Petition — Patel v. United States

_ —

_ ST a

80-117

IN THF

Supreme Court, U. S.

FILE DB

JUL 25 1980

SUPREME COURT OF THE UNI DSTA ES

DAK, JR., CLERK

October Term, 1980

No.

ISHVARBHAI J. PATEL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A

WRIT OF CERTIORARI

ROBERT E. HINERFELD,

Counsel of Record;

MURPHY, THORNTON,

HINERFELD & CAHILL

DAVID ELSON,

Of Counsel,

611 West Sixth Street,

Suite 1610

Los Angeles, California 90017

(213) 624-9900

Attorneys for Petitioner.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

ISHVARBHAI J. PATEL,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A

WRIT OF CERTIORARI

Ishvarbhai J. Patel, your petitioner,

respectfully prays that a writ of certio-

rari be issued to review the judgment of

the United States Court of Appeals for

the Ninth Circuit, entered in the above-

entitled cause on April 4, 1980.

1

QUESTION PRESENTED

Petitioner was one of five defen-

one tried for immigration

crimes in the United States District

Court for the Central District of

California. The trial court granted

motions to dismiss the indictment and

for judgment of acquittal on all counts.

The question presented is:

1. Whether the Double Jeopardy

Clause bars the prosecution's appeal

from the judgment of acquittal entered

by the trial court.

1/ The other four defendants are

Jose Luiz Gonzales, Oscar Celso Orosco-

Morales, Hector Garcia-Martinez, and

Samuel Gudino-Barajas.

2

TABLE OF CONTENTS

Page

Question Presented. . . . « + 6 6%. 2

Table of Contents 3

IE tas iota bg ae rg eg 5

‘ Opinions Below. 7

Jurisdiction. 8

Constitutional Provision

and Statute Involved. ...... 9

Statesense OF the Case... +1 ee « «38

Reasons for Granting the Writ... 13

1. The opinion sets up a standard

of review which constitutes a

radical departure from estab-

lished principles of constitu-

Ces Sey os Sec Bowe & Be

2. Where a trial court intended

to adjudicate guilt or

innocence, rather than to

decide issues of law unrelated

to guilt or innocence, an

appeal is barred by the

Double Jeopardy Clause. ... 16

Tee bs Oe eee as oe ce ee SS

Appendix A - Opinion of Court of

Appeals, dated

Seas S,. Aone se ss he

Appendix B -

Appendix C -

Judgment of Aquittal

and Dismissal, dated

May 11, 1978 .

Order of Court of

Appeals, dated

June 27, 1980,

denying rehearing.

Page

. Bel

. Col

CITATIONS

CASES

Fong Foo v. United States,

329 U.5, 194, G2 6.Gc. ofl,

7 L.Ed.2d 629 (1962) . . 19, 20,

In re United States,

‘ Cir., 1961).

Sanabria v. United States,

437 U.S. 54, 98 S.Ct. 2170,

57 L.Ed.2d 43 (1978) . . 20, 21,

United States v. Appawoo,

553 F.2d 1242 (Th Gar., 2977).

United States v. Fay,

553 F.2d 1247 (10 Cir., 1977).

United States v. Gonzales,

r., 1980)

United States v. Martin Linen

Supply, 430 U.S. 564,

ST L.Ed.2d 642, 97 S.Ct.

Rae Guerre «s+ 2 2B, BB, U9,

United States v. Scott,

cc. 2487,

57 L.Ed.2d 64 (1978) . . 13, 14,

Page

Page

CONSTITUTIONAL PROVISIONS

Constitution of the United States

Piftth doen@ment . . . «ke 9

STATUTES

Title 18, United States Code,

Ee * SP re F Sas 9

Title 28, United States Code,

§ 1254(1) Pay ae ee ee tear 8

RULES

Rule 29, Federal Rules

of Criminal Procedure. . 11, 13, 15

OPINIONS BELOW

Petitioner and his four co-defendants

were jointly tried in the United States

District Court for the Central District

of California. On May 11, 1978, the

District Court filed its Judgment of

Acquittal and Dismissal (Appendix B

hereto).

The prosecution appealed to the

United States Court of Appeals for the

Ninth Circuit, which entered judgment

on April 4, 1980. The opinion is report-

ed at 617 F.2d 1358 (9 Cir., 1980). A

complete copy of the opinion and judgment

is attached as Appendix A hereto.

On July 27, 1980, the Court of Appeals

denied a petition for rehearing and

rejected the suggestion for a rehearing

en banc. A copy of the order is attched

as Appendix C hereto.

7

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on

April 4, 1980. A timely petition for

rehearing, with suggestion of appropri-

ateness of rehearing en banc, was denied

on June 27, 1980, and this petition for

certiorari was filed within 30 days of

that date.

The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

The Fifth Amendment to the Constitu-

tion of the United States:

"kkk[N]Jor shall any person be

subject for the same offence to

be twice put in jeopardy of life

oc Limb;..."

