United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the court is the Motion to Dismiss Indictment [Doc. No. 84]
of defendant Juan Garcia.
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.
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.
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”)
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].
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.
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.
Bad Faith Deportation
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].
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