Opinion
Criminal No.: 2:22-cr-00943-MIS-1
09-08-2023
UNITED STATES of America, v. Manuel ESPINOZA-CASTANEDA, Defendant.
Christopher McNair, United States Attorney's Office, Las Cruces, NM, for United States of America.
Christopher McNair, United States Attorney's Office, Las Cruces, NM, for United States of America. SEALED MEMORANDUM OPINION AND ORDER GRANTING GOVERNMENT'S SEALED MOTION TO PERMIT TESTIMONY VIA VIDEOCONFERENCE MARGARET STRICKLAND, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the Government's Sealed Motion to Permit Testimony via Videoconference ("Motion"), ECF No. 46, filed August 17, 2023. Defendant Manuel Espinoza-Castaneda ("Defendant") filed a Response on August 31, 2023, ECF No. 49, to which the Government filed a Reply on September 7, 2023, ECF No. 51. Upon due consideration of the parties' submissions, the record, and the relevant law, the Court will GRANT the Motion.
I. BACKGROUND
A. Defendant's Initial Arrest
On April 14, 2022, U.S. Border Patrol agents stopped Defendant's vehicle at an immigration checkpoint in Dona Ana County, New Mexico. See ECF No. 1 at 2. After first asking Defendant (a U.S. citizen) about his citizenship status, Border Patrol agents then asked the vehicle's four passengers about their immigration status. Id. When the passengers failed to provide satisfactory answers, Border Patrol agents instructed Defendant to pull aside for further questioning. Id. Disregarding that command, Defendant rapidly accelerated his vehicle and led Border Patrol agents on a near-thirty-mile chase at speeds of up to 110 miles per hour before finally being stopped through the agents' use of a tire-deflation device. Id.
The Government charged Defendant by Information with conspiracy to transport undocumented aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(V)(I). ECF No. 11. Defendant pled guilty, ECF Nos. 14, 15, and on August 30, 2022, the Court sentenced him to two years' supervised release, ECF No. 22. The conditions of Defendant's supervised release required that he not commit any other crimes. at 3.
B. Defendant's Second Arrest
Between January 31 and February 2, 2023, while still on supervised release, Defendant allegedly committed a series of crimes against his wife ("Jane Doe"), as well as her minor child ("Jane Doe #2"). See ECF No. 26.
First, on the night of January 31, after Doe refused to have sex with Defendant, he pressed the back of Doe's hands into a hot frying pan, burning them. ECF No. 26-1 at 1. He then took away Doe's phone and disconnected their home's internet, threatening to kill her if she contacted the police. Id.
The following evening, after Doe again refused to have sex with Defendant, he choked Doe, releasing her when he realized she could not breathe. Id. at 2. Defendant then struck Doe #2, who had witnessed the choking incident, with a shoe before locking her in her room. Id. Defendant then repeated his threat to kill Doe if she were to contact law enforcement. Id.
On February 2, 2023, Doe visited Doe #2's elementary school, where she discussed Defendant's actions with counselors there. Id. at 4. Doe was then directed to enter a women's shelter for domestic violence. Id. While at the shelter, Doe spoke with police officers about the incidents involving Defendant. Id.
On February 23, 2023, the State of New Mexico filed a criminal complaint against Defendant, charging him with two counts of Aggravated Battery, Abuse of a Child, and Intimidation of a Witness. ECF No. 26-1. As a result, the U.S. Probation Office filed a Violation Report against Defendant for breaching the terms of his supervised release. ECF No. 27. An arrest warrant was then issued for Defendant, ECF No. 29, and he was arrested on March 1, 2023.
The Court originally scheduled Defendant's final revocation hearing for August 22, 2023, ECF No. 39, but continued it upon the Government's unopposed motion for a continuance, ECF Nos. 40, 45.
On August 17, 2023, the Government filed the instant Sealed Motion to Permit Testimony Via Videoconference, ECF No. 46. Defendant filed a Response on September 1, 2023, ECF No. 49, to which the Government filed a Reply on September 7, 2023, ECF No. 51.
II. DISCUSSION
The Government argues that Doe, its primary witness in the final revocation hearing, should be permitted to testify remotely via videoconference because she is approximately eight months pregnant, she recently sought medical assistance due to complications with her pregnancy, and as part of her discharge paperwork, she was instructed to be on bed rest as much as possible and was told by her physician not to travel. ECF No. 46 at 2. Doe currently resides in Phoenix, Arizona. Id.
In his Response, Defendant argues that the instructions given by Doe's doctor do not mandate bed rest, and that they simply instruct Doe to "[r]est on [her] left side as much as possible." ECF No. 49 at 2 (citing ECF No. 49-1 at 2). Defendant argues that allowing Doe to testify remotely via videoconference would violate his constitutional and statutory rights to confront witnesses against him. Id. at 4. Defendant asserts those rights mandate in-person testimony. Id. at 6. The Court disagrees.
The Confrontation Clause of the Sixth Amendment establishes that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Supreme Court, however, has "never held . . . that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them . . ." Maryland v. Craig, 497 U.S. 836, 844, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).
Notably, the Confrontation Clause does not apply in proceedings for the revocation of parole or supervised release. See., e.g., United States v. Henry, 852 F.3d 1204, 1206 (10th Cir. 2017) ("[U]nder settled precedent the Confrontation Clause of the Sixth Amendment does not apply to supervised release revocation proceedings . . ."); see also United States v. Diaz, 986 F.3d 202, 209 (2d Cir. 2021); ("Neither the Federal Rules of Evidence nor the Sixth Amendment's Confrontation Clause apply with full force in a revocation proceeding.").
