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Feds Can't Deport Defendant's Only Exculpatory Witness

By Robyn Hagan Cain | Last updated on

What do you do if the only exculpatory witness in your client's case is a recently-deported illegal alien?

Start appealing.

Friday, the Ninth Circuit Court of Appeals ruled that the government may not deport an illegal alien who can provide exculpatory evidence for a criminal defendant, The Wall Street Journal reports.

Jonathan Leal-Del Carmen hadn't been arraigned for alien smuggling -- and wasn't yet represented by counsel -- when Ana Maria Garcia-Garcia was deported. Garcia-Garcia was the only exculpatory witness in Leal-Del Carmen's case.

Defense counsel had no opportunity to interview Garcia-Garcia, and only learned about Garcia-Garcia's videotaped testimony after several discovery requests.

Upon discovering her statements, Leal-Del Carmen moved to dismiss the indictment on the grounds that the government had deported an exculpatory witness. The district court denied that motion, as well as a subsequent motion to admit the videotaped testimony. The district court also declined to give Leal-Del Carmen's proposed missing-witness jury instruction.

The Ninth Circuit, in U.S. v. Dring, created 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. (There is no violation if the government made a "good-faith determination" that the alien-witness didn't have exculpatory evidence.

Second, the defendant must demonstrate that deportation of the witness prejudiced his case. (That requires "a plausible showing that the testimony of the deported witnesses would have been material" and not merely cumulative.)

The appellate court concluded that Leal-Del Carmen satisfied the two-part test, and that Garcia-Garcia's deportation wasn't a harmless error.

The appellate court noted that the wrongful deportation of Garcia-Garcia might have been rendered harmless if the district court had allowed Leal-Del Carmen to inform the jury of her statements. There was both a video and a transcript of the conversation between a federal agent and Garcia-Garcia, but the district court rejected the defense's requests to provide that evidence to the jury.

Chief Judge Alex Kozinski, writing for the unanimous court, concluded, "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."

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