United States v. Manuel Mendez-Rodriguez

450 F.2d 1 UNITED STATES of America, Plaintiff-Appellee, v. Manuel MENDEZ-RODRIGUEZ, Defendant-Appellant. No. 71-1238. United States Court of Appeals, Ninth Circuit. July 13, 1971. Rehearing Denied Dec. 3, 1971. Edward A. Infante, of Pedersen & Flowers, San Diego, Cal., for defendant-appellant. Harry D. Steward, U. S. Atty., Robert H. Filsinger, Chief, Crim. Div., Catherine A. Chandler, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee. Before JERTBERG, DUNIWAY and KILKENNY, Circuit Judges. JERTBERG, Circuit Judge: 1 By indictment filed December 17, 1969, appellant was charged: 2 1) In Count One with conspiracy to smuggle aliens into the United States, in violation of 18 U.S.C. Sec. 371 , and 8 U.S.C. Sec. 1324 . One overt act of said conspiracy alleged that appellant transported, in the Southern District of California, aliens Juan Espinosa-Nunez, herein-after Nunez; Remberto Ordorico-Gomez, hereafter Gomez; and Ramon Guerrero-Berumen, hereafter Berumen. 3 2) In Counts Two, Three and Four with transporting, within the Southern District of California, alien Nunez (Count Two); alien Gomez (Count Three); and alien Berumen (Count Four), in violation of 8 U.S.C. Sec. 1324…

By indictment filed December 17, 1969, appellant was charged:

1) In Count One with conspiracy to smuggle aliens into the United States, in violation of 18 U.S.C. § 371 , and 8 U.S.C. § 1324 . One overt act of said conspiracy alleged that appellant transported, in the Southern District of California, aliens Juan Espinosa-Nunez, hereinafter Nunez; Remberto Ordorico-Gomez, hereafter Gomez; and Ramon Guerrero-Berumen, hereafter Berumen.

2) In Counts Two, Three and Four with transporting, within the Southern District of California, alien Nunez *2 (Count Two); alien Gomez (Count Three); and alien Berumen (Count Four), in violation of 8 U.S.C. § 1324 (a) (2).

Appellant, an indigent, represented by court-appointed counsel, pleaded not guilty to all the charges contained in the indictment, and was tried to a jury. At the close of the Government’s case, and on motion of his counsel, Count Two (Nunez) was dismissed. The jury returned guilty verdicts on the remaining counts. Appellant was committed to the custody of the Attorney General for a period of three years on each count, the sentences to be served concurrently. Imprisonment for all but two months was suspended, and appellant was…

(dissenting) :

I respectfully dissent. There is absolutely nothing in this record to suggest that the deported aliens were made unavailable as witnesses by reason of the misconduct or, for that matter, the negligence of the government. By statute, 1 the Attorney General is expressly authorized to order deportation of aliens illegally entering the United States. To require the government, in the circumstances of this case, to retain deportable *6 aliens until the defendant in a criminal proceeding had an opportunity to interview them, is to place upon the government an unconscionable and indeed unmanageable burden. This is not a case where the government concealed alien witnesses, nor is it a case where the government deported the aliens with knowledge that they would be helpful to appellant’s defense. The record is completely devoid of anything which would suggest that the testimony of any one, or more, of the deported persons would have been helpful to appellant. There is no evidence whatsoever that the deportation deprived the appellant of “access to a storehouse of relevant fact.” Dennis v. United States, 384 U.S. 855, 873 , 86 S.Ct. 1840, 1851 , 16 L.Ed.2d 973 (1966). There…