Title 18, United States Code

(Criminal Appeals Act)

"§ 3731. Appeal by the

United States

"In a criminal case an appeal

by the United States shall lie

to a court of appeals from a

decision, judgment, or order

of a district court dismissing

an indictment or information as

to any one or more counts, except

that no appeal shall lie where

the double jeopardy clause of

the United States Constitution

prohibits further prosecution.

ee &"

STATEMENT OF THE CASE

Petitioner and his four co-defendants

were jointly tried in the United States

District Court for the Central District

of California after being indicted by

the Federal Grand Jury for the Central

District of California and charged

with various violations of the criminal

statutes of the United States. The

trial by jury began on May 5, 1978,

with the Honorable A. Andrew Hauk

presiding.

On the fourth day of trial, the court

was informed by the prosecution that two

witnesses had been released by the Immi-

gration and Naturalization Service with-

out first having been made available to

defense counsel. Defense counsel moved

to dismiss the indictment on the grounds

that the defendants' constitutional

10

rights to due process of law and compul-

sory process had been violated. After

conducting a full day's hearing, the

trial court initially stated that it

was prepared to order a judgment of

acquittal. The prosecution objected

that the appropriate remedy was dismis-

sal, citing Rule 29, F.R.Cr.P. After

reconsidering its position, the trial

court announced that it had been per-

suaded by the prosecution's argument, and

ordered the indictment dismissed.

Immediately thereafter, the prosecutor

began to argue that "the interests of

justice” had not been served, since

"Your Honor, there has been no finding

of guilt or innocence in the case." In

response to the prosecutor's insistence

that "society" deserved a determination

of innocence or guilt, the court sug-

gested that it would make such a deter-

11

mination if desired. Following a

motion by the defense, a judgment of

acquittal was ordered by the trial court.

The government appealed to the United

States Court of Appeals for the Ninth

Circuit. The cause was argued on Octo-

ber 2, 1979. A per curiam opinion

rejecting the defendants' contention

that the appeal was barred by the Double

Jeopardy Clause of the Fifth Amendment

was entered on April 4, 1980; it stated

that "(T]he record does not plainly

demonstrate that the district court

evaluated the government's evidence and

determined that it was legally insuf-

ficient to sustain a conviction" (See

Appendix A). On June 27, 1980, the

petition for rehearing of this petitioner

was denied by the Court of Appeals

(See Appendix C).

12

REASONS FOR GRANTING THE WRIT

1. THE OPINION SETS UP A STANDARD

OF REVIEW WHICH CONSTITUTES

A RADICAL DEPARTURE FROM

ESTABLISHED PRINCIPLES OF

CONSTITUTIONAL LAW

Citing United States v. Scott, 437

U.S. 82, 98 8.Ct. 2187, 57 L.Ed.2d 65

(1978) and F.R.Cr.P. Rule 29, the opinion

in essence sets out, as the standard of

review for the district court's judgment

of acquittal, whether "the record...

plainly demonstrate[s] that the district

court evaluated the government's evidence

and determined that it was legally insuf-

ficient to sustain a conviction" (App.

A-11).

As authority for employing this stan-

dard of review, the opinion cites a pas-

sage in United States v. Scott, 437 U.S.

82, 97, 98 S.Ct. 2187 (1978), to the

effect that a defendant is acquitted

13

only when the judge's ruling, whatever

its label, actually represents a resolu-

tion of some or all factual elements of

the offense charged, and that an appeal

is barred only where it is plain that

the district court evaluated the govern-

ment's evidence and determined it was

legally insufficient to sustain a con-

viction.

However, Scott did not purport to

decide under what circumstances a judg-

ment of acquittal might be treated as

appealable, since no judgment of acquit-

tal was requested or granted in Scott.

Scott instead determined that a dismissal

for pre-indictment delay granted after

jeopardy had attached did not bar a

prosecution appeal, since (under the

holding in Scott) a defendant's decision

to move for dismissal of an indictment

after jeopardy attached constituted an

14

election to forego the protection of the

‘Double Jeopardy Clause insofar as it

would otherwise preclude appellate review

of the dismissal.

The language in Scott which is the

source for the standerd of review employ-

ed here is itself simply a reference tc m

language in the Supreme Court's earlier

decision in United States v. Martin Linen

Supply Co., 430 U.S. 564, 571-572, 97

S.Ct. 1349, 1354-1355 (1977). Martin

Linen Supply did not involve a judgment

of acquittal. But instead of supporting

the standard of review employed here,

Martin Linen Supply is strong support

for petitioner's position that the

Double Jeopardy Clause bars the prosecu-

tion's appeal from the judgment of

acquittal here. Martin Linen Supply

specifically rejects the notion that

Rule 29 limits the power of a trial

15

judge to grant a judgment of acquittal,

however erroneous the acquittal might be:

"Such a limitation on the role

of a trial judge, however, has

never inhibited his ruling in

favor of a criminal defendant.

