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

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1 KRIS J. KRAUS

California Bar No. 233699 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 [email protected]
5 Attorneys for Mr. Augustin Carranza-Duarte 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY TED MOSKOWITZ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2253-BTM Date: July 25, 2008 Time:2:00 P.M. NOTICE OF OBJECTION TO RELEASE OF MATERIAL WITNESS AND MOTION TO DETAIN SAME

11 UNITED STATES OF AMERICA, 12 13 v. 14 AUGUSTIN CARRANZA-DUARTE, 15 16 17 TO: 18 19 20

Plaintiff,

Defendant.

CAROL LAM, UNITED STATES ATTORNEY, CHARLOTTE KAISER, ASSISTANT UNITED STATES ATTORNEY, NED LYNCH, ATTORNEY FOR THE MATERIAL WITNESSES,

PLEASE TAKE NOTICE that on July 25, 2008 at 2:00 p.m., or as soon thereafter as counsel may

21 be heard, the defendant, Mr. Carranza-Duarte, by and through his counsel, Kris J. Kraus and Federal 22 Defenders of San Diego, Inc., will ask this Court to enter an order granting the motion listed below. 23 // 24 // 25 // 26 // 27 // 28 //

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MOTION Mr. Carranza-Duarte, the defendant in this case, by and through his attorneys, Kris J. Kraus and

3 Federal Defenders of San Diego, Inc., pursuant to the Fourth, Fifth and Sixth Amendments to the United 4 States Constitution, Fed. R. Crim. P. 12, 16 and 26, and all other applicable statutes, case law and local rules, 5 hereby moves this Court for an order Detaining the Material Witness until Trial. 6

This motion is based upon the instant motion and notice of motion, the attached statement of facts

7 and memorandum of points and authorities, and any and all other materials that may come to this Court's 8 attention at the time of the hearing on this motion. 9 10 11 Dated: JULY 17, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,

/S/ KRIS J. KRAUS KRIS J. KRAUS Federal Defenders of San Diego, Inc. Attorneys for Mr. Carranza-Duarte

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of her

3 information and belief, and that a copy of the foregoing document has been served this day upon: 4 U S Attorney CR 5

[email protected] Ned Lynch

6 [email protected] 7 Courtesy copy to: 8 Charlotte Kaiser 9

Assistant United States Attorney /s/ Kris J. Kraus KRIS J. KRAUS Federal Defenders 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]

10 Dated: July 17, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 KRIS J. KRAUS

California Bar No. 233699 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, California 92101-5008 Telephone: (619) 234-8467 4 [email protected]
5 Attorneys for Mr. Augustin Carranza-Duarte 6 7 8 9 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE BARRY TED MOSKWITZ) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS According to their counsel, the material witnesses in this case have been unsuccessful in posting Criminal No. 08CR2253-BTM STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION

11 UNITED STATES OF AMERICA, 12 13 v. 14 AUGUSTIN CARRANZA-DUARTE, 15 16 17 18 19

Plaintiff,

Defendant.

20 bond. Counsel for the material witnesses filed a motion requesting a video deposition and the release of the 21 material witnesses to allow for their removal to Mexico. Defense counsel on behalf of Mr. Carranza-Duarte 22 objects to the release of these material witnesses, and requests that the Court either detain the material 23 witnesses or modify their bond so that they can remain legally in the United States until the trial is over or the 24 case is resolved. 25 // 26 // 27 // 28 //

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II. RELEASE OF THE MATERIAL WITNESSES IN THIS CASE WOULD VIOLATE MR. CARRANZA-DUARTE'S CONSTITUTIONAL RIGHTS Title 18 U.S.C. § 3144 provides for the arrest and detention of persons who may give testimony

5 material to a criminal proceeding. That statute states: 6 7 8 9 10

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

11 18 U.S.C. § 3144 (emphasis added). As this Court is aware, 18 U.S.C. § 3142 governs the conditions of 12 release or detention. Thus, where the witness is not able to meet the conditions of release set by the court, e.g., 13 bond, and is detained, the court may order the deposition of the witness where: (1) deposition may secure the 14 testimony of the witness; and (2) further detention is not necessary to prevent a "failure of justice." 18 U.S.C. 15 § 3144. 16

In this case, although deposition may secure the witnesses' testimony, the Court must order the

17 continued detention of the material witnesses to preserve Mr. Carranza-Duarte's constitutional rights or, in 18 the alternative, set a bond the material witnesses can meet and which would allow them to remain in the 19 United States legally until the case is resolved. Failure by the Court to so order will result in a "failure of 20 justice." 21

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

22 and the material witnesses. Although the witnesses have a liberty interest at stake, that interest must give way 23 to Mr. Carranza-Duarte's constitutional rights. The Court would deny Mr. Carranza-Duarte his right to
1 2 24 confrontation of the witnesses and due process of law if it orders the witnesses released in this case.

