Opinion
Criminal Case No. 05 CR 1453DMS, Magistrate Case No. 05 MG 1338.
September 8, 2005
SCHROTH SCHROTH, ROBERT E. SCHROTH, SR, ESQ., ROBERT E. SCHROTH, JR, ESQ., San Diego, California, Attorney for Material Witness, Marcial ROSALES-Gonzalez.
POINTS AND AUTHORITIES IN SUPPORT OF MATERIAL WITNESS MOTION FOR VIDEOTAPE DEPOSITION AND REQUEST FOR STATEMENT OF REASONS IN SUPPORT OF CUSTODY
TO UNITED STATES ATTORNEY CAROL C. LAM, ASSISTANT UNITED STATES ATTORNEY CARL E.G. ARNOLD; TO ATTORNEY FOR DEFENDANT, RODNEY JUBILEE, NORMA AGUILAR, FOR DEFENDANT, JACQUELINE, GODINEZ-MAGANA, JODI THORP:
Material Witness, Marcial ROSALES-Gonzalez (hereafter "Material Witness") by and through his counsel, Robert E. Schroth Jr., submit the following Memorandum of Points and Authorities in support of his motion to take the videotaped deposition.
I INTRODUCTION
On or about August 22, 2005, the Material Witness was detained by U.S. Border Patrol Agents in connection with the arrest of the above captioned Defendant. The defendant has been charged with illegally transporting undocumented aliens in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and the Material Witness, who was with the defendant at the time of his arrest, has been detained as a Material Witness under 8 U.S.C. § 1227 (d).The Material Witness is currently being held at the CCA detention facility in San Diego, California. On August 3, 2005, the attorney for the material witness was informed by the material witness that he knew of no one in this country that could post a bond for him to allow for his release from custody during the pendency of this case.
It is unnecessary to keep the Material Witness in the United States because his testimony can be preserved through the use of a videotaped deposition. The Material Witness therefore request a court order that his testimony be preserved through the use of videotape depositions and, thereafter, that he be allowed to return to his family in Mexico.
While a witness may be detained for a reasonable period of time, the court must vigilantly guard an undocumented alien's "overriding liberty interest" and schedule a videotape deposition at the earliest possible time. See Aguilar-Ayala v. Ruiz 973 F.2d 411, 419 (5th Cir. 1992).
II. THE TESTIMONY OF THE MATERIAL WITNESS CAN BE SECURED BY VIDEOTAPE DEPOSITION AND THERE IS NO COMPELLING REASON TO KEEP THEM IN CUSTODY
Title 18, section 3144 of the United States Code Provides:
No Material Witness may be detained . . . if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.
The deposition of the Material Witness may be used at trial in criminal cases, so it is only in exceptional circumstances, where the interests of justice will be denied, that a videotape deposition is not appropriate. See, Torres-Ruiz v. United States 120 F.3d 933 (9th Cir. 1997) [citing Aguilar Ayala v. Ruiz 973 F.2d 411, 413 (5th Cir. 1992) see also 8 U.S.C. § 1324 (d), Federal Rules of Evidence 804, and Federal Rules of Criminal Procedure 15. Defendants may be present at the videotape deposition and therefore have a full and fair opportunity to cross-examine the witnesses. The videotape provides sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of a statement. Dutton v. Evans, 400 U.S. 74, 89 (1970).
The government or defendant can effectuate the detention of the material witness upon a showing that (1) the material witness will, in all likelihood, be unavailable to testify for trial, and (2) that the use of deposition testimony will deny the defendant a fair trial and that live testimony would somehow be significantly different. See, Aguilar-Ayala v. Ruiz 973 F.2d at 413 (5th Cir. 1992), United States v. Humberto Rivera 859 F.2d 1204, 1208 (4th Cir. 1988). That would be a difficult burden in this case, however, because the Material Witness has indicated that he is willing to return for trial if the government makes arrangements for his legal re-entry into the country and provides travel expenses. (Schroth Decl. At para. 6).
The government would undoubtedly take reasonable steps in this case, as it has in other similar cases, to secure the witness's testimony at trial by personally subpoenaing the witness, providing travel costs, and arranging for legal re-entry of the alien. (See, United States v. Eufracio-Torris 890 F.2d 266, 270 (10th Cir. 1989) cert. Denied 494 U.S. 1008 (1990) [government need not guarantee the witness will be available, only that they use food-faith efforts to secure their presence at trial]; see also, Ohio v. Roberts, 448 U.S. 56, 65 (1980) [so long as the government uses reasonable measures to secure a witness at trial, a deposition is admissible over a defendant's Confrontation Clause and hearsay objections].
The Material Witness should not be detained because his testimony can be adequately secured by depositions. This is a very routine alien smuggling case. Based on interviews with the Material Witness and the report submitted by the arresting agency, the facts to which the Material Witness is competent to testify are straightforward. (Schroth Decl. At para. 5).
Moreover, neither the Material Witness nor his counsel, have been informed that the witnesses' detention is necessary to prevent a failure of justice. (Schroth Decl. At para. 4). Quite to the contrary, the witness has already spent a considerable time in jail, more than three weeks to the date this motion is filed, and it is very important that he be released as soon as possible so that he may be reunited with his family in Mexico who depends on him for their support. (Schroth Decl. At para. 2 and 4.), he Material witness's parents are in poor health. He came to the United States to make money to send back to them in Mexico. They are dependent upon him as their sole source of financial support. (Schroth Decl. At para. 4.).
For these reasons, the Material Witness requests that the court immediately order the taking of his videotaped deposition and that he thereafter be immediately returned to Mexico.
III. IF THE COURT DENIES THE MATERIAL WITNESS' REQUEST TO TAKE THEIR VIDEOTAPE DEPOSITION, THEY REQUEST THAT THE GOVERNMENT PROVIDE THEM WITH A STATEMENT OF REASONS WHY THEY SHOULD HAVE TO REMAIN IN CUSTODYWhere a witness has been held in custody for more than 10 days, the government has an obligation to prepare a biweekly report stating the reasons why such a witness should not be released with or without the taking of a deposition. Fed. Rules Crim. Proc., Rule 46 (g).
The Material Witness is not aware of any reasons why he should remain in custody, but to the extent the government knows of any such reason, they hereby request that the government provide him with a copy of a biweekly written report indicating these reasons.
IV. CONCLUSION
For the forgoing reasons, the Material Witness respectfully requests that this motion for the taking of videotaped depositions be granted. In the alternative, the Witness requests that he immediately be provided with a statement of the reasons why he needs to remain in custody.