Fong Foo v. United States, 369

a een, Be 6.Ce. CFh, *¢ &. 84.28

629 (1962), establishing the bind-

ing nature of a directed verdict,

is despositive on that point.

Since Rule 29 merely replaces

the directed-verdict mechanism

employed in Fong Foo, and accords

the federal trial judge greater

flexibility in timing his judgment

of acquittal, no persuasive basis

exists for construing the Rule as

weakening the trial court's bind-

ing authority for purposes of

double jeopardy [Footnote omitted] ."

430 U.S. 573, 97 §.Ct. 1355.

2. WHERE A TRIAL COURT INTENDED TO

ADJUDICATE GUILT OR INNOCENCE,

RATHER THAN TO DECIDE ISSUES

OF LAW UNRELATED TO GUILT OR

INNOCENCE, AN APPEAL IS BARRED

BY THE DOUBLE JEOPARDY CLAUSE

The judgment of acquittal here was

clearly intended to constitute a separate

adjudication of guilt or innocence,

rather than addressing the issues of

16

constitutional law which the trial court

had already decided. The prosecutor

specifically invited the trial court to

take appropriate steps to achieve a

determination of guilt or innocence,

notwithstanding the trial court's already

announced decision to dismiss the indict-

ment. Taking up the prosecutor's invi-

tation, the trial court responded by

making the "finding of guilt or innocence"

invited by the prosecutor.

Although the opinion concludes that

".,.the order was based on constitutional

grounds arising from the unavailability

of potential material witnesses", the

judgment of acquittal clearly was intend-

ed to adjudicate guilt or innocence,

rather than to be merely a label attached

to a determination of issues of law

unrelated to guilt or innocence. It is

for this reason that the standard of

17

review employed here represents such a

radical departure from established prin-

ciples of constitutional law which go to

what the opinion itself describes as

"the most fundamental rule in the history

of double jeopardy jurisprudence...[i.e.]

that a judgment of acquittal may not be

appealed by the government without put-

ting a defendant twice in jeopardy"

(App. A-8).

Surely the opinion does not mean that

appellate review of a jury's verdict of

acquittal would be permissible, simply

because the record in the trial court

did not plainly demonstrate that the

acquittal had resulted from a determin-

ation that the government's evidence was

legally insufficient to sustain a convic-

tion. The Double Jeopardy Clause is

unquestionably intended to protect the

jury's determination of innocence from

18

any such review. Martin Linen Supply

makes it clear that where a trial

judge's judgment of acquittal was

intended to adjudicate guilt or inno-

cence, it is just as free from appellate

review as a jury verdict of acquittal.

In essence, the opinion implicitly

holds that it was appealable error for

the trial court to grant a judgment of

acquittal prior to the close of the

government's case-in-chief, and that the

judgment of acquittal was beyond the

trial court's jurisdiction to order prior

to the government finally resting its

case. However, in Fong Foo v. United

States, 369 U.S. 141, 82 S.Ct. 671,

7 L.Ed.2d 629 (1962) (per curiam), the

error in the trial court for which the

prosecution sought appellate review was

precisely the same--the granting of a

judgment of acquittal prior to the close

19

of the prosecution's case-in-chief. See

In re United States, 286 F.2d 556 (1Cir.,

1961) (reversed in Fong Foo). Indeed,

the First Circuit had specifically held

the judgment of acquittal in Fong Foo to

be beyond the trial court's jurisdiction

to order, thus void, and not a basis for

the protection of the Double Jeopardy

Clause. 286 F.2d 564-565. It was this

determination which the Supreme Court

specifically repudiated in Fong Foo, even

where an appellate court had concluded

that "the acquittal was based upon an

egregiously erroneous foundation". Fong

Foo v. United States, 369 U.S. 141, 143,

62 8.Ct. 671, 672.

In Sanabria v. United States, 437 U.S.

594, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978),

the Supreme Court specifically reaffirmed

its holding in Fong Foo that the Double

Jeopardy Clause bars any appeal from a

20

judgment of acquittal:

"In deciding whether a second

trial is permissible here, we must

immediately confront the fact that

petitioner was acquitted on the

indictment. That '"[a] verdict

of acquittal...[may] not be

reviewed...without putting [the

defendant] twice in jeopardy,

and thereby violating the Consti-

tution,''' has recently been

described as 'the most fundamental

rule in the history of doubly

jeopardy jurisprudence.' United

States v. Martin Linen Supply Co.,

430 U.S. 564, 571, 97 S.Ct. 1345.

1354, 51 L. Ed.2d 642 (1977), quot-

“7 United States v. Ball, i63

662, 671, 16 S.Ct. 1192, 1195,

hy iL. Ed. 300 (1896). The funda-

mental nature of this rule is mani-

fested by its explicit extension

to situations where an acquittal

is 'based ain an egregiously

erroneous foundation. Fong Foo

v. United States, 369 U.S. tZT-

Ct. a 672, 7 L.Ed.2d

629 (1962) ; see Green V. United

States, 355 U.S. 184, 188, 78 S.ct.

