United States v. Valenzuela-Bernal

PETITIONER:United States
RESPONDENT:Valenzuela-Bernal
LOCATION:José Aponte de la Torre Airport, formerly Roosevelt Roads Naval Station

DOCKET NO.: 81-450
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 458 US 858 (1982)
ARGUED: Apr 20, 1982
DECIDED: Jul 02, 1982

ADVOCATES:
Carter G. Phillips – for petitioner
Eugene G. Iredale – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 20, 1982 in United States v. Valenzuela-Bernal

Warren E. Burger:

Thank you, Justice Powell.

We’ll hear arguments first this morning in United States against Valenzuela-Bernal.

Mr. Phillips, you may proceed whenever you’re ready.

Carter G. Phillips:

Thank you, Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari at the United States Court of Appeals for the Ninth Circuit, three questions presented.

First, the United States violates a criminal defendant’s Fifth Amendment due process or Sixth Amendment compulsory process rights when it deports an illegal alien after making a reasonable investigation in concluding that the illegal alien has no material exculpatory evidence to make available to the defendant.

Second, assuming that the Government acts at its peril in deporting illegal aliens while the defendant in order to state a constitutional violation still must demonstrate that the laws of the illegal alien has caused him a concrete loss of material exculpatory evidence.

Finally, assuming that the Court of Appeals is correct, that the — that the respondent’s constitutional rights are violated when the defendant is deprived of no more than the loss of a conceivable benefit or the proper remedy for that technical constitutional violation is dismissal of the indictment against the respondent.

On March 29th, 1980, respondent was captured in the process of transporting five illegal aliens from Escondido, California to Los Angeles.

The circumstances surrounding respondent’s arrest were explained by respondent in his own post arrest statement volunteered to Border Patrol agents.

Respondent is an illegal alien from Mexico, he entered the — he entered this country approximately six days prior to his arrest with the assistance of an illegal alien smuggler.

He had been kept in a house in Escondido prior up to the day of his arrest.

On the day he was arrested, he agreed with the illegal alien smuggler to transport five additional illegal aliens to Los Angeles in return for the price of his illegal entry into this country.

Respondent had been told that the Border Patrol agents at the Temecula checkpoint were not actually checking for illegal aliens; unfortunately, for respondent, he was misinformed and was pulled over to the side or at least was motioned over to the side.

He slowed the car down and then drove away at a very high rate of speed.

Border Patrol agents chased him, two agents in a single car and respondent stopped his car approximately a mile away from the checkpoint and fled on foot along with the other five illegal aliens.

Respondent and three illegal aliens were captured by the Border Patrol agents; two other illegal aliens, however, escaped.

The Border Patrol agents then returned the respondent back to the Border Patrol checkpoint, informed the respondent of his right to remain silent.

He, however, waives the right and agreed to make a statement under oath.

In the recorded statement, he explained his decision to flee from the Border Patrol checkpoint on the basis, “I already knew that I had had it, too late.

It was done.”

Later, he told the agents, “I acknowledge the charge of driving.”

The agents also interviewed the other illegal aliens and they all admitted that they were in the county illegally and the respondent had been the driver of the car.

The Border Patrol agent at that point or soon thereafter called the Assistant United States Attorney in the Southern District of California for advice as to how to proceed in the case.

The Assistant U.S. Attorney based on the information regarding the respondent’s apparent confession, the accumulative nature of — of the statements made by the three additional illegal aliens and the general circumstances surrounding the arrest, the flight, et cetera, decided that no useful purpose would be served either for the Government or for the defendant in requiring two otherwise none — not prosecutable by our — in our discretion, however, but not prosecutable illegal aliens to remain in custody and therefore authorized the release of those two illegal aliens back in Mexico.

John Paul Stevens:

Were any statements taken from them before they were released?

Carter G. Phillips:

Yes, sir.

There were.

John Paul Stevens:

What happened to the statement?

Carter G. Phillips:

Well, unfortunately, the tape recorder had malfunctioned.

Carter G. Phillips:

Originally, it was thought that the tape recording of respondent’s statement had malfunctioned and there was no statement from him but it turned out that the malfunction was — occurred during the time that the statements of the —

John Paul Stevens:

So in fact there is no written or recorded statement from those released?

Carter G. Phillips:

No, not a specific written or recorded statement; although I think typically there would be, moreover, we do of course have the statement from the remaining illegal alien, Romero-Morales, and the statements from the Border Patrol agents, and all the statements by all of the agents — or excuse me, by all of the illegal aliens are essentially the same.

John Paul Stevens:

And when did you get — when did they get the statement from Morales?

Sometime —

Carter G. Phillips:

Subsequently when he testified at the — at the hearing, they received — they obtained that statement and there’s nothing to indicate that his statement at the hearing on the motion to dismiss was different from the statement given to the Border Patrol agents at the time of his arrest.

The Assistant United States Attorney authorized the release of two of the three illegal aliens chosen at random and they were released on March 30th of —

Sandra Day O’Connor:

Mr. Phillips —

Carter G. Phillips:

Yes, ma’am.

Sandra Day O’Connor:

— I assume the Government could have prosecuted the witnesses who were deported —

Carter G. Phillips:

Yes, ma’am.

Sandra Day O’Connor:

— for a criminal offense.

Carter G. Phillips:

Yes, ma’am.We could have prosecuted them for illegal entry into this country.

Sandra Day O’Connor:

But it is the general practice not to do that and to simply deport them.

Carter G. Phillips:

It is significantly easier, Your Honor, our resources to do that.

Yes, ma’am.

William H. Rehnquist:

There’s no claim, I take it here, that the respondent himself transported the illegal aliens across the border —

Carter G. Phillips:

No.

William H. Rehnquist:

— just they transported them after they were in the country, and they hadn’t been here for a year.

Carter G. Phillips:

That’s correct.

That’s correct, Your Honor.

The two illegal aliens were returned on March 30 concededly prior to the time the respondent’s counsel had any opportunity to interview them.The respondent was indicted on one count of transporting —

Harry A. Blackmun:

Was the respondent represented and did the prosecutor know that at the time they were released?

Carter G. Phillips:

No, the respondent was not represented by a counsel.

Harry A. Blackmun:

He was not represented?

Carter G. Phillips:

No, Your Honor.

Harry A. Blackmun:

Ultimately, did — was he represented by a retained or appointed counsel?

Carter G. Phillips:

I believe it was appointed counsel.

Respondent was indicted on one count of transporting an illegal alien, Romero-Morales, within this country in violation of 8 U.S.C. 1324(a)(2).

Soon thereafter, he filed a motion to dismiss the indictment on the ground that the deportation of the two illegal aliens had the prior — had violated his Fifth and Sixth Amendment rights.

Carter G. Phillips:

District Court held a hearing on the motion at that —

Warren E. Burger:

Did he make any proffer of what the testimony would be given had these people been kept in the country?

Carter G. Phillips:

Not specifically, the closest thing to a proffer, I suppose, would be — he did offer a testimony of Romero-Morales at the hearing.

Romero-Morales was at least putatively a defense witness at the hearing on the motion to dismiss; although I submit that his statements were rather strongly inculpatory of respondent rather than exculpatory.

Potter Stewart:

Mr. Phillips, before you — before you go on, can I get the time sequence a little in my mind?

Carter G. Phillips:

Yes, sir.

Potter Stewart:

The man was arrested on the 29th of March, was it?

Carter G. Phillips:

Yes, sir.

Potter Stewart:

And the other occupants of the vehicle were sent back on the 30th.

Carter G. Phillips:

Yes, Your Honor.

Potter Stewart:

And he was arraigned on the 31st, was it, the next day?

Carter G. Phillips:

Yes.

I think so.

Potter Stewart:

Now, when — was a counsel appointed for him on the 31st?

Carter G. Phillips:

I assume that that was the —

Potter Stewart:

So it would have been a question of whether to hold him for one day to give the counsel an opportunity to interview him.

Is that what we’re pointing to?

Carter G. Phillips:

In this specific case it would have been but there was no way, I don’t think, of knowing that at the time necessarily.

Potter Stewart:

Well, isn’t there a procedure whereby these things are processed in this manner normally and wouldn’t you normally expect the complaint to be filled rather promptly?

Carter G. Phillips:

Well, we would assume that; although, of course, it’s — it’s not really accurate — altogether accurate to say that it’s only holding him for a single day.

I mean other than the fact that he would have had counsel appointed at that point, there still presumably would have been a period of time the counsel would have required in order to investigate the matter and to pursue it.

Typically, the practice is to keep the illegal aliens for 10 days even after a counsel is appointed.

