Metropolitan News-Enterprise


Wednesday, April 26, 2006


Page 1


Ninth Circuit Rejects Rule Under Which Defense Was Barred From Calling Border Patrol Agent as Witness


By a MetNews Staff Writer


A Department of Homeland Security rule insulating its agents from having to testify in court unless the substance of the expected testimony is disclosed in advance is unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The judges overturned Louis Bahamonde’s convictions on charges of knowingly importing marijuana and possession of marijuana with intent to distribute.

U.S. District Judge John Houston sentenced Bahamonde to 27 months imprisonment in 2004 for driving from Mexico to San Diego with 60 pounds of marijuana. Bahamonde claimed he did not know he was traveling with marijuana and pinned the crime on the vehicle’s former owner, a known drug dealer.

At trial, the defense sought to call Don Rodmel, the Customs and Border Protection officer who arrested the defendant,  investigated the case, and sat at the prosecutor’s table throughout the trial. The Office of Customs and Border Protection is part of the DHS and includes the former Border Patrol, and the defense said it wanted the agent to testify regarding the agency’s efforts to investigate the former owner of the vehicle.

The prosecution objected, citing a DHS regulation requiring a litigant to “set forth in writing and with as much specificity as possible, the nature and relevance of the official information sought” from a witness who is an employee of the department, and limiting the testimony to “matters which were specified in writing and properly approved.”

The defense responded that compliance with the regulation was not mandatory, but merely a courtesy to the government, and offered to provide the disclosure then and there. Houston said the offer was untimely, since defense counsel knew of the regulation and anticipated calling the witness, and excluded the agent’s testimony.

But Senior Judge William Canby Jr. said the district judge erred because the regulation, by imposing a pretrial disclosure requirement on the defense with no reciprocal obligation on the prosecution, violates the defendant’s right to due process. And even if the regulation is valid, the judge said, it was error to completely exclude the agent’s testimony without considering lesser sanctions. 

“Bahamonde was required to state with specificity the testimony he expected from agent Rodmel, but the government was not required at any time to state what evidence it expected to offer in rebuttal, either from Rodmel or anyone else,” Canby wrote in an opinion by Judge Alex Kozinski.

The jurist cited Wardius v. Oregon (1973) 412 U.S. 470, which struck down a statute that required the defense to give prior notice of an alibi defense but did not require prosecutors to make a reciprocal disclosure identifying the witnesses it would call to refute the alibi.

“The regulation, as applied in this case...falls squarely within the rule of Wardius,” the judge wrote. He also concluded that the error was not harmless beyond a reasonable doubt.

Noting that the marijuana was hidden behind the rear seat and was only discovered after an inspector used a screwdriver to pry the backrest aside, Canby reasoned that testimony by an agent that the prior owner was a major dealer who frequently took drugs across the border, but that the government made no effort to investigate the possibility that it was he, rather than the defendant, who hid the marijuana, might have led to an acquittal.

Judge Johnnie Rawlinson dissented, arguing that Wardius was distinguishable because the DHS rule was not intended to facilitate discovery but to protect against improper disclosure of confidential information. She cited a Tenth Circuit decision upholding a similar regulation under similar circumstances.

Canby, in a footnote, responded that “the regulation sought not only to control the release of information; it required disclosure of information from Bahamonde without offering corresponding information.”

Bahamonde’s attorney, Kurt Hermansen of San Diego, told The Associated Press that the rule prevented his client “from calling the most important witness in the whole case. The defendant has a right to defend himself.”

The Justice Department did not immediately return calls for comment.

The case is United States v. Bahamonde. 04-50618.


Copyright 2006, Metropolitan News Company