221, 223, 2 L.Ed2d 199 (1957). <g

98 S.Ct. 2178.

*k*

"The Government's real quarrel

is with the judgment of acquittal.

While the numbers evidence was

erroneously excluded, the judgment

of actuittal produced thereby is

final and unreviewable. Neither

21

18 U.S.C. § 3731 nor the Double

Jeopardy Clause permit the Govern-

ment to obtain relief from all of

the adverse rulings--most of which

result from defense motions--that

lead to the termination of a

criminal trial in the defendant's

favor. See United States v.

Wilson, supra, 420 U.S., at 35l-

352, 95 S.Ct. at 1025-1026; S.Rep.

No. 91-1296, p. 2 (1970). To hold

that a defendant waives his double

jeopardy protection whenever a

trial court error in his favor on

a midtrial motion leads to an

acquittal would undercut the

adversarial assumption on which

our system of criminal justice

rests, see Jeffers v. United

States, supra, 432 U.S., at 159-

160, 97 S.Ct. at 2209 (STEVENS,

J., dissenting in part and con-

curring in the judgment in part),

and would vitiate one of the

fundamental rights established

by the Fifth Amendment.

"The trial court's rulings here

led to an erroneous resolution in

the defendant's favor on the merits

of the charge. As Fong Foo v.

United States, supra, makes clear,

the Double Jeopardy Clause abso-

lutely bars a second trial in such

circumstances. The Court of

Appeals thus lacks jurisdiction

of the Government's appeal.”

{Emphasis added].

98 S.Ct. 2186.

22

In short, the standard of review and

the result reached in the opinion are

clearly contrary to the holdings in Fong

Foo and Martin Linen Supply. The dis-

trict court's judgment of acquittal was

clearly intended to address guilt or

innocence, rather than issues of law

unrelated to guilt or innocence. The

Double Jeopardy Clause therefore bars

this appeal. Compare United States v.

Appawoo, 553 F.2d 1242 (10 Cir., 1977)

with United States v. Fay, 553 F.2d

1247 (10 Cir., 1977).

23

CONCLUSION

For these reasons, it is respectfully

submitted that this petition for a writ

of certiorari should be granted.

ROBERT E. HINERFELD,

Counsel of Record;

— DAVID ELSON,

MURPHY, THORNTON,

HINERFELD & CAHILL,

Of Counsel,

611 West Sixth Street,

Suite 1610,

Los Angeles, CA 90017,

(213) 624-9900,

Attorneys for Petitioner,

ISHVARBHAI J. PATEL.

24

APPENDIX A

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellant, NO. 78-2339

ve. )

JOSE LUIS GONZALES, et al..3

Defendants-Appellees. OPINION

[April 4, 1980]

Appeal from the United States

District Court for the Central

District of California

Andrew A. Hauk, District Judge,

Presiding

Argued and submitted October 2, 1979

Before: GOODWIN and SNEED, Circuit

Judges, and JAMESON,* District

Judge

* The Honorable William J. Jameson,

Senior United States District Court

Judge for the District of Montana,

sitting by designation.

A-1

PER CURIAM

The government appeals from a district

court judgment of acquittal ana the dis-

missal of an indictment which charged

the defendants with eight counts of vio-

lating the immigration laws of the United

States. We reject appellee's contention

that the government's appeal is barred

by the double jeopardy clause of the

Fifth Amendment and remand the case for

further proceedings.

@

Factual Background

On March 31, 1978, nine individuals

were indicted for violating the immigra-

tion laws of the United States. Count

One of the Indictment charged all defen-

dants with conspiracy to transport ille-

gal aliens across the Mexican border into

southern Arizona and thence to Los

Angeles. Counts Two through Eight

A-2

charged individual defendants with sepa-

rate acts of harboring or transporting

illegal aliens, and with aiding and abet-

ting these offenses.

On April 4, 1978, the district court

designated as material witnesses twelve

illegal aliens who had been arrested with

certain defendants and ordered them held

on $5,000 corporate surety bonds. Three

other illegal aliens had already been

designated as material witnesses by a

magistrate and ordered held on similar

bonds. The trial judge ordered all

counsel to interview the material wit-

nesses by April 10, 1978, and to file

statements with the court concerning

retention of the material witnesses for

trial. Statements were filed by all

parties and all material witnesses were

requested held for trial.

Before trial, motions to dismiss the

A-3

indictment were made on the grounds that

defendants had been deprived of their

constitutional rights to compulsory pro-

cess and due process by the failure of

the government to retain other aliens as

material witnesses, particularly the

government's alleged failure to retain

one individual whom the government had

agreed to hold. After a three day hear-

ing, the motions were denied on the basis

that there had been no governmental mis-

conduct and the production by the govern-

ment of the witness in court before trial

had rendered the motions moot.

