Material Witnesses in Alien Smuggling Cases
Frequently, when an alien smuggling case is developed, a few of the
undocumented aliens are held as material witnesses. The other aliens are
deported or granted voluntary departure in lieu of deportation, except those
possess evidence favorable to the defendant. The United States Supreme
held, in United States v. Valenzuela-Bernal, 458 U.S. 858 (1982),
Executive Branch's responsibility to faithfully execute Congress'
policy of prompt deportation of illegal aliens justifies deportation of
undocumented alien witnesses upon the Executive's good-faith determination
the aliens possess no evidence favorable to the defendant. And in order for
defendant to demonstrate a violation of the Sixth Amendment right of
confrontation, he/she would have to show not merely that deportation of the
aliens deprived him/her of their testimony, but must at least make some
showing of how their testimony would have been both material and favorable
defense. Of course, if the alien material witnesses are released when the
defendant becomes a fugitive, the defendant cannot later be heard to
that he/she had no opportunity to interview the witnesses. See
States v. Vega-Limon, 548 F.2d 1390 (9th Cir. 1977); United States v.
Saintil, 753 F.2d 984 (11th Cir. 1985), cert. denied, 472 U.S.
(1986). One court of appeals has held that permitting voluntary departure
alien witness is the equivalent of deporting him, for the purpose of this
of analysis. See United States v. Morales-Quinones, 812 F.2d
(9th Cir. 1987).|
Unfortunately, absent the concurrence of the defendant, there can be no
guarantee that the transcripts of depositions of undocumented alien material
witnesses who are deported or who voluntarily depart will be admissible at
For example, the Court of Appeals for the Ninth Circuit has ruled unsigned
depositions inadmissible absent the express waiver of defendant's Sixth
right of confrontation. See United States v. Vasquez-Ramirez,
F.2d 1295 (9th Cir. 1980). Moreover, in a Fifth Circuit case, where a local
district court policy forces the taking of depositions of alien witnesses
their release after 60 days, the court of appeals reversed the conviction
the urging of both the prosecution and defense, on the ground that defendant
been denied his Sixth Amendment right of confrontation. See United
States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987).
However, in United States v. Allie, 978 F.2d 1401 (5th Cir.
cert. denied 113 S.Ct. 1662 (1993), the defendant's conviction for
harboring aliens was affirmed even though videotaped depositions of alien
witnesses, pursuant to a standing District Court order, were admitted over
defendant's objections. The Fifth Circuit recognized that the right to
confrontation is not absolute, and that out of court statements,like
may be introduced against a criminal defendant if the government can
the unavailability of the declarant whose statements it wishes to use, and
the out of court statements bear indicia of reliability, Ohio v.
448 U.S. 56 (1980). A witness is unavailable for Confrontation Clause
if the government has made a good faith effort to obtain the presence of the
witness at trial, and the lengths to which the government must go to produce
witness is a matter of reasonableness. Since the courts have not, to date
established a standard by which to measure the governments good faith and
reasonableness, these issues will have to be decided on a case-by-case
Guadian-Salazar opinion discusses the relationship between 18 U.S.C.
3144, which authorizes the arrest of material witnesses; 18 U.S.C. §
which provides conditions for release of persons detained; Rule 15 of the
Federal Rules of Criminal Procedure, which authorizes the use of depositions
criminal cases; and 8 C.F.R. §§ 215.2(a) and 215.3(g), which
aliens who are needed in the United States as trial witnesses. Federal
Evidence 804(a) provides that a witness whose absence was procured by the
"proponent of his statement for the purpose of preventing the witness from
attending or testifying" is not considered unavailable.
COMMENT: Further discussion of alien material witnesses is set forth in
Chapter 4 of Immigration Law, published as part of the Office of
Education's Litigation Series, and as part of the USABook computer
[cited in Criminal Resource Manual 1524; USAM 9-73.100]