Opinion
No. 4:01-cr-061
January 28, 2003
MEMORANDUM AND ORDER
Defendants move to dismiss the indictment contending that the government has deprived them of critical evidence in violation of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution. In the alternative, the defendants move for an evidentiary hearing to inquire into the government's conduct in failing to preserve evidence and the materiality of the missing evidence to the defendants' case. [Court File No. 86].
The Court held a hearing on the motion during the final pretrial conference on January 13, 2003. The Court denied the defendants' motion to dismiss. The essential facts are not in dispute and there is no need for an evidentiary hearing. The Court ordered the government to produce those illegal aliens whose whereabouts are currently known to the government and make them available prior to trial for interviews by the defendants' counsel. This memorandum opinion explains the basis for the Court's decision.
I. Background
This case arises out of an undercover investigation conducted by agents of the United States Immigration and Naturalization Service ("INS"). During 1997 — 2000, undercover INS agents made various trips to locations near the United States-Mexico border. The INS agents gathered approximately 150 illegal aliens who were transported and delivered to various poultry processing plants operated by defendant Tyson Foods, Inc. ("Tyson") and surrounding communities. The illegal aliens were tracked and under the control of INS agents up until the time the aliens were delivered. After the illegal aliens were delivered, the INS generally did not control, interview, detain, deport, or otherwise keep track of them. It appears that several of the illegal aliens cooperated with the INS and assisted in the undercover investigation as confidential informants. [Court File No. 121].
The vast majority of the illegal aliens have disappeared and their whereabouts are unknown. The INS does not know whether the majority of illegal aliens are currently in the United States or they have returned to Mexico. During the three-year time span of the undercover investigation, many of the illegal aliens their left jobs at Tyson and drifted away. Tyson first became aware of the INS undercover investigation on July 3, 2000. On or about July 12, 2000, the government realized that the existence of the investigation had been revealed to Tyson but the INS did not subsequently take action to detain and interview the remaining illegal aliens who were still working at Tyson's plants to determine whether they might have material information favorable to the defendants. The INS did little or nothing after July 12, 2000, to find and track the remaining illegal aliens still working for Tyson. The INS took no action to detain, deport, or arrange for the voluntary departure of any of the illegal aliens from the United States.
Tyson began its own internal investigation in early July 2000. Tyson knew the identity of the INS undercover agent who had delivered illegal aliens to Tyson's plants. Tyson also knew that Amador Anchondo-Rascon had been arrested on July 13, 2000, and he was alleged to be involved in the scheme. Consequently, Tyson conducted an internal investigation to determine which Tyson plants may have received deliveries of illegal aliens from the INS agent and Anchondo-Rascon.
On September 28, 2000, government representatives met with Tyson's senior management and corporate counsel. At the September 28 meeting, the government disclosed to Tyson and its attorney the details of the INS undercover investigation. As a result of the meeting, Tyson and its attorney either knew or should have known by September 28, 2000, that Tyson had the opportunity to interview any of the remaining illegal aliens who were still available.
On November 9, 2000, the United States Attorney sent a letter to Les R. Baledge, Executive Vice-President and General Counsel for Tyson. The letter officially notified Tyson and its attorney of the names (and social security numbers where known) of 130 illegal aliens. After receiving the November 9, letter, Tyson searched its business records and determined that 22 of the illegal aliens listed appeared to still be employed by Tyson as of November 2000. Each of these 22 remaining aliens were then contacted by local Tyson plant management and informed that Tyson had been notified by the INS that they were illegal aliens not authorized to be employed within the United States. Each of the remaining 22 aliens working for Tyson in November 2000 was suspended, placed on unpaid leave, and given two weeks to demonstrate to Tyson whether they had been misidentified and were lawfully authorized for employment in the United States. Tyson and its attorneys could have, but did not, take advantage of this opportunity to interview the 22 remaining illegal aliens to determine whether they might have any material information favorable to the defense. Tyson, with its substantial financial resources, could have arranged for its attorneys to interview the 22 illegal aliens, but Tyson made no effort to conduct such interviews.