The jury was then empaneled and the

trial commenced. For three days the

government presented the testimony of

seven witnesses. On the fourth day of

trial, the government informed the court

that it had learned that two other ille-

gal aliens, who had been arrested with

A-4

the defendants, had not been made avail-

able to defense counsel, and had been

released by the government through agents

of the Immigration and Naturalization

Service. One had been allowed to return

voluntarily to Mexico in lieu of deper-

tation and the other had been released

in Los Angeles.

The trial was suspended and a hearing

was held. The government produced one

of the "missing" witnesses at that hear-

ing. The defendants moved to dismiss the

indictment on the basis of United States

v. Mendez-Rodriguez, 450 F.2d 1 (9th

Cir. 1971) and United States v. Tsuta-

gawa, 500 F.2d 420 (9th Cir. 1974). The

court granted the motion, and suggested

that defendants also move, which they

promptly did, for a judgment of aquittal.

The order was stayed for two days at the

government's request. The following day

A-5

the government moved to vacate the dis-

missal bet on the ground that it could

produce the other witness. On the same

day the district court filed its written

judgment of acquittal and dismissal.

The next day the district court heard

and denied the government's motion to

vacate. The government had produced

both witnesses and contended that their

presence rendered moot the Mendez-

Rodriguez issue. Immediately after the

denial of the motion to vacate, the

government filed an emergency petition

for a writ of mandamus in this court.

The petition was denied, but the dismis-

sal was stayed for four days. At the

expiration of that period, the district

court lifted the stay, entered the judg-

ment of acquittal and dismissal, dis-

charged the jury and released the

defendants.

A-6

The government asserts that the acuit-

tal was one in form only, and thus appeal

is not barred by the double jeopardy

clause of the Fifth Amendment. It also

contends that the district court erred

in granting the motions to dismiss the

indictment. We address first appellee's

arguments respecting double jeopardy and

thereafter consider, as our holding

respecting double jeopardy requires,

whether the dismissal, which we treat

as one with prejudice, was proper.

ye

Double Jeopardy

The Criminal Appeals Act, 18 U.S.C.

§ 3731, provides, in pertinent part:

"In a criminal case an appeal

by the United States shall lie to

a court of appeals from a deci-

sion, judgment, or order of a

district court dismissing an

indictment or information as to

any one or more counts, except

that no appeal shall lie where

the double jeopardy clause of the

A-7

United State Constitution 1

prohibits further prosecution."

Appellees contend that double jeopardy

bars this appeal, arguing that jeopardy

attaches when the jury is empaneled and

sworn. Crist v. Bretz, 437 U.S. 28

(1978). It is true that the double

jeopardy clause is concerned with avoid-

ing multiple prosecutions even where

guilt or innocence has not been estab-

lsihed. United States v. Scott, 437

U.S. 82, 92 (1978). It also has been

stated that perhaps the most fundamental

rule in the history of double jeopardy

jurisprudence is that a judgment of

acquittal may not be appealed by the

government without putting a defendant

twice in jeopardy. United States v.

Martin Linen Supply Co., 430 U.S. 564,

571 (1977). This remains true even if

a judgment of acquittal was entered for

A-8

erroneous reasons. Sanabria v. United

States, 437 U.S. 54 (1978); Fong Foo v.

United States, 369 U.S. 141 (1962).

The Supreme Court, while reviewing

its earlier decisions regarding double

jeopardy, recently has reiterated that

a "trial judge's characterization of his

own action cannot control the classifi-

cation of the action."' United States v.

Scott, 437 U.S. 82, 96 (1978), citing

United States v. Jorn, 400 U.S. 470,

478 n.7 (1971), citing United States v.

Sisson, 399 U.S. 267, 290 (1970). See

also United States v. Martin Linen Sup-

ply Co., 430 U.S. at 571; United States

v. Wilson, 420 U.S. 332, 336 (1975).

Justice Rehnquist, writing for the

majority in Scott, concluded that:

x * * "[A] defendant is acquitted

only when ‘the ruling of the judge,

whatever its label, actually

represents a resolution [in the

defendant's favor], correct or not,

A-9

of some or all of the factual ele-

ments of the offense charged. '

Martin Linen, supra, at 5/1.

Where the court, before the jury

returns a verdict, enters a judg-

ment of acquittal pursuant to Fed.

Rule Crim. Proc. 29, appeal will

be barred only when ‘it is plain

that the District Court .

evaluated the Government's evi-

dence and determined that it was

legally insufficient to sustain a

conviction.’ 430 U.S., at 572."

437 U.S. at 97. (Footnote

omitted. )

Federal Rule of Criminal Procedure 29

provides, in pertinent part:

"The court on motion of a defendant

or of its own motion shall order

the entry of judgment of acquittal

of one or more offenses charged in

the indictment or information after

the evidence on either side is

closed if the evidence is insuf-

ficient to sustain a conviction

of such offense or offenses."

The government asserts that, not only

does the record demonstrate that the

district court did not consider the suf-

ficiency of the evidence before it, it

could not have considered whether the

evidence was sufficient because it ruled

A-10

in the middle of the government's case,

thus failing to comply with Rule 29.