Potter Stewart:

The — the practice is to keep them for 10 days?

Carter G. Phillips:

Yes, Your Honor.

Potter Stewart:

After — I see, is that the — well, I don’t understand.

I’m a little puzzled.

What is the source of the 10-day practice?

Carter G. Phillips:

It’s just a — it’s a common law practice.

I think it’s developed primarily by the magistrates in the Southern District of California; although it is also adopted in other districts.

Potter Stewart:

Then why wasn’t it followed in this case?

Carter G. Phillips:

Well, because the case wasn’t submitted to — it wasn’t — the illegal aliens were already gone prior to the time that it went to the magistrate.

Potter Stewart:

In order to avoid the 10-day rule, you must ship them back before the magistrate complaint is filed, is that right?

Carter G. Phillips:

Well, in a sense, yes, Your Honor because the problem is that given the state of the law in the Ninth Circuit, the magistrate’s simply not in a position to release the illegal aliens unless we — unless we can modify the Ninth Circuit’s very strict ruling, it’s very difficult to have a magistrate agree to release the illegal aliens even though there is no likelihood of —

Potter Stewart:

Would the Government’s problem be solved if the Ninth Circuit rule were modified to require them to be kept safe for 24 hours or –?

It seems to me that there is — the dispute may be narrower than it appears to be.

You know, that the other side seems to be just asking for an opportunity to interview and the ten — I can see your objection to the 10-day rule but I wonder if it necessarily would apply to say, a 24-hour rule.

Carter G. Phillips:

Well, I suspect that — I mean, obviously, the Government’s position would be immaterially advanced by a 24-hour rule but I’m not sure that the decision as to how much time is one — that is a — you know, it’s not an easy judgment to make and certainly, I wouldn’t — it’s a —

Harry A. Blackmun:

Well —

Carter G. Phillips:

— close legislative judgment.

I don’t —

Harry A. Blackmun:

Apart from that, Mr. Phillips, I gather or perhaps I better put it as a question, do you think the — they could have been released had counsel in fact been appointed before they were released?

Carter G. Phillips:

Well, it might have been — it would have been significantly more difficult.

I mean it would certainly —

Harry A. Blackmun:

Well — no, I —

Carter G. Phillips:

Without consulting a counsel, you mean?

Harry A. Blackmun:

Yes.

Would the Government’s case be in any trouble if you did that?

Carter G. Phillips:

No, I don’t think so because it’s still — our submission is that there was no prejudice whatsoever and the — and — and even if there were some claim that we violated his right to counsel, you would still have to have a demonstration of prejudice.

Harry A. Blackmun:

You mean there’s no Messiah overtone after a counsel is appointed to whether or not you could — may release them?

Carter G. Phillips:

Well, you don’t have there — I mean I — no, I don’t think — no, sir.

No, Your Honor.

At the test — at the hearing on the motion to dismiss, testimony was offered by the two arresting Border Patrol agents, the detained illegal alien, Romero-Morales, and the Assistant United States Attorney who approved the release of the two illegal aliens.

Based largely on the post arrest admissions by the respondent, the District Court held that the loss of the missing illegal aliens could not possibly or at least with no substantial possibility have prejudiced defendant’s — respondent’s case and therefore, he denied the motion to dismiss.

Thurgood Marshall:

When did the respondent know that the witnesses were being set away?

Carter G. Phillips:

When did he learn that the witnesses had been sent away?

Thurgood Marshall:

Uh-hmm.

Carter G. Phillips:

I suspect probably on the —

Thurgood Marshall:

You suspect?

You don’t know?

Carter G. Phillips:

Well, I don’t know exactly when they — when he was informed.

Thurgood Marshall:

But if he’d had a lawyer you would know, wouldn’t you?

Carter G. Phillips:

Well, I assume his attorney was probably informed on the 31st.

Thurgood Marshall:

His attorney on the 31st, so neither the respondent nor his lawyer to be appointed had any opportunity to oppose the removal of the witnesses?

Carter G. Phillips:

That’s absolutely correct, Your Honor.

Warren E. Burger:

What was happening to this third witness in the meantime?

Carter G. Phillips:

He is being detained — he was — he was detained in custody as a material witness for the Government or — and also for the defendant as it turns out — I mean, for the respondent as it turns out he — he did testify on behalf of the respondent.

Warren E. Burger:

Did he testify?

Carter G. Phillips:

Yes, sir.

Yes, Your Honor, he did.

Warren E. Burger:

But he was called by —

Carter G. Phillips:

He was called by the respondent.

Warren E. Burger:

— the defendant.

Carter G. Phillips:

And his statement was that he wasn’t an illegal alien, that he had been in this country for less than two days at the time that the respondent transported him, that the respondent was the — was the driver of the car.

So then — while he was nominally a witness on behalf of the respondent, in reality I submit that his testimony was rather inculpatory.

Warren E. Burger:

Let me go back to my former question about whether there was a proffer.

Was there any suggestion whether a proffered testimony or otherwise that the two who were going back to Mexico, then deported, would have justified to any factors which were not available from the witness who was detained?

Carter G. Phillips:

No, Your Honor, none whatsoever.

John Paul Stevens:

Well, how would — how would anybody have made that proffer if — could never have a — if there was no opportunity to chat with those witnesses?

Carter G. Phillips:

Well, the circumstance — I mean, the respondent had ample opportunity to chat with those witnesses, Your Honor.

He was at the house at the time prior to the transportation, he was in the car the whole time during the transportation, and he was there at the time of the arrest.

John Paul Stevens:

Well, he was — I think he was but his lawyer never had a chance to — to talk with him, did he?

Carter G. Phillips:

No, but his lawyer certainly had access to the respondent and to any information that the respondent has.

John Paul Stevens:

That may be so but the respondent probably didn’t know what he was — that A, he’s going to charged or B, what he’s going to be charged with —

Carter G. Phillips:

Well, even if —

John Paul Stevens:

— or what the elements of the crime were.

Carter G. Phillips:

Well, even if respondent couldn’t make an immediate judgment as to how to proceed in this matter, certainly sometime between the period or the time when he was arrested and the post arrest period all the way up until the time of the trial respondent had ample opportunity to explain to his attorney what possible defenses might be available and even to this day we still have nothing.

John Paul Stevens:

That’s hardly — that’s hardly equivalent to — that’s hardly equivalent to knowing what the witnesses would have said in response to questions from the lawyer.

Carter G. Phillips:

Well, concededly it is somewhat different; although it is not — I mean, this Court has never had any trouble in the Roviaro context in —

John Paul Stevens:

Don’t you — your first submission as I understand it is that the Government should be relied on to decide whether a witness has anything relevant that might help the defendant.

That’s a very strange submission, isn’t it?

John Paul Stevens:

I thought defendants usually decide what — what’s the point —

Carter G. Phillips:

Well, it’s not that we’re really — I mean actually not, I mean if we were to take — if we were to reason by analogy from United States versus Lovasco, it would seem to us that the rule ought to be that the United States simply in pursuing its policy with regard to immigration, should simply deport the illegal aliens.

All we do in this context is attempt to provide a certain amount of protection for the respondent by virtue of the fact that we provide him with certain amount of protection.I don’t think that should give raise to any inherent problems.

I mean, otherwise, we would just simply deport him as the Court held in United States versus Rose on the First Circuit decision.

John Paul Stevens:

Well, would you say that — would you say that if you interviewed them and you thought there was something helpful to the defendant that you can nevertheless deport them?

Carter G. Phillips:

Well, our assumption would be no.

John Paul Stevens:

Why?

Carter G. Phillips:

There was reason to suspect —

John Paul Stevens:

Why?

You’ve got a power to deport.

Just deport.

Carter G. Phillips:

That’s true.

Concededly we have the power to do that.

John Paul Stevens:

Just deport them without talking to them.

Carter G. Phillips:

Well, that’s exactly what the Court’s sanctioned in United States versus Rose but we’re not asking this Court to adapt that view although as I said it would certainly — it would certainly further our immigration policies if the Court order were to adapt that view, but we’re prepared to give the respondent perhaps more protection than he otherwise might require.

John Paul Stevens:

You already talked to them because you want to get a witness for yourself.

Carter G. Phillips:

I’m sorry?

John Paul Stevens:

You — you interviewed the — you interviewed the people because you need witnesses yourself.

Carter G. Phillips:

Admittedly we do but we also in the process of interviewing a witness on our — in order to determine whether there is any inculpatory evidence we necessarily discover whether there’s any exculpatory evidence.

Sandra Day O’Connor:

Counsel, what is the Government’s main concern, saving the — the cost involved in maintaining these witnesses in jail over a long period of time or what?

