Respondent was indicted in Federal District Court for
transporting one Romero-Morales in violation of 8 U.S.C. §
1324(a)(2), which prohibits the knowing transportation of an alien
illegally in the United States who last entered the country within
three years prior to the date of the transportation. Two other
illegal aliens -- who, with Romero-Morales, were passengers in the
car being driven by respondent and were apprehended with respondent
-- were deported after an Assistant United States Attorney
concluded that they possessed no evidence material to respondent's
prosecution. Romero-Morales was detained to provide a nonhearsay
basis for establishing that respondent had violated § 1324(a)(2).
The District Court denied respondent's motion to dismiss the
indictment on the asserted ground that the deportation of the other
passengers deprived him of the opportunity to interview them to
determine whether they could aid in his defense, and thus violated
his Fifth Amendment right to due process and his Sixth Amendment
right to compulsory process for obtaining witnesses. Following a
bench trial, respondent was convicted, but the Court of Appeals
reversed, holding that, although a constitutional violation occurs
only when "the alien's testimony could conceivably benefit the
defendant," the "conceivable benefit" test was satisfied -- without
requiring the defendant to explain what beneficial evidence would
have been provided by the alien -- whenever, as here, the deported
alien was an eyewitness to the crime.
Held: Respondent failed to establish a violation of the
Fifth or Sixth Amendment. Pp.
458 U. S.
863-874.
(a) In cases like this, the Executive Branch's responsibility
faithfully to execute Congress' immigration policy of prompt
deportation of illegal aliens justifies deportation of illegal
alien witnesses upon the Executive's good faith determination that
they possess no evidence favorable to the defendant in a criminal
prosecution. In addition to satisfying such policy, the prompt
deportation of such witnesses is justified by practical
considerations, including the financial and physical burdens
imposed upon the Government in detaining alien eyewitnesses. Pp.
458 U. S.
863-866.
(b) Respondent cannot establish a violation of the Sixth
Amendment, which guarantees a criminal defendant the right to
compulsory process
Page 458 U. S. 859
for obtaining witnesses "in his favor," merely by showing that
deportation of the aliens deprived him of their testimony. He must
at least make some plausible showing of how their testimony would
have been both material and favorable to his defense.
Cf.
Washington v. Texas, 388 U. S. 14. While
a relaxation of the specificity required in showing materiality may
be supported by the fact that, because the witnesses were deported,
neither respondent nor his attorney had an opportunity to interview
the witnesses to determine what favorable information they
possessed, this does not afford a basis for wholly dispensing with
a showing of materiality.
Cf. Roviaro v. United States,
353 U. S. 53.
Moreover, respondent was present throughout the commission of the
crime, and no one knew better than he what the deported witnesses
said in his presence that might bear upon whether he knew that
Romero-Morales was an illegal alien who had entered the country
within the past three years. Pp.
458 U. S.
867-871.
(c) At least the same materiality requirement obtains with
respect to a due process claim. In order to establish a denial of
due process, the acts complained of must be of such quality as
necessarily prevents a fair trial. Such an absence of fairness is
not made out by the Government's deportation of the witnesses here
unless there is some explanation of how their testimony would have
been favorable and material. P.
458 U. S.
872.
(d) Sanctions against the Government are warranted for
deportation of alien witnesses only if there is a reasonable
likelihood that the testimony could have affected the judgment of
the trier of fact. In this case, respondent made no effort to
explain what material, favorable evidence the deported aliens would
have provided for his defense. Pp.
458 U. S.
872-974.
647 F.2d 72, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and STEVENS, JJ., joined.
BLACKMUN, J.,
post, p.
458 U. S. 874,
and O'CONNOR, J.,
post, p.
458 U. S. 875,
filed opinions concurring in the judgment. BRENNAN, J., filed a
dissenting opinion, in which MARSHALL, J., joined,
post,
p.
458 U. S.
879.
Page 458 U. S. 860
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent, a citizen of Mexico, was indicted in the United
States District Court for the Southern District of California for
transporting one Romero-Morales in violation of 8 U.S.C. §
1324(a)(2). That section generally prohibits the knowing
transportation of an alien illegally in the United States who last
entered the country within three years prior to the date of the
transportation. [
Footnote 1]
Respondent was found guilty after a bench trial, but his conviction
was overturned by the United States Court of Appeals for the Ninth
Circuit. That court held that the action of the Government in
deporting two aliens other than Romero-Morales violated
respondent's right under the Sixth Amendment to the United States
Constitution to compulsory process, and his right under the Fifth
Amendment to due process of law. We granted certiorari in order to
review the Court of Appeals' application of these constitutional
provisions to this case, 454 U.S. 963 (1981), [
Footnote 2] and we now reverse.
