Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:08-cr-02430-BTM

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1 KAREN M. STEVENS

California Bar No. 110009 2 185 W.F. Street, Suite 100 San Diego, California 92101 3 Telephone: (619) 239-8553
4 Attorney for Gerardo Salto-Rocha 5 6 7 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2430-BTM

9 UNITED STATES OF AMERICA, 10 11 v. 12 GERARDO SALTO-ROCHA (1), JOSE HERNANDEZ-RIVAS (2), 13 14 15

Plaintiff,

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR VIDEOTAPED DEPOSITION

Defendants.

I.
16

BACKGROUND
17

Defendant Salto-Rocha was charged on July 8, 2008, in complaint
18

No.08mj2098,
19 20

with

violation

of

Title

8,

U.S.C.,

Section

1324

(a)(2)(B)(iii), Bringing in Aliens Without Presentation. That Complaint alleges he and co-defendant Odilon Cira-Ramirez
21

violated the immigration laws of the United States, by bringing into the
22

United States, without presentation, the following illegal aliens:
23

Moises Ramirez-Valdez;
24

Pedro Cain Nieto-Rojas
25

Epifanio Barajas-Rodriguez;
26

Jose Bineros Hernandez-Rivas.
27

On
28

July

23,

2008,

the

Grand

Jury

returned

an

eight(8)-count

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1 Indictment in the above-titled matter, charging defendant Salto-Rocha in 2 seven counts, and Jose Hernandez-Rivas, his new co-defendant, in Count 8. 3

Mr.

Salto-Rocha

is

charged

with:

Bringing

in

Illegal

Aliens

4 Resulting in Death (Count 1); Bringing in Illegal Aliens (Counts 2, 4, & 5 6); Bringing in Illegal Aliens for Financial Gain (Counts 3,5,& 7); and 6 Aiding and Abetting (Counts 3, 5, & 7). 7

Co-defendant Hernandez-Rivas is charged only in Count 8, with

8 Deported Alien Found in the United States. 9

Mr. Salto-Rocha's former co-defendant, Odilon Cira-Ramirez, was

10 indicted separately in Case No.08cr2429-WQH. In that case, Mr. Cira11 Ramirez is also charged with Bringing in Illegal Aliens Resulting in 12 Death, and other smuggling offenses. [counsel believes the government has 13 filed a Notice of Related Cases]. 14

On August 1, 2008, counsel for defendant Salto-Rocha received That discovery includes reference

15 approximately 253 pages of discovery.

16 to approximately seven (7) post-arrest, videotaped interviews, conducted 17 by Border Patrol agents between July 7-9, 2008. 18

AUSA Peter Mazza provided counsel with a DVD this afternoon, which include some of these post-arrest, videotaped interviews.

19 should

20 Counsel's interpreter will review and prepare summary translations of the 21 interviews contained thereon over the week-end. 22

Counsel has also contacted the attorneys representing the material

23 witnesses whose depositions are at issue for the purpose of this hearing, 24 and is attempting to co-ordinate interviews with those witnesses, once 25 she has received her interpreter's translated "summaries" of those video26 taped interviews. 27 28

Counsel

for

these

material
2

witnesses

has

filed

motions

for

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1 depositions, so that they 2 country of origin. 3 4 5

could be released and returned to their

II. ARGUMENT

THE MOTIONS FOR MATERIAL WITNESS DEPOSITIONS SHOULD BE DENIED BECAUSE THESE DEPOSITIONS WOULD VIOLATE MR. SALTO-ROCHA'S SIXTH AMENDMENT RIGHT 6 TO CONFRONTATION; THE MOTIONS ARE INAPPROPRIATELY PREMATURE, AND THERE HAS BEEN NO SHOWING OF WITNESS UNAVAILABILITY
7

Title 18, United States Code § 3144 governs the detention of
8

individuals who may give testimony material to a criminal proceeding.
9

This section provides that where the witness is not able to meet the
10

conditions of the bond set by the court and is detained, the court may
11

order the deposition of the witness where (1) deposition may secure the
12

testimony of the witness and (2) further detention is not necessary to
13

prevent a failure of justice.
14

See 18 U.S.C. § 3144.

In this case, the

material witnesses
15

have moved for Although a

videotape depositions pursuant to 18 might indeed secure their

U.S.C.
16 17

§

3144.

deposition

testimony, this Court should order their continued detention in order to protect the rights of Mr. Salto-Rocha or in the alternative, modify the
18

conditions of release so that the material witnesses can remain in the
19

United States until this case is resolved.
20 21 22

The failure of this Court to

so order would result in a failure of justice on several counts.