Carter G. Phillips:

Well, I mean, certainly the cost is a significant factor but I think the idea of — of having illegal aliens languishing in jail for a period of time when no one has any intention of calling them as witnesses either the Government or the defendant and no one has — you know, and they’re not going to serve any useful function to anybody, I think that’s the primary interest to the Federal Government in these cases.

And to go back to the statistics that we cited in our brief, it — there’s something wrong with the rule of law that requires the Federal Government to detain 5,000 illegal aliens as material witnesses in a district in which there are 36 trials on Title 8 offenses.

There’s something just fundamentally wrong with that.

Sandra Day O’Connor:

What about the various alternatives suggested by the respondents that might alleviate the problem?

Carter G. Phillips:

Well, our submission is that none of those — that none of those alternatives is very useful.

Specifically, they suggest the use of work farms.

The United States — the Southern District of California at least does not have a work farm.

Sandra Day O’Connor:

Well, how about an early interview at which defense counsel has an opportunity to be present —

Carter G. Phillips:

Well, the —

Sandra Day O’Connor:

— before release?

Carter G. Phillips:

The difficulty with that, with the idea of an early interview is one, it’s difficult just to get — get counsel appointed.

I mean a lot of this — a lot of captures are not in locations where counsel is close by so there’s certainly a period of time lost in that process.

Second of all, it’s not altogether clear what an early interview will accomplish.

Testimony by the Assistant United States Attorney at the — at the hearing on the motion to dismiss was to the effect that oftentimes defense counsel prefers to be able to try to retain illegal alien material witnesses even without any expectation of having them testify simply as leverage against the Government for a plea bargain arrangement so that I’m not sure that we’re going to be at anything by virtue of having — having counsel there earlier.

Thurgood Marshall:

What the —

William H. Rehnquist:

What do you mean as leverage for a plea bargain?

Carter G. Phillips:

Well, the — I mean if — it is absolutely true that the Government can only hold so many material witnesses.

As it stands now we are running out of space in the state jails.

And when we get to the point when we can hold no more illegal aliens we simply either have to release the defendants or release the illegal aliens and thereby end up losing our ability to prosecute.

William H. Rehnquist:

Under the rule of the Ninth Circuit?

Carter G. Phillips:

Under the rule of the Ninth Circuit, Your Honor, yes.

Thurgood Marshall:

Mr. Phillips, on the proffer point that was raised by the Chief Justice, what is this stipulation on page 22 of the joint appendix?

Carter G. Phillips:

That was a stipulation offered by the Assistant United States Attorney, Your Honor, that we were willing to — we were willing to stipulate that the illegal aliens —

Thurgood Marshall:

But this wasn’t agreed to?

Carter G. Phillips:

No, Your Honor.

At least if it was there was nothing in the record to suggest that anybody responded to it.

But it was our stipulation that we were willing to say that none of the illegal aliens had told —

Thurgood Marshall:

But it says, “It is hereby ordered that the substance of paragraphs belongs to–”

Carter G. Phillips:

Oh, I’m sorry.

As I said, the stipulation with regard to the oral — with regard to the trial on the basis of the record that was produced at the oral hearing.

I’m sorry, Your Honor, at the hearing to the — on the motion to dismiss, that stipulation.

Thurgood Marshall:

But that — it —

Carter G. Phillips:

That was agreed to, yes, that’s why there wasn’t a trial in this case.

Thurgood Marshall:

Well, does this excuse the proffer or not?

Carter G. Phillips:

No, Your Honor.

All that does is explain why there wasn’t a specific trial in the case.

Thurgood Marshall:

That’s my point.

Carter G. Phillips:

I’m sorry.

John Paul Stevens:

What were you referring to?

Carter G. Phillips:

I was just — referring to the offer to stipulate on the part of the Government that the illegal aliens who had been deported would not testify — would not have testified that they had told the respondent that they were illegal aliens and have been in this country for more than three years.

Carter G. Phillips:

Basically, we’re willing to agree that to the Romero-Morales’ testimony which was that they never said anything at all in that automobile.

And so in order to prove respondent’s knowledge we were going to have to use the circumstances.

John Paul Stevens:

There was no response and no counter offer.

Will you please stipulate that if they recall they would testify as follows?

Carter G. Phillips:

No, nothing at all was said at all on that point, Your Honor.

Thurgood Marshall:

It’s awfully difficult for me to imagine how a lawyer who never talked to the people could proffer anything.

Carter G. Phillips:

Well, Your Honor, he has — he still has access to the respondent.

I’m not — you know — this is not a case of mistaken identity.

This individual was there at all relevant times.

As the Fifth Circuit said, “You can typically tell in these cases what exactly happened.”

And so the respondent was in the presence of the missing witnesses at all times.

He presumably can suggest something.

Thurgood Marshall:

I’m not talking about the respondent; I’m talking about the lawyer.

Carter G. Phillips:

Well, the lawyer has access to the respondent.

I mean, there’s no reason to assume the respondent would lie to him.

Thurgood Marshall:

He might not know what the important point is.

That’s why he has a lawyer.

Carter G. Phillips:

Certainly, Your Honor, and that’s why his attorney can —

Thurgood Marshall:

I get back to the point, why couldn’t he have — around for one day?

Carter G. Phillips:

Well, because one day wouldn’t have gained us anything, Your Honor.

One day would not have gained us anything in most instances.

Thurgood Marshall:

It would have allowed the lawyer to talk to him.

It wouldn’t have gained you anything.

Carter G. Phillips:

No.

And it wouldn’t have gained anybody anything in the facts of this case.

Thurgood Marshall:

It would allow the lawyer to talk to the witnesses.

Carter G. Phillips:

So, I mean, — well, it wouldn’t have allowed the lawyer to make any kind of a reasonable conversation with the witnesses because they had no opportunity to investigate the matter.

Thurgood Marshall:

The great thing was could — it would — I didn’t have to ask the question.

It’s obvious that in one day, the lawyer could have talked to the witnesses.

You can either admit it or let it go.

Thurgood Marshall:

It’s alright with me.

Carter G. Phillips:

Well, he could have talked to them but I’m not sure that anything meaningful would have come from that conversation, Your Honor.

Potter Stewart:

Well, you never are but couldn’t he have asked him a few questions?

Like when did you come into the country and what was your arrangement?

And take a 10-minute interview, facts that maybe his client would not have known because I think you indicated the driver of the vehicle didn’t necessarily talk to all the passengers.

Carter G. Phillips:

No.

There’s no question —

Potter Stewart:

Is it possible the lawyer could have found out something by direct conversation that he could not have found out through his client?

Carter G. Phillips:

You mean as to their illegal alien status?

I mean, the only person whose illegal alien status is relevant to this prosecution, however, is Romero-Morales.

And Romero-Morales is available to talk with the attorney.

Potter Stewart:

Could the Government have deported him?

Carter G. Phillips:

You mean aside from the Fifth and Sixth Amendment problems?

Potter Stewart:

Well, no, under your view of this case, would it have been permissible for the Government to deport him as well as all the other passengers?

Carter G. Phillips:

Well, it would have been — the problem that that would have created is we would have a no — we would have lacked a non-hearsay basis for proving some of the elements and perhaps created a Confrontation Clause problem.

Potter Stewart:

Assume you had a statement that you thought was sufficient from the driver himself plus the testimony of the two agents who arrested the — arrested them, that might have made out a sufficient case, just assume.

I think that’s possible.

Then I suppose under your view, you could also have deported the man who was the — actually, the charge was based on, under your view of the law.

Carter G. Phillips:

Yes, Your Honor.

I suspect that we might well have been able to do that although —

Potter Stewart:

And the question we have to decide, would that have been consistent with the Constitution?

That’s really the issue.

Carter G. Phillips:

Sure, but there was still — and you have to analyze it in two different grounds.

One, on the basis of the reasonableness of our decision to release him, which is probably questionable on those circumstances since there’s no — since the detention of one illegal alien versus three is — is perhaps not all that onerous a burden on us.

Second of all, you still would have to show that he was a material witness in any sense.

I mean typically, this is — in some ways, it’s unfortunate to this case — in this case that the — that the tape recorder broke because, typically, we would have an oral statement on — from everyone that we could then examine.

And that would presumably serve as at least some basis for the counsel to inquire as to what possible grounds —

John Paul Stevens:

Well, it wouldn’t hurt you much then if you lost this case.

Carter G. Phillips:

I’m sorry, Your Honor?

John Paul Stevens:

It wouldn’t hurt you much then if you lost this case in the sense that the next case where the tape recorded statement would be different.

