Record and brief — United States v. Marquez-Amaya

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UNITED STATES OF AMERICA, PETITIONER

V.

JOSE ENRIQUE MARQUEZ-AMAYA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

CARTER G. PHILLIPS

Assistant to the Solicitor General

CAROLYN L. GAINES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the government violates a defendant’s

right to due process or compulsory process by deport-

ing illegal aliens found near the scene of an offense

after officials of the government have interviewed the

aliens and concluded that they can provide no evi-

dence material to the case.

2. Whether a defendant should be required to show

that he made reasonable efforts to procure the at-

tendance of the missing witnesses at trial or other-

wise make their testimony available as a condition to

dismissal of the indictment on account of the deporta-

tion of the witnesses.

3. Whether, assuming that the conduct of the gov-

ernment violated the defendant’s rights, dismissal of

the indictment prior to trial is the appropriate rem-

edy when the defendant cannot demonstrate actual

prejudice caused by the absence of the witnesses.

(1)

TABLE OF CONTENTS

Opinion below a a i ae

r

Constitutional provisions involvenn

Statement

Reasons for granting the petition

Conclusion

Appendix A

I

Appendix C

Appendix D

Appendix E

—U—⸗ enseneeee

— e ꝶ ꝶ kk «k 33

TABLE OF AUTHORITIES

Cases:

Barber v. Page, 390 U.S. 719

California v. Green, 399 U.S. 14222

nn cecctcccccccescnccccescctncncosinnse

Roviaro v. United States, 353 U.S. 5383

United States v. Arredondo-Morales, 624 F.2d

FF

United States v. Avila-Dominguez, 610 F. 2d 1266.

United States v Blue, 384 U.S. 25111

United States v. Calzada, 579 F.2d 1358, cert.

e eeieenessionmen

United States v. Henao, No. 80-5145 (5th Cir.

r ERR RR eee eae

United States v. Martinez-Morales, 632 F.2d 112....

United States v. Morrison, No. 79-395 (Jan. 13,

1981) ...... 8

United States v. Neustice, 452 F.2d 123

United States v. Posey, 501 F.2d 9999

em

aon do — —

13

8 F 7

Cases—Continued Page

United States v. Valdez, 594 F.2d 725 8

United States ex rel. Lucas v. Regan, 503 F.2d 1.... 9

Constitution and statutes:

United States Constitution:

Fifth Amendment

Sixth Amendment

1. —U—ü— —

9100

21 U.S.C. 841 (b)

21 U.S. C. 846

do do do do NW

Miscellaneous:

1 E. Devitt & C. Blackmar, Federal Jury Practice

and Instructions (1977) 10

Westen, Compulsory Process II, 74 Mich. L. Rev.

1— — ———— 9

In the Supreme Cuurt of the United States

OCTOBER TERM, 1980

No.

UNITED STATES OF AMERICA, PETITIONER

v.

JOSE ENRIQUE MARQUEZ-AMAYA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.

OPINION BELOW

The memorandum of the court of appeals (App. A,

infra, 1a-2a) is unreported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 3a) was entered on March 19, 1981. A petition

for rehearing was denied (App. C, infra, 4a) on

June 16, 1981. On August 5, 1981, Justice Rehnquist

extended the time within which to file a petition for a

writ of certiorari to and including September 8, 1981.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

1)

2

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution provides

in pertinent part:

No person shall be * * * deprived of life,

liberty, or property, without due process of

law * * 9.

The Sixth Amendment to the Constitution provides

in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right * * * to have compulsory process

for obtaining witnesses in his favor * * *.

STATEMENT

Respondent was indicted with co-defendant Salcedo-

Ceniceros for distributing heroin, in violation of 21

U.S.C. 841(a)(1) and (b) and 18 U.S.C. 2 (Count

1), and for conspiring to distribute heroin, in viola-

tion of 21 U.S.C. 846 (Count 2). The district court

dismissed both counts of the indictment against re-

spondent (App. D, infra, 5a), and the court of ap-

peals affirmed (App. A, infra, la-2a).*

1. At 7:00 p.m. on March 31, 1980, an informant

for the Drug Enforcement Administration called

DEA Agent Rocco J. Andresano, Jr. and told him that

two individuals at the informant’s place of business

had a pound of heroin they wanted to sell (Tr. 25).?

1The district court denied Salcedo-Ceniceros’ motion to

dismiss his indictment. He was tried and convicted on both

counts, and his conviction was affirmed on appeal (App. A,

infra, la-2a).

2 Tr.“ denotes the transcript of proceedings held on June 2,

6, 9 and 18, 1980. Actual hearings were held only with regard

to Salcedo-Ceniceros’ motion. The district court dismissed re-

spondent’s indictment without hearing any testimony (Tr.

23). “App. Rec.” denotes the excerpt of record filed with the

court of appeals in this case.

3

The informant later identified the two individuals as

respondent and his co-defendant (Tr. 25-26).

Agent Andresano negotiated the sale of the heroin

through the informant. Andresano told the informant

what he wanted, and the informant conveyed the mes-

sage in English to Salcedo-Ceniceros, who translated

it to respondent in Spanish (Tr. 27-28). Through this

process Andresano agreed to purchase the whole

pound of heroin. He also agreed to meet first at the

informant’s place of business to show his money

(Tr. 29), and to make the actual purchase later at

a trailer in Yuma, Arizona (Tr. 27). Andresano was

told that there were two women in the trailer, but

that they knew nothing about “what was going on”

(ibid.).

Andresano then went to the Yuma Narcotics Task

Force Office, picked up $29,000 “for show,” and made

arrangements to be followed by other agents while he

made the purchase (Tr. 28-29). He then met the

informant and Salcedo-Ceniceros, showed them his

money, and negotiated the price for the heroin (Tr.

29).

Agent Andresano then drove Salcedo-Ceniceros to

a trailer located on a public street in Yuma (Tr. 31)

and parked his car about 30 feet from the trailer

(Tr. 33). Respondent came out of the trailer, walked

up to Salcedo-Ceniceros, and asked in Spanish if

everything was all right (Tr. 31-32). When Salcedo-

Ceniceros said “okay,” respondent went back to the

trailer and returned with a paper bag, which he

handed into the car (Tr. 32). Inside the bag were

four aluminum packages that contained 16 ounces

of heroin (ibid.). When Andresano saw the heroin,

he signaled the other agents, who came and helped

with the arrests.