Instead, the right of defendants to confront adverse witnesses in revocation proceedings is governed by the Supreme Court's decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Morrissey established that while "the full panoply of rights due a defendant in [a criminal trial] does not apply to parole revocations," 408 U.S. at 479, 92 S.Ct. 2593, due process in the context of revocation hearings nevertheless grants defendants "the right to confront and cross-examine adverse witnesses[,]" id. at 489, 92 S.Ct. 2593. Accord Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
In the wake of Morrissey, the right to confront witnesses at parole revocation hearings was codified in Federal Rule of Criminal Procedure 32.1(b)(2)(C). That Rule grants individuals subject to revocation hearings the right to "question any adverse witness unless the court determines that the interest of justice does not require the witness to appear." Fed. R. Crim. P. 32.1(b)(2)(C). In United States v. Jones, the Tenth Circuit "join[ed] the other circuits" in holding that Rule 32.1(b)(2)(C) requires courts overseeing parole revocation hearings to conduct a "balancing test," weighing "(1) 'the person's interest in the constitutionally guaranteed right to confrontation' against (2) 'the government's good cause for denying it.' " 818 F.3d 1091, 1099-1100 (10th Cir. 2016).
Courts are divided on whether the Rule 32.1(b)(2)(C) balancing test is coextensive with the due process protections provided by Morrissey. Compare United States v. Ferguson, 752 F.3d 613, 618 (4th Cir. 2014) (stating that the Fourth Circuit's balancing test is based on Rule 32.1 and "does not flow directly from Morrissey or due process") with United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009) (noting that "[m]ost . . . circuit courts of appeals have interpreted Morrissey and Rule 32.1(b) to require a balancing test," and establishing the same standard in the Third Circuit); United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004) (holding that Morrissey itself requires the use of the balancing test); and United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999) (identifying the "due process balancing test" as a requirement under Rule 32.1's codification of Morrissey).
While the Tenth Circuit itself has "never addressed whether Morrissey itself would require the same balancing test," the Court finds that application of the balancing test meets the standards of due process required by Morrissey and its progeny. United States v. Faunce, 66 F.4th 1244, 1252 (10th Cir. 2023).
Applying the balancing test to the facts of this case, the Court initially observes that the Government is not attempting to deny Defendant of his constitutional right to confrontation. The Government proposes that Doe testify in real time via videoconference where she will be subject to cross-examination. Further, the Court finds that the aggregation of health factors the Government points to in support of their Motion meets the requirements for "good cause." Those include Doe's late stage of pregnancy, Doe's medical complications, and the instruction from Doe's physician that she rest on her left side "as much as possible," which the Court construes as orders to avoid travel and seek bed rest. ECF No. 49-1 at 1. The Government thus has a compelling interest in not forcing Doe to journey hundreds of miles from Phoenix, Arizona, to Las Cruces, New Mexico (presumably upright) in order to give in-person testimony against her and her child's alleged abuser.
Because the Government is not seeking to deny Defendant of his right to confrontation, and because the Government has established good cause for permitting Doe to testify remotely, the Court will permit Doe to testify remotely via videoconference.
Further, the Tenth Circuit has already approved of videoconference testimony in similar circumstances. See Faunce, 66 F. 4th at 1253-55. In Faunce, the defendant—who was serving a term of supervised release—allegedly beat his ex-girlfriend and locked her in an RV. Id. at 1246. Due to the COVID-19 pandemic, the court permitted the defendant's girlfriend to testify via videoconference at his final revocation hearing, where she was subject to complete cross-examination. Id. at 1247. The defendant voiced no objection. Id. at 1251. The court ultimately revoked the defendant's supervised release, and the defendant appealed. Id. at 1246. On appeal, the defendant argued that by permitting his girlfriend to testify via videoconference the district court denied him his right to due process. Id. at 1251-52.
The Tenth Circuit declined to address defendant's due process claims as they were raised for the first time on appeal. Id. at 1252-53. It did, however, find that permitting defendant's girlfriend to testify via videoconference did not constitute plain error. Id. at 1253-55. In support of that finding, the panel cited both the defendant's ability to "see and hear [the witness] in real time" as well as the defendant's ability to question the witness. Id. at 1255-56. It further found that the district court properly conducted the Rule 32.1(b)(2)(C) balancing test and acted within its discretion by permitting the girlfriend to testify remotely. Id. at 1255-58. Accordingly, it affirmed the district court's judgment. Id. at 1258.
The same circumstances apply here. As did the district court in Faunce, the Court here must "consider the difference in [the defendant]'s ability to probe [the witness]'s reliability by questioning her through Zoom rather than in-person," id. at 1256, and balance that difference against the Government's justification for seeking to deny physical confrontation. Having done so, the Court concludes that the Defendant's confrontation right would not be unduly usurped were Defendant required to question Doe over Zoom, rather than in person.
The Court finds this outcome represents a compromise that satisfies the balancing test required by 32.1(b)(2)(C), as well as the due process requirements established by Morrissey.
III. CONCLUSION
For the foregoing reasons, "Government's Sealed Motion to Permit Testimony via Videoconference," ECF No. 46, is GRANTED.