25

The Court must keep in mind that the only reason the government has not charged the witnesses with

26 a crime is that these illegal alien material witnesses, who committed a crime by entering the United States are 27 28

1. U.S. Const. Amend. VI. 2. U.S. Const. Amend. V. 2 08CR2253-BTM

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1 cooperating with the government and the government wants their testimony against Mr. Carranza-Duarte. 2 Needless to say, the government would not concern itself with the witnesses' liberty interest if in fact these 3 illegal alien material witnesses were not cooperating and had been charged as part of a conspiracy with Mr. 4 Carranza-Duarte. Depending on their prior immigration histories, which is unknown to defense counsel at this 5 time, these illegal alien material witnesses could also have been charged under Title 8 U.S.C. § 1325 or 8 6 U.S.C. § 1326 for their illegal entry into the United States. 7 A. 8 9

Authorizing the Material Witnesses' Deposition Facilitates Their Unavailability for Trial in Violation of the Confrontation Clause. The Confrontation Clause serves a dual purpose: (1) it allows the accused to test the recollection and

10 the conscience of a witness through cross-examination; and, (2) it allows the jury to observe the process of 11 cross-examination and make an assessment of the witness' credibility. See Maryland v. Craig, 497 U.S. 836, 12 851 (1990); Ohio v. Roberts, 448 U.S. 56, 63-64 (1980). In a case such as this, where the witnesses have 13 received the benefit of the government refraining from pressing criminal charges in return for the witnesses' 14 testimony against the accused, it is important that the jury see the reaction and demeanor of the witnesses 15 when confronted with questions that will bring out such facts in order for the jury to decide whether to believe 16 the witnesses' statements and how much weight to give their testimony. The jury will not have the ability to 17 make such an assessment if all it hears or sees is a video-taped deposition because the tape may not preserve 18 subtle reactions of the witness under cross-examination that may favor the accused. 19

The material witness has not demonstrated that "further detention is not necessary to prevent a failure

20 of justice." See Torres-Ruiz v. United States District Court, 120 F.3d 933, 935 (9th Cir. 1997). In support 21 of the pending request for a videotaped deposition, counsel for the material witness cites Torres-Ruiz, but does 22 not state or provide an analysis of the facts of Torres-Ruiz or the instant case. This is most probably, because 23 Torres-Ruiz is not analogous for several reasons and, accordingly does not compel this Court to grant the 24 request for deposition by the material witness. 25

Counsel for the material witness fails to point out that Torres-Ruiz involved the detention of two (2)

26 men from a larger group of twenty-seven (27) individuals for more than sixty (60) days. Id. The detention at 27 issue in this case has not yet reached the sixty (60) days confronted by the Court in Torres-Ruiz. Accordingly, 28 any purported hardship on their families, assuming any exists, is less severe than that in Torres-Ruiz.

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1 Regardless, it is unclear how the material witness' current detention poses any hardship beyond that already 2 created by his own deliberate choice to leave his homes and family in Mexico and illegally enter into the 3 United States. 4

Additionally, the parties to Torres-Ruiz, including the defendant, expressed no opposition to claims

5 by the material witness of hardship. Mr. Carranza-Duarte opposes any such claim in the instant matter. As 6 stated above, it is extremely unclear how detention at this point in time presents any greater hardship upon 7 the material witnesses than that created by their own conscious choice of leaving his family to illegally enter 8 the United States. Their absence from home and separation from family would have no doubt continued had 9 they successfully made it to their ultimate destination within the United States. It is only now, after being 10 implicated and agreeing to cooperate with the government by trading testimony for not being charged that 11 these illegal alien material witnesses claim hardship. Accordingly, they should not now be able to complain 12 of any purported hardship they initially created by breaking the laws of the United States. 13

The witnesses in Torres-Ruiz also demonstrated that they were the sole support for their respective

14 families in Mexico. Here, there is only a one line assertion that two of the material witnesses are the sole 15 financial supporter of their families and nothing more. The declaration also fails to mention that this is a 16 situation that the material witnesses created by leaving their family behind to illegally enter the United States 17 and commit the crime of illegal entry. Therefore, Torres-Ruiz is inapposite to the facts of the instant case. 18

Furthermore, it is fairly certain, from their alleged actions, that these material witnesses knew it was

19 illegal for them to enter the United States and that if caught there was a strong possibility that they would be 20 caught, detained for a lengthy period of time, and prosecuted. 21

Finally, the motion submitted by counsel for the material witness appears to contain generalized,