4

During the time agent Andresano was in his car,

he frequently glanced at the trailer to make sure

that no one from there attacked him. He saw no one

look out of the trailer window (Tr. 33). When the

agents entered the trailer after the arrest, they found

a woman and her 14-year-old daughter (Tr. 34).

The agents interviewed the two women, both of

whom said that they knew nothing about a crime and

that they had seen nothing going on (Tr. 15). Satis-

fied that neither woman could supply any evidence

and believing them both to be illegal aliens, the agents

turned them over to the United States Border Patrol.

They were released back to Mexico the same day.

2. Prior to trial respondent filed a motion to dis-

miss the indictment on the ground that the deporta-

tion of the two women in the trailer denied him his

rights to due process and compulsory process. In

the papers supporting his motion, respondent asserted

that the two witnesses might have been able to supply

evidence relevant to his intent (App. Rec. 12). He

suggested that they could have testified “as to

whether * * * [respondent] was aware of the con-

tents of the brown paper bag” (ibid.). In addition,

they could have testified that one of the women was

respondent’s girl friend and that he was at the trailer

visiting her. Finally, they could have testified gen-

erally about respondent’s behavior prior to the sale

and perhaps have shown that respondent’s “activity

was not consistent with one waiting to sell a large

quantity of heroin” (id. at 12-13). Based on these

assertions, respondent concluded that he could con-

ceivably have benefited from the witnesses’ testimony,

and therefore their deportation prior to trial violated

his constitutional rights.

5

With regard to the availability of the two missing

witnesses, the government told the court that respond-

ent’s father had an address for them in Mexico (Tr.

5). Respondent offered no explanation as to why they

would not return to exculpate him, but stated that

respondent’s father “said those witnesses are not

going to be available” (Tr. 6).

The district court did not respond to the govern-

ment’s request to require respondent to testify to

explain exactly what evidence the deported aliens

might offer (Tr. 15). Instead, it simply asked the

government to argue its position orally. During the

argument, the government suggested as an alternative

to the dismissal of the indictment that the court sup-

press all evidence relating to respondent’s presence

at the trailer and require the prosecution to rely

solely upon the informant’s testimony (Tr. 19). Re-

spondent objected that this did not remove the dis-

ability to his case because the missing aliens could

conceivably offer evidence relevant to his general

intent and knowledge that would exculpate him (Tr.

20-21).

At the conclusion of the argument, the district

court dismissed both the substantive count and the

conspiracy count against respondent (Tr. 23). The

court of appeals affirmed, stating simply that it had

“reviewed the record and conclude[d] that the dis-

missal was proper“ (App. A, infra, 2a).“

It is noteworthy that by the time of the appeal, respondent

was able to conceive of additional testimony from the deported

aliens that might benefit him. He claimed that there was “the

distinct possibility that one of the missing witnesses could

have directed [respondent] to take the unopened sack out to

the car. In other words, * * * one of the missing witnesses

could have been the co-defendant’s accomplice * * *” (Br. of

Appellee 9). Since respondent would have been a witness to

any such events, it is difficult o understand why this should

have been a matter for supposition by counsel.

6

REASONS FOR GRANTING THE PETITION

This case presents important questions similar to

those presented in our petition for a writ of certiorari

in United States v. Valenzuela-Bernal, No. 81-450

(filed Sept. 3, 1981),* concerning the application of

the Due Process and Compulsory Process Clauses to

the situation in which illegal aliens, who are present

at the scene of a crime, are returned to their own

country prior to trial.

1. In our petition in Valenzuela-Bernal, we argue

that the “conceivable benefit” test applied by the

Ninth Circuit, while consistent with the approach in

the Seventh Circuit,’ conflicts with decisions of the

Fifth Circuit because in essence it requires virtually

automatic dismissal of charges whenever a potential

witness is deported, whereas the Fifth Circuit re-

quires a concrete showing of likely prejudice.“

That the Ninth Circuit’s approach is fairly char-

acterized as an “automatic dismissal” rule is well

illustrated by this case. The deported aliens plainly

did not witness the actual heroin transaction. The

most that was suggested to the district court was

that they might testify as to the conduct of respond-

ent prior to the heroin sale. There is no evidence

*A copy of our petition in United States v. Valenzuela-

Bernal has been sent to respondent.

5 United States v. Calzada, 579 F.2d 1358 (7th Cir.), cert.

dismissed, 439 U.S. 920 (1978) (no showing of prejudice

required).

®* United States v. Avila-Dominguez, 610 F.2d 1266 (5th

Cir. 1980) (a showing of real prejudice required before dis-

missal of indictment is appropriate). See also United States

v. Henao, No. 80-5145 (5th Cir. Aug. 7, 1981), slip op. 10081;

United States v. Arredondo-Morales, 624 F.2d 681 (5th Cir.

1980).

7

in this record, however, to suggest either what those

witnesses might say or how any statements from

them actually could benefit respondent. All that ap-

pears in the record is the product of the vivid

imagination of the respondent’s counsel as to pos-

sible, but entirely remote, scenarios. Thus, the Ninth

Cireuit's approach invites and rewards respondent

for suggesting at trial that his girl friend could testify

that his behavior was inconsistent with knowledge

about the heroin he delivered to a DEA agent and on

appeal that his girl friend may have been the real

criminal who duped him into making the delivery. If

unsubstantiated assertions such as those in this case

are all that is required for the dismissal of an indict-

ment, then the conclusion seems inescapable that, con-

trary to the express holdings of the Fifth Circuit, no

real prejudice need be demonstrated in the Ninth

Circuit for dismissal of the indictment when an alien

witness has been deported.’