Carter G. Phillips:

Well, if you were prepared — if the Court were to hold that it is abundantly clear that if we had that statement in hand, we can go ahead and deport the illegal aliens.

That may well be true.

But what we’re looking for — I mean this specific — this specific case is not what’s terribly important.

This is not a case about two illegal aliens and one criminal defendant.

This is a case literally about thousands of illegal aliens.

The United States captures — has captured in each of the last three years one million illegal aliens.

Each of those, not every one of those illegal aliens, of course necessarily raises the Mendez-Rodriguez problem.

Now if you consider that most of them probably had some assistance coming into this country, probably had some assistance in trying to conceal themselves from the authorities and probably, because of where they ended up having to stay within this country came across criminal activity of another nature, the chances of a Mendez-Rodriguez problem with regard to all one million of those illegal aliens is fairly good.

And it cannot be that the Government is responsible to keep all of those illegal aliens.

John Paul Stevens:

Mr. Phillips, suppose it were perfectly clear that a counsel would always be appointed in the vast majority of instances within 24 hours after arrest or 48 hours after arrest.

And the rule was that you should — that you should give counsel one day and then you can deport witnesses.

Now, you would have to hold all these people for three days.

Carter G. Phillips:

Well, that’s not altogether clear, your Honor.

I mean, the question is, does that mean after they interview them and regardless of what they say, we then have the right to go ahead and deport them?

John Paul Stevens:

Well, I —

Carter G. Phillips:

Or what if they interpose an objection is the problem.

They then interpose an objection, we go to a magistrate, the magistrate under the Ninth Circuit’s regiment —

John Paul Stevens:

You would be in no different position than you would be if — if somehow this alien, this defendant had a — had a lawyer within the room when he was arrested and he went around and he subpoenaed all these witnesses.

What would you do with him then, deport him?

Carter G. Phillips:

Well, if he asked — if he — well, no, obviously, if he had a subpoena in hand, we might try to fight the subpoena.

John Paul Stevens:

That’s just one of those — one of those problems about what the Government does.

William H. Rehnquist:

Well, does a subpoena protect you from deporting him?

Carter G. Phillips:

Well, I think if — I guess a subpoena doesn’t actually act against the Government.

It acts — it acts against the illegal alien.

William H. Rehnquist:

You might — consequences might attach to your deportation of him, but I wouldn’t think that —

Carter G. Phillips:

No, that’s true.

It wouldn’t directly prohibit us from — from deporting — that’s right.

John Paul Stevens:

But you wouldn’t deport him, I don’t suppose.

Would you?

Carter G. Phillips:

I suspect we would not.

Carter G. Phillips:

No, Your Honor.

Potter Stewart:

I don’t understand why under a 24-hour rule, you would be precluded from deporting them after they’ve been interviewed because the burden would remain on the defendant to make a showing that their testimony would have been material, I would suppose.

Carter G. Phillips:

I’m sorry, Your Honor, I missed that —

Potter Stewart:

You seem to assume that if there were a 24-hour rule where you would just — somehow there’d be a counsel appointed immediately then they interview, you seem to be assuming you could not then immediately deport if you’re satisfied they have nothing material to present because then I would suppose if you did deport, the lawyer having interviewed the — the person would be in a position to make a showing if he could that there was some material —

Carter G. Phillips:

Well, but I guess — I guess our response to that is I don’t see that there’s any significant difference between what we’ve done here because I don’t think that the — the appointment of a counsel in this situation would have materially altered the ultimate findings of the District Court that should have been upheld by the Court of Appeals.

Potter Stewart:

Well, that’s if you assume that the prosecutor should be the one who does the investigating for defense counsel on the facts.

Carter G. Phillips:

Well, it’s only — but it’s only that the — that the Government makes the initial determination.

Potter Stewart:

Well, I know but it’s a determination that —

Carter G. Phillips:

And then subsequently, that’s subject to review.

Potter Stewart:

— totally forecloses the opportunity for the defense counsel to — to investigate.

Carter G. Phillips:

But that — I mean I guess our response to that is that there — it’s just not simply realistic to say that they cannot know.

I mean, I don’t see how this case is distinguishable from Roviaro, where you’re denied access to the confidential informant unless you can make a showing that he has some materiality.

You don’t — you’ve never talked to him.

The assumption is because you were present at the crime that you can take action.

And therefore — and this Court has consistently upheld the right of the Government to deny you access to the confidential informant in those circumstances.

We submit that the Government’s interest in this case is every bit as great as in that case.

Thurgood Marshall:

You mean that on the day of the hearing, they couldn’t have talked to these witnesses if they were there?

Carter G. Phillips:

No, of course they could have talked to them if they had been there, Your Honor.

Warren E. Burger:

That’s what you meant then.

Carter G. Phillips:

I will reserve the rest of my time for rebuttal.

Warren E. Burger:

Mr. Iredale?

Eugene G. Iredale:

Mr. Chief Justice, and may it please the Court, I’d like to address four of the issues in this case.

First is the issue of what the statute with which Mr. Valenzuela was charged required for proof of conviction and what the defense in the case was.

Secondly, the way in which the Government’s action in this case violated the Sixth Amendment right to compulsory process.

Third, what the actual procedure is in the Southern District of California in implementing the Ninth Circuit decision in Mendez-Rodriguez, a decision that has been adapted by the Circuits — of the three other Circuits, the Fifth, the Seventh, and recently in Armijo-Martinez, the Sixth.

Harry A. Blackmun:

Well, the — the Fifth is a little different, isn’t it?

Eugene G. Iredale:

Mr. Justice Blackmun, as we talk about that in the brief, the original decision was Avila-Dominguez.

And in that case, the Court of Appeals for the Fifth Circuit held that deportation of the witnesses before an interview is a violation of due process, the sanction for which is dismissal.

However, they said we reject the automatic dismissal rule.

The Ninth Circuit of course does not have an automatic dismissal rule.

Eugene G. Iredale:

And in a subsequent case (Inaudible), the Fifth Circuit said that the standard is that the defense in order to obtain relief must show either a plausible theory or some slight suggestion concerning which the witnesses could have helped.

Harry A. Blackmun:

That strikes me as out of line with the Ninth Circuit’s approach.

Eugene G. Iredale:

Well, whether you call it —

Harry A. Blackmun:

I’m just objecting to your saying that this Circuit has followed the Ninth.

Eugene G. Iredale:

I — I should say that with the exception — to our mind, the difference between the terms plausible theory or some slight suggestion and the Ninth Circuit formulation of conceivable benefit is a matter of semantics.

But I think you’re correct that there is some difference in the formulation of the test although the Fifth has held that deportation in this context violates compulsory process.

Finally, I’d like to discuss the Government’s proposal and why it would strike at the heart of the adversary process, which is the basis for our criminal justice system.

The respondent was charged in this case with a violation of —

William H. Rehnquist:

Mr. Iredale, before you go on to that section, am I correct in thinking that the Ninth Circuit did not require the defendant to make any sort of a showing here before it dismissed the indictment?

Eugene G. Iredale:

No, Your Honor.

The Ninth Circuit requires that the defendant show some conceivable benefit could have been gained from the testimony of these witnesses.

William H. Rehnquist:

What did the defendant show here?

Eugene G. Iredale:

In the District Court, the defendant submitted an exhibit.

We actually tried to subpoena these witnesses.

We obtained the addresses in Mexico, mailed them subpoenas although of course, the subpoenas have no force outside the geographical limits of the United States except with respect to United States citizens.

We also mailed a parole letter, which was countersigned by the U.S. Attorney authorizing the witness, should the witness choose to attend Court entering to the United States; the parole is the permit to let him in.

And finally, we sent a letter to each of the witnesses in these cases which was submitted as an exhibit at the hearing on a motion to dismiss.

In each of the letters, the counsel in the case wrote to the witness, “Your testimony regarding any conversations that occurred between Mr. Valenzuela, yourself and other occupants of the vehicle is important in the case of Mr. Valenzuela.

Further, your physical appearance on the date of the arrest and any information you provided or did not provide to Mr. Valenzuela concerning your illegal status and time and place of illegal entry in the United States is important to the issues of guilt or innocence.”

Warren E. Burger:

Could you have taken their testimony by deposition?

Eugene G. Iredale:

Yes, Your Honor.

Had they been held?

Warren E. Burger:

No.

In Mexico.

Eugene G. Iredale:

In Mexico?

Warren E. Burger:

What — what could prevent you from taking that except the dollars?

Eugene G. Iredale:

Dollars and the logistical difficulty, otherwise, I believe —

Warren E. Burger:

And in terms of distance from where you were operating, how far were these witnesses away?

