.”).
UNITED STATES v. LEAL-DEL CARMEN 11245
II. DISCUSSION
“Whether grounded in the Sixth Amendment’s guarantee of
compulsory process or in the more general Fifth Amendment
guarantee of due process, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
defense.” United States v. Stever, 603 F.3d 747, 755 (9th Cir.
2010) (internal quotation marks omitted). The government
undermined Leal-Del Carmen’s opportunity to present a com-
plete defense by deporting a witness it knew could give excul-
patory evidence. 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 informa-
tion 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 Car-
men’s sole favorable witness, thereby depriving him of a
“meaningful opportunity to present a complete defense.” Id.A. DEPORTATION OF THE ONLY FAVORABLE
WITNESS
[1] We have adopted a two-part test to evaluate whether
the government’s deportation of an alien-witness amounts to
a constitutional violation. First, the defendant must show that
the government acted in bad faith. United States v. Dring, 930
F.2d 687, 693 (9th Cir. 1991). There is no violation where the
executive has made a “good-faith determination” that the
alien-witness possesses no evidence that might exculpate the
defendant. United States v. Valenzuela-Bernal, 458 U.S. 858,
872-73 (1982). Second, the defendant must demonstrate that
deportation of the witness prejudiced his case. Dring, 930
F.2d at 693. “To prevail under the prejudice prong, the defen-
dant must at least make ‘a plausible showing that the testi-
mony of the deported witnesses would have been material and
favorable to his defense, in ways not merely cumulative to the
testimony of available witnesses.”’ Id. at 693-94 (quoting
11246 UNITED STATES v. LEAL-DEL CARMEN
Valenzuela-Bernal, 458 U.S. at 873). This test balances the
defendant’s right to present his version of events to the jury
with the government’s interest in enforcing the immigration
laws by promptly deporting aliens who “possess no material
evidence relevant to a criminal trial.” Valenzuela-Bernal, 458
U.S. at 864-66.
1. Bad Faith
[2] When the government doesn’t know what a witness
will say, it doesn’t act in bad faith by deporting him. See
Dring, 930 F.2d at 694. But if the government interviews the
witness or has other information suggesting that he could
offer exculpatory evidence, the government may not deport
him without first giving defense counsel a chance to interview
him. The question of bad faith thus turns on what the govern-
ment knew at the time it deported the witness. “The presence
or absence of bad faith by the police for purposes of the Due
Process Clause must necessarily turn on the police’s knowl-
edge of the exculpatory value of the evidence at the time it
was lost or destroyed.” Arizona v. Youngblood, 488 U.S. 51,
57 n.* (1988).
The government here interviewed Garcia-Garcia and
learned that she had favorable testimony to give. Agent
Macias obviously recognized the significance of her statement
that Leal-Del Carmen didn’t give orders: He asked the ques-
tion in the first place, no doubt believing that an affirmative
answer would help incriminate Leal-Del Carmen. When he
got a negative answer, he repeated the question, which he
wouldn’t have done had he thought the answer inconsequen-
tial.
[3] Once the government is aware that an alien has poten-
tially exculpatory evidence, it must treat that person as a
material witness and give defense counsel the opportunity to
interview him and make a reasoned determination whether to
seek his retention pending trial. This means the witness may
UNITED STATES v. LEAL-DEL CARMEN 11247
not be deported before defense counsel has been retained or
appointed and has had a fair opportunity to interview him. If
defense counsel advises the government that the witness may
be useful to the defense, he may not be deported until defense
counsel indicates he is no longer needed. If the government
wants to deport the witness notwithstanding defense counsel’s
wishes, it must obtain permission from the district court on a
showing of good cause, which defense counsel must have the
opportunity to oppose; it must also afford defense counsel the
opportunity to cross-examine the witness and preserve the tes-
timony for trial. See note 2 supra.
These requirements will not interfere with the execution of
the nation’s immigration laws. The government remains free
to deport witnesses it has no reason to believe possess excul-
patory evidence. At most, the government will be required to
keep a small number of aliens a few extra days or weeks. The
government has already shown that retaining witnesses for
trial is not an undue burden, having kept three witnesses to
support its own case. The government’s duty of evenhanded-
ness and fair play in criminal matters, embodied in such cases
as Berger v. United States, 295 U.S. 78 (1935), and Brady v.
