Tuesday, September 15, 2026
Page 4
Ninth Circuit:
Agents’ Links to ‘Racist’ Facebook Group Is Brady Material
Opinion Reverses Conviction for Failure to Disclose, Rejects View That Government Is Not in Possession of Records in Light of Internal Investigations Into Controversial Forum
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed a conviction for illegal entry into the U.S. based on the prosecutors’ failure to turn over evidence relating to the testifying border agents’ membership and activity in a Facebook group known for hosting racist and sexist posts about migrants.
Rejecting the prosecutors’ assertion that the government cannot be said to be in possession of records relating to the online forum, the court said that the fact that there have been Congressional hearings and internal investigations into the group is sufficient to trigger the obligations to turn over potentially exculpatory evidence under the 1963 U.S. Supreme court case of Brady v. Maryland and the discovery statute, Federal Rule of Criminal Procedure 16.
Circuit Judge Ana de Alba authored the opinion, reciting that defendant Jaime Tovar-Duran “argues that Brady and Rule 16 required the government to disclose which witnesses were involved in the ‘I’m 10-15’ group before trial and to provide documentation of their membership and activity in the group.” She declared:
“We agree.”
Alba differed with Senior District Court Judge Gonzalo P. Curiel of the Southern District of California who found that a magistrate judge’s error in denying the defendant’s request for discovery “concerning the nature and extent of any involvement that the agents testifying in this case may have had in the ‘I’m 10-15’…Facebook group” was not prejudicial in light of other evidence. She opined that “remand is required” and wrote:
“Without knowing whether and to what extent additional evidence of the witnesses’ involvement in the Facebook group exists, we cannot determine whether such evidence would have undermined the witnesses’ credibility and impeached their testimony.”
Public Records
Yesterday’s decision also takes issue with the admission of certain materials in the defendant’s immigration file as “public records,” clarifying that “removal documents are not per se admissible” as some “contain multiple layers of hearsay” for which courts must examine whether an exception to the hearsay rule exists as to each level.
She acknowledged that Federal Rule of Evidence 803(8) “sets out a public records exception to the rule against hearsay” but highlighted that the carve-out is limited to “matter[s] observed while under a legal duty to report” and said that the admitted documents—written warnings and prior warrants of removal—were not prepared by those with direct knowledge of the information contained in the reports. She declared:
“[T]he government relies on the broad principle that ‘deportation documents are admissible to prove alienage under the public records exception to the hearsay rule.’…We agree. But that general principle does not replace the Rules of Evidence, which require an exception for each hearsay statement—and hearsay within hearsay—to be admissible.”
Tovar-Duran was detained by U.S. Border Patrol Agent Clinton Copenhaver around midnight on Nov. 15, 2019 on a mountainside that sits about a mile from the Mexican border. According to the officer, Tovar-Duran admitted to entering the country illegally.
Brady Request
After he was charged with an attempted illegal entry in violation of 8 U.S.C. §1325(a), Tovar-Duran requested that the government provide him with any information about the testifying witnesses membership and activity in the “I’m 10-15” group, which was named after the law enforcement code that stands for “aliens in custody.”
The now-deleted group, which was created in 2016 and boasted more than 9,000 members by 2019, described itself as a “funny, serious, and just work related” discussion. In July 2019, ProPublica reported on the group, revealing screenshots of posts making light of migrant deaths, calling two bodies purportedly found dead in a river near the border “floaters,” made racially-charged jokes about U.S. Rep. Alexandria Ocasio-Cortez, D-N.Y.
Prosecutors initially told U.S. Magistrate Judge Barbara L. Major that none of its likely witnesses were members of the group, and the jurist denied the motion. They later notified the defendant, on the eve of trial, that, while Copenhaver did not interact with group, two other agents, George Artiles and Ivan Hernandez, who they intended to call as to jailhouse interrogations and records-search results, were part of the forum.
Tovar-Duran renewed his Brady request, and Major again denied it. Following a bench trial, he was convicted and sentenced to time served in February 2020.
In April 2020, Curiel affirmed the judgment, saying:
“[E]ven if the tainted witnesses had not testified at all, there is Tovar-Duran’s immigration inspection statements and corroborating evidence sufficient to support the conviction.”
Impeachment Materials
Alba opined:
“[E]vidence of the witnesses’ involvement in the Facebook group is Brady material because Mr. Tovar-Duran could have used it to impeach the witnesses’ credibility. In light of the derogatory material posted in the group, the witnesses’ activity on the page could be strong evidence of bias against noncitizens. Similarly, the evidence falls under Rule 16….Here, at a minimum, evidence of the witnesses’ involvement in the Facebook group would have helped Mr. Tovar-Duran ‘impeach the…agent at trial.’ ”
She acknowledged that prosecutors are only required under Brady to turn over information in the government’s possession but declared:
“Mr. Tovar-Duran pointed to ‘facts which would tend to show that the Government is in possession of information helpful to the defense.’…[T]he government originally represented that none of its witnesses were in the group and—for an unexplained reason—later confirmed that two witnesses were in the group. The government’s contradictory disclosures alone suggest that it is in possession of evidence about the witnesses’ involvement in the Facebook page and, thus, ‘helpful to the defense.’ ”
Widely-Reported
She continued:
“Moreover, Mr. Tovar-Duran notes that…it was widely reported that the Facebook group prompted Congressional and internal investigations….Because Mr. Tovar-Duran shows that the government is in possession of some evidence of the witnesses’ involvement in the Facebook group, the magistrate judge should have ordered the government to review and disclose any Brady or Rule 16 evidence relating to the witnesses’ membership and activity in the Facebook group.”
Addressing prejudice, she rejected the government’s argument that there was sufficient evidence to convict the defendant even if the court sets aside the testimony of Hernandez and Artiles. She remarked:
“[B]ecause the government has yet to search for and disclose additional evidence relating to the witnesses’ membership and activity in the group, we cannot know whether Agent Copenhaver’s testimony, too, might have been tainted by membership or activity in the group. And…we conclude below that the additional removal documents the government relied on to prove Mr. Tovar-Duran’s alienage were not admissible for that purpose. We thus cannot rely on Agent Copenhaver’s testimony or the removal documents to conclude that Mr. Tovar-Duran was not prejudiced.”
In a footnote, she added:
“We also reject the government’s argument that Mr. Tovar-Duran cannot show prejudice because he had the opportunity to cross-examine the witnesses on their involvement in the group. At trial, Mr. Tovar-Duran did not know which witnesses were members of the group. If the witnesses denied their involvement in the group on cross-examination, Mr. Tovar-Duran would have no way to impeach them.”
The case is U.S. v. Tovar-Duran, 24-2328.
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