United States v. Valenzuela-Bernal Page 11

United States v. Valenzuela-Bernal general information

Media for United States v. Valenzuela-Bernal

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

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.