2. This case presents the additional question, not

involved in Valenzuela-Bernal, whether the remedy of

dismissal (assuming it is otherwise appropriate)

should be conditioned upon a satisfactory showing

by the defendant that diligent efforts to locate the

deported witnesses and secure their testimony have

7 For reasons that are more fully developed in our petition

in Valenzuela-Bernal, the approach of the Ninth Circuit in

these cases is inconsistent with principles announced in this

Court’s decision in Roviaro v. United States, 353 U.S. 53

(1957). The analysis employed in Roviaro suggests that the

present, analogous issue should be decided on the basis of a

careful balancing of the defendant’s need for the information

against the government’s interests in not having to sustain

(and impose upon large numbers of apprehended aliens) the

ever-increasing burden of confining for extended periods of

time witnesses who have been charged with no crime,

been unsuccessful.* The record of this case reflects

that respondent apparently was well acquainted with

the women in the trailer, one of whom he described

as his girl friend. In addition, he knew their address

in Mexico, but he did no more to secure their

presence than state to the court that they would

be unavailable. Obviously, dismissal would be com-

pletely unwarranted if the deported witness is willing

to return for the trial and testify. See United States

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

States v. Neustice, 452 F.2d 123 (9th Cir. 1971).

And even if a witness whose whereabouts are known

is unwilling to return, the defendant should be re-

quired to produce an affidavit or other evidence of the

testimony the witness would give, or a satisfactory ex-

planation for his inability to do so. The court could

then assess whether the testimony, had it been avail-

able, might raise a reasonable doubt regarding the

defendant’s guilt. Other options for mitigating any

loss due to the witness’s deportation, such as a de-

position of the witness or a stipulation by the prosecu-

tion, could also be explored.

By imposing no requirement of this nature as a

precondition to dismissal of an indictment, the Ninth

Circuit’s decisions actually discourage defendants

from locating witnesses and encourage them to at-

tempt to dissuade potential witnesses from returning.

Particularly in a case such as this, where the de-

fendant and the witnesses are not strangers, the

orderly administration of justice dictates that the de-

fendant be required, before being relieved of prosecu-

tion for a serious offense, to make some showing as

to what measures he has taken to obtain the testi-

®In Valenzuela-Bernal, both sides had been unsuccessful in

their efforts to locate the miss ii g potential witnesses.

mony of the deported witnesses, what in concrete

terms that testimony would be, and why the wit-

nesses cannot be produced for the trial.

Similar requirements are imposed in other, related

areas of the law. For instance, when a defendant re-

quests a continuance because a witness is unavailable,

courts routinely require the defendant to make a

clear showing of a good faith effort to locate the

witness. See, e.g., United States ex rel. Lucas v.

Regan, 503 F.2d 1, 3 (2d Cir. 1974); United States

v. Posey, 501 F.2d 998, 1000-1001 (6th Cir. 1974).

See generally, Westen, Compulsory Process II, 74

Mich. L. Rev. 191, 242 (1975).

Similarly, in cases involving the Confrontation

Clause, the government may not simply decline to

produce a witness even if substitute testimony might

be otherwise admissible. Instead, the government

must bear the burden of showing why the witness is

unavailable and demonstrate that its efforts to locate

the witness have been made in “good faith.” See Ohio

v. Roberts, 448 U.S. 56, 65 (1980); California v.

Green, 399 U.S. 149, 161-162 (1970); Barber v.

Page, 390 U.S. 719, 724-725 (1968). Since the Ninth

Circuit presently requires dismissal of the indictment

as the appropriate remedy in these deportatio cases,

a defendant ought to be required to show at least a

“good faith” effort to obtain the testimony of the

witness before the government’s right to prosecute is

terminated.

3. Even assuming that respondent’s rights have

been violated in this case, the decision of the court

of appeals upholding dismissal of the indictment

against respondent is inconsistent with principles an-

nounced by this Court in prior cases. Just this past

Term the Court held in a right to counsel case that

10

“absent demonstrable prejudice, or substantial threat

thereof, dismissa! of the indictment is plainly inap-

propriate, even though the violation may have been

deliberate.” United States v. Morrison, No. 79-395

(Jan. 13, 1981), slip op. 4. The Court announced

that the appropriate “approach” is “to identify and

then neutralize the taint by tailoring suitable relief

appropriate in the circumstances to assure * * * a

fair trial.” Ibid.

The remedy in this case can hardly be described

as “tailored.” The court dismissed both the sub-

stantive count and the conspiracy count. It totally

disregarded the government’s more reasonable solu-

tion, which was to suppress all evidence relating to

respondent's presence at the trailer and his participa-

tion in the actual transfer of heroin (Tr. 19)—the

only matters the deported women could have wit-

nessed. Under this proposal, the government would

have had to forego the testimony of the DEA agent

and rely solely on the informant’s testimony as to re-

spondent’s participation in the overall transaction.

This would seem to be ample relief for the “viola-

tion” alleged (in our view, indeed, far more than re-

spondent was reasonably entitled to)“ Instead, the

court adopted, without any showing that it was nec-

By dismissing prior to tria!, the court also pretermitted

consideration of additional measures that would have pro-

tected respondent without eliminating the prosecution. Thus,

respondent might have been able to take advantage at trial

of an “absent witness” instruction. Assuming that respondent

chose to bring up the issue of the potential witnesses and that

he had satisfactorily demonstrated that he could not procure

the witnesses’ attendance at trial, he could ask the finder of

fact to draw an adverse inference from the fact that the gov-

ernment had made the witnesses unavailable. See 1 E. Devitt

& C. Blackmar, Federal Jury Practice and Instructions § 17.19

(1977).

11

essary to avoid any danger of an unjust conviction,

the most drastic sanction available, thereby increas-

ing “to an intolerable degree interference with the

public interest in having the guilty brought to book.”

United States v. Blue, 384 U.S. 251, 255 (1966).

4. In our petition in Valenzuela-Bernal, we dis-

cussed the substantial burden on government re-

sources, as well as unfairness to incarcerated aliens,

created by the Ninth Circuit’s approach to cases in-

volving the deportation of potential witnesses. The

United States simply cannot keep every illegal alien

in prison for substantial periods of time on the

hypothesis that they may provide some “conceivable

benefit” to some defendant.