When the remaining illegal aliens working at Tyson plants became aware of the INS investigation, they promptly fled and disappeared without being interviewed by either Tyson or the government. The illegal aliens were not detained or deported by the INS. During the final pretrial conference on January 13, 2003, the government disclosed that it knows the present location of only a "handful" (five or six) of the approximately 150 illegal aliens in question. Defendants argue the illegal aliens are material witnesses and the indictment should be dismissed on the theory that the government, acting through the INS, facilitated the absence of the illegal aliens. The gist of the defendants' argument is that the federal government and the INS had a duty to track, control and detain all of the illegal aliens. Defendants contend that as a result of negligence and the failure by the INS to fulfill this duty, combined with the government's insistence in November 2000 that Tyson discharge from employment any remaining illegal alien workers, the government's conduct deprives the defendants of the opportunity to develop exculpatory evidence from the missing illegal aliens.
In response, the government says it did not cause and it is not responsible for the unavailability of the illegal aliens. The government did not deport any of the illegal aliens or facilitate their "voluntary departure" from the United States in lieu of involuntary deportation.
Those illegal aliens who had been working at Tyson's plants, but left for unknown reasons prior to the INS undercover operation becoming overt, left without the government's knowledge and participation. In a few instances, illegal aliens were located by the INS but the government asserts there was no way the INS could have maintained constant surveillance of all the illegal aliens to track their whereabouts at all times so the aliens could be interviewed or detained upon their leaving Tyson's plants. The government contends such interviews would have been impractical while the undercover investigation continued because interviews would have risked compromising the secrecy of the undercover investigation for no productive purpose. Moreover, with regard to those remaining illegal aliens who were working at Tyson plants when the INS investigation was no longer covert, the government contends that Tyson and its attorneys had an opportunity to interview the aliens but Tyson failed to do so.
The government argues the defendants have not met their burden of showing that any of the absent or missing illegal aliens would have material testimony favorable to the defense. Defendants claim the illegal aliens might testify that the aliens did not have personal discussions or contact with the individual defendants (who are Tyson executives and plant managers) concerning the aliens' illegal status or the aliens' false employment authorization and identification documents. However, there is no allegation in this case by the United States that the illegal aliens had any direct personal contact with the individual defendants. There is no real dispute on this particular issue. The government says it is prepared to stipulate that the illegal aliens did not have direct, personal contact with the individual defendants. Therefore, the missing illegal aliens have no material evidence to offer that would be favorable to the defendants.
II. Analysis
The leading case is United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), where the federal government deported two illegal-alien witness to Mexico after an Assistant United States Attorney made a determination they possessed no evidence material to the prosecution or defense. The defendant was found guilty at trial on a charge of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2). The Court of Appeals for the Ninth Circuit overturned the conviction. The Ninth Circuit held that in deporting the two illegal-alien witnesses, the government violated the defendant's Sixth Amendment right to compulsory process and his Fifth Amendment right to due process of law under the United States Constitution.
The Sixth Amendment provides that in criminal prosecutions, the accused shall enjoy the right "to have compulsory process for obtaining witnesses in his favor." The Compulsory Process Clause of the Sixth Amendment is violated when a criminal defendant is arbitrarily deprived of testimony that would have been relevant and favorable to the defense. Id. at 867; Washington v. Texas, 388 U.S. 14, 18 (1967). The Supreme Court in Valenzuela-Bernal reversed the Ninth Circuit's decision. The Supreme Court ruled that the responsibility of the Executive Branch of the federal government faithfully to execute the immigration laws enacted by Congress justifies the prompt deportation of illegal-alien witnesses once the Executive Branch makes a good-faith determination that the witnesses possess no evidence favorable to the defendant in a criminal prosecution. Valenzuela-Bernal, 458 U.S. at 872. The mere fact that the government deports illegal-alien witnesses thereby making them unavailable to the defense is not sufficient standing alone to show a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation of these constitutional provisions requires some showing by the defendant that the evidence lost would be both material and favorable to the defense. Id. at 873. The government should be sanctioned for deporting alien witnesses "only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." Id.
