Don Bauder 4:30 p.m., Dec. 9
Decision in smuggling case reversed after key defense witness deported
A three-judge panel for the Ninth Circuit U.S. Court of Appeals “slammed” the U.S. Attorney for deporting a witness who may have undermined an alien-smuggling case, Courthouse News Service reported Friday.
Jonathan Leal-Del Carmen was arrested in 2010 with a handful of suspected illegal immigrants. Three of those individuals said Leal-Del Carmen was the leader of the group, though Ana Maria Garcia-Garcia disputed their claims.
Testimony was taken from Leal-Del Carmen’s three accusers, though Garcia-Garcia was deported prior to his arraignment. The defendant’s attorney got the government to turn over videotapes of witnesses, though Leal-Del Carmen was unsuccessful both in attempts to have his case dismissed or to allow Garcia-Garcia’s statement admitted.
Chief Judge Alex Kozinski, writing for the panel of judges, noted that the handling of the case contradicted a similar 2003 case, United States v. Ramirez-Lopez. The same U.S. Attorney’s Office, Courthouse News says, in that instance voluntarily sought to vacate a smuggling conviction after making the same error.
“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,” wrote Kozinski. “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.”
The federal appeals court in Pasadena reversed the jury decision against Leal-Del Carmen. If a retrial is ordered, use of Garcia-Garcia’s testimony must be allowed by the defense.
“As of today, there should be no doubt that the unilateral deportation of witnesses favorable to the defense is not permitted in our circuit,” Kozinski warned the U.S. Attorney.
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