The difficulty the Ninth Circuit’s rule imposes on

the government is best illustrated by comparing this

case to Valenzuela-Bernal. That case represents the

archetypal situation, i. e., illegal aliens being trans-

ported unlawfully by the defendant. In that context,

the status of the aliens as potential witnesses is at

least clear. In this case, by contrast, there was very

little to indicate that the illegal aliens had any con-

nection to the criminal activity. The fact that they

knew a defendant and happened to be in the general

vicinity of the crime hardly constituted strong reason

for detaining them after they were interviewed by

government officials who concluded that they had no

information. Respondent has not even attempted to

show that that conclusion was unreasonable or moti-

vated by bad faith.“

We are not suggesting that the court of appeals

would require every illegal alien who is captured in

10 It should be recalled in this connection that the agents

had already been told that the two women in the trailer knew

nothing about the drug transactio (Tr. 27).

12

this country to be detained for some period of time

because of the mere possibility that he may have wit-

nessed a crime. Obviously, when no connection be-

tween an arrested alien and some criminal conduct

could be discovered by government officials through

any reasonable means, release of the witness could

not under any theory violate the defendant’s rights.

See United States v. Martinez-Morales, 632 F.2d

112, 116 (9th Cir. 1980). But the instant case still

poses unique problems because of the relief granted

on the basis of the very slight indication that the de-

ported aliens may have had some relationship with

the respondent.

Under the Ninth Circuit’s “conceivable benefit”

test, it is now hazardous for the government, if it

wants to protect its ability to prosecute, to deport

a single illegal alien who has even the remotest con-

nection to a criminal defendant. The government

is placed in the intolerable situation of either filling

its jails with non-criminal alien witnesses or for-

going prosecutions against plainly guilty defendants.

Relief from this dilemma is available only from this

Court.“

Although this case presents questions that overlap sub-

stantially with those presented in our previous petition in

Valenzuela-Bernal, it also raises additional issues and presents

an alternative factual context for evaluating the general prob-

lem. If the Court grants our petition in Valenzuela-Bernal,

it might wish to grant this petition also and set them for

argument together in order to consider simultaneously the

range of related issues pres anted by the two cases.

13

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

CARTER G. PHILLIPS

Assistant to the Solicitor General

CAROLYN L. GAINES

Attorney

SEPTEMBER 1981

—

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-1503

DC CR 80-70WPC

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

V.

FRANCISCO SALCEDO-CENICEROS,

DEFENDANT-APPELLANT

No. 80-1575

DC # CR 80-70-2

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

V.

ENRIQUE MARQUEZ-AMAYA, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Arizona

William P. Copple, District Judge, Presiding

Argued and Submitted March 11, 1981

[Filed Mar. 19, 1981]

2a

MEMORANDUM

Before: KILKENNY and SNEED, Circuit Judges, and

GRANT *, District Judge

Appellant Salcedo-Ceniceros was found guilty of

aiding and abetting the distribution of heroin, 21

U.S.C. § 841(a)(1) and (b), and conspiring to dis-

tribute heroin, 21 U.S.C. § 846(2). Appellant Salcedo-

Ceniceros was sentenced to concurrent eight year

prison terms with a special parole term of five years.

His appeal asserts that he was denied his right to

call witnesses in his defense. We have reviewed the

record and conclude that the convictions should be

affirmed. The district court’s refusal to permit the

witness Barrett to be called as a witness deprived

appellant Salcedo-Ceniceros of no constitutional right

and did not constitute an abuse of discretion on the

part of the district court.

The district court dismissed the indictment charg-

ing Marquez-Amaya with distributing heroin, 21

U.S.C. § 841(a)(1) and (b), and conspiring to dis-

tribute heroin, 21 U.S.C. § 846. The district court

acted on the basis of our decision in United States

v. Mendiz-Rodriguez, 450 F.2d 1 (9th Cir. 1971).

We have reviewed the record and conclude that the

dismissal was proper.

Affirmed.

* Honorable Robert A. Grant, Senior United States District

Judge for the District of Indiana, sitting by designation.

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-1575

DC CR 80-0070-02 WPC

UNITED STATES OF AMERICA, PLAINTIFF/APPELLANT

vs.

JOSE ENRIQUE MARQUEZ-AMAYA,

DEFENDANT/APPELLEE

Appeal from the United States District Court

for the District of Arizona (Phoenix)

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the District of Arizona (Phoenix) and

was duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause be,

and hereby is affirmed.

A TRUE Copy

ATTEST

RICHARD H. DEANE

Clerk of Court

by: /s/ Oscar Tagle

Deputy Clerk

Filed and entered March 19, 1981

4a

APPENDIX C

UNITED STATFS COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-1575

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

V.

ENRIQUE MARQUEZ-AMAYA, DEFENDANT-APPELLEE

[Jun. 16, 1982]

ORDER

Before: KILKENNY and SNEED, Circuit Judges, and

GRANT *, District Judge

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the

suggestion for 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. Fed. R. App.

P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en banc is rejected.

* Honorable Robert A. Grant, Senior United States District

Judge for the District of ndiana, sitting by designation.

5a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CR-80-070-PHX-WPC

UNITED STATES OF AMERICA, PLAINTIFF

—58—

JOSE ENRIQUE MARQUEZ-AMAYA, DEFENDANT

[Filed June 6, 1980]

ORDER

Upon motion of the defendant, Jose Enrique

Marquez-Amaya, and good cause appearing therefor,

IT IS HEREBY ORDERED that the indictment is

dismissed as to defendant Marquez-Amaya;

IT IS FURTHER ORDERED that bond, if any, is

exonerated; and

FURTHER ORDERED releasing defendant Mar-

quez-Amaya from custody.

Done in open Court this 6th day of June, 1980.

/s/ Wm. P. Copple

United States District Judge

District of Arizona

6a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CR-80-70 Phx. WPC

UNITED STATES OF AMERICA, PLAINTIFF

v8.

JOSE ENRIQUE MARQUEZ-AMAYA, ET AL., DEFENDANT

July 21, 1980

IT IS ORDERED:

The government’s motion for reconsideration of

the order dismissing the indictment as to defendant

Marquez-Amaya is denied.

/s/ Wm. P. Copple

Ww. P. CoPpPLE

United States District Judge

Mailed this 21st day of July, 1980, to:

W ov. S. GOV! eNMENT PRINTING OFFicE; 1961 353360 604

81-471

ii dn us

FILED

IN THE NOV 30 1981

SUPREME COURT OF THE UNITED STATES Ae L srevas,

OCTOBER TERM 1980

NUMBER

UNITED STATES OF AMERICA,

Petitioner

v.

