United States v. Juan Ramirez-Lopez

315 F.3d 1143 UNITED STATES of America, Plaintiff-Appellee, v. Juan RAMIREZ-LOPEZ, Defendant-Appellant. No. 01-50164. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 14, 2002. Filed January 10, 2003. 1 COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Mark S. Windsor, San Diego, CA, for the defendant-appellant. 2 John M. Parmley, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. 3 Appeal from the United States District Court for the Southern District of California, Napolean A. Jones, District Judge, Presiding. D.C. No. CR-00-00852-NAJ. 4 Before KOZINSKI and GOULD, Circuit Judges, and CEBULL, * District Judge. 5 Opinion by Judge CEBULL; Dissent by Judge KOZINSKI OPINION 6 CEBULL, District Judge. 7 Juan Ramirez-Lopez (Ramirez-Lopez) seeks reversal of his jury conviction for criminal violations 8 U.S.C. § 1324 (a)(1)(A)(i), (a)(1)(A)(ii), (a)(1)(B)(iv), and (a)(2)(B)(ii) (alien smuggling, alien smuggling for profit, and transportation of aliens resulting in death). He was sentenced to a term of seventy-eight (78) months. On appeal, the Defendant raises a number of…

Opinion by Judge CEBULL; Dissent by Judge KOZINSKI

QPINION

Juan Ramirez-Lopez (Ramirez-Lopez) seeks reversal of his jury conviction for criminal violations 8 U.S.C. § 1324 (a)(1)(A)(i), (a)(1)(A)(ii), (a)(1)(B)(iv), and (a)(2)(B)(ii) (alien smuggling, alien smuggling for profit, and transportation of aliens resulting in death). He was sentenced to a term of seventy-eight (78) months. On appeal, the Defendant raises a number of issues, specifically, whether (1) the Defendant’s due process and compulsory process rights were violated when the Government removed witnesses from the United States before Defense Counsel could interview them because Ramirez-Lopez failed to demonstrate either bad faith by the Government or prejudice to his case; (2) inadmissible evidence and improper argument by the Government occurred at trial that would constitute reversible error; (3) cumulative errors occurred at trial as to justify reversible error; (4) whether 8 U.S.C. § 1324 is unconstitutional in light of the U.S. Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000); and (5) whether evidence of mens rea as it relates to death is a required…

dissenting:

One can only imagine the conversation between Ramirez-Lopez and his lawyer after this opinion is filed:

The question at the heart of this case is both simple and important: May the United States get rid of witnesses it knows would provide evidence helpful to the defendant in a criminal case by putting those witnesses beyond the power of the court and beyond the reach of defense counsel? In all prior cases where witnesses were removed with a prosecution pending, no one knew what those witnesses might say; they could have been as helpful to the prosecution as the defense. Here, we have contemporaneous interview notes showing that twelve of the fourteen witnesses arrested with the defendant made statements unequivocally exculpating him as to the only issue of fact in the case — whether he was the expedition’s guide rather than one of'the guided. See p. 1171 n. 14 infra. Yet nine of those exculpating witnesses were removed from the United States before defense counsel was appointed and before the district court had an opportunity to consider the matter. The government did not even trouble to obtain contact information for those witnesses, frustrating all defense efforts…