I
Respondent entered the United States illegally on March 23,
1980, and was taken by smugglers to a house in Escondido, Cal. Six
days later, in exchange for his not having to pay the smugglers for
bringing him across the border, respondent agreed to drive himself
and five other passengers to Los Angeles. When the car which
respondent was driving
Page 458 U. S. 861
approached the Border Patrol checkpoint at Temecula, agents
noticed the five passengers lying down inside the car and motioned
to respondent to stop. Respondent accelerated through the
checkpoint and was chased at high speed for approximately one mile
before stopping the car and fleeing on foot along with the five
passengers. Three of the passengers and respondent were apprehended
by the Border Patrol agents.
Following their arrest, respondent and the other passengers were
interviewed by criminal investigators. Respondent admitted his
illegal entry into the country and explained his reason for not
stopping at the checkpoint: "I was bringing the people [and] I
already knew I had had it -- too late -- it was done." App. 27. The
three passengers also admitted that they were illegally in the
country, and each identified respondent as the driver of the car.
Id. at 66. An Assistant United States Attorney concluded
that the passengers possessed no evidence material to the
prosecution or defense of respondent for transporting illegal
aliens, and two of the passengers were deported to Mexico. The
third, Enrique Romero-Morales, was detained to provide a nonhearsay
basis for establishing that respondent had transported an illegal
alien in violation of 8 U.S.C. § 1324(a)(2).
Respondent moved in the District Court to dismiss the
indictment, claiming that the Government's deportation of the two
passengers other than Romero-Morales violated his Fifth Amendment
right to due process of law and his Sixth Amendment right to
compulsory process for obtaining favorable witnesses. He claimed
that the deportation had deprived him of the opportunity to
interview the two remaining passengers to determine whether they
could aid in his defense. Although he had been in their presence
throughout the allegedly criminal activity, respondent made no
attempt to explain how the deported passengers could assist him in
proving that he did not know that Romero-Morales was an illegal
alien who had last entered the United States within the preceding
three years.
Page 458 U. S. 862
At least one evidentiary hearing was held on respondent's
motion, at which Romero-Morales testified that he had not spoken to
respondent during the entire time that they were together. At the
same hearing, the Government offered, without obtaining agreement
by respondent, to stipulate that none of the passengers in the car
told respondent that they were in the United States illegally. The
District Court denied respondent's motion and, following a bench
trial on stipulated evidence, found respondent guilty as charged.
[
Footnote 3]
The Court of Appeals reversed the conviction. The court relied
upon the rule, first stated in
United States v.
Mendez-Rodriguez, 450 F.2d 1 (CA9 1971), that the Government
violates the Fifth and Sixth Amendments when it deports alien
witnesses before defense counsel has an opportunity to interview
them. 647 F.2d 72, 775 (1981). Although it stated that a
constitutional violation occurs only when "the alien's testimony
could conceivably benefit the defendant,"
id. at 74, the
court's application of the "conceivable benefit" test demonstrated
that the test will be satisfied whenever the deported aliens were
eyewitnesses to the crime. [
Footnote 4] Respondent's
Page 458 U. S. 863
failure to explain what beneficial evidence would have been
provided by the two passengers was thus inapposite, for
"the deported aliens were eyewitnesses to, and active
participants in, the crime charged, thus establishing a strong
possibility that they could have provided material and relevant
information concerning the events constituting the crime."
Id. at 75. Accordingly, the Court of Appeals held that
respondent's motion to dismiss the indictment should have been
granted by the District Court.
II
We think that the decision of the Court of Appeals in this case,
and some of the additional arguments made in support of it by
respondent, misapprehend the varied nature of the duties assigned
to the Executive Branch by Congress. The Constitution imposes on
the President the duty to "take Care that the Laws be faithfully
executed." U.S.Const., Art. II, § 3. One of the duties of the
Executive Branch, and a vitally important one, is that of
apprehending and obtaining the conviction of those who have
violated criminal statutes of the United States. The prosecution of
respondent is, of course, one example of the Executive's effort to
discharge that responsibility.
Page 458 U. S. 864
But the Government is charged with a dual responsibility when
confronted with incidents such as that which resulted in the
apprehension of respondent. One or more of the persons in the car
may have violated the criminal laws enacted by Congress; but some
or all of the persons in the car may also be subject to deportation
as provided by Congress. The Government may, therefore, find itself
confronted with the obligation of prosecuting persons in the
position of respondent on criminal charges, and at the same time
obligated to deport other persons involved in the event in order to
carry out the immigration policies that Congress has enacted.
The power to regulate immigration -- an attribute of sovereignty
essential to the preservation of any nation -- has been entrusted
by the Constitution to the political branches of the Federal
Government.
See Mathews v. Diaz, 426 U. S.
67,
426 U. S. 81
(1976). "The Court without exception has sustained Congress'
plenary power to make rules for the admission of aliens.'"
Kleindienst v. Mandel, 408 U. S. 753,
408 U. S. 766
(1972) (quoting Boutilier v. INS, 387 U.
