WITNESSES

What if the government deports a witness with material or favorable information for your case?

The government violates a defendant's Fifth and Sixth Amendment rights when it deports a witness material to the defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); see also United States v. Bran, 950 F. Supp. 2d 863, 869 (E.D. Va. 2013) (citing United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010)). Sanctions, such as dismissal of the indictment, should be imposed against the government if the defendant can make “a plausible showing that the testimony of the deported witness[] would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” Valenzuela-Bernal, 458 U.S. at 873. Although a defendant cannot obtain sanctions based on “‘mere speculation' that such testimony would be favorable to his defense, it is important to note that where…a defendant does not have access to a proposed witness, ‘he cannot be required to show materiality with the degree of specificity that applies in the ordinary case.'” United States v. Rosen, 520 F.Supp.2d 802, 811 (E.D. Va. 2007) (citing United States v. Moussaoui, 382 F.3d 453, 472 (4th Cir. 2004)).

In United States v. Leal-Del Carmen, 697 F.3d 964, 967 (9th Cir. Cal. 2012), the Circuit Court reversed a conviction after finding that the government undermined defendant's opportunity to present a complete defense by deporting a witness it knew could give exculpatory evidence. The Court held that when the government does not know what a witness will say, it does not act in bad faith by deporting him. 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. Id. at 967.

In United States v. Bran, 950 F. Supp. 2d 863, 869 (E.D. Va. 2013) the Fourth Circuit, relying on Valenzuela-Bernal and Leal-Del Carmen held that an MS-13 member who the government deported would have provided the defendant with testimony “material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." Bran, 950 F. Supp. 2d at 874 (citing Valenzuela-Bernal, 458 U.S. at 873). Citing Leal-Del Carmen, the Fourth Circuit held that

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.

Id. (citing Leal-Del Carmen, 697 F.3d at 970). The Fourth Circuit further reasoned that, “after all, ‘the government 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 advantage.' As a result, the Court concludes that some sanction is appropriate.” Id. (citing Leal-Del Carmen, 697 F.3d at 971).

In Bran, the Court ultimately gave a missing witness instruction, and that instruction was found to appropriately remedy the disadvantage to the defense. However, depending on the severity of the Government action, other, harsher sections could be warranted. For these reasons, it is important to examine whether a deported witness could be material or favorable to the defense. If so, some remedy is available, and could make the difference in your case.

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