United States v. Leal-Del Carmen

The government may not unilaterally deport an illegal alien who it knows can provide exculpatory evidence for a defendant before counsel has been appointed for that defendant.

On appeal, the Court considered whether the government can deport an illegal alien who can provide exculpatory evidence for a defendant before counsel has been appointed for that defendant. Border patrol agents arrested Jonathan Leal-Del Carmen for alleged alien smuggling after they found him near the area where 12 illegal aliens were hiding along the United States-Mexico border. Three members of the group identified Leal-Del Carmen as the leader and the government kept those individuals as witnesses. One member of the group, in a videotaped interview, told agents that Leal-Del Carmen did not give orders to the group but the government deported her before Leal-Del Carmen was arraigned. The Fifth and Sixth Amendment guarantee “criminal defendants a meaningful opportunity to present a complete defense.” To determine whether the government’s deportation of an alien-witness violates the Constitution, the defendant must show (1) the government did not act in good faith, and (2) the deportation of the witness prejudiced the case. No violation occurs when the government makes a “good-faith determination” that the witness had no exculpatory evidence. The defendant must make “a plausible showing that the testimony of the deported witness would have been material and favorable to his defense.” If the government knows the witness may provide exculpatory evidence, as it did in this case, it may not deport the witness without allowing defense counsel a chance to interview her. Deporting the witness prejudiced defendant because the testimony was material and favorable to defendant. Leal-Del Carmen should have been able to present the videotape of the witness’s testimony and the jury should have been given a missing-witness instruction. REVERSED and REMANDED.