Eugene G. Iredale:

I may be wrong but I think that Jalisco was about 800 to 1000 miles away and the other witness was in another province.

Warren E. Burger:

And they put them pretty far down in Southern Mexico.

Eugene G. Iredale:

Yes, Your Honor.

In other words, unless the deposition could be taken before the police have witnesses —

Warren E. Burger:

Is that in the record?

Is their location in the record?

Eugene G. Iredale:

It is because the exhibit was introduced as an exhibit.

It’s in the record before the Court of Appeals albeit not in the joint appendix before this Court.

But their address, La Huerta, Jalisco for one of the witnesses and the other address in another State in Mexico is in the record.

William H. Rehnquist:

I understand your statement as to what the defendants showed here were simply letters to the missing witnesses saying that it would be very desirable to interview them on certain points.

Was there nothing more than that?

Eugene G. Iredale:

No, Your Honor, there was also a statement in argument by counsel that we wanted the witnesses because we felt that they could possibly testify in such a way as he might be found not guilty of a crime of knowingly transporting aliens.

And then this followed a colloquy when the Assistant U.S. Attorney was on the stand in which the questions were asked which set forth the defense in this case, the defense which the Ninth Circuit recognized in this opinion.

One of the elements of illegal transportation of aliens is that a person has to have reasonable grounds knowing that the people came into the United States within the last three years.

The prosecutor answered that’s correct.

The Ninth Circuit recognized that that was the basis or conceivable benefit.

In other words, we showed both in the District Court and to the Ninth Circuit that these witnesses could have proffered evidence that would have been relevant to the defense.

What was that defense?

William H. Rehnquist:

Relevant, one where it would have helped the Government.

It would have helped you.

Eugene G. Iredale:

Yes, and because we didn’t have the witnesses, we’ll never be able to know for sure.

William H. Rehnquist:

Well, couldn’t the defendant himself have made some sort of an affidavit or proffer if in fact he hadn’t talked to any of the deported witnesses in the car?

Eugene G. Iredale:

Well, there are several reasons why that would not be, I would suggest, an appropriate procedure.

First of all is the fact that the — as a general matter, the defendant may not have himself knowledge of the relevant evidence that can be given by the witnesses.

William H. Rehnquist:

Well, but after that, I mean you’re now at the hearing stages, talked to his lawyer and presumably has a much better idea from his lawyer than he would have had on his own.

Eugene G. Iredale:

He has the Fifth Amendment right not to testify.

There’s no —

William H. Rehnquist:

Sure, he has other kinds of rights that if he doesn’t testify, he may not help himself.

Eugene G. Iredale:

I understand that, Your Honor.

But the point is I think that in the absence of some immunity in the Simmons context that the defendant could get up on the stand or submit an affidavit which could later be used — parts of which could later be used at the trial and the case in chief to convict him, and that would be an inappropriate showing.

William H. Rehnquist:

Well, presumably if he swears to something and says, “I didn’t talk to these witnesses while they’re in the car.”

The only need — the only theory you need to have is that the witnesses will actually come back and say, “Yes, he did talk to me a lot in the car.”

William H. Rehnquist:

And I don’t see that that’s unduly penalized, I mean, if he swears to something under oath.

Eugene G. Iredale:

Well, Your Honor, the Ninth Circuit and none of the other Circuits have ever made a requirement that the defendant himself make a showing.

The issue is —

William H. Rehnquist:

Well, we’re reviewing the Ninth Circuit here.

Eugene G. Iredale:

Yes, I understand.

I think the appropriate test would be not to require the defendant to come forth and make any showing but to allow his counsel by statement or by some indication as to the possible defense to show how these witnesses could have helped were they here, and that’s what was done in this case.

Sandra Day O’Connor:

Mister —

William H. Rehnquist:

All counsel could do is tell what the elements of the offense are.

He can’t say what the — the defendant will know much more about counsel as to the factual basis.

Eugene G. Iredale:

He may or may not depending on the facts of the case, Your Honor.

Sandra Day O’Connor:

Mr. Iredale, could the defendant not testify for purposes of the hearing only and preserve his right not to testify at trial and not have it used against him as much as we would have happen at other pretrial hearings?

Eugene G. Iredale:

Yes.

That’s my point, Justice O’Connor.

It’s not clear whether there would be a Simmons protection, in other words, whether that could not be used by the prosecutor.

Sandra Day O’Connor:

That has not been tested to your knowledge.

Eugene G. Iredale:

It has never been raised.

And so, because there was no such requirement in this case, counsel would have in effect been risking, allowing his client to get on the stand.

Sandra Day O’Connor:

But certainly, that would be one possibility, would it not?

Eugene G. Iredale:

As to the showing, as to the showing —

Sandra Day O’Connor:

For the showing of possible prejudice, wouldn’t that be a possibility?

Eugene G. Iredale:

I think it could be except that it would trench on the defendant’s Fifth Amendment right to remain silent.

I think the rule, which we have, is an appropriate one which is counsel must show given the facts and the law and the statute involved that these witnesses could conceivably because we’ll never know for sure what they would have had.

They could have given evidence that would have helped this case.

Now, let — let me just address this because the Government seems to say, “This defendant was so guilty, it doesn’t matter.”

Well, certainly, there was no question that he transported the persons, that one of them in fact was an alien and given all of the evidence in the light most favorable to the Government, possibly even that he knew of his illegal status.

But 8 U.S.C. 1324(a)(2), the statute employed in this case, requires that the defendant know that the alien had entered illegally within the last three years before the transportation.

Warren E. Burger:

What was the testimony of the one who went — and so did remain?

Eugene G. Iredale:

The testimony in that regard, Your Honor, was that he did not enter with Mr. Valenzuela; that he met Mr. Valenzuela at a house in Escondido, which is some 50 miles north of the border.

Warren E. Burger:

How could he — did he justify how long he had been in the country?

Eugene G. Iredale:

Yes.

Eugene G. Iredale:

The witness, Mr. Valenzuela, the indication was from his statement who had been in the country six years, the witness had been in the country between a day and a half and possibly as little as 12 hours when he arrived at the house in Escondido.

Warren E. Burger:

What did he testified to as to communicating that information to this respondent?

Eugene G. Iredale:

He denied any communication whatsoever, one way or the other.

And the point, of course, is that although he was the one witness that the Government chose to charge the other witnesses were apparently in his company, and it is conceivable that these witnesses would have said something to Mr. Valenzuela such as for instance, one saying to the other in his presence, “Do you remember when we were up in the Imperial Valley three years ago picking those grapes?”

Which would indicate to Valenzuela that albeit without illegal status, they had not in fact illegally entered the country within the last three years because as this Court recognizes, I think, in Brignoni-Ponce.

The Hispanic population of Southern California is large and in fact there are large numbers of people illegally there who have been there for many, many years.

Byron R. White:

What the — what was the defendant charged with, transporting whom?

Eugene G. Iredale:

He was charged with transporting Romero-Morales, the one witness who remained.

Byron R. White:

And so, whether he knew anything about Morales, Morales was available to testify?

Eugene G. Iredale:

That was my point, Justice White.

The point is that these witnesses apparently got in the car with Romero as a group.

And so, the relevant issue is not in fact what the case is but what Valenzuela’s state of mind is.

Byron R. White:

Let’s — let’s suppose that defendant knew what — about this particular witness.

Eugene G. Iredale:

Yes.

Byron R. White:

That he was not only an alien but that he hadn’t — that he had just been in the country for two days.

There’s no maps at the end of the case, I take it.

Eugene G. Iredale:

Correct.

Byron R. White:

No matter what the other witnesses might have said about them.

Eugene G. Iredale:

About their own particular status, that’s correct.

But the issue is the — the factual setting is such that anything — any one of the witnesses could have said to the other.Valenzuela could have perceived that they were there together, that they were friends, that they were in the same status and what was true as to one was true as to the other.

Byron R. White:

And the — the witness who was there said he didn’t say anything to the defendant?

Is that right?

Eugene G. Iredale:

Correct.

Yes, sir.

Byron R. White:

As to how long he had been there or —

Eugene G. Iredale:

Yes.

And as to that particular element of the offense, the Government’s proof was deficient.

Harry A. Blackmun:

Did he — did he saying anything —

Eugene G. Iredale:

He denies —

Harry A. Blackmun:

— that he quotes either the two who had been deported?

Eugene G. Iredale:

No, sir.

He did not.

Harry A. Blackmun:

Was he asked any questions about that?

Eugene G. Iredale:

I’m not sure.

I think the question that was put to him was, “Did you have any conversation with him?”