A.
23 24

This is a Potential Capital Case. Mr. Salto-Rocha's interest in keeping the available witnesses is

particularly crucial, since, as of today's date, the government has yet
25

to determine whether this will be charged as a capital case.
26 27 28 3

"Death is

different" is an ingrained principle in our jurisprudence and it means

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1 specifically

that

procedural

rules

are

administered

differently

in

2 capital cases.

See e.g. Wiggins v. Smith, 539 U.S. 510 (2003); Fahy v.

3 Horn, 240 F.3d 239, 244 (3d Cir. 2001) (finding equitable tolling to 4 apply in a capital habeas case which would likely not apply in a non5 capital case). 6 not

This principle specifically means that this Court ought

rely upon the non-capital cases dealing with material witness The import of the "death is different" jurisprudence means

7 depositions.

8 specifically that procedural processes which might be adequate in a non9 capital

case are not adequate in a capital case.

For instance, a

10 defendant

in a capital case is entitled to a lesser offense jury Beck v. Alabama 447 U.S. 625 (1980), but that is not Solis v. Garcia, 219 F.3d 922,

11 instruction,

12 necessarily true in a non-capital case.

13 929 (9th Cir. 2000) (No clearly established Supreme Court law entitled a 14 defendant

in

a

non-capital

case

to

a

lesser

included

offense

15 instruction.)

Indeed, this is why Mr. Salto-Rocha has two defense

16 attorneys appointed in this matter. 17

Whatever force the cases cited by the material witnesses have in a

18 non-capital case, those cases do not apply to this case. 19 B. 20

The deposition of material witnesses would Confrontation Clause of the Sixth Amendment.

violate

the

Depositions in criminal cases are generally disfavored for several
21

reasons,
22 23

including

the

threat

they

pose

to

the

defendant's

Sixth

Amendment confrontation rights. 1551-52 (11th Cir. 1993).
24 25

United States v. Drougal, 1 F.3d 1546,

Criminal depositions are authorized only when

doing so is "necessary to achieve justice and may be done consistent with the defendant's constitutional rights." Id. at 1551.
26

See Fed. R. Crim.

P. 15(a).
27 28 4

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1 2 124

The Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, S. Ct. 1354 (2004) reaffirmed the common law principle that

3 testimonial statements may not be admitted against a defendant where the 4 defendant has not had the opportunity to cross-examine the declarant. 5 This is true even where the statements fall within a "firmly rooted 6 hearsay exception" or bear "particularized guarantees of trustworthiness." 7 Id. at 1354 .

In Crawford, the Court noted that the Sixth Amendment was

8 drafted in order to protect against the "civil-law mode of criminal 9 procedure" and "its use of ex parte examinations as evidence against the 10 accused.

Id. at 1363.

Such

ex parte examinations implicate Sixth The "text

11 Amendment concerns because they are "testimonial" in nature.

12 of the Confrontation Clause reflects this focus" and applies to "witnesses 13 against the accused - in other words, those who bear testimony."

Id. at

14 1363 (internal quotations omitted). Although the Court declined to define 15 "testimonial" evidence, they noted that an "accuser who makes a formal 16 statement to government officers bears testimony in a sense that a person 17 who makes a casual remark to an acquaintance does not." Id. at 1364.

The

18 Confrontation Clause does not permit such testimonial statements to be 19 admitted

at trial against an accused without the "constitutionally Id.

20 prescribed method of determining reliability," i.e., confrontation. 21 at 1365.

In other words, "[w]here testimonial evidence is at issue . . .

22 the Sixth Amendment demands . . . unavailability [of the declarant] and 23 a prior opportunity for cross-examination." 24

Id. at 1366.

Despite Crawford's broad prohibition of testimonial statements at

25 trial where the defendant has no opportunity to confront the witness, 26 there remain some situations in which depositions may be taken.

In these

27 situations, the burden is on the moving party to establish exceptional 28 5

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1 circumstances justifying the taking of depositions.

Drougal, 1 F.3d 1546

2 at 1552 (citing United States v. Fuentes-Galindo, 929 F.2d 1507, 1510 3 (10th Cir. 1991)).