Maryland, 373 U.S. 83, 87-88 (1963), allows it to “strike hard
blows” but not “foul ones.” Berger, 295 U.S. at 88. The gov-
ernment is uniquely empowered to deport witnesses and thus
put them outside the reach of defense counsel and the district
court. It may not use that power to give itself an unfair advan-
tage. See California v. Trombetta, 467 U.S. 479, 486 (1984)
(“[W]e have suggested that the Federal Government might
transgress constitutional limitations if it exercised its sover-
eign powers so as to hamper a criminal defendant’s prepara-
tion for trial.”).
2. Prejudice
To show prejudice, Leal-Del Carmen must make “a plausi-
ble showing that the testimony of the deported witnesses
would have been material and favorable to his defense, in
11248 UNITED STATES v. LEAL-DEL CARMEN
ways not merely cumulative to the testimony of available wit-
nesses.” Valenzuela-Bernal, 458 U.S. at 873. “‘[I]mplicit in
the requirement of materiality is a concern that the suppressed
evidence might have affected the outcome of the trial.”’ Id. at
868 (quoting United States v. Agurs, 427 U.S. 97, 104
(1976)).
[4] Leal-Del Carmen has shown prejudice because Garcia-
Garcia’s testimony was material, favorable and not cumula-
tive. Her statements that Leal-Del Carmen didn’t give orders
were material to his role as the expedition’s guide. Charged
with alien smuggling, Leal-Del Carmen could have been
found guilty only if the jury believed that he was leading the
group, rather than himself being led by someone else. Garcia-
Garcia’s statement that Leal-Del Carmen didn’t give orders
during the two days the party traveled together suggests that
he wasn’t one of the guides. Her testimony also casts doubt
on the government’s witnesses, whose uncontradicted testi-
mony was that Leal-Del Carmen did give orders. As the gov-
ernment concedes, “Unquestionably, Ms. Garcia-Garcia’s
statements that ‘He did not give orders’ were favorable to
Leal-Del Carmen.” Resp’t Br. 29 (internal citation omitted).
[5] The government argues that Garcia-Garcia’s statements
were “‘merely cumulative to the testimony of available wit-
nesses.”’ Resp’t Br. 29 (quoting United States v. Pena-
Gutierrez, 222 F.3d 1080, 1085 (9th Cir. 2000)). The district
court also relied on its finding that Garcia-Garcia’s testimony
was cumulative of that of other witnesses, particularly of her
boyfriend, Gabriel Gonzales-Ramirez. Although Gonzales-
Ramirez mentioned specific instances when Leal-Del Carmen
didn’t speak or give orders, these statements clashed with
other answers in which he said Leal-Del Carmen did give
orders or otherwise acted as the leader of the group. The over-
all effect of the government’s three witnesses was to identify
Leal-Del Carmen as a guide. In contrast, Garcia-Garcia said
nothing at all that incriminated Leal-Del Carmen and three
times explicitly denied he gave orders. The district court
UNITED STATES v. LEAL-DEL CARMEN 11249
clearly erred in finding that her testimony would have been
cumulative of that of the government’s witnesses.
The government also argues that Garcia-Garcia’s testimony
wouldn’t have helped much because she traveled in the mid-
dle of the group of twelve and appeared to have a bad mem-
ory, and there was other overwhelming evidence against Leal-
Del Carmen. But the weight and credibility of testimony is for
the jury to determine. Even if parts of her testimony were
vague, her statement that Leal-Del Carmen didn’t give orders
was crystal clear and thrice repeated. While Garcia-Garcia’s
testimony may not have been sufficient to prove that Leal-Del
Carmen was not the leader, it could well have cast doubt on
the testimony of the three government witnesses identifying
him as such. That’s all a criminal defendant need do to gain
an acquittal.
B. LUJAN-CASTRO WAIVER
[6] Under United States v. Lujan-Castro, 602 F.2d 877,
878-79 (9th Cir. 1979) (per curiam), the government may ask
a criminal defendant to relinquish his right to retain deport-
able witnesses, but only if the waiver is knowing and intelli-
gent. We have also suggested that the government “cannot
evade its constitutional obligations” by seeking a waiver after
it determines that a witness is material and favorable to the
defense, any more than it can “evade its responsibility to dis-
close exculpatory evidence by asking the defendant to waive
his right to a fair trial.” United States v. Medina-Villa, 567
F.3d 507, 517 n.4 (9th Cir. 2009); see also Ramirez-Lopez,
315 F.3d at 1168-70 (Kozinski, J., dissenting).
On at least two occasions, the district court ruled against
Leal-Del Carmen on the basis that he had waived his right to
retain witnesses.5 But the government never produced a
5
In denying defense counsel’s motion to dismiss the indictment, the
court said, “Your client did sign a waiver.” Later, in refusing to admit the
11250 UNITED STATES v. LEAL-DEL CARMEN
signed waiver, and the only evidence in the record that Leal-
Del Carmen agreed to have Garcia-Garcia deported is a decla-
ration he attached to his motion to dismiss the indictment:
“[T]he agents asked me if I wanted to keep anyone from the
large group they had also apprehended as a witness. I did not
know what any of the people had said about me. The agents
never told me . . . that they had said different things.”