Because prompt deportation deprives the defendant of an opportunity to interview illegal-alien witnesses to determine precisely what favorable evidence they may possess, the defendant cannot reasonably be expected to render a detailed description of the lost testimony.
This does not relieve the defendant of his burden to establish materiality. Sanctions may be imposed on the government for deporting witnesses "only if the defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." Id. In the wake of Valenzuela-Bernal, the federal courts have developed a line of precedent addressing situations where criminal defendants move to dismiss charges on the ground that the government has either deported illegal-alien witnesses or facilitated their voluntary departure from the United States. See e.g. United States v. Gastelum-Almeida, 298 F.3d 1167, 1173-74 (9th Cir.), cert. denied, 123 S.Ct. 461, 154 L.Ed.2d 352 (2002); United States v. Chaparro-Alcantara, 226 F.3d 616, 623-25 (7th Cir. 2000); United States v. Pena-Gutierrez, 222 F.3d 1080, 1085-86 (9th Cir. 2000); United States v. Romero-Cruz, 201 F.3d 374 (5th Cir. 2000); United States v. Sierra-Hernandez, 192 F.3d 501 (5th Cir. 1999); United States v. Iribe-Perez, 129 F.3d 1167, 1173-74 (10th Cir. 1997); United States v. Dring, 930 F.2d 687, 693-95 (9th Cir. 1991); United States v. McLernon, 746 F.2d 1098, 1121-22 (6th Cir. 1984); United States v. Ramirez-Cubillas, 223 F. Supp.2d 1049, 1057-58 (D.Neb. 2002); United States v. Nebraska Beef, Ltd., 194 F. Supp.2d 949 (D.Neb. 2002); United States v. Lin, 143 F. Supp.2d 783 (E.D.Ky. 2001). Facilitation of an illegal alien's voluntary departure from the United States is equivalent to involuntary deportation. McLernon, 746 F.2d at 1121; United States v. Armijo-Martinez, 669 F.2d 1131 (6th Cir. 1982); Lin, 143 F. Supp.2d at 785 n. 1.
To obtain an order dismissing the indictment, the defendants bear the burden of showing: (1) the government acted in bad faith by deporting or facilitating the voluntary departure of the alien witnesses; and (2) absence of the alien witnesses causes prejudice by depriving the defendants of evidence that would be both material and favorable to the defense. Gastelum-Almeida, 298 F.3d at 1174; Chaparro-Alcantara, 226 F.3d 616, 623-24; Pena-Gutierrez, 222 F.3d at 1085; Iribe-Perez, 129 F.3d at 1173; Dring, 930 F.2d at 693-94; Nebraska Beef, 194 F. Supp.2d at 957; see also Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (the government's failure to preserve potentially useful evidence does not constitute a deprivation of the defendant's right to due process unless the defendant can show the government acted in bad faith).
The Court concludes that the defendants have not met their burden of showing these essential factors. The government in this case did not deport or facilitate the voluntary departure of illegal-alien witnesses from the United States. The INS did not detain or keep track of the numerous illegal aliens involved in the long running undercover investigation but this is not tantamount to deportation or taking affirmative action to facilitate the aliens' voluntary departure from the United States under threat of deportation. The vast majority of the illegal aliens simply drifted away over time and disappeared. The instant case clearly is not an egregious situation where the government deports or actively facilitates the departure of the illegal aliens in a manner that arbitrarily deprives the defendants of access to witnesses.
Defendants have not shown that the government acted in bad faith. At most, the conduct of the government and INS in not keeping track of and not detaining the illegal aliens amounts to negligence. Defendants contend the INS was negligent by not performing its duty under federal immigration laws to find, keep track of, and detain the illegal aliens. Assuming arguendo that the INS has been negligent, this does not constitute bad faith on the part of the government which is required to satisfy the first factor. Negligence is insufficient to establish that the government acted in bad faith. United States v. Gonzales-Huerta, 108 F.3d 339 (Table, text at 1997 WL 66505 (9th Cir. Feb. 12, 1997)); United States v. Armenta, 69 F.3d 304, 307 n. 1 (9th Cir. 1995); United States v. Colima-Monge, 983 F. Supp. 1337, 1339 (D. Ore. 1997).
