(C)  Government Deportation of Material Witnesses.  Federal regulations forbid the departure of a noncitizen who is “needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States” without the consent of the prosecuting authority.[217]  “This rule arguably may be expanded to require the consent of the defense as well, in light of the constitutional due process restrictions on non-reciprocal rules favoring the prosecution in criminal proceedings.  See generally Wardius v. Oregon, 412 U.S. 470 (1973).”[218]

                Federal courts have authority to detain material witnesses upon a showing that “it may become impracticable to secure the presence of the person by subpoena.”[219]  The court must balance the liberty interest of the witness against the due process interests of the defendant, and may use less restrictive means to ensure appearance, such as electronic monitoring or bond.[220]  If the court cannot detain the witness, it can preserve the testimony by deposition, although the admissibility of the deposition testimony may be questioned.

 

                If “state action has made a material witness unavailable (by deportation), dismissal is mandated.”[221]  Federal standards apply to this question.[222]  Conflicting authority exists on which federal standard to apply, but the defendant generally must show that the lost testimony was exculpatory and not cumulative.[223]  Three circuits also require the defense to show “bad faith” on the part of the government in allowing the deportation to occur.[224]  A defendant will usually be notified if undocumented persons with whom s/he was arrested may be deported, and counsel may request that the noncitizen witnesses be detained. The defendant may also be advised that it may be impossible to obtain the witness’s presence at trial if the witness has been deported.[225]  This type of error may be considered waived if the defendant pleads guilty.[226]

 

                Before introducing hearsay evidence of the statements of a deported witness, the government must generally show admissibility under the hearsay rules and, if the statement is offered against the defendant, that its admission would not violate the Confrontation Clause of the United States Constitution.[227]  Some courts require that the government must at least show it made reasonable efforts to secure the attendance of the absent witness.[228]

 

[217] 8 C.F.R. § 215.3(g); see also 8 C.F.R. § 215.2(a). 

[218] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-19 (P. Goldberg & C. Wolchok, eds., 2004).

[219] 18 U.S.C. § 3144; see also 18 U.S.C. § 3142; Torres-Ruiz v. United States District Court, 120 F.3d 933, 934-935 (9th Cir. 1997); Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th Cir. 1992).

[220] See 18 U.S.C. § 3142; United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003); Torres-Ruiz v. United States District Court, 120 F.3d 933, 935-936 (9th Cir. 1997).

[221] People v Mejia, 57 Cal.App.3d 574, 579, 129 Cal.Rptr. 192 (1976).

[222] E.g., People v. Valencia, 218 Cal.App.3d 808, 819, 267 Cal.Rptr. 257 (1990); People v. Lopez, 198 Cal.App.3d 135, 243 Cal.Rptr. 590 (1988); People v. Jenkins, 190 Cal.App.3d 200, 235 Cal.Rptr. 268 (1987). See People v. Fauber, 2 Cal.4th 792, 829, 9 Cal.Rptr.2d 24 (1992).

[223] Compare California v. Trombetta, 467 U.S. 479 (1984) (lost evidence held material if its exculpatory value was apparent before it was destroyed), with United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) (deported witnesses’ testimony held material if a “plausible” showing is made that it was material, was favorable to the defendant, and was not cumulative). 

[224] United States v. Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir. 2002); United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002); Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000); United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997); United States v. Dring, 930 F.2d 687, 693-694 (9th Cir. 1991).

[225] See United States v. Lujan-Castro, 602 F.2d 877 (9th Cir 1979). 

[226] See People v McNabb 228 Cal.App.3d 462, 279 Cal.Rptr. 11 (1991).

[227] See generally American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-20 (P. Goldberg & C. Wolchok, eds., 2004), citing United States v. Inadi, 475 U.S. 387, 393 n.5 (1986) (hearsay rules and Confrontation Clause are not coextensive).

[228] See, e.g., United States v. Lopez-Cervantes, 918 F.2d 111, 114 (10th Cir. 1990); United States v. Martinez-Perez, 916 F.2d 1020, 1023 (5th Cir. 1990); see Ohio v. Roberts, 448 U.S. 56, 74 (1980) (Sixth Amendment requirement of unavailability) Barber v. Page, 390 U.S. 719, 724-725 (1968) (government must show good faith effort to produce witness).  Compare United States v. Allie, 978 F.2d 1401, 1407 (5th Cir. 1992) (good faith effort includes taking steps to ensure witness remains in United States); with United States v. Perez-Sosa, 164 F.3d 1082, 1085 (9th Cir. 1998); United States v. Rivera, 859 F.2d 1204, 1207 (4th Cir. 1988); United States v. Terrazas-Montano, 747 F.2d 467, 469 (8th Cir. 1984) (government has no obligation to secure attendance of deported witness since effort would likely be futile).

Tenth Circuit

REMOVAL PROCEEDINGS - VIENNA CONVENTION
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that the INS's failure to apprise him that he was entitled to communicate with Mexican consular or diplomatic officers under the Vienna Convention and immigration regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations and 8 C.F.R. 236.1(e), on grounds the argument was waived because he failed to assert the issue before the IJ, and, in any event, Torres could not show that the violation resulted in any prejudice).

Other

BIBLIOGRAPHY - INVESTIGATION - FOREIGN INVESTIGATION
Ross Garber, Gathering Defense Evidence Abroad, 33 The Champion, No. 8, p. 22 (Sept.-Oct. 2009).

CRIMINAL DEFENSE - INVESTIGATION
L. Friedman Ramirez, Federal Law Issues in Obtaining Evidence Abroad, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 273 (2d ed. 2007).

BIBLIOGRAPHY
Extradition and Foreign Evidence Blog http://obtainingforeignevidence.blogspot.com/