The trial court's discretion is generally guided by

4 consideration of certain "critical factors," such as whether: (1) the 5 witness is unavailable to testify at trial; (2) injustice will result 6 because testimony material to the movant's case will be absent; and (3) 7 countervailing

factors

render

taking

the

deposition

unjust

to

the

8 nonmoving party.

Id. at 1552. Here, because the material witness has not

9 shown that any exceptional circumstances exist, the motion for videotape 10 depositions should be denied. 11

When considering the issue, this Court must balance the interests of

12 the Government and the accused, as well as the interests of the material 13 witness.

Although the material witnesses may have a liberty interest at

14 stake, that interest is outweighed by Mr. Salto-Rocha's constitutional 15 rights of confrontation and to due process of law in this, potentially, 16 capital case. 17

The Confrontation Clause serves several purposes: "(1) ensuring that

18 witnesses will testify under oath; (2) forcing witnesses to undergo cross19 examination; and (3) permitting the jury to observe the demeanor of 20 witnesses."

United States v. Sines, 761 F.2d 1434, 1441 (9th Cir. 1985).

21 It allows the accused to test the recollection and the conscience of a 22 witness through cross-examination and allows the jury to observe the 23 process

of cross-examination and make an assessment of the witness' Maryland v. Craig , 497 U.S. 836, 851 (1989); Ohio v. In

24 credibility.

25 Roberts, 448 U.S. 56, 63-64 (1979), overruled on other grounds .

26 addition, if any of the material witnesses has received the benefit of the 27 Government refraining from pressing criminal charges in return for his 28 6

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1 testimony against the accused, it is important that the jury see the 2 reaction

and demeanor of the material witness when confronted with

3 questions that will bring out such facts, in order for the jury to decide 4 whether to believe his statements and/or how much credit to give to his 5 testimony. 6

The Ninth Circuit recently explained and embraced the importance of

7 live testimony in United States v. Yida , 498 F.3d 945 (9th Cir. 2007). 8 Yida focused on whether the government had used `reasonable means' to 9 secure the presence of a witness which the government had allowed to be 10 deported of after the first trial of Mr. Yida.

Though Yida is about what

11 constitutes reasonable efforts by the Government, the Ninth Circuit framed 12 the discussion with an exposition on the importance of live testimony: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Underlying both the constitutional principles and the rules of evidence is a preference for live testimony. Live testimony gives the jury (or other trier of fact) the opportunity to observe the demeanor of the witness while testifying. William Blackstone long ago recognized this virtue of the right to confrontation, stressing that through live testimony, "and this [procedure] only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior, and inclinations of the witness." 3 William Blackstone, Commentaries on the Laws of England 373-74 (1768). Transcripts of a witness's prior testimony, even when subject to prior cross-examination, do not offer any such advantage, because "all persons must appear alike, when their [testimony] is reduced to writing." Id. at 374. As the National Association of Criminal Defense Lawyers ("NACDL") amicus brief highlights, the superiority of live testimony as contrasted with a transcript of prior testimony has been equally praised in our own judicial system since its inception. See, e.g., Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 39 L. Ed. 409 (1895) ("The primary object of the constitutional provision in question was to prevent depositions . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."); see also NLRB v.
7

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1 2 3 4 5

Universal Camera Corp., 190 F.2d 429, 430 (2d Cir. 1951) ("[T]hat part of the evidence which the printed words do not preserve . . . . is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors. . . ."); Broad. Music, Inc. v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir. 1949) ("The liar's story may seem uncontradicted to one who merely reads it, yet it may be contradicted . . . by his manner . . . which cold print does not preserve.") (internal quotations omitted).

6 Id. at 950-51. 7 This is but one passage and there are many others which explain why live 8 testimony is necessary and constitutionally compelled.

The constitution

9 only admits prior testimony when absolutely necessary, not just when it 10 is more convenient for the government (or the witness for that matter.) 11

Moreover, the decision to grant video depositions is governed by

12 Federal Rule of Criminal Procedure 15(a) which states that a material 13 witness's deposition may be taken only upon a showing of "exceptional 14 circumstances." 15 1998).

United States v. Omene, 143 F.3d 1167, 1170 (9th Cir.

While the material witnesses have argued generally that their

16 continued incarceration would constitute a "hardship" for them, this fact 17 is insufficient to satisfy his burden of proof under Rule 15(a).