JOSE ENRIQUEZ MARQUEZ-AMAYA,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Respondent, JOSE ENRIQUEZ MARQUEZ-AMAYA, pursuant to

Rule 53, Supreme Court Rules and Title 18, United States Code,

§3006A(d) (6), respectively, moves this Honorable Court for leave

to file the attached response to the Petition for Writ of

Certiorari to the United States Court of Appeals for the Ninth

Circuit without prepayment of costs and to proceed in forma

pauperis. Further, Respondent requests, pursuant to Rule 53,

Supreme Court Rules, that the undersigned attorney be appointed

to represent him in further proceedings before this Court for the

reason that the Respondent is financially unable to obtain adequate

representation and to meet the necessary expenses in this Court of

filing this Response.

RESPECTFULLY SUBMITTED this Laa of November, 1981.

GAMA AND GUERRERO

By 22 e

PETER A. GUE

Attorney for Respondent

AFFIDAVIT

STATE OF ARIZONA )

) ss.

County of Maricopa )

PETER A. GUERRERO, being first duly sworn upon his oath,

deposes and says:

1. This Affidavit is made pursuant to Rule 46 of the

Supreme Court Rules;

2. That he is the attorney for the Respondent and has

represented the Respondent throughout all the proceedings in this

matter;

3. That immediately after the case was dismissed in the

District Court below, the Respondent returned to Mexico where he

is a citizen;

4. That the undersigned has had no further contact with

the Respondent, is unable to contact him and has not been paid for

any of the representations afforded the Respondent before the Ninth

Circuit Court of Appeals and this Court;

5. That because of the foregoing the undersigned requests

that he be appointed to represent the Respondent and that this

6—

28 1

PETER A. GUERRERO

SUBSCRIBED AND SWORN to before me this 27th day of November,

matter proceed in forma pauperis.

1981.

Nor PUBLIC

My Commission Expires:

January 16, 1982

i(a)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

NUMBER

UNITED STATES OF AMERICA,

Petitioner,

v.

JOSE ENRIQUEZ MARQUEZ-AMAYA,

Respondent.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

NINTH CIRCUIT

JOSE ENRIQUEZ MARQUEZ-AMAYA

Respondent

ii

Opinion Below. ooo

Jurisdic tion

Question Presentelltll

Constitutional Provision Involved .

Statement of the case

I * . . . . . * . . * . .

Reason for Denying the Petition

Comelusion « «e+ ces „

Affidavit of Service

United States vs. Gonzales

F. ., 19000.

United States vs. Mendez-Rodriguez

750 F.2d I (Sth Cir., 1971)...

United States vs. Sheiner

* upp.

Affirmed 410 F.2d 377

Certiorari denied 90 S.Ct. 68

396 U.S. 825

24 L.Ed.2d 76 * * * . * * * * . * *

United States vs. Tsutagawa

F. c C Tee 4) * .

Rashi give vs. Texas

Ue >. * * * * * * „ *

Title 18, United States Code

§3006A(d) (6) * . * * . * * * * . *

Title 18, United States Code

§2 * * * * 7. * * . . * * . * * . *

Title 18, United States Code

§3149 * * * * * „ * * * * * * * * „

Title 21, United States Code

5841 (a) (1) d) * * * * * * * * * * *

Title 21, United States Code

§846 * * * * * * * * * * * * * * *

Title 28, United States Code

§1254(1) * * . * * . * . * * * . *

. 1

* 1

. 2

. 2

* 2

. 3

. 4

* 6

13

. 14

8,12

7

6,7, 8,

* 9

. 11

7,10

* 6

* 1

. 2

. 12

. 2

. 2

. 1

AMENDMENT

Fifth Amendment

Constitution of the United States

Sixth Amendment

Constitution of the United States

Rule 53, Supreme Court Rules

Rule 24(1), Revised Rules of the Supreme Court

iv

. 2

» 2,9,12

* 1

. 1

IN THE

SUPREME COURT OF THE UNITED STATES >

OCTOBER TERM 1980 ari

NUMBER

UNITED STATES OF AMERICA, Petitioner,

V.

JOSE ENRIQUEZ MARQUEZ-AMAYA, Respondent.

RESPONSE TO PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ENRIQUEZ MARQUEZ-AMAYA, by and through his attorney

undersigned, respond to the government's petition for writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINION BELOW

The Memorandum of the Court of Appeals (Exhibit "A" attached)

is unreported.

JURISDICTION

The jurisdiction of this court is invoked under 28 U.S.C.

1254(1). This response is filed pursuant to Rule 24(1) of the

Revised Rules of the Supreme Court of the United States.

QUESTION PRESENTED

Is dismissal proper when the Government unilaterally

places a material witness beyond the subpoena power of a Defendant

when the Defendant could conceivably benefit from the missing

witnesses testimony?

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

"No person shall be. . deprived of

life, liberty, or property, without due

process of law...

The Sixth Amendment to the United States Constitution

provides, in pertinent part:

In all criminal prosecutions the accused

shall enjoy the right .. . to have compulsory

process for obtaining witnesses in his

favor...

STATEMENT

Respondent was indicted with a co-defendant for distributing

heroin in violation of 21 U.S.C. 841 (a) (I) (d) and 18 U.S.C. 2, and

for conspiring to distribute heroin in violation of 21 U.S.C. 5846.

The indictment was filed on or about April 16, 1980 and, on May 22,

1980, the Respondent filed his Motion to Dismiss the Indictment

alleging that the Government had unilaterally placed two (2) material

witnesses beyond the subpoena power of the Respondent by returning

them to Mexico thereby denying the Respondent his constitutional

rights to due process and compulsory process. (E.R. 4) The

Government filed its Response to Defendant's Motion to Dismiss

Indictment (E.R. 15) but reguested no evidentiary hearing.

On June 6, 1980, the United States District Court below

granted Respondent's iotion to Dismiss the Indictment. (E.R. 18)

<

*

1. At approximately 7:00 o'clock p.m. on March 31,

1980, DEA Agent Rocco J. Andresano, Jr., had a telephone

conversation with a confidential informant. (T.R. 56) The

informant advised Agent Andresano that two (2) individuals were

present with the informant and wanted to sell a pound of heroin.

