Metropolitan News-Enterprise


Monday, January 13, 2003


Page 1


Ninth Circuit Upholds Alien Smuggling Conviction, Dissenter Kozinski Calls Ruling ‘Astonishing’


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Mexican national’s conviction and six-year prison term for smuggling aliens were affirmed yesterday by the Ninth U.S. Circuit Court of Appeals, which rejected the defendant’s claim that the government denied him a fair trial by sending nine potential defense witnesses back to Mexico.

U.S. District Judge Richard Cebull of the District of Montana, sitting by designation, said that Juan Ramirez-Lopez legitimately waived his right to have potential witnesses detained by the Immigration and Naturalization Service, and that the lack of testimony by those witnesses was not prejudicial because the testimony would have been cumulative.

Judge Ronald Gould concurred, but Judge Alex Kozinski issued a vigorous dissent. The government, Kozinski argued, had skewed the presentation of evidence at trial by detaining two witnesses who had incriminated the defendant, along with three of the 12 people who told agents that Ramirez wasn’t their guide, and subjecting the rest to deportation.

The dissenting jurist analogized the government’s conduct to that of a corporate defendant who whisked employees out of the country after they gave statements incriminating the company in wrongdoing. “Any corporation that tried to pull a stunt like this would finding itself indicted for obstruction of justice—...,” Kozinski declared.

Ramirez was arrested in March 2000 after he and his group had entered the country through the mountains of eastern San Diego County. The group hit winter weather, and one member of the party died of hypothermia.

Ramirez was treated for frostbite, then interviewed by the Border Patrol. He denied having been the leader of the group, but waived his right to have potential defense witnesses detained pursuant to United States v. Lujan-Castro, 602 F.2d 877 (9th Cir. 1979).

The defense moved to suppress the Lujan-Castro waiver as being neither knowing nor intelligent. It was argued that Ramirez lacked counsel, doesn’t speak English, had just been hospitalized, and was being discriminated against because the government does not deport aliens who offer inculpatory evidence.

U.S. District Judge Napolean Jones denied the motion, finding that Ramirez—who was interviewed by a Spanish-speaking agent, understood his rights and made no mention of being in pain.

Cebull, writing for the Ninth Circuit, said the district judge’s ruling was not clearly erroneous. There is no requirement that a suspect be represented by counsel before waiving Lujan-Castro rights, the judge said.

Nor did Jones err in later denying Ramirez’ motion to dismiss, in which it was argued that the deportation of material witnesses violated the constitutional rights to compulsory process and due process, or in excluding the statements taken from the witnesses by the agents as hearsay, Cebull said.

Dismissal for denial of due process requires a showing of prejudice, Cebull said, and Ramirez didn’t make one.

“Ramirez-Lopez was aided by the testimony of the three alien witnesses who were not deported in the face of his Lujan-Castro waiver; they testified at trial that Ramirez-Lopez was not the guide or leader,” the judge wrote. “The testimony of more people that he was not the guide or leader would have been cumulative.”

The district judge’s hearsay ruling was correct, Cebull went on to say. The judge reasoned that since the statements were not made under oath, their trustworthiness was in doubt, and the defense failed to provide other evidence that the statements were sufficiently reliable to be admitted under the “catch-all” exception to the hearsay rule.

Kozinski criticized Jones, Cebull, and Gould, saying he was “astonished” that judges would countenance what the dissenting jurist said was government misconduct.

The government should have satisfied due process by detaining the witnesses, notifying the court of the situation so that counsel could be appointed and could interview the witnesses before they were sent back, video or audio taping their statements, taking detailed notes, or at least getting contact information so that defense lawyers could reach them in Mexico, Kozinski wrote.

Instead, it sent the witnesses back, then offered “lame excuses,” including a claim that it had to act quickly because the Mexican government “was clamoring” for their return. “In fact, it kept the two aliens who incriminated Ramirez-Lopez, plus three others, and yet Mexico did not protest the detention to the U.N. Security Council,” he wrote stingingly.

The jury might well have acquitted, he declared, had it known that 12 of the 14 aliens in the group said that Ramirez was not the leader.

Instead, he wrote, that fact was “was carefully hidden from the jury.”

The government, he went on to say, had breached its “duty of fairness and candor” by failing to correct the testimony of an agent who suggested that some of the deported witnesses would have incriminated Ramirez. That breach was exacerbated, Kozinski said, when the district judge did not allow defense lawyers to present impeachment evidence.

The dissenting jurist was also dismissive of the Lujan-Castro waiver. “Can

the government free itself of the obligation of fundamental fairness and candoróand empower itself to destroy exculpatory evidence and conceal exculpatory witnessesóby getting a signed waiver from a poorly educated defendant who has no understanding of what he is giving up?” he asked rhetorically.

The case is United States v. Ramirez-Lopez, 01-50164.


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