Although there is a reference in the

district court's judgment to the evidence

adduced by the government during the

three days of trial, the record does

not plainly demonstrate that the district

court evaluated the government's evidence

and determined that it was legally insuf-

ficient to sustain a conviction. United

States v. Scott, 437 U.S. at 97. Rather,

the record before us clearly demonstrates

that the order was based on constitu-

tional grounds arising from the unavail-

ability of potential material witnesses.

See United States v. Appawoo, 553 F.2d

1242 (10th Cir. 1977). The acquittal

therefore was in substance an order of

dismissal, and as such is appealable.”

United States v. Scott, supra.

A-11

EEE:

Dismissal With Prejudice

In United States v. Mendez-Rodriguez,

450 F.2d 1 (9th Cir. 1971), this court

reversed convictions for conspiracy to

transport and transportation of illegal

aliens because the government's depor-

tation of eyewitnesses to the alleged

offenses, without first allowing the

defendant to examine those witnesses

violated due process. Relying on

Mendez-Rodriguez, the district court

here dismissed all counts of the indict-

ment against all defendants because two

witnesses, Avila and Rivera, were un-

available to the defense before trial.

The government challenges the trial

court's action primarily on three

grounds. First, if Avila was unavail-

able to the defense before trial, that

unavailability was not due to government

A-12

action. Second, because both Avila and

Rivera were present at trial and could

have testified, they were not "unavail-

able" within the holding of Mendez-

Rodrigues. Finally, the government

argues that, even if Rivera was "unavail-

able," the dismissal of those counts for

which he was not a material witness was

not warranted under Mendez-Rodriguez.

Avila's unavailability did not repre-

sent a violation of due process. Under

Mendez-Rodriguez, due process is not

violated unless a material witnesses

unavailability is attributable to uni-

lateral government action. United States

v. Hernandez-Gonzales, 608 F.2d 1240,

1244 (9th Cir. 1979). Here, the govern-

ment released Avila after his arrest and

did not deport him or cause him to leave

the jurisdiction. If defense counsel

could not locate Avila before trial, that

A-13

un*vailability did not result from gov-

ernment action with placed him "beyond

the reach of the defendant[s]." United

States v. Tsutagawa, 500 F.2d 420, 423

(9th Cir. 1974).

The government's second contention,

that the second alien, Rivera, was not

"unavailable" because he was present at

trial and could have testified is unper-

suasive. Although the government relies

on our holding in United States v.

Valdez, 594 F.2d 725 (9th Cir 1979),

that reliance is misplaced. In Valdez,

the defendants knew about the witness

before trial, he was available to testi-

fy at trial, and it was "questionable

whether the government had taken any

action which placed the witness beyond

the court's compulsory process juris-

diction."" Id. at 728. Here, however,

trial had commenced and seven witnesses

A-14

had testified before the government

informed the court that Rivera was a

material witness for some of the alleged

offenses. The government's action in

allowing Rivera to return voluntarily

to Mexico in lieu of deportation pre-

vented the defendants from interviewing

Rivera before trial and may have affect-

ed the defendants’ response to the gov-

ernment's trial presentation.

Rivera was "unavailable" within the

meaning of Mendez-Rodriguez. Accord-

ingly, the district court's dismissal of

those counts of the indictment for which

Rivera might have offered material testi-

mony was proper. But the dismissal of

those counts for which Rivera was not a

material witness was erroneous.

This court, in interpreting and

applying Mendez-Rodriguez, has consis-

tently emphasized that unless a defen-

A-15

dant "could conceivably" benefit from

a missing witness's testimony, unless

he or she is prejudiced by that person's

absence, there is no denial of due pro-

cess warranting dismissal or reversal.

See, e.g., United States v. Valdez,

supra, United States v. Orozco-Rico,

589 F.2d 433, 435 (9th Cir. 1978),

cert. denied, 440 U.S. 967 (1979);

United States v. Lomeli-Garnica, 495

F.2d 313 (9th Cir. 1974). Particularly

relevant to this case are United States

v. Castellanos-Machorro, 512 F.2d 1181

(9th Cir. 1975), and United States v.

Sanchez-Murillo, 608 F.2d 1314 (9th

Cir. 1979).

In this case, various defendants were

indicted on eight counts. Count One

charged conspiracy to transport and

harbor illegal aliens. Counts Three

and Four alleged that individual

A-16

defendants had transported illegal

aliens from Mexico toa 'drop house", the

Scenic Motel, near Los Angeles, or had

aided and abetted that transportation.

Counts Five through Eight involved

transporting other illegal aliens to and

located on Cortado

3

from a "drop house

Street in El Monte, California.

Rivera, the unavailable alien, visited

the Cortada Street residence and may have

been a material witness to the conduct

alleged in Counts Five through Eight.

Accordingly, those counts were properly

dismissed under Mendez-Rodriguez.