Agent Andresano told the informant that he wanted to buy the

heroin and would meet these individuals at a specific location

in approxin tely an hour". (T. R. 58)

There was no testimony as to the then identity of the

two (2) individuals. At the co-defendant's trial Agent Andresano

testified as to a hearsay conversation which he allegedly heard

between the ö informant, a Mexican individual who spoke

English and a Mexican individual who spoke Spanish. (R.T. 57, 58)

According to Agent Andresano even though he did not hear all of the

conversation (T.R. 77, 78), he was able to determine over the

telephone that the “non-English-speaking individual” was to take

four (4) ounces and go back to a trailer where the heroin transaction

was to take place and the confidential informant and the "English-

speaking individual" were to meet with Agent Andresano. (R.T. 58)

Again, there was no identity at this point in time of either of the

two (2) individuals involved.

Agent Andresano then proceeded to gather $29,000.00 from the

Yuma Task Force Office and then, under surveillance, drove to a

pre-arranged location where he was introduced to the co-defendant

Salcedo by the confidential informant. (T.R. 59) From there

Mr. Salcedo and Agent Andresano drove to the location in Yuma,

Arizona, where the trailer was located. On the way to the trailer

co-defendant Salcedo told Agent Andresano that he (Salcedo) could

supply him with a pound of heroin every ten (10) days. (T.R. 61)

Salcedo also said he could supply the same amounts of cocaine.

When they arrived at the trailer Agent Andresano was told

to park in a parking space and wait. After a few moments an

individual identified by Agent Andresano as the Respondent exited

the trailer came through the gate and walked to the passenger side

and asked in Spanish of Mr. S&lcedo "if everything was alright".

2

Mr. Salcedo indicated yes“ in Spanish. (T. R. 63).

The Respondent allegedly then left the passenger side and

proceeded back to the trailer. A few moments later he came back

out and handed a brown paper sack to co-Jefendant Salcedo who,

in turn, handed it to Agent Andresano. (R.T. 63).

At the time of the transfer of the “paper sack“ it was

closed. (Preliminary Hearing Transcript, p.20) Agent Andresano

never saw the Respondent until he arrived at the trailer.

(Preliminary Hearing Transcript, p.8) He never had any negotiations

with the Respondent whatsoever. (Preliminary Hearing Transcript,

p.8) Prior to the day in question Agent Andresano had never had

any previous contact with the Respondent. (Preliminary Hearing

Transcript, p.8).

Contrary to the statement in the Petition for Writ of

Certicrari there was no testimony as to interviews of the two (2)

women who were found in the trailer. They were not taken into

custody, however, but were turned over to the United States Border

Patrol and released back to Mexico the same day.

2. After Repsondent's counsel determined that the material

witnesses found in the trailer were returned to Mexico and were,

in fact, beyond his subpoena power and that they were returned to

Mexico by the unilateral action of the Government he filed a Motion

to Dismiss the Indictment on the grounds that the deportation of the

two (2) women denied him his rights to due process and compulsory

process. (D.R. 4) The Respondent requested oral argument on his

Motion. The Government filed its Response to the Motion but did

not request an evidentiary hearing. (E.R. 15).

In his Motion Respondent alleged that he was denied the

opportunity to interview the two (2) alien witnesses by the

unilateral action of the Government and, as the result, he was

denied his right to compulsory process for obtaining witnesses

on his behalf to testify at trial.

At oral argument on Respondent's Motion the Government

took the position that the burden was upon the Respondent to show

the Court what benefit the Respondent would have derived from the

interview and/or testimony of the two (2) material witnesses.

(R.T. 17-20) Respondent countered the Government's argument by

advising the Court that the law placed upon him no burden to

“speculate” as to how the missing material witnesses would have

aided his defense. The only requirement of the Respondent to sustain

his Motion to Dismiss was to show the Court a “material relationship"

between the Defendant and the alleged criminal activity and the

unavailable witnesses and that, as the result of this material

relationship the Respondent “could conceivably” benefit from the

testimony of said missing alien witnesses. (R.T. 20). The Court

agreed with Respondents’ position as to what transpired between

Marquez and the two (2) alien witnesses while inside the trailer“.

(R.T. 20)

The Government then ingeniously attempted to convince the

Court below that all evidence relating to the Respondent's presence

at the trailer should be suppressed and the substantive count

dismissed. The conspiracy count against the Respondent would

stand however because the confidential informant could testify

as to the Respondent's involvement in the negotiations between

the confidential informant and Agent Andresano during their phone

conversation. When the Court was reminded that intent is an essential

element of a conspiracy charge and that the material witnesses

"could conceivably” give some evidence as to the intent and/or

knowledge of Marquez-Amaya and his involvement at the trailer and

that this evidence would relate back to the initial negotiations

the District Court agreed and granted the Motion to Dismiss.

(R.T. 22, 23)

REASONS FOR DENYING THE PETITION

This case simply follows the well reasoned and consti-

tutionally supported doctrine issued by the Ninth Circuit Court

of Appeals in the case of United States vs. Mendez-Rodriguez,

450 F.2d 1 (9th Cir., 1971). There is nothing unique about this

case except that the Government is unable to understand that the

Sixth Amendment right to compulsory process applies to all crim-

inal activity and not only to “alien smuggling cases". Quite

simply, the Government's position is that the Sixth Amendment

right to compulsory process should be conditioned upon u showing

by a Defendant in a criminal prosecution that the unavailable

witness would positively have offered testimony crucial to the

defense proposed by a criminal defendant. Of course, the Govern-

ment can offer no explanation as to how a Defendant might meet

this affirmative burden if, in fact, the witness has been made

unavailable by the unilateral action of the Government.

l. In United States vs. Mendez-Rodriguez (supra), the

Ninth Circuit Court of Appeals quoted the case of Washington vs.

Texas, 388 U.S. 14 (1967) as follows:

“The right to offer the testimony of witnesses,

and to compel their attendance, if necessary,

is in plain terms the right to present a defense,

the right to present the Defendant's version

of the facts as well as the prosecution to the

jury o that it may decide where the truth lies.

