It's No Fun Being An Illegal Alien: Eighth Circuit Finds No Plan Error In Magistrate's Questions About Witnesses' Immigration Status

The recent opinion of the Eighth Circuit in United States v. Almeida-Perez, 2008 WL 5214949 (8th Cir. 2008), raises an issue that has left me very conflicted.  In fact, I don't even think at this point that I can hazard a guess about how courts should address it in the future.

In Almeida-Perez, José and Porfirio Almeida-Perez, brothers who pled guilty to being illegal aliens in possession of firearms that had been transported in interstate commerce, appealed from the district court's denial of their suppression motion and from the twenty-four month sentences it imposed on each of them.  And one of the arguments in Porfirio's brief was that the Magistrate Judge exceeded the bounds of Federal Rule of Evidence 614(b) in examining defense witnesses by, inter alia, asking them about whether they entered this country legally or illegally.

Federal Rule of Evidence 614(b) simply states that "[t]he court may interrogate witnesses, whether called by itself or by a party."  But the Advisory Committee's Note to it cautions that:

     "The authority [of the judge to question witnesses] is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse."

So, what does this Note mean, and is it violated when a judge inquires into the circumstances under which a witness entered the U.S.?  And would it be violated if an attorney, as opposed to a judge, asked these same questions?  Unfortunately, the Eighth Circuit didn't have to address these issues in much detail because Porfiro's attorney failed to object to this line of questioning by the judge, meaning that the issue was not preserved for appeal and that there could only be reversal for plain error.

(Of course, this raises the separate issue of the problems presented in requiring a party to object to questioning by a judge.  The Eighth Circuit addressed this problem in passing, noting, "While we recognize the difficulty for a litigant in objecting to actions of the judge presiding over their proceedings, it is nevertheless true that without a trial level objection, there was no opportunity for the Magistrate Judge to address the issue or correct any error into which he may have fallen.")

Instead, the Eighth Circuit merely noted that the issue was a close call, which meant that there was no plain error.  On the one hand, the court "found two cases in which unlawful entry into the country or other violation of immigration laws was considered admissible because relevant to truthfulness."  On the other hand, the court cautioned "that the use of such evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage."

I agree with the Eighth Circuit that there was no plain error in this case, but, as I indicated above, I am really torn on the issue of whether courts should generally allow this line of questioning and whether a judge's decision to allow such questioning despite a timely objection should form the basis for reversal.  Do readers have any thoughts on the issue?

-CM