There is, however, no evidence that

Rivera could have offered testimony on

Counts Three and Four. Although the

district court, in entering judgment,

found that Rivera was a witness to

"incidents involving defendants and con-

stituting a large portion of the Govern-

A-17

ment's case against the defendants",

nothing in the record demonstrates any

connection between Rivera and the events

at the Scenic Motel. The defendants

named in the third and fourth counts

are, thus, in the same position as were

the defendants in Castellanos-Macharro,

supra, and Sanchez-Murillo, supra.

They are not prejudiced by the govern-

ment's deportation of a potential wit-

ness because Rivera's testimony could

not conceivably benefit them.

Without some showing of a material

relationship between defendants and

witnesses whose unavadiabeliey Ss attrib-

utable to government action, the due

process protections of Mendez-Rodriguez

cannot be triggered. We reverse the

dismissal of the third and fourth counts.

Finally, the conspiracy charge, Count

One, specifies twelve overt acts that

A-18

allegedly were undertaken in furtherance

of the conspiracy. Six of the twelve

acts involved aliens who were concealed

at the Cortada Street "drop house".

Because Rivera might have offered mater-

ial testimony concerning those six acts,

the conspiracy defendants are potentially

prejudiced by his unavailability.

Proof of an overt act is essential to

demonstrating a conspiracy. Conse-

quently, if the government were unable

to show an overt act that did not involve

the Cortada Street ''drop house", proof

of Cortada Street-related acts would be

crucial, and Rivera's testimony would

be material. But this potential prej-

udice is highly speculative: if the

government were to prove any overt act

not involving the Cortada Street opera-

tion, any testimony by Rivera would be

immaterial.

A-19

This indefinite prejudice to the con-

spiracy defendants could be avoided if

the trial court limited the government's

proof of overt acts to those acts for

which Rivera was not a material witness.

Accordingly, we vacate the dismissal of

Count One and remand the conspiracy

charges for trial.*

Vacated and remanded for further

proceedings.

A-20

UNITED STATES v. GONZALES, et al

No. 78-2339

FOOTNOTES

lin United States v. Martin Linen

Supply Co., 430 U.S. 564, 567 n.4, 568,

(1977), the Supreme Court concluded that

"unless barred by the Double Jeopardy

Clause of the Constitution, appeals by

the Government from the judgments of

acquittal entered by the District Court

under Rule 29(c) are authorized by

§ 3731."

Cf. United States v. Winnie Mae Mfg.

Co., No. 78-2101 (9th Cir. June 13,

1979). Appellees made a pretrial motion

to dismiss the indictment for violation

of constitutional rights by the deporta-

tion of illegal aliens, many of whom may

A-21

have been needed as material defense

witnesses. The district court postponed

the motion until a jury was sworn and a

witness questioned, and then dismissed

the indictment. This court rejected the

contention that the appeal was barred by

the double jeopardy clause, holding that

when a trial is terminated on grounds

unrelated to the defendant's guilt or

innocence, a government appeal does not

offend against the double jeopardy

clause.

The only defendant named in Count

Two of the indictment, which alleged

transportation of an alien from the

Scenic Motel, entered a guilty plea

before the district's dismissal of

charges against the defendant-appellees.

Consequently, that count was not subject

to the order of acquittal and dismissal.

A-22

The government raises two other argu-

ments that lack merit. The record does

not support the assertion that the

defendants made no efforts to obtain

information about Rivera. Rather, the

pretrial hearing was devoted to the

issue of unavailable witnesses. The

government also asserts that Rivera was

returned to Mexico innocently. However,

the fact that repatriation was made in

good faith is irrelevant. See United

States v. Orozco-Rico, 589 F.2d 433

(9th Cir. 1978).

A-23

APPENDIX B

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ; NO. CR

Plaintiff, 78-304-AAH

Vv. ) JUDGMENT OF

)

JOSE LUIS GONZALES ;s ) ACQUITTAL

ISHVARBHAI J. PATEL; )

OSCAR CELSO OROSCO-MORALES;) AND

HECTOR GARCIA-MARTINEZ ; )

SAMUEL GUDINO-BARAJAS , DISMISSAL

Defendants. )

)

[May 11, 1978]

In this matter, the Court heard all

of defendants' pretrial motions before

impanelling the jury, including defen-

dants' motion to dismiss, requiring a

3-day evidentiary hearing May 2, 3 and

4, 1978, based on the Government's

alleged conduct in placing a certain

B-1

illegal alien percipient witness beyond

the reach of the defendants. The Court

heard numerous witnesses and the Govern-

ment finally agreed that it could and

would produce said illegal alien per-

cipient witness for interview by defen-

dants and their counsel before trial, as

required by the cases cited by the defen-

dants, U.S. v. Mendez-Rodriguez, 450 F.

2d 1 (9th Cir. 1971) and U.S. v.

Tsutagawa, 500 F.2d 420 (9th Cir. 1974).