[7] Failing to request that a witness be retained is hardly
the same as waiving the constitutional right to the presence of
a favorable witness. The district court’s finding that Leal-Del
Carmen waived that right is clearly erroneous. Even if he had
signed a waiver, it would be patently invalid. As noted, a
Lujan-Castro waiver must be knowing and intelligent. See
page 11249 supra. Any such waiver would not have been
knowing because the border agents failed to apprise Leal-Del
Carmen of Garcia-Garcia’s favorable statements. And the
waiver would not have been intelligent because Leal-Del Car-
men was not represented by counsel and thus could make no
informed decision about whether releasing the witness would
prejudice his case.
C. EVIDENTIARY ERRORS
The wrongful deportation of Garcia-Garcia might have
been rendered harmless if the district court had allowed
defendant to inform the jury of her statements. There was
both a video and a transcript of the conversation between
Agent Macias and Garcia-Garcia, see note 1 supra, but the
district court rebuffed all defense efforts to put these before
the jury.
videotape of Garcia-Garcia’s interview, the court stated, “Most signifi-
cantly your client had an opportunity to have that witness be kept and he
agreed with a waiver and let the witness be released. If there is any issue,
I think that forecloses it.”
UNITED STATES v. LEAL-DEL CARMEN 11251
1. Videotaped Testimony and Transcript
The district judge refused to admit the video or transcript,
concluding that they weren’t “that material” to Leal-Del Car-
men’s defense that he was part of the group of smuggled
aliens, not the smuggler. In the court’s appraisal, Garcia-
Garcia wouldn’t have advanced defendant’s case because she
was unable or unwilling to provide much detail about the
cross-border trip. The court pointed to sections of the inter-
view transcript where she sidestepped the border agent’s
questions, answering, “Oh, I don’t know” or “I wasn’t look-
ing.” The court concluded, “That to me is certainly not some-
one who’s going to have something that’s going to be
materially helpful to the defense.” The court also determined
that Garcia-Garcia’s testimony would be cumulative of her boy-
friend’s.6
[8] The district court abused its discretion. In the first
place, the evidence was material. See page 11248 supra.
Moreover, for the tape or transcript to be admissible, they
didn’t have to be “material” to the defense; they only had to
be relevant. Fed. R. Evid. 402 (1975) (amended 2011).7 The
district court confused the showing Leal-Del Carmen had to
make to obtain dismissal of the indictment or other sanctions
—that the government deported a witness with information
material and favorable to the defense—with the substantially
lower threshold for admitting evidence at trial. Compare Fed.
R. Evid. 401 (1975) (amended 2011) (defining relevant evi-
dence as that which has a tendency to make any fact of conse-
quence more or less probable) with Pennsylvania v. Ritchie,
6
The district judge made these findings at the August 2010 hearing
where he denied the motion to dismiss the indictment. The judge expressly
renewed those findings in later denying the motion in limine to admit the
videotape. See Tr. Jury Trial 32, Nov. 16, 2010 (“I will adopt the ruling
that I previously made.”).
7
We cite to the version of the Rules of Evidence that was in place when
Leal-Del Carmen was tried in November 2010. The rules discussed in this
section were amended in 2011, but the changes made were stylistic only.
See, e.g., Fed. R. Evid. 402 advisory committee notes.
11252 UNITED STATES v. LEAL-DEL CARMEN
480 U.S. 39, 57 (1987) (“Evidence is material only if there is
a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.”) (internal quotation marks and alteration omitted).
That some of Garcia-Garcia’s answers were vague or evasive
only renders her clear and unequivocal answer that Leal-Del
Carmen gave no orders more convincing. It was for the jury,
not the district judge, to evaluate whether her testimony was
persuasive.
Presentation of the video or transcript would have taken
only a few minutes. See note 1 supra. Thus, this is not a case
where the district court could exclude the evidence because it
was cumulative and would take too much time. See Fed. R.
Evid. 403 (1975) (amended 2011). Even if Garcia-Garcia
claimed ignorance of many of the border agent’s questions,
she was emphatic that Leal-Del Carmen did not give orders.
