United States v. Jonathan Leal-Del Carmen

May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant. See United States v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir.2003), withdrawn by United States v. Ramirez-Lopez, 327 F.3d 829 (9th Cir.2003); Joint Motion to Remand Case to the District Court for the Limited Purpose of Dismissing the Indictment (Feb. 5, 2003); see also Henry Weinstein, Appeal Lost, Yet Freedom Won, L.A. Times, Apr. 23, 2003, at Bl. We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.

I. FACTS

On March 25, 2010, border patrol agents discovered a group of twelve illegal aliens…