Just as an accused has a right to confront the

prosecution witnesses for the purpose of

challenging their testimony, he has the right

to present his own witnesses to establish a

defense. This right is a fundamental right of

due process of law." (450 F.2d at 4)

Therefore, the Ninth Circuit Court of Appeals, in Mendez-

Rodriguez (supra), held that the Government's unilateral action

in deporting six witnesses to the alleged criminal activity

before the Defendant had an opportunity to interview them vio-

lated due process and compulsory process requirements.

Further, the Ninth Circuit declined to require a showing

by the Defendant that the witnesses would have offered favorable

testimony or even speculate as to whether an interview would

have proven fruitful. The Court recognized that this burden

might well be impossible to meet since the witnesses were

“unavailable”:

“Appellant concedes that he is unable to

show that the witnesses in question would

have offered testimony favorable to the

defense. Such statement is understandable in

view of the fact that Appellant was, by the

Government's action, deprived of the opportunity

to interview said witnesses." (450 F.2d at 5)

Later, the Ninth Circuit Court of Appeals held in

United States vs. Tsutagawa, 500 F.2d 420 (9th Cir. 1974) that the

Defendant was not required to show prejudice resulting from the

unavailability of the deported witnesses. In that case the

Ninth Circuit stated as follows:

“Mendez-Rodriguez, prevents the Government

from 3 who will be a helpful witness

for the accused. The accused (or here, prospective

accused) has the right to make that decision for

himself, either by interviewing potential alien

witnesses or by waiving the right to do so. The

thrust of Mendez-Rodriguez is to prevent the basic

unfairness of allowing the Government to determine

which witnesses will not help either side and then

to release those witnesses, for all practical

purposes, beyondthe reach of the Defendant. (Cita-

tion ommitted) The vise lies in the unfettered

ability of the Government to make the decision

unilaterally. The Sixth Amendment guarantees the

Defendant the right to subpoena favorable witnesses.

(Citation ommitted) Here, the Government placed

witnesses, who may have been favorable to the

Appellee, outside the power of the Court to require

attendance. In Mendez” Roce igquer we held that this

same act denied t accus ue process because it

interferred with his ability to defend himself with

criminal charges. (Citation ommitted) A defendant

has the right to formulate his defense unhibited by

Government conduct that, in affect, prevents him

from interviewing witnesses who may be involved

and from determining whether he will subpoena and

call them in his defense.” (500 F.2d at 423)

Still later the Ninth Circuit qualified the above general

rule even further in the case of United States vs. Gonzales,

617 F.2d 1358 (9th Cir. 1980) wherein they stated that a Defendant

must show that he “could conceivably" benefit from the missing

-7-

witnesses testimony.

It is the contention of the Government in its Petition

for a Writ of Certiorari that the Fifth Circuit decision of

United States vs. Avila-Domiguez, 610 F.2d 1266 (Sth Cir., 1980),

requires a showing of “real prejudice” before a dismissal of the

indictment is warranted. That is not the holding of that case.

United States vs. Avila-Domiguez, (supra) states as follows:

„. „ „ We are in general accord with the

proposition set forth in Mendez-Rodriguez

and Calzada that to obtain relief in a case

of this kind, the Defendant need not show

prejudice arising from the violation with

any degree of assuredness". (Citation ommitted)

But we agree with the dissents in both of those

cases that reversal is not warranted where 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 the Defendant. (Citation ommitted)

And that it does not seem too much to require

that they offer at least a plausible theory of

how the testimony of the witnesses would be

helpful to the defense. (610 F.2d at 1269 and

1270).

Therefore, what the Government, in its Petition for Writ of

Certiorari smugly dismisses as “the vivid imagination of the

Respondent's counsel as to possible, but entirely remote, scenarios“

is exactly what the Fifth Circuit Court of Appeals in U.S. vs.

Avila-Domiguez, (supra) required when they spoke of “at least a

plausible theory”.

Obviously, unlike counsel for the Government, the trial

judge, experienced in the many nuances and theories of criminal

litigation, had no problem in recognizing the "conceivable benefit”

the missing witnesses could offer to the defense of the Respondent.

In response to a question from the attorney for the co-defendant as

to why the Motion for Dismissal filed by the Respondent was granted

on Mendez-Rodriguez grounds and that of his co-defendant denied tie

District Court Judge answered as follows:

»The same material facts didn't operate

because the co-defendant was inside there

to make a delivery, he could have very well

said something to the woman--I've just come

across here to carry a bag” or something

and there was a strong possibility that we

could have had exculpatory evidence for

Marquez-Amaya but none for Salcedo and that

in that l. lar case the Government vas

derelict in not holding onto those

until after counsel had a chance to

discuss them, but you simply don't have

that in your case“ (T. R. 44)

It is clear, therefore, that this case is not unique and/or

confusing with relation to Mendez-Rodriguez and its progeny

and/or the guarantees of the Sixth Amendment to the United States

Constitution.

2. Secondly, in the Petition for Writ of Certiorari,

the Government raises a red herring. At page 8 of the Writ the

Government states as follows:

"In addition, he knew their address

in Mexico, but he did no more to secure

their presence than state to the Court

that they would be unavailable."

In fact, the father of the Respondent attempted to locate the

two (2) missing alien witnesses so that Respondent's counsel

could interview them. Also, when the Drug Enforcement

Administration agent attempted to locate the missing alien

witnesses, the Respondent's father furnished them with a previous

address for “this woman and her daughter”. (T.R. 5) When he

attempted to locate them the Respondent's father was told by

relatives of the missing woman“ that she had fled to the interior

of Mexico because she feared Drug Enforcement Administration

Agents. Although these representations as to the fear of the

“woman” are not referred to in the official record the Court was made

aware of this. In fact it was the Assistant United States Attorney

who refers, in the record, to the fact that the Respondent's father

was assisting the Drug Enforcement Administration in their efforts

to locate the two (2) women. The unsuccessful efforts of the

Respondent's father in locating the witnesses on behalf of Responcent's

counsel was the support and basis for counsel's statement to the

Court that “those witnesses are not going to be available”. D. R. 6)

However, even assuming that Respondent made no effort to

locate the missing alien witnesses dismissal of the Indictment was

Still warranted. The Government proposes that this Court place

upon a Defendant the requirement that he produce an affidavit or

other evidence of the testimony the witness would give, or a

satisfactory explanation for his inability to do so". Further the

Government states that, by imposing this requirement as a precondition

to dismissal, this Court would encourage a Defendant's diligence

in attempting to locate the missing witnesses. In effect the

Government would shift the burden of proof from the Government to the

Defendant. This is, of course, contrary to Constitutional |

mandate. In fact, by not imposing this requirement this

Court is discouraging Government law enforcement officials from

unilaterally placing potential witnesses beyond the subpoena power

of the Court and depriving a Defendant of his constitutionally

guaranteed right to “formulate his defense" and determining, for

himself, which witnesses would aid in his defense. U.S. vs.

