finding a due process violation where the government deported several witnesses
How later courts described this case
- finding a due process violation where the government deported several witnesses
- where defendant was charged with conspiracy to smuggle aliens into the United States and with transporting illegal aliens, government action in deporting three of six witnesses to the offenses before defendant had an opportunity to interview them deprived defendant of due process
- the government violated the due process rights of a defendant charged with smuggling and transporting aliens when it returned some of the aliens to Mexico before the defendant had the opportunity to question them
- government deported aliens on whose testimony defense relied
Written by the judges who cited it.
Later courts went against this
Overruled by United States v. Valenzuela-Bernal, 458 U.S. 858 (1982)
450 F.2d 1, 4 (9th Cir. 1971), overruled by United States v. Valenzuela-Bernal, 458 U.S. 858
Distinguished
Distinguished by United States v. Antonio Hernandez-Gonzalez, 608 F.2d 1240 (1979)
The court held that Mendez-Rodriguez was inapplicable because the unavailability of the witness was not due to government action.
The opinion
KILKENNY, Circuit Judge
(dissenting) :
I respectfully dissent. There is absolutely nothing in this record to suggest that the deported aliens were made unavailable as witnesses by reason of the misconduct or, for that matter, the negligence of the government. By statute, 1 the Attorney General is expressly authorized to order deportation of aliens illegally entering the United States. To require the government, in the circumstances of this case, to retain deportable *6 aliens until the defendant in a criminal proceeding had an opportunity to interview them, is to place upon the government an unconscionable and indeed unmanageable burden. This is not a case where the government concealed alien witnesses, nor is it a case where the government deported the aliens with knowledge that they would be helpful to appellant’s defense. The record is completely devoid of anything which would suggest that the testimony of any one, or more, of the deported persons would have been helpful to appellant. There is no evidence whatsoever that the deportation deprived the appellant of “access to a storehouse of relevant fact.” Dennis v. United States, 384 U.S. 855, 873 , 86 S.Ct. 1840, 1851 , 16 L.Ed.2d 973 (1966). There must be some showing of negligence or misconduct on the part of the government before the court can say that the defendant, in this type of a proceeding, is denied due process. Ferrari v. United States, 244 F.2d 132 (9th Cir. 1957), cert, denied sub nom. Cherpakov v. United States, 355 U.S. 873 , 78 S.Ct. 124 , 2 L.Ed.2d 78 (1957). Here, in'my opinion, the appellant has not made such a showing.
I would affirm the judgment.
. 8 U.S.C. § 1251 (a) (2).