And the answer was no.

But, of course, in order to crosscheck to see if that was a correct statement —

Harry A. Blackmun:

Was there any question — well, did you — did the driver have any conversation with the two deported aliens?

Eugene G. Iredale:

I’m not sure if that question was put or not.

Byron R. White:

Well, how about on cross-examination of that witness?

Or he testified for the defendant?

Eugene G. Iredale:

We called him as a witness at the motion to dismiss.

Byron R. White:

Well, if you don’t want him to see — if you would have asked him that the other witnesses or the other aliens or whoever they were — however you might want to call them, did the other aliens have any conversations with the driver?

That he said — that he said yes, you would — you might have —

Eugene G. Iredale:

Yes, what was that conversation?

Byron R. White:

Then you could have said, “Well, what was the conversation?”

Eugene G. Iredale:

Yes, but the — the point is that —

Byron R. White:

So you didn’t — you didn’t even take this opportunity to demonstrate that there might have been some help from the testimony of these other witnesses?

Eugene G. Iredale:

Well, the —

Byron R. White:

Because if he would have said, “No, they didn’t say a word to the driver,” you might — there isn’t much use those witnesses would have been to —

Eugene G. Iredale:

Well, they could have — they could have been of help in another way.

For instance, if in fact these witnesses — Romero-Morales was not necessarily telling the truth, one or more of those witnesses could have been in the United States, could have been involved in smuggling Romero or could have in fact been legally within the United States.

We don’t know absent talking to those witnesses.

Byron R. White:

Well, I know, but the question is about Romero, and not them.

Eugene G. Iredale:

It’s the question is whether those witnesses could help with respect to the charge —

Harry A. Blackmun:

Well, I gather what you said earlier, Mr. Iredale, was that one of them might have said in the hearing in presence of the driver and this (Inaudible), might have said — up in the great country three years ago and even though he denied that they had said anything, they might have come and testified that they did indeed say something.

And that’s what was said, and your point is that this would have a bearing on the knowledge of the defendant.

Eugene G. Iredale:

Absolutely.

Byron R. White:

But they would have had to be saying something about Romero, not about them.

Eugene G. Iredale:

Or something that the defendant could have inferred related to Romero —

Byron R. White:

That’s what I was saying.

Eugene G. Iredale:

— or to the group of them because —

Thurgood Marshall:

If he had said — he had said any of those things to the respondent in this case, the respondent could have told his lawyer and his lawyer could have made a proffer that this witness would say — that I talked about up in the great country.

And that’s not here.

So what inference do you draw from that?

Eugene G. Iredale:

Given the rule of law, as it exists and the fact that any such requirement may well trench on the defendant’s Fifth Amendment right to remain silent, I would submit that —

Thurgood Marshall:

This is not the defendant testifying.

This is the lawyer testifying.

Eugene G. Iredale:

A proffer through counsel when such a proffer was made.

The proffer was made that these witnesses —

Thurgood Marshall:

The proffer was made about picking the grapes?

Eugene G. Iredale:

No, no.

The proffer —

Thurgood Marshall:

I’m talking about something specific that you’re not talking about.

Eugene G. Iredale:

No.

The issue was raised —

Thurgood Marshall:

If — if these witnesses had said anything in that car that would have helped him, he could have told the lawyer and the lawyer could have made a proffer.

That’s it, isn’t it?

Eugene G. Iredale:

Well, Your Honor, assuming that Valenzuela remembered accurately what happened, and assuming that he trusted his lawyer —

Thurgood Marshall:

Well, I would assume that if a man’s on the trial for his liberty, remembers, and if he doesn’t remember, God help him.

Eugene G. Iredale:

And if the witnesses aren’t there to help him, God help him.

Thurgood Marshall:

No, but I mean, what are these witnesses going to testify to?

As of right now, what are they going to — tell me, what are they going to testify to?

Eugene G. Iredale:

That’s the problem.

I can’t tell you, Justice Marshall, what they would have testified to because they weren’t there.

Thurgood Marshall:

What did your client tell you?

Eugene G. Iredale:

I wasn’t the lawyer in the court below.

Thurgood Marshall:

Well, what did the client tell his lawyer?

Eugene G. Iredale:

I don’t know, Justice Marshall.

Thurgood Marshall:

So how can we do any business?

Thurgood Marshall:

Nobody knows anything around that.

Eugene G. Iredale:

Because the witnesses aren’t there.

All the Government would have had to have done would have been to hold them for a reasonable period of time.

Thurgood Marshall:

All you did was write to these two Mexicans letters in English.

How do you know if they can read it?

Eugene G. Iredale:

They were translated in Spanish, Justice Marshall, and the Spanish was sent to them.

Thurgood Marshall:

Spanish?

Eugene G. Iredale:

Yes.

And both letters came back, marked “No está aquí,” This person is not here.

We couldn’t subpoena the witnesses.

Thurgood Marshall:

Do you think that discharged all your responsibility?

John Paul Stevens:

I must confess that I still find some difficulty in understanding what their testimony could have done to help the particular case even if they had said they had been in the great vineyards four years ago.

There’s no presumption they’ve been in the United States continuously since then.

Eugene G. Iredale:

No —

Potter Stewart:

And they took off, there was flight here.

The route was such that it tended to corroborate the Government’s case.

There are a lot of physical facts.

Eugene G. Iredale:

I agree, but the issue is not what in the light most favorable to the Government, the evidence would —

Potter Stewart:

Well, I think that in the light most favorable to the defendant, I don’t really know what these other passengers could have done.

Eugene G. Iredale:

Well it —

Potter Stewart:

It would have belied the testimony of the one man who was admittedly just had entered the day before.

Eugene G. Iredale:

Well, what Valenzuela could have argued through his counsel to a jury is, sure, he knew they were illegally here, he knew he was illegally here, but there was no basis for him knowing.

Potter Stewart:

That he’s been hiding in this place for four years, is that the idea?

I mean if the whole circumstances certainly are not consistent with over three years before they suddenly chased him via the checkpoint.

Eugene G. Iredale:

Well, many of the people who are illegally in California go from Southern California where they work up to the North and they have to get through the checkpoint.

And then, they come back down South and work in the South and then they go back up North without necessarily entering back into Mexico.

And he could have inferred that or believed that that was the situation here; even though admittedly, he knew they were without status, he could have inferred they were coming not from Mexico but from the Imperial Valley up to the Central Valley to pick crops there.

Warren E. Burger:

Mr. Iredale, suppose the respondents here had been driving on the van with 30 aliens and 29 of them are released and there is evidence to support a conclusion — a reasonable conclusion by a jury that one of them was knowingly transported.

Does it make any difference that 29 of them have disappeared?

Eugene G. Iredale:

I would say it would depend on the facts of the particular case.

Warren E. Burger:

Well, let me read you his testimony when they asked him why he fled at the checkpoint.

“Why didn’t you stop?”

His answer was, “Well, I did stop but since I was bringing in the people, I already knew that I had — it was too late, it was done.”

What do you make of that testimony?

Eugene G. Iredale:

That he — it could be argued first of all that he had some knowledge of their illegal status in the United States.

Warren E. Burger:

You say it could be argued.

Eugene G. Iredale:

But was argued —

Warren E. Burger:

No.

Eugene G. Iredale:

— by the Government.

Warren E. Burger:

And could a reasonable jury conclude —

Eugene G. Iredale:

That they were illegal — that he knew they were illegally in the United States?

Yes.

Warren E. Burger:

No, no.

Byron R. White:

But that doesn’t — that would not —

Eugene G. Iredale:

But that didn’t go to the three-year element.

Byron R. White:

Well, even if — if you lose this case, I take it the conviction still would have to be reviewed in the Ninth Circuit.

Eugene G. Iredale:

No, Your Honor.

Byron R. White:

Why?

William H. Rehnquist:

There was no trial.

Eugene G. Iredale:

No, he was convicted in the court below.

Byron R. White:

Yes, exactly.

Eugene G. Iredale:

He was convicted in the court below, the Ninth Circuit reversed the conviction in this Court —

Warren E. Burger:

What do you mean?

But they reversed the conviction on the ground that — that you want to argue.

Eugene G. Iredale:

That’s correct.

Byron R. White:

But if we set that aside, I take it your appeal would be reinstated in the — in the Court of Appeals.

They would still have to review the evidence.

Eugene G. Iredale:

There was no issue raised as to that.

The only issue —

Byron R. White:

(Voice Overlap) But you’re telling us it was the Government’s proof that’s absolutely deficient on — on the knowledge with respect to the three years.

Eugene G. Iredale:

That was not argued in the Court of Appeals.