Moreover, the defendants have not met their burden of making a plausible showing that the proposed testimony of the missing illegal aliens would be both material and favorable to the defense, in ways not merely cumulative of other available evidence. Defendants have not established there is good reason to believe that the missing illegal aliens could provide favorable or exculpatory evidence which cannot be obtained from any other source. The government is prepared to stipulate that none of the illegal aliens ever had direct, personal contact with any of the individual defendants. Based on these circumstances, it would be inappropriate and illogical to impose drastic sanctions by dismissing the indictment since there is not a reasonable likelihood that testimony from the missing illegal aliens could affect the jury's decision at trial.
After Tyson received the letter from the United States Attorney dated November 9, 2000, listing the specific names (and Social Security numbers where known) of the illegal aliens, Tyson and its attorneys had a fair opportunity to interview the 22 illegal aliens who were then working at Tyson's plants. Tyson and its attorneys made no effort to conduct interviews in November 2000 to determine whether the remaining 22 illegal aliens might have information material and favorable to the defense. The conduct of Tyson and its attorneys in failing to interview any of the remaining 22 illegal aliens is not objectively reasonable under the circumstances. The Court rejects the defendants' contention that the government deprived Tyson of the opportunity to interview these 22 illegal aliens. If Tyson had interviewed the remaining 22 illegal aliens in November 2000 and obtained material information favorable to Tyson, then Tyson would have been able to request the INS to detain the illegal aliens as material witnesses but Tyson did not do so.
Defendants Robert Hash, Gerald Lankford, and Keith Snyder did not have a reasonable opportunity to interview the 22 remaining illegal aliens who were working at Tyson's plants in November 2000. Their motion to dismiss the indictment will be denied for the other reasons explained in this memorandum opinion.
Defendants' reliance on Nebraska Beef, 194 F. Supp.2d 949, and Lin, 143 F. Supp.2d 783, is misplaced. This Court is not persuaded that the defendants are entitled to have the indictment dismissed based on Nebraska Beef and Lin. The instant case is distinguishable from Nebraska Beef and Lin.
It is important to recognize there is a distinction between undercover investigations that last months or years, and INS raids that occur in a one-day time span. In the present case, the INS conducted a multi-year undercover investigation of Tyson which made it necessary for the INS to use procedures and covert investigative methods different from those typically followed in standard INS "raids" of businesses searching for illegal alien workers such as the raids that occurred in Nebraska Beef and Lin. When the INS conducts undercover investigations, it cannot immediately detain and interview illegal aliens without running the risk of compromising the investigation's secrecy. During the course of an undercover investigation, illegal aliens will come and go without being detained and interviewed by the INS. This does not constitute bad faith on the part of the INS. It is different when the INS conducts a one-day raid on a business — an overt investigation — where the INS rounds up all illegal aliens at the same time, and INS agents have the opportunity to detain and interview illegal aliens to determine whether they have material information favorable to either the government or the defense.
In Lin, INS agents detained several persons who were illegally employed at a restaurant. The INS interviewed and obtained sworn statements from the illegal workers. Each illegal alien was either deported, offered voluntary departure, or detained as a material witness. Lin, 143 F. Supp.2d at 784-85. The government in Lin deported or facilitated the voluntary departure of illegal-alien witnesses from the United States but the defendants had no opportunity to interview the witnesses before the INS rendered them unavailable. The Lin court found that the government, during its interviews, did not make a good faith determination that the illegal-alien witnesses possessed no evidence favorable to the defendants. When the government interviewed the detainees, it only sought to elicit information favorable to the prosecution. Lin, 143 F. Supp.2d at 789-90. The district court in Lin also determined the Lin defendants had made a plausible showing that the missing illegal aliens could offer evidence that was material and favorable to the defense.
