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United States v. Garcia

United States District Court, N.D. Oklahoma

August 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN GARCIA, a/k/a “Shorty, ”et al, Defendants.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Before the court is the Motion to Dismiss Indictment [Doc. No. 84] of defendant Juan Garcia.

         I. Procedural Background

         On January 26, 2017, Tulsa police officers stopped two vehicles traveling from Oklahoma City for traffic violations. The lead vehicle-a Chevrolet Cruze-was driven by Gustavo Flores and contained approximately three (3) pounds of methamphetamine. The follow vehicle-a Chevrolet Silverado-was driven by Roberto Dominguez, an undocumented alien, and occupied by defendant Juan Garcia. Based on interviews with Mr. Flores and Antonio Martinez-a member of a drug ring based in Oklahoma City-Mr. Garcia was identified as the supplier of the methamphetamine. Mr. Garcia disputes that account and contends he was traveling to Tulsa to purchase a Dodge Viper.

         On March 7, 2017, Messrs. Garcia, Dominguez, Ulloa, and Martinez were indicted for conspiracy to possess methamphetamine with intent to distribute. On March 20, 2017, the government dismissed the indictment against Mr. Dominguez, who was thereafter deported on April 13, 2017. Mr. Ulloa pled guilty to misprision of a felony on June 15, 2017. On that same date, Mr. Martinez pled guilty to use of a communication facility to facilitate drug trafficking. Approximately one month later, the United States filed a superseding indictment against Mr. Garcia.

         As the sole remaining defendant, Mr. Garcia now moves to dismiss the superseding indictment. He claims that Mr. Dominguez's deportation deprived him of the testimony of an eyewitness to the events in question, and therefore violated his Sixth Amendment right to compulsory process. The court held an evidentiary hearing on the motion on July 18, 2017, and received testimony from Tulsa police officers and an Immigrations and Customs Enforcement (“ICE”) deportation official.

         The hearing was continued to August 8, 2017, to give Mr. Garcia's counsel an opportunity to request testimony from the Assistant United States Attorney (“AUSA”) in this case, Neal Hong. The court previously denied Mr. Garcia's subpoena request for Mr. Hong on grounds that defense counsel failed to comply with the requirements of 28 C.F.R. § 16.23(c). Mr. Garcia's counsel remedied that defect on July 20, 2017, when he submitted an affidavit describing the areas of testimony sought from Mr. Hong. [Def.'s Ex. 2]. Upon receipt of Mr. Garcia's request, the Department of Justice declined to allow Mr. Hong to testify. [Def.'s Ex. 3].

         II. Legal Standard & Analysis

          “The Sixth Amendment guarantees a criminal defendant ‘compulsory process for obtaining witnesses in his favor.'” United States v. Caballero, 277 F.3d 1235, 1241 (10th Cir. 2002) (quoting U.S. Const. amend. VI). That right may be violated by the deportation of a material witness. See Id. (citing United States v. Valenzuela-Bernal, 458 U.S. 858 (1982)). To obtain dismissal of an indictment on that basis, a defendant must show: (1) bad-faith deportation (2) of a witness with material and favorable testimony for the defense. See United States v. Gonzalez-Perez, 573 F. App'x 771, 776 (10th Cir. 2014); Caballero, 277 F.3d at 1241.

         III. Analysis

         Mr. Garcia argues that: (1) the government acted in bad faith in deporting Mr. Dominguez; (2) Mr. Dominguez possessed material and relevant testimony favorable to the defense in this case; and (3) absent Mr. Hong's testimony, the court lacks a full record on which to adjudicate the motion to dismiss. The court addresses each argument in turn.

         A. Bad Faith Deportation

         Bad-faith deportation refers to “willful conduct” designed “to obtain a tactical advantage” or “a departure from . . . normal deportation procedures.” See Gonzales-Perez, 573 F. App'x at 776. The record here establishes neither. First, nothing suggests the government's motivation in deporting Mr. Dominguez was to tactically disadvantage the defense. Uncontroverted testimony-and Mr. Garcia's own briefing-establish that the government was unaware what, if any, information Mr. Dominguez possessed relevant to this case. See, e.g., [Doc. No. 84, p. 2] (Defendant's Motion to Dismiss acknowledging Mr. Dominguez was deported “before it could be determined what testimony he could provide”); [Doc. No. 110');">110, p. 25] (Testimony of Officer Donald Cox: “I have no idea what Roberto Dominguez would say.”); [id. at 51] (Question by Defense Counsel: Q. And given the position of the parties . . . Roberto Dominguez would be the only individual to either corroborate or contradict the story that was given by co-defendant Garcia, correct?”). And the government's subsequent investigation in this case suggests Mr. Dominguez played a relatively minor role: cell phone analysis did not reveal any substantial connection between Mr. Dominguez and the alleged conspiracy, [Doc. No. 110');">110, pp. 26-28], and interviews with co-conspirators revealed that they did not know-and could not identify-Mr. Dominguez, [id. at 43, 52-53].

         Garcia's argument to the contrary-which emphasizes the investigators' failure to interview Mr. Dominguez-essentially asks the court to presume bad faith on the part of the government. The court will not do so. See Gonzales-Perez, 573 F. App'x 777. “The presence of bad faith must be proved, not its absence.” Id. And even under the most permissive of standards, where-as here-“the government doesn't know what a witness will say, it doesn't act in bad faith by deporting him.” See United States v. Leal-Del Carmen, 697 F.3d 964, 970 (9th Cir. 2012); [Doc. No. 84, p. 2]. A contrary rule-which would require the government to detain all undocumented immigrants with potentially ...


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