We relied on Mendez-Rodriguez solely.

Warren E. Burger:

Well, which again — let me come back to what do you — what’s your version of what he meant when he said, “I already knew that I had had it”?

What do you think he meant?

Eugene G. Iredale:

He knew he was going to be arrested.

He knew there were people illegally in the country who were in his car.

Warren E. Burger:

In his car.

Eugene G. Iredale:

But, he supposed —

Warren E. Burger:

Doesn’t that go to his knowledge that this were at least —

Eugene G. Iredale:

Yes.

Warren E. Burger:

— at least one illegal alien?

Eugene G. Iredale:

But the statute has two mandatory of requirements.

One is that he knows they are illegaly here.

The second is that he knows they entered within three years, and I think that statement goes to the first.

The Government can argue it goes to the second, but that’s the issue in dispute in the case.

Warren E. Burger:

But then, as Justice White has asked you, why isn’t that open for a review when the Ninth Circuit never reached that issue, it never considered it?

Eugene G. Iredale:

It — it was never raised because we felt the Mendez-Rodriguez issue was absolutely all in our favor and we wanted to raise that issue only.

John Paul Stevens:

Do you think you’re foreclosed on a remand if you lose this case?

Eugene G. Iredale:

I would hope not.

I would hope we would not lose the case given the fact that we feel that the procedure here followed by the Government was completely unreasonable, especially in light of the practices in the Southern District of California.

This would testify two in the record.

Now, I’d like to explain it because I have a very reasonable effort to balance all of the interests of all of the parties.

When the defendant is arrested and charged with an offense involving felony illegal alien smuggling, he’s bought in to Court, almost always within 24 hours of the arrest.

At the rule five arraignment counsel is appointed for him, counsel is also at that time appointed for the witnesses.

A date is set for preliminary examination which is nearly always within 10 days of the date of the initial appearance in Court.

And Mr. Justice Stevens, there’s nothing magical about the 10-day figure and it’s not common law.

The reason why it’s 10 days is because the Government wants 10 days to be able to indict the case.

Defense Counsel Franklin could conduct his investigation in much less time.

It is the practice in the Southern District of California that the Government provides discovery, the reports to defense counsel on an informal basis and the witnesses are all interviewed before that initial appearance.

And at that appearance, after the interview of the witnesses has taken place, counsel appears with the defendant, the Government is required at that time to make a showing as to which witnesses they want.

Eugene G. Iredale:

Defense counsel is required to make a showing as to which if any witnesses he wants.

In one magistrate’s code, it must be done by an affidavit under oath —

John Paul Stevens:

Well, what kind of a showing must he make?

What if he says, for example, all of these people were in the vehicle and I’d like to hold them all because they might conceivably benefit the defense?

Is that enough?

Eugene G. Iredale:

That’s — that’s insufficient.

You see, the standard of conceivable benefit does not apply at these hearings because —

John Paul Stevens:

Well, what is the standard of that hearing then?

Eugene G. Iredale:

The standard — the defendant must be able to show that the witness could offer relevant, material and exculpatory evidence that would not otherwise be obtainable from the witnesses that the Government is keeping.

In other words, counsel is held at that hearing to a very specific standard.

The reason is he has been able to interview these witnesses.

John Paul Stevens:

And does he say at that hearing what the exculpatory evidence would be?

Eugene G. Iredale:

Yes, Your Honor.

He’s required to because absence such a showing, the magistrate will order the discharge of the witness immediately.

And as a matter of fact, at this hearing probably 50% to 60% of the witnesses are discharged.In every case, the Government keeps material witnesses in custody.

Even if this Court were to adhere to the Government’s position, the number of material witnesses to retain in the Southern District of California would not decrease.

William H. Rehnquist:

What if the — what if the defendant objects to an action of the magistrate in discharging a particular witness or group of witnesses, I take it he can preserve that point and object at trial and conceivably either have the indictment thrown out or the Court of Appeals reverses it.

Eugene G. Iredale:

Justice Rehnquist, that’s correct.

In other words, a verbatim record is kept of the magistrate’s proceedings.

And defense makes his proffer, the Government may oppose it, the magistrates rule, and then it would be presented to the District Court for his resolution of the issue.

But the point is at this material witness hearing, the defense can properly be held to that high standard that they are held to.

We’re not allowed to come in and say, “Oh, well, maybe he could help.

We don’t know exactly.”

Because we’ve had the chance to interview, the defense is required at that hearing to show specifically.

William H. Rehnquist:

But there’s nothing final about the magistrate’s decision either, I take it, the defendant there can pursue the question into the District Court or the Court of Appeals, if he wanted.

Eugene G. Iredale:

That’s absolutely correct, but the witnesses ordered release at that time, if the magistrates still hold —

Byron R. White:

Can I — Can I ask you?

Suppose a day after arrest, the witnesses are all available and the defense counsel interviews them, he’s been appointed and he interviews them.

And then the 10 days go by and at the hearing, it turns out that the Government, two days after the arrest had deported all but — all but the witnesses they wanted to retain.

And then, the defense counsel says, “Well, I want those witnesses that were deported.”

Byron R. White:

What would the judge say to him then?

Wouldn’t he make you show —

Eugene G. Iredale:

That’s exactly right, and that would properly be held.

In other words, Mr. Justice White, if I understand correctly, what you’re saying is, given the interview, then the defense would have to make a specific particularized definite concrete exculpatory showing.

Byron R. White:

So if the Government — if the Government made the witnesses available to a defense counsel even for a day and if he actually interviewed them, the Government — if it was confident enough — could just deport them if he — if he — they were sure you couldn’t make the showing.

Eugene G. Iredale:

Let me just say I hesitated the formulation of a day because depending on the facts of the case, a reasonable time might be necessary.

You might need to see, for instance, in order to interview intelligently, you need to know what the Government is going to charge.

Byron R. White:

All right.

I’ll — I’ll just say it — I’ll say, okay, a reasonable time.

Eugene G. Iredale:

A reasonable time, given the reasonable time and adequate opportunity to know what the Government is going to charge.

Byron R. White:

Actually, my example was that you actually had interviewed.

Eugene G. Iredale:

Yes.

Byron R. White:

If you had actually interviewed and then the Government took the risk of deporting them, you would have to then make the showing that you — district showing at the hearing.

Eugene G. Iredale:

Assuming a reasonable opportunity for investigation —

Byron R. White:

Well, I said actually you do.

Eugene G. Iredale:

Absolutely.

That would — then it would be appropriate, because then you would be in a position to say —

Byron R. White:

All right, you hadn’t interviewed but you had had a reasonable time to interview.

Eugene G. Iredale:

Yes.

Byron R. White:

Suppose you hadn’t interviewed but you had had a reasonable time to do so and had neglected it.

Eugene G. Iredale:

Then it’s waiver.

Warren E. Burger:

You suggested that there’s no reason why the Government should keep all these witnesses in the country.

Now, it’s not unusual that there would be 29 or 30 in one batch.

We’ve seen such cases.

Now, I’ll go back to my hypothetical.

Thirty of them stashed around a van, concealed and — are you suggesting that all 30 of these people have got to be retained in the country to prove that the driver knowingly brought them over?

Eugene G. Iredale:

Either — for a brief period of time, yes.For a reasonable period of time, three, four, five days.

Warren E. Burger:

All 30 of them?

Eugene G. Iredale:

Yes.

For a reasonable period of time and only to allow an interview.

Eugene G. Iredale:

It could be a summary.

Warren E. Burger:

Then what you’re suggesting is it isn’t enough if the Government sustains the burden of proof and assumes — it sustains the reasonable burden of proof that one of them was there illegally.

Eugene G. Iredale:

In Washington versus Texas, this Court hold — held that the Government violates compulsory process when it makes unavailable to the defense or prevents from testifying a witness who is an eye witness to an event and who is physically and mentally able to testify about events which he personally witnessed which are relevant to the defense.

Warren E. Burger:

But the only issue is the — the — the knowing aspect, isn’t it?

So, there’s nothing to witness in the traditional sense of seeing, is there?

Eugene G. Iredale:

Mr. Justice Burger, this case isn’t a typical case.

The Government chose this case as its so called “test case” so they chose the facts they felt would be most favorable to them.

In most of these cases, the issue is not knowledge but in many cases, alibi, mistaken identity, and in fact, who is doing what with whom and to whom.

John Paul Stevens:

It would have been a better case if Morales or whatever his name was when he was put on the stand had said, “Yes, I told the defendant that I had been — that I was an illegal alien and that I had been here for only two days.”

Eugene G. Iredale:

From the Government’s point of view, it would have been a very good case.