The instant case is distinguishable from Lin because the record here shows: (1) the INS did not detain and interview any of the illegal aliens; (2) the government did not deport or take affirmative action to facilitate the voluntary departure of illegal aliens from the United States; (3) defendant Tyson and its counsel had an opportunity to interview approximately 22 illegal aliens who were still working at Tyson's plants in November 2000; and (4) defendants have not made a plausible showing that the missing illegal aliens would have testimony material and favorable to the defense, in ways not merely cumulative to other available evidence.
The case at bar is likewise distinguishable from Nebraska Beef, 194 F. Supp.2d 949. In Nebraska Beef, the INS conducted a raid at a meat-packing plant looking for illegal alien workers. The INS found and detained approximately 210 illegal aliens. Most of the illegal aliens were deported or voluntarily returned to their country of origin. As many as 30 aliens were released on their own recognizance. Of those released on their own recognizance, at least 11 aliens fled and became fugitives from the INS. The INS ultimately could not account for the whereabouts of approximately 30 missing illegal aliens. Defense counsel was not given an opportunity to interview any of the illegal aliens before they were removed from the United States by the INS.
Prior to the raid in Nebraska Beef, INS agents were instructed to interview all illegal aliens in great depth to look for and preserve both inculpatory and exculpatory information. The INS agents were supposed to use a certain form to conduct interviews and record information. The general policy of the INS was not to deport or remove an illegal alien from the United States who is considered a material witness for the defense. Nebraska Beef, 194 F. Supp.2d at 951. During the raid, however, the INS agents did not properly use the interrogation forms and failed to follow the instructions for conducting complete interviews.
Some INS agents did not seek and record exculpatory information about the defendants' knowledge. The interview forms revealed that much of the information provided by the illegal aliens was exculpatory. The bottom line was that the INS did not faithfully comply with its own deportation procedures. The INS made no effort to detain illegal aliens who the INS had good reason to believe could be material witnesses favorable to the defense. The INS did not bother to obtain sworn statements from illegal aliens during the interviews to preserve potentially exculpatory evidence. Consequently, the district court in Nebraska Beef found that the government acted in bad faith.
The egregious conduct of the INS in Nebraska Beef does not exist in the instant case. Unlike Nebraska Beef, the INS in this case did not detain and interview the illegal aliens, and the INS does not possess knowledge whether the illegal aliens have exculpatory information.
In the present case, the INS did not deport or facilitate the voluntary departure of the illegal aliens. There is no proof that the INS deliberately violated or failed to follow its established deportation policies and procedures. Defendants have not met their burden of showing the INS acted in bad faith by not keeping track of, detaining, and interviewing the illegal aliens involved in the undercover investigation of Tyson. Unlike Nebraska Beef, the defendants here have not made a plausible showing that the missing illegal aliens would have testimony material and favorable to the defense, in ways not merely cumulative to other available evidence. Finally, Tyson and its attorneys did have an opportunity to interview the 22 illegal aliens who were still working at Tyson's plants in November 2000. Nebraska Beef is inapposite.
III. Conclusion
Accordingly, the defendants' motion to dismiss the indictment and alternative motion for an evidentiary hearing [Court File No. 86] are DENIED. The Court appreciates the defendants' need to prepare for trial and conduct a complete investigation. Under the circumstances of this case, the defendants should be afforded an opportunity to interview the illegal-alien witnesses whose whereabouts are currently known to the government. Defendants do not have the ability and means necessary to locate the illegal aliens without the government's cooperation. Out of an abundance of caution and in the interests of justice, the government prior to trial shall make available for interviews by the defendants' attorneys those illegal aliens whose whereabouts are known to the government. The government shall arrange for the interviews with said illegal aliens to be held either in the offices of the United States Attorney in Chattanooga, Tennessee, or such other place as the government and the defendants can agree upon. The Court expects the government to expeditiously coordinate the arrangements for these interviews in cooperation with the defendants. As discussed at the final pretrial conference, the illegal aliens are not required to submit to interviews by the defendants and their attorneys. The witnesses have a right to either voluntarily participate or refuse to participate in the interviews. The government agrees that it shall not instruct or encourage the witnesses to refuse to cooperate in the interviews.
SO ORDERED.