Opinion
2:02-CR-0084 (01)
November 27, 2002
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO DISMISS INDICTMENT
On November 12, 2002, defendant JAVIER PEREZ-GUZMAN 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 14, 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 of two material witnesses.
On October 22, 2002, PEREZ-GUZMAN was driving a vehicle and was stopped for a traffic violation. He was thereafter charged with "alien smuggling." In the defendant's vehicle were eleven passengers, all illegal aliens from Mexico, including one passenger, Jose Luis Hernandez-Escobar, who was also charged with "alien smuggling." of the remaining ten passengers, one, Jose Hernandez-Mendez, was a juvenile. The Border Patrol released the juvenile, Jose Hernandez-Mendez, along with an adult relative, Orvelin Garcia-Mendez, after conducting an interview for processing and voluntary returns to Mexico. They were not designated or held as material witnesses.
At a hearing held November 26. 2002, it was conceded by counsel for defendant PEREZ-GUZMAN that the testimony of the potential witness, Garcia-Mendez, would be material and favorable as to sentencing rather than guilt/innocence. See U.S.A. v. Perez, 217 F.3d 323, 326 (5th Cir. 2000) (. . . [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.") Counsel argued the testimony of the absent witnesses would be material as to whether the defendant should receive a lesser sentence because the removed witness was his brother-in-law and would have been able to establish that the group had been transported not for profit, but as a favor to a relative.
Although not discussed at the hearing, a review of the government's response to defendant's motion to dismiss and the indictment itself, reveals defendant has not been charged with transporting aliens for profit under Title 8, United States Code, § 1324(a)(1)(B)(i) but has instead been charged with violations of Title 8, United States Code, § 1324(a)(1)(A)(ii) and § 1324(a)(t)(B)(ii).
It is the opinion of the undersigned Magistrate Judge that the defense has not met its burden under Perez to demonstrate the alleged testimony of Garcia-Mendez would have been material and favorable to defendant's case at guilt/innocence to the degree it would justify a dismissal of the indictment. 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 JAVIER PEREZ-GUZMAN be DENIED without prejudice. Such denial should be without prejudice so that the defendant may raise this issue, if relevant, at sentencing, if in fact the defendant is convicted.
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 set trial date, December 9. 2002.