She was “the only witness in a position to . . . contradict the
testimony of government witnesses.” Valenzuela-Bernal, 458
U.S. at 870 (internal quotation marks omitted). Far from being
cumulative, her statements were antithetical to the testimony
of the government’s witnesses and might have helped sow
doubt in the minds of the jurors that Leal-Del Carmen was the
guide. The Assistant United States Attorney must have
believed that Garcia-Garcia’s statements made a difference,
else he wouldn’t have worked so hard to keep the jurors from
hearing them.
The government argues for the first time on appeal that
Garcia-Garcia’s statements are inadmissible hearsay.8 But the
tape was admissible under the forfeiture by wrongdoing hear-
say exception. See Fed. R. Evid. 804(b)(6) (1997) (amended
2011); see also Giles v. California, 554 U.S. 353, 359 (2008)
(requiring a showing that the government “engaged in con-
duct designed to prevent the witness from testifying”).
8
While the government waived the hearsay argument, we address it any-
way so as to put it to rest on remand.
UNITED STATES v. LEAL-DEL CARMEN 11253
Because the government was responsible for rendering
Garcia-Garcia unavailable as a witness, admission of the vid-
eotape would prevent it from benefitting from its own wrong-
doing.
[9] The videotape was also admissible under the residual
exception, which allows into evidence “[a] statement not spe-
cifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness,” if the court
finds:
(A) the statement is offered as evidence of a material
fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which
the proponent can procure through reasonable
efforts; and (C) the general purposes of these rules
and the interests of justice will best be served by
admission of the statement into evidence.
Fed. R. Evid. 807 (1997) (amended 2011).
Our case is closely analogous to United States v. Sanchez-
Lima, 161 F.3d 545, 547 (9th Cir. 1998), where we held that
the videotaped statements of deported witnesses were admis-
sible under the residual exception because they had the same
“circumstantial guarantees of trustworthiness” as the excep-
tions listed in Rules 803 and 804. The videotape of Garcia-
Garcia’s interview has many of the same markers of trustwor-
thiness as the tape in Sanchez-Lima. First, the interview was
taken under oath. See id. Second, Garcia-Garcia made the
statements voluntarily based on facts within her personal
knowledge. See id. Third, testimony preserved on videotape,
unlike written notes taken by an officer, shows the demeanor
of the witness, allowing a jury to use visual cues to assess
credibility. Id. Sanchez-Lima controls; the evidence was
admissible.
11254 UNITED STATES v. LEAL-DEL CARMEN
2. Missing-Witness Instruction
[10] Leal-Del Carmen also asked for a missing-witness
instruction informing the jury that it could presume an unpro-
duced witness would have testified unfavorably to the party
failing to produce the witness. See United States v. Noah, 475
F.2d 688, 691 (9th Cir. 1973) (“The failure of a party to pro-
duce a material witness who could elucidate matters under
investigation gives rise to a presumption that the testimony of
that witness would be unfavorable to that party if the witness
is peculiarly within the party’s control.”). There are two
requirements for a missing-witness instruction. First, the party
seeking the instruction must show that the witness is pecu-
liarly within the power of the other party. See United States
v. Brutzman, 731 F.2d 1449, 1453-54 (9th Cir. 1984), over-
ruled on other grounds by United States v. Charmley, 764
F.2d 675, 677 n.1 (9th Cir. 1985). Second, under the circum-
stances, “an inference of unfavorable testimony from an
absent witness is a natural and reasonable one.” United States
v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982) (internal quota-
tion marks omitted).
[11] This second requirement is easily satisfied in light of
what we know Garcia-Garcia probably would have said at
trial. The government quibbles about the first requirement,
arguing that Garcia-Garcia is not “peculiarly” within its
power, given that it has no knowledge of where she is in Mex-
ico and therefore has no better chance of finding her than
Leal-Del Carmen does. But it’s the government’s fault that no
one knows where she is. The government removed Garcia-
Garcia from the country and thus put her beyond the reach of
the court and defense counsel. It also failed to obtain and keep
her contact information, which would at least have made it
possible to seek her voluntary return. See Noah, 475 F.2d at691 n.4 (“The government should not cause a prospective wit-
UNITED STATES v. LEAL-DEL CARMEN 11255
ness to leave the jurisdiction so that he would not be available
to testify.”).9
[12] Because Garcia-Garcia is an alien lacking a lawful
immigration status, the federal government had exclusive
authority to parole her into the country to testify. See 8 U.S.C.
