EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, September 21, 2012

Doing Bad All By Itself: 9th Circuit Finds Deportation Of Defense Witness Triggered Forfeiture By Wrongdoing

In my recent posts on forfeiture by wrongdoing, I've been focused upon cases in which the defendant causes the unavailability of a prospective witness, meaning that he has forfeited his hearsay and Confrontation Clause objections to the admission of that witness' statements. As the Advisory Committee Note to Federal Rule of Evidence 804(b)(6) makes clear, however, "[t]he rule applies to all parties, including the government." For an example of a case in which the government forfeited its right to object to the defendant's admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

In Leal-Del Carmen, Jonathan Leal-Del Carmen was convicted of three counts of bringing in illegal aliens without presentation and acquitted of three counts of bringing in illegal aliens for financial gain. Leal Del-Carmen thereafter appealed, claiming, inter alia, that the trial court erred in precluding him from admitting either a video or a transcript a conversation between an agent and the only potential favorable defense witness: Anna Maria Garcia-Garcia.

The government deported Garcia-Garcia before trial, and the Ninth Circuit found that this deportation was in bad faith:

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 question 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 inconsequential.

Once the government is aware that an alien has potentially 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 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 testimony for trial.

Because the court thus found that the government caused Garcia-Garcia to be unavailable for trial and had the intent to render her unavailable for trial, it concluded that forfeiture by wrongdoing applied: "Because the government was responsible for rendering Garcia–Garcia unavailable as a witness, admission of the videotape would prevent it from benefiting from its own wrongdoing." 

This conclusion is also consistent with another part of the Advisory Committee Note to Federal Rule of Evidence 804(b)(6), which states that "[t]he wrongdoing need not consist of a criminal act."



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