Whereupon the Court denied said motion

to dismiss, holding that it had become

moot by reason of the Government's

having made the said witness available

to defendants and their counsel to deter-

mine for themselves whether the witness

possessed and could testify to any

exculpatory information. Additionally,

the Court pointed out that the Govern-

ment, by producing the witness to

B-2

defendants and their counsel had met the

requirements of the aforesaid cases and

strictures therein relied upon by

defendants.

Then, the jury was impanelled and

heard factual testimony for three days,

May 5, 8 and 9, 1978. During the course

of the introduction of evidence on the

third day, May 9, 1978, it came to the

attention of the Court and counsel that

there were possible two other additional

illegal alien percipient witnesses who

had been made unavailable by the

Immigration and Naturalization Service

of the Department of Justice, to the

defendants and their counsel, whether

advertently or inadvertently, because

of Government action and inaction.

The Court thereupon was forced to

conduct another evidentiary hearing

outside the presence of the jury and

B-3

found by a preponderance of clear and

convincing evidence, indeed beyond any

reasonable doubt, that these two

illegal aliens had been and were per-

cipient witnesses to incidents involving

defendants and constituting a large

portion of the Government's case against

the defendants; further that these

witnesses had been unavailable to the

defendants and their counsel throughout

the entire three days of factual trial

testimony before the jury; and finally

that these witnesses were made unavail-

able to defendants and their counsel

by reason of the conduct of the Govern-

ment, acting by and through agents of

the Immigration and Naturalization

Service.

The Court was thereby immediately

and irrevocably forced to determine upon

these facts forthwith a course of action

B-4

which, doing justice to both the Govern-

ment and the defendants, would carry

out the strictures and requirements of

U.S. v. Mendez-Rodriguez, 450 F.2d 1

(9 Cir. 1971) and U.S. v. Tsutagawa,

500 F.2d 420 (9th Cir. 1974), and do so

expeditiously with concomitant saving

of judicial time and counsels' efforts.

Obviously, declaration of a mistrial,

while avoiding double jeopardy for

defendants and preserving the Govern-

ment's right to appeal, would neverthe-

less require another trial, another

presentation of the same identical

ovlienetats facts, including the facts

of Government action and inaction having

made the two illegal alien percipient

witnesses unavailable to defendants

and their counsel during the three days

of trial before the jury. All of this

would be a time wasting futility.

B-5

On the other hand, since the deter-

mination of these facts was based prim-

arily upon evidentiary matter and not

any legal issue, merely sustaining the

defendants’ motion to dismiss would not

necessarily resolve the question.

Therefore the Court ordered, with

written judgment as herein set forth to

follow, that the motions for judgment

of acquittal as well as the motions for

judgment of dismissal would be granted.

Now, therefore, pursuant to the said

findings and determination of the Court,

summarized hereinabove, but set forth in

detail in the reporter's notes of the

proceedings of May 10, 1978, as well

as the actual testimony set forth in

the reporter's notes for May 5, 8 and 9,

1978,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED as follows:

B-6

1. Each and all of the defendants

hereinabove named, to wit: JOSE LUIS

GONZALES, ISHVARBHAI J. PATEL, OSCAR

CELSO OROSCO-MORALES, HECTOR GARCIA-

MARTINEZ and SAMUEL GUDINO-BARAJAS, is

and are acquitted of and from each,

every and all offenses alleged and set

forth in the Indictment herein, and are

ordered to be released forthwith, but to

be held for any hold presently placed

upon them, and all bonds are exonerated.

2. Said Indictment herein and each

and every offense alleged and set forth

therein be and the same is and are

dismissed.

3. The jury herein be and is dis-

charged from any further service herein.

4. Upon motion of the Government,

the enforcement of this judgment be and

is stayed until Friday, May 12, 1978,

at 1:30 p.m., to enable the Government

B-7

to initiate proceedings if it so desires,

in and before the Court of Appeals for

the Ninth Circuit, but not ex parte,

and only after appropriate notice to

defendants and their counsel so that

the latter can present any opposition.

they desire in and before the Court of

Appeals.

5. The Clerk shall serve copies of

this Judgment on all parties forthwith.

Dated: May 11, 1978

/s/ A. Andrew Hauk

A.

UNITED STATES DISTRICT JUDGE

B-8

re are a ee

: oy

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Appellant, NO. 78-2339

vs. ; D.C. No.

JOSE LUIS GONZALES, et a CR 78-304-AAH

Appellees. 5

)ORDER

[June 27, 1980]

Before: GOODWIN and SNEED, Circuit

Judges, and JAMESON,* District

Judge.

On April 16, 1980, appellee Ishvarbhai

J. Patel filed his petition for rehearing

and suggestion for rehearing en banc.

a

* The Honorable William J. Jameson,

Senior United States District Judge for

the District of Montana, sitting by

designation.

C-1

The panel as constituted in the above

case has voted to deny the petition for

rehearing and to reject the suggestion

for a rehearing en banc.

The full court has been advised of

the suggestion for en banc rehearing,

and no judge of the court has requested

a vote on the suggestion for rehearing

en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing en

banc is rejected.

C-2