§ 1182(d)(5)(A) (granting the Attorney General discretion to
parole aliens into the United States temporarily and for lim-
ited purposes); see also Ortega-Cervantes v. Gonzales, 501
F.3d 1111, 1114 (9th Cir. 2007). For the government to say
that it isn’t responsible for her absence because it no longer
knows where to find her comes close to the classic definition
of chutzpah. See Alex Kozinski & Eugene Volokh, Lawsuit,
Shmawsuit, 103 Yale L.J. 463, 467 (1993).
[13] Where the government deports a witness who it
knows would testify favorably for the defense, the defendant
is entitled to have the jury informed. If jurors are not given
a missing-witness instruction, their view of the case may skew
in the government’s favor. Here, Garcia-Garcia’s absence was
especially damaging because it left the jury with the false
impression that each and every alien-witness who accompa-
nied Leal-Del Carmen identified him as one of the guides.
The district court abused its discretion by failing to give the
missing-witness instruction. What’s more, the missing-
witness instruction should have been given even if the video-
tape or transcript had been admitted. Had Garcia-Garcia been
retained, she might well have been able to provide additional
exculpatory evidence. The jury could have inferred that she
was deported to keep her from doing so.
9
In Noah, the court found that the witness wasn’t peculiarly within the
power of the government because there was a break in the relationship
between the government and the witness months before the indictment and
trial. 475 F.2d at 691. Here, there was no long break. Garcia-Garcia was
interviewed by border agents on March 25, 2010, and deported shortly
afterwards; Leal-Del Carmen was indicted on April 14, 2010.
11256 UNITED STATES v. LEAL-DEL CARMEN
D. HARMLESS ERROR
[14] The government’s wrongful deportation of a witness
with exculpatory evidence, coupled with the district court’s
evidentiary errors, deprived Leal-Del Carmen of a fair trial
and of his constitutional right to present a defense. “This right
includes, ‘at a minimum, . . . the right to put before a jury evi-
dence that might influence the determination of guilt.”’
Stever, 603 F.3d at 755 (quoting Ritchie, 480 U.S. at 56).
Because we’ve found a violation of the right to present a
defense, we must reverse the guilty verdict unless the govern-
ment convinces us the error was harmless beyond a reason-
able doubt. Id. at 757.
[15] We’re not convinced. The introduction of Garcia-
Garcia’s clear statements that Leal-Del Carmen didn’t give
orders, as well as the missing-witness instruction, could have
planted doubt in the minds of the jurors sufficient for an
acquittal. The verdict was close as it was. The jury delibera-
tions spanned two days and ended in a split verdict—Leal-Del
Carmen was not guilty of the three counts of bringing in ille-
gal aliens for financial gain and guilty of the three counts of
bringing in illegal aliens without presentation. The jury’s
acquittal on the financial gain counts suggests that it doubted
the government witnesses insofar as they testified that they
paid Leal-Del Carmen to bring them across the border. More
of their testimony may have come into doubt if Garcia-
Garcia’s testimony had been introduced. Because a jury could
have been swayed by Garcia-Garcia’s eyewitness account, the
constitutional errors were not harmless beyond a reasonable
doubt.
III. CONCLUSION
When we confronted the very same issue in Ramirez-
Lopez, we understood the government’s commendable course
of action subsequent to our opinion—seeking vacatur of the
opinion and dismissal of the charges against Ramirez-Lopez
UNITED STATES v. LEAL-DEL CARMEN 11257
—as a commitment that it would refrain from deporting wit-
nesses favorable to the defense without first giving defense
counsel an opportunity to interview them. We were therefore
surprised to see this same issue coming out of the same dis-
trict, and to learn that the Assistant United States Attorney
who argued the case was seemingly unaware of the office’s
mea culpa in Ramirez-Lopez. As of today, there should be no
doubt that the unilateral deportation of witnesses favorable to
the defense is not permitted in our circuit.
[16] On remand, the district judge shall decide whether to
dismiss the charges against Leal-Del Carmen with prejudice,
as a consequence of the government’s conduct. Should the
district court permit a retrial, it shall determine whether the
eight other deported witnesses were interviewed by govern-
ment agents and, if so, what they each said. The government
shall provide testimony or declarations from border agents as
to whether they interviewed the remaining members of the
group and whether they took notes or otherwise recorded the
statements. See note 3 supra. Leal-Del Carmen must also be
allowed to present the videotape of Garcia-Garcia’s testi-
mony, the transcript or both, as well as any evidence of what
the other eight witnesses said. Leal-Del Carmen shall also be
entitled to a missing-witness instruction as to Garcia-Garcia
and, depending on what the district court finds, to the other
eight deported witnesses as well.
REVERSED AND REMANDED.