22 boilerplate assertions unsupported by law or facts in their request for release. The motion cites limited case 23 law and other authority and fails to elicit any information that would lead anyone to believe that the material 24 witnesses' continued detention would be a hardship. Such conclusory statements, not substantiated by any 25 facts are clearly insufficient to defeat Mr. Carranza-Duarte's constitutional rights. The motion also fails to 26 explain what, if any, efforts were undertaken to seek and secure sureties for the material witness. More 27 crucially, the material witnesses assert in their motion that there is nobody within the United States capable 28 of posting his bond. This may not be accurate. It is assumed that the material witnesses, themselves, informed

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1 government agents that they were going to pay someone for smuggling them illegally into the United States 2 once they reached his ultimate destination. Otherwise, the government would probably have no interest in 3 their testimony or cooperation and they would either be facing prosecuted for illegal entry or deportation 4 proceedings to Mexico. Because it is extremely doubtful that the material witness what carrying around the 5 money necessary to pay whatever fee they have told the government was agreed upon it is highly likely that 6 the material witness has family, and/or friends, in the United States with the financial wherewithal to pay the 7 smuggling fee and, therefore, can meet the minimal bond required in this case. 8

For these reasons, Torres-Ruiz does not compel this Court to order a deposition at this early stage

9 of the proceedings especially in light of the material witness' resources to secure the bonds required. 10 B. 11 12

Because Parts of Their Testimony Could Support a Defense, Release of the Material Witnesses Will Violate Mr. Carranza-Duarte's Sixth Amendment Right to Compulsory Process. Release of the material witness before trial will violate Mr. Carranza-Duarte's Sixth Amendment

13 right to compulsory process. The Sixth Amendment states in relevant part: "In all criminal prosecutions, the 14 accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in her favor." U.S. 15 Const. amend. VI. The right to offer the testimony of witnesses, and to compel their attendance, if necessary, 16 is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well 17 as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to 18 confront the prosecution's witnesses, for the purpose of challenging their testimony, he has the right to present 19 his own witnesses to establish a defense." Washington v. Texas, 388 U.S. 14, 19 (1967). 20

Thus, the right to compulsory process offers a means by which defense witnesses are heard and

21 marks a right to have the testimony of defense witnesses entered into evidence for the jury on a footing equal 22 to the testimony of the prosecution witnesses. The Sixth Amendment contemplates a trial before a jury in 23 which the defendant has a right to confront adverse witnesses and a right to "compulsory process for obtaining 24 witnesses in his favor." U.S. Const. amend. VI. 25

Applying these principles to the facts at hand, Mr. Carranza-Duarte seeks to retain all material

26 witnesses on the grounds that certain parts of their testimony may support a defense Mr. Carranza-Duarte 27 could assert at trial. Thus, Mr. Carranza-Duarte's constitutional right to compulsory process will be violated 28 if the material witnesses are released and allowed to move outside the court's subpoena power before they

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3 1 provides favorable testimony at trial. Indeed, the witnesses will be placing Ms. Carranza-Duarte at a

2 disadvantage that triggers the "failure of justice" under § 3144. 3

Moreover, if a video-taped deposition of the material witness is shown to the jury, the testimony will

4 not be on an "equal footing" with the prosecution's witnesses - the arresting agents. Aside from being a 5 video-taped deposition, the material witnesses' prison uniforms take away from the credibility of their 6 testimony and is highly prejudicial to Mr. Carranza-Duarte. In Estelle v. Williams, 425 U.S. 504-505, 96 S. 7 Ct. 1691, 1693 (1976), the Court reasoned that where a defendant is forced to wear prison clothes when 8 appearing before the jury, "the constant reminder of the accused's condition implicit in such distinctive, 9 identifiable attire may affect a juror's judgment." Thus, the Court held that since no "essential state policy" 10 is served by compelling a defendant to dress in this manner the practice is unconstitutional. Estelle, 424 U.S. 11 at 505. 12

Accordingly, § 3144 mandates the "further detention" of the material witness. 18 U.S.C. § 3144. If

13 the material witnesses are released, they will return to Mexico making it both financially and physically 14 impossible for them to return to the United States for a trial. In the alternative, this Court could lower the 15 material witnesses' bond so they can remain in the United States until the trial is over or the case is resolved. 16 17 18

III. CONCLUSION For the foregoing reasons, Mr. Carranza-Duarte respectfully requests that this Court issue an order

19 preventing the government from deporting the material witnesses or taking any other action that would 20 materially interfere with Mr. Carranza-Duarte's right to obtain the testimony of the material witnesses at trial. 21 22 23 Dated: July 17, 2008 24 25 26 27 28

Respectfully submitted,

/S/ KRIS J. KRAUS KRIS J. KRAUS Federal Defenders of San Diego, Inc. Attorneys for Mr. Carranza-Duarte

3. This is because the government will deport the witness after their release. Such action by the government will result in placing the witness beyond the subpoena power of this court. 6 08CR2253-BTM