Opinion
2:02-CR-0084 (02)
November 27, 2002
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO DISMISS INDICTMENT
On November 12, 2002, defendant JOSE LUIS HERNANDEZ-ESCOBAR filed a motion to dismiss the indictment returned against him in the above entitled and numbered cause on October 22, 2002. The government filed their response on November 21, 2002. By his motion, defendant alleges his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process have been violated due to the deportation/removal of two witnesses.
On October 22, 2002, Javier Perez-Guzman, a co-defendant in this case, was driving a vehicle which was stopped for a traffic violation. In the vehicle were defendant HERNANDEZ-ESCOBAR and ten other illegal aliens. Both defendant HERNANDEZ-ESCOBAR and codefendant Perez-Guzman were charged with "alien smuggling." One of the other ten passengers, Jose Hernandez-Mendez, was a juvenile. Government agents did not detain the juvenile alien. Instead, the juvenile, Jose Hernandez-Mendez, and an adult relative, Orvelin Garcia-Mendez, were interviewed and then released and processed for voluntary returns to Mexico. They were not designated or held as material witnesses. Defendant HERNANDEZ-ESCOBAR, by this motion, objects to the non-availability of Orvelin Garcia-Mendez.
The undersigned held a hearing on defendant's motion on November 26, 2002. At said hearing, counsel for defendant argued the testimony of the removed witness, Garcia-Mendez, would have been material and favorable to his case and not duplicative of the testimony of the other eight witnesses who were detained and available to be deposed. As cited by defense counsel, this standard is set forth in United States v. Perez, 217 F.3d 323, 326 (5th Cir. 2000). In Perez, the Fifth Circuit held that "a criminal defendant must make a plausible showing that the testimony of the deported witnesses would have been material and favorable to defense, in ways not merely cumulative to the testimony of available witnesses." Id. Therefore, the first issue this Court must determine is what a defendant must show in order to make such a "plausible showing."
Defendant contends the deported witness, Garcia-Mendez, as well as the removed juvenile, Hernandez-Mendez, were related by marriage to co-defendant Perez-Guzman, the driver of the vehicle. Defendant then argues the deportees, or at least Garcia-Mendez, would have testified that Garcia-Mendez, and not himself, made the initial telephone calls arranging the transportation eventually provided by co-defendant Perez-Guzman. Further, while defendant HERNANDEZ-ESCOBAR admitted to border patrol officers that he made a phone call to his wife in North Carolina regarding transportation of the group, he avers such call could be shown to have been merely a follow up call to verify the transportation arrangements. Defendant contends the testimony of Garcia-Mendez would be material and favorable to this position and that no other witness can so testify.
It is not well settled what constitutes a "plausible showing" under Perez. However, it is the opinion of the undersigned Magistrate Judge that the defense has not met its burden of making such a showing. It is the undersigned's opinion that while a plausible showing must be more than a de minimus showing, neither an affidavit nor the deposition of the removed witness is required. The standard is somewhere in between.
In the instant case, defendant HERNANDEZ-ESCOBAR has arguably made a sufficient showing that the removed witness was related to the driver, co-defendant Perez-Guzman. Defendant, however, has presented only speculation as to the telephone call about which the deported witness Garcia-Mendez would have allegedly testified. Defendant bases his contention primarily on the language of co-defendant Perez-Guzman's motion to dismiss. The assertions in co-defendant's motion, however, are not sufficient. They are not sworn to and do not constitute an acceptable proffer. In addition to the evidentiary shortcomings in accepting the assertions made in co-defendant Perez-Guzman's motion as the basis for the "plausible showing," the assertions themselves are inconsistent with other statements. Co-defendant Perez-Guzman made a statement to Border Patrol agents following his arrest wherein he stated that he was called by a friend, "Luis" (defendant Jose Luis Hernandez-Escobar) to come to Arizona and transport the group to North Carolina. Perez-Guzman's statement directly contradicts the assertions in his motion. Therefore, while the contours of what does or does not rise to the level of a "plausible showing" are not well defined, it is the opinion of the undersigned that the burden of making such a showing has not been met in this case. Further, even assuming, for purposes of argument, that defendant HERNANDEZ-ESCOBAR has made a plausible showing, the absent witness' testimony does not exonerate defendant HERNANDEZ-ESCOBAR of his role in aiding/abetting the transport of illegal aliens (arguably, however, said testimony might either reduce defendant's level of participation or add an additional defendant to the case). For these reasons, dismissal of the indictment is not warranted.
Consequently, it is the recommendation of the United States Magistrate Judge to the United States District Judge that the Motion to Dismiss Indictment filed by defendant JOSE LUIS HERNANDEZ-ESCOBAR be, in all things, DENIED. Such denial shall be without prejudice however, so that defendant may raise the issue, if necessary, in the future.
The United States District Clerk is directed to file this Report and Recommendation and to send copies to defendant's attorney of record and the Assistant United States Attorney of record by facsimile machine. Any party may object to the proposed findings, conclusions, or recommendation within seven (7) days after the filing of this Report, See 28 U.S.C. § 636 (b)(1), or on or before December 4, 2002. Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
The time for objections has been shortened due to the December 9, 2002 trial date.