United States v. Louis Joseph Bahamonde

445 F.3d 1225 UNITED STATES of America, Plaintiff-Appellee, v. Louis Joseph BAHAMONDE, Defendant-Appellant. No. 04-50618. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 2, 2005. Filed April 25, 2006. COPYRIGHT MATERIAL OMITTED Kurt D. Hermansen, Federal Defenders of San Diego, Inc., San Diego, CA, for the appellant. Stephen R. Cook, Assistant United States Attorney, San Diego, CA, for the appellee. Appeal from the United States District Court for the Southern District of California; John A. Houston, District Judge, Presiding. D.C. No. CR-04-01463-JAH. Before: CANBY, AKOZINSKI, and RAWLINSON, Circuit Judges. Opinion by Judge CANBY; Dissent by Judge RAWLINSON. OPINION CANBY, Circuit Judge. 1 Louis Bahamonde appeals his jury convictions for knowingly importing marijuana and possession of marijuana with intent to distribute. 21 U.S.C. §§ 841 (a)(1), 952, 960. Bahamonde contends that the district court erred by excluding the testimony of the government's case agent, called by the defense, on the sole ground that Bahamonde failed to comply with the Department of Homeland Security's regulations governing testimony by its employees. We reverse for two…

Opinion by Judge CANBY; Dissent by Judge RAWLINSON.

OPINION

Louis Bahamonde appeals his jury convictions for knowingly importing marijuana and possession of marijuana with intent to distribute. 21 U.S.C. §§ 841 (a)(1), 952, 960. Bahamonde contends that the district court erred by excluding the testimony of the government’s case agent, called by the defense, on the sole ground that Bahamonde failed to comply with the Department of Homeland Security’s regulations governing testimony by its employees. We reverse for two reasons: (1) the regulation, which required disclosure by Bahamonde without reciprocal disclosure by the government, violated Bahamonde’s due process rights, and (2) the district court abridged Bahamonde’s Sixth Amendment rights by imposing the severe sanction of exclusion of the agent’s entire testimony without weighing the countervailing interests, such as Bahamonde’s constitutional rights, prejudice to his defense, or the availability of alternative sanctions.

BACKGROUND

In the Southern District of California, a grand jury indicted Bahamonde for knowingly importing marijuana and possession of marijuana with intent to distribute. 21 U.S.C. §§ 841 (a)(1), 952,…

dissenting:

I respectfully dissent. My primary disagreement with my colleagues’ resolution of this case is their characterization of the pivotal issue as one of reciprocal discovery, because I see this case as involving the agency’s right to control the disclosure of information within its custody.

As the majority opinion relates, the Department of Homeland Security (DHS) has promulgated a regulation that requires one seeking official information from the agency to describe, in writing, “the nature and rélevance of the information sought.” 6 C.F.R. § 5.45 (a). The regulation was promulgated, not as a discovery device, but as a means to control the flow of information from the agency and ensure that no information was disclosed that should have remained secreted. The regulation cites United States ex rel. Touhy v. Ragen, 340 U.S. 462 , 71 S.Ct. 416 , 95 L.Ed. 417 (1951), as supporting authority. The majority opinion acknowledges, as it must, that Ra-gen upheld a Department of Justice regulation prohibiting its employees from responding to a subpoena absent permission. See Majority Opinion, p. 1230, n. 6. The majority opinion then converts the issue into one involving a discovery…