See

18 Torres-Ruiz v. United States District Court, 120 F.3d 933, 935 (9th Cir. 19 1997). 20

First, almost any period of incarceration, by definition, will result This level of hardship alone Rather, the Court in

21 in some sort of hardship to that individual.

22 cannot constitute extraordinary circumstances.

23 Torres-Ruiz made clear that extraordinary circumstances require something 24 more:

"tremendous hardship."

120 F.3d at 936.

While the material

25 witnesses in this case obviously would prefer to free of custody, absent 26 more specifically compelling demonstrations of severe hardship, 27 no extraordinary circumstances warranting deposition testimony. 28 8

there is

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1

Furthermore, this Court should consider the unique circumstances Torres-Ruiz. Unlike this

2 distinguishing the Ninth Circuit's decision in

3 case, the material witnesses' motion for videotape deposition in Torres4 Ruiz was unopposed by the defendant.

Id. at 934-35.

Perhaps more

5 importantly, in Torres-Ruiz the defendant entered a guilty plea less than 6 two weeks after the motion for deposition was made, indicating that the 7 case was already near disposition when the motion was made. 8 37.

Id. at 936-

The instant case, however, stands in a much different procedural

9 posture. 10 C. 11 12 13

The motion to depose material witnesses is premature because Mr. Salto-Rocha has not been granted sufficient time to formulate a theory of the case; the government has not even determined whether to charge the case as a capital case; counsel hasn't even received all of the discovery, and only received some of the video-taped post-arrest statements today. Mr. Salto-Rocha has pled not guilty to all counts of the indictment.

14

Substantive motions of any sort have yet to be filed in this case ­ in
15

fact, this motion is to be heard two weeks before the initial discovery
16

motions are heard.
17 18

The investigation in this case has just begun. In

short, it is very early in the case, and to require Mr. Salto-Rocha to cross-examine
19 20

the

material

witness

at

the

current

juncture

of

the

proceedings and prior to the formulation of his precise theory of the case would severely prejudice his future trial rights.
21

The motion's prematurity is also evident because the material
22

witnesses may be necessary for any pretrial evidentiary hearings.
23

Because the material witnesses are
24

percipient witnesses -- and more

importantly,
25

non-governmental witnesses -- to the alleged smuggling testimony may prove to be integral to the fair

endeavor,
26 27 28

their

adjudication of this case.

Also, there may be points upon which one

9

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1 material witness's testimony will contradict (or reinforce) a point from 2 another witness's testimony and there is no way for Mr. Salto-Rocha to 3 foresee what that point of evidence or argument will be prior to trial. 4 D. 5

The motion for deposition should be dismissed because there has been no showing of the unavailability of the witness. If the Court determines that the detention of the material witnesses

6

must be reviewed at this point in time, the Court can easily resolve the
7

issue by modifying the conditions of release for the material witness so
8

that his continued detention would be unnecessary. Conditions of release
9

for material witnesses are governed by 18 U.S.C. § 3142.
10 11

Under this

section, "[t]he judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured
12

personal appearance bond . . . unless the judicial officer determines that
13

such release will not reasonably assure the appearance of the person as
14

required . . . ."
15 16

18 U.S.C. § 3142(b)(emphasis added).

Clearly, §

3142(b) suggests that this Court can order that the material witness be released on his own recognizance.
17 18

The material witnesses have no

incentive not to come back to court to testify; they are not being charged with any crimes, and therefore, have no incentive to flee the country.
19

Moreover, the Bail Reform Act states that "[t]he judicial officer may
20

not impose a financial condition that results in the pretrial detention
21

of the person."
22 23

18 U.S.C. § 3142(c)(2).

This mandate, combined with the

preference for release upon one's own recognizance, strongly suggests that the proper remedy for the material witnesses in this case is a motion to
24

modify the terms of their release, not for the draconian remedy of
25

immediately ordering
26 27 28

videotape depositions and deporting them to the

Republic of Mexico, especially not at this very early stage of the

10

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1 proceedings. 2 3 4 5

III. CONCLUSION Because the deposition of this material witness would violate Mr. Sixth Amendment right to confrontation, would be

6 Salto-Rocha's

7 inappropriately premature and would fail to meet underlying procedural 8 requirements--including the unavailability of witnesses--the material 9 witnesses motions should be denied. 10

Respectfully submitted,
11 12

Dated: August 8, 2008
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Karen M. Stevens KAREN M. STEVENS Attorney for Mr. Salto-Rocha

11