Tsutagawa, (supra). The adoption of the standard proposed by the

Government could actually encourage law enforcement officers to

deprive defendants of exculpatory evidence and thereby subvert the

orderly administration of justice. It is not inconceivable that this

standard would result in the innocent being “brought to book”.

3. In the Petition for Writ of certiorar i the Government

next discusses alternatives which were available to the Court other

than dismissal of the Indictment against the Respondent. The same

argument was presented to the Court below and summarily dismissed

as it should have been. At oral argument on the Motion to Dismiss

filed by the Respondent the Government suggested that the Court

could, in the alternative to dismissal, “suppress all evidence

relating to the Respondent's presence at the trailer and his

participation in the actual transfer of heroin." (T.R. 19)

-10-

In other words the Government would have the trial Court supress

all evidence relating to the substantive acts.

Under this proposal the Government could proceed against the

Respondent on the conspiracy count contained in the Indictment. This

suggestion was hardly a “reasonable solution" as suggested by the

Government. This suggested alternative plus the suggested alternat

of the “absent witness instruction” again shows nothing more than

a basic lack of trial expertise and an attempt to shift the burden

of proof from the Government to the Defendant.

It is fundamental that criminal intent and guilty knowledge

are essential elements to a conspiracy conviction. U.S. vs. Sheiner,

273 F.Supp. 977, Affirmed 410 F.2d 337, certiorari denied 90 S.Ct. 68,

396 U.S. 825, 24 L.Ed.2d 76. Any evidence the missing witnesses

“could conceivably” have provided the Respondent as to his knowledge

and intent with relation to the substantive acts would (or could)

also necessarily be relevant to the intent and knowledge elements

of the conspiracy count. The trial court judge realized this fact and,

as a result, refused to accept the Government's offer of a “reasonable

solution”. Likewise, hollow and fundamentally unfair is the

Government's proposal that the Respondent be allowed the “absent

witness instruction". Substituting an instruction for live

exculpatory testimony may seem a panacea on a theortical level but,

in actuality, it is a terribly ineffectual barter.

4. In its final argument the Government seems to propose

that the result in this case requires (1) the Government jail all

potential illegal alien witnesses “for substantial periods of

time and (2) “plainly guilty defendants” have a lesser right to

Constitutional guarantees than do other defendants.

The dilemma of “missing alien witnesses" is not a new or

vexing problem as is suggested by the Government. Its origin is

rooted in the rapid growth of alien smuggling cases in the early

seventies. The manifest injustice of placing innocent witnesses

in custody while releasing on bail their smugglers was obvious to all.

Federal authorities seemingly had no other choice if they were to

-ll-

both prosecute the smugglers (the witnesses had to testify at

trial as to certain elements necessary to conviction) and protect

the Sixth Amendment rights of the Defendant. One proposed

solution to this problem is found in 18 U.S.C.A. §3149. This

section provides for the deposition of material witnesses and

their subsequent release. In fact this measure is effectively being

used in the District of Arizona and has been so used since the early

seventies.

The advantage in the Government availing itself of

18 U.S.C.A. §3149 is twofold. First it releases innocent witnesses

at a relatively early date and eliminates the need for the Goveranant

to fill “its jails with non-criminal alien witnesses." It also

allows for successful prosecution. Secondly it allows a defendant

to have an opportunity to interview the witnesses and object to

their release if he decides they are needed to prepare and/or present

his defense. That would be sufficient to protect his Sixth Amendment

rights. That is currently all the law requires of the prosecution and

law enforcement officers:

"Since we believe, however, that the

better procedure for protecting the

Constitutional rights here involved

would be for the Government to give

notice of prospective deportation and

a reasonable opportunity to interview

the witnesses. .." U.S. vs. Avila-Dominguez

(supra) at 1269

Admittedly depositions of material witnesses which are later

used at trial may present problems in relation to the confrontation

clause of the Constitution. But that is not the issue in the instant

case. If it were, then review by this Court might be appropriate.

Finally the “plainly guilty” argument of the Government is

not worthy of response. Although this proposition, unfortunately,

may today be politically popular and even accepted and pro, ied by

some of those in political power, it has no support in our system of

justice. Hopefully it never will.

-12-

CONCLUSION

The issue raised by the Government is illusory only

and the Petition for a Writ of Certiorari should be denied.

RESPECTFULLY SUBMITTED this 27th day of November, 1981.

GAMA AND GUERRERO

By Zhe, G 8

1150 First Interstate Bank

100 West Washington

Phoenix, Arizona 85003

Attorney for Respondent

1

IN THE

SUPREME CQURT OF THE UNITED STATES

OCTOBER TERM 1980

NUMBER

UNITED STATES OF AMERICA,

Petitioner,

vs.

JOSE ENRIQUEZ MARQUEZ-AMAYA,

Respondent.

AFFIDAVIT OF SERVICE

PETER A. GUERRERO, being first duly sworn, deposes

and says:

That in accordance with Rule 33(2) (a), Supreme

Court Rules, he has served a copy of Respondent's Response

on the United States Attorney for the District of Arizona,

Tucson, Arizona, and has forwarded by mail a copy of the

following documents to the Solicitor General, Department of

Justice, Washington, D.C., on this 27th day of November, 1981.

1. Motion for Leave to Proceed in

Forma Pauperis;

2. Response to Petition for Writ of

Certiorari to the United States

Court of Appeals for the Ninth

Circuit;

3. Affidavit of Service.

GAMA AND GUERRERO

oy Le le

PETER A. GUERRE

Attorney for Respondent

SUBSCRIBED AND SWORN to before me this 27th day of

November, 1981.

My Commission Expires:

January 16, 1982

-14-