John Paul Stevens:

But suppose he had to testify that way, would you be here then?

Eugene G. Iredale:

Yes, because those other witnesses could have testified that Morales —

John Paul Stevens:

That Morales really didn’t know what he was talking about.

Eugene G. Iredale:

No, that he was lying.

That Morales was the man who was — who was the smuggler, which is what happens sometimes in these cases.

It’s hard to tell the smuggler sometimes from the witnesses, which is why counsel is appointed for them.

The point, I think, is that the Government cannot accurately or fairly determine —

John Paul Stevens:

Because he might — he might be lying because he’s getting a break from the Government.

Eugene G. Iredale:

All of these witnesses are subject to prosecution, and all of them are interviewed initially by the Border Patrol.

I thank the Court.

Warren E. Burger:

Do you have anything further, Mr. Phillips?

Carter G. Phillips:

Just a few remarks, Mr. Chief Justice.

Initially, I’ve point out from the record that Romero-Morales was asked whether he had heard any testimony or any statements made to the driver by any of the illegal aliens who had been deported.

That’s on page 44, the joint appendix as to —

Harry A. Blackmun:

How did he answer?

Carter G. Phillips:

No, both in terms of the car and then at the house prior to —

John Paul Stevens:

But you didn’t hear him.

Did that mean that there weren’t any?

Carter G. Phillips:

Did — he just said he didn’t hear any statements made, but he was in their presence and if you’re inside a car and they were together in the same room of the house —

Warren E. Burger:

You said that was page 44?

Carter G. Phillips:

Yes, Your Honor, at the bottom.

With regard to the reasonableness of the practice in the Southern District to California, it sounds good when you talk about individualized cases and the step-by-step determination.

But it seems to me that the aggregate effect of the rule in the Southern District of California is best demonstrated by the statistics.

Five thousand illegal aliens held in custody in order for 36 trials, and we don’t even know of those 36 trials, how many if any illegal aliens ever testified on behalf of a defendant.

Potter Stewart:

On that point, Mr. Phillips, that — that page 30 of the read brief, they give some figures about the number of cases and they say there were only 11 Mendez-Rodriguez motions filed in a total of 239 cases and only one motion was granted.

Is that — is that accurate?

Carter G. Phillips:

We — we did not independently evaluate that; although, we wouldn’t be terribly surprised if there aren’t a lot of Mendez-Rodriguez cases in light of the fact that the Government’s practice is typically to detain all illegal aliens and/or to dismiss the charges.

So you wouldn’t expect there’d be very many cases.

It doesn’t come up because we assume —

Potter Stewart:

I’m assuming this case is an atypical case then.

The Government deviated from its normal practice.

Carter G. Phillips:

In this case, the Government tested the theory of how much prejudice has to be demonstrated.

Yes, Your Honor.

Potter Stewart:

I see.

Carter G. Phillips:

With regard to a couple of points made —

Potter Stewart:

May I ask one other question?

The 5000 that have been detained, for how long?

Carter G. Phillips:

Well, it varies from one day to 120 days, Your Honor.

Potter Stewart:

But do we don’t — we don’t have any notion of what the average period is?

Carter G. Phillips:

Well, the average according to the marshall is something in excess of five days per person.

Sandra Day O’Connor:

I — I believe counsel that counsel for the respondent indicated that even if the Government won this decision, it wouldn’t alter the number of witnesses retained.

Carter G. Phillips:

Yes, I don’t know where — I don’t understand how the respondent can make that claim.

It seems to me inconceivable in light of cases like (Inaudible) where the Government has to detain 39 material witnesses for an excess of two weeks because of a decision and expressly on those facts by the Ninth Circuit.

How could it be that if the Government altered its position, a number of illegal aliens wouldn’t be reduced?

Sandra Day O’Connor:

How about the suggestion that the witnesses be retained for simply long enough to let defense counsel interview them and then let the Government deport at its peril?

Carter G. Phillips:

I mean, that sounds good in theory, Your Honor, but the reality is that we simply can’t get defense counsel there and ready to go contrary to what respondents suggest.

Sandra Day O’Connor:

Well, but if an opportunity were provided and they didn’t take advantage of it, I suppose that’s too bad.

Carter G. Phillips:

That may, well — yes, Your Honor.

I think that’s probably true although we don’t — I mean, you have to set specific deadlines and the Ninth Circuit at this point has been disinclined to say anything less than 10 days.

Sandra Day O’Connor:

All right, but let’s suppose there are.

Sandra Day O’Connor:

I mean what’s the matter with that then, with the shorter time and then yat point, Mr. Phillips, that — that page 30 of the read brief, they give some figures about the number of cases and they say there were only 11 Mendez-Rodriguez motions filed in a total oou could deport at your peril, I suppose?

Carter G. Phillips:

Well, if — if we thought it would work and then we could in fact deport at our peril and given them two days, I just think we’re going to have trouble if that — having that enforced in the Ninth Circuit.

John Paul Stevens:

Well, you’re certainly acting at your peril now.

You don’t say that you can just — well, I guess you do.

Your submission really is that if you — once you interview them and that Government makes a decision that they would have no exculpatory evidence that you can deport them and — and as long as you act in good faith, that’s the end of the matter, no matter what the showing is on the other side.

Carter G. Phillips:

Ultimately that’s —

John Paul Stevens:

That’s your first submission.

Carter G. Phillips:

Yes, Your Honor.

I mean, we then have to make that kind of a determination with regard to each of the one million illegal aliens who are captured.

John Paul Stevens:

Have you ever had the Court agree with you on that, that first position?

Carter G. Phillips:

Yes.

John Paul Stevens:

Who?

Carter G. Phillips:

The Ninth Circuit holds that if we make a determination, that there is no connection in — in time or space between the illegal alien and a criminal defendant, then we can —

John Paul Stevens:

No one has ever — you say on the facts of this case, if you make a good faith judgment that even though they were present on the spot, that they would have no evidence, that’s the end of the matter no matter what kind of a showing the other side is.

Carter G. Phillips:

Sure, what we’re suggesting though is that there is not a demonstrable difference — yes, that is our submission but that’s not demonstrably different from the judgment —

John Paul Stevens:

Suppose we rejected that, what’s your next fallback?

Carter G. Phillips:

Is that — is that respondent under any circumstances must demonstrate with some concreteness the materiality of the witnesses that were lost which they cannot do in this case.

John Paul Stevens:

And — and is — is that rule extended in any circuit that you know of?

Carter G. Phillips:

Yes, Your Honor.

I believe the Fifth Circuit adapts a rule very much like that.

John Paul Stevens:

Do you think that’s the rule the Fifth Circuit adapts?

Carter G. Phillips:

I think so, Your Honor, because in the Avila-Dominguez case, those — those witnesses were witnesses to the crime at the time they were arrested and the Court held that they could be — that they could be sent away.

John Paul Stevens:

So you — so, if you would be acting at your peril in deporting witnesses under the Fifth Circuit rule?

Carter G. Phillips:

Certainly, to the extent there is a review, but — I mean we don’t — we don’t, you know wither from the notion that there’ll be judicial review of our determination.

I think we’ll be right.

John Paul Stevens:

Do you regularly take that risk in the Fifth Circuit now, or do you hold everybody?

Carter G. Phillips:

No, we regularly take that risk, Your Honor.

John Paul Stevens:

In the — under the Fifth Circuit rule?

Carter G. Phillips:

Yes, once we make an evaluation and if we think there is no material exculpatory evidence, we will deport.

The — we won’t keep more than several.

John Paul Stevens:

Because the rule is not that different from the Ninth Circuit rule, you don’t think it’s so strict that you can’t take that risk.

Carter G. Phillips:

Well, I mean, it’s not my decision to take that risk but the —

John Paul Stevens:

Well, it’s somebody’s decision.

Carter G. Phillips:

That’s true, the Border Patrol agents and the Fifth Circuit have on occasion released illegal aliens especially in circumstances such like the (Inaudible) position — situation where you have a large number of illegal aliens all of whom seem to say the same thing.

We don’t detain all 39 of them in the Fifth Circuit, Your Honor.

John Paul Stevens:

My question — my question really is that if you are — if you don’t — if we do not agree with your first submission, would the Government regularly — and I suppose you had to operate under the Fifth Circuit rule — would the Government regularly release a lot of witnesses that it would not release under the Ninth Circuit rule?

Carter G. Phillips:

Well then, there would certainly be some instances where there is clear inculpatory statements made by the — by the defendant at the time of his arrest and where all other statements that are sworn by the illegal aliens are cumulative, we will almost assuredly release some illegal aliens.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in —