S. 118, 387 U. S. 123
(1967)). In exercising this power, Congress has adopted a policy of
apprehending illegal aliens at or near the border and deporting
them promptly. Border Patrol agents are authorized by statute to
make warrantless arrests of aliens suspected of "attempting to
enter the United States in violation of . . . law," 8 U.S.C. §
1357(a)(2), and are directed to examine them without "unnecessary
delay" to determine whether "there is prima facie evidence
establishing" their attempted illegal entry. 8 CFR § 287.3 (1982).
Aliens against whom such evidence exists may be granted immediate
voluntary departure from the country. See 8 U.S.C. §
1252(b); 8 CFR § 242.5(a)(2)(i) (1982). Thus, Congress has
determined that prompt deportation, such as occurred in this case,
constitutes the most effective method for curbing the enormous flow
of illegal aliens across our southern border. [Footnote 5]
Page 458 U. S. 865
In addition to satisfying immigration policy, the prompt
deportation of alien witnesses who are determined by the Government
to possess no material evidence relevant to a criminal trial is
justified by several practical considerations. During fiscal year
1979, almost one-half of the more than 11,000 inmates incarcerated
in federal facilities in the Southern District of California were
material witnesses who had neither been charged with nor convicted
of a criminal offense. App. 18. The average period of detention for
such witnesses exceeded 5 days, and many were detained for more
than 20 days.
Id. at 20. The resulting overcrowded
conditions forced the Government to house many detainees in federal
facilities located outside the Southern District of California or
in state-operated jails.
Id. at 21-22; Brief for United
States 19. Thus, the detention of alien eyewitnesses imposes
substantial financial and physical burdens upon the Government, not
to mention the human cost to potential witnesses who are
incarcerated though charged with no crime. In addition, the rule
adopted by the Court of Appeals significantly constrains the
Government's prosecutorial discretion. As explained by the United
States:
"Because of budget limitations and the unavailability of
adequate detention facilities, it is simply impossible, as a
practical matter, to prosecute many cases involving the
transportation or harboring of large numbers of illegal aliens,
where all the aliens must be incarcerated for a substantial period
of time to avoid dismissal of the charges, even though the
prosecution's case may be overwhelming. As a consequence, many
valid and appropriate prosecutions are foregone."
Id. at 21-22.
It simply will not do, therefore, to minimize the Government's
dilemma in cases like this with statements such as
"[t]he prosecution may not deny access to a witness by
hiding
Page 458 U. S. 866
him out.
See Freeman v. State of Georgia, 599 F.2d 65
(5th Cir.1979) (police detective concealed location of
witness)."
Brief for Respondent 35. Congress' immigration policy and the
practical considerations discussed above demonstrate that the
Government had good reason to deport respondent's passengers once
it concluded that they possessed no evidence relevant to the
prosecution or the defense of respondent's criminal charge. No
onus, in the sense of "hiding out" or "concealing" witnesses,
attached to the Government by reason of its discharge of the
obligations imposed upon it by Congress; its exercise of these
manifold responsibilities is not to be judged by standards which
might be appropriate if the Government's only responsibility were
to prosecute criminal offenses.
III
Viewing the Government's conduct in this light, we turn to the
evaluation of the Court of Appeals' "conceivable benefit" test.
There seems to us to be little doubt that this test is a virtual
"
per se" rule which requires little, if any, showing on
the part of the accused defendant that the testimony of the absent
witness would have been either favorable or material. As we said
with respect to a similar test -- phrased in terms of information
"that might affect the jury's verdict" -- for determining when a
prosecutor must disclose information to a criminal defendant:
"If everything that might influence a jury must be disclosed,
the only way a prosecutor could discharge his constitutional duty
would be to allow complete discovery of his files as a matter of
routine practice."
United States v. Agurs, 427 U. S.
97,
427 U. S. 109
(1976).
So it is with the "conceivable benefit" test. Given the vagaries
of a typical jury trial, it would be a bold statement indeed to say
that the testimony of any missing witness could not have
"conceivably benefited" the defense. To us, the
Page 458 U. S. 867
number of situations which will satisfy this test is limited
only by the imaginations of judges or defense counsel. [
Footnote 6]
A
The only recent decision of this Court dealing with the right to
compulsory process guaranteed by the Sixth Amendment suggests that
more than the mere absence of testimony is necessary to establish a
violation of the right.
See Washington v. Texas,
388 U. S. 14
(1967). Indeed, the Sixth Amendment does not, by its terms, grant
to a criminal defendant the right to secure the attendance and
testimony of any and all witnesses: it guarantees him "compulsory
process for obtaining
witnesses in his favor." U.S.Const.,
Amdt. 6 (emphasis added). In
Washington, this Court found
a violation of this Clause of the Sixth Amendment when the
defendant was arbitrarily deprived of "testimony [that] would have
been
relevant and
material, and . . . vital to
the defense." 388 U.S. at
388 U. S. 16
(emphasis added). This language suggests that respondent cannot
establish a violation of his constitutional right to compulsory
process merely by showing that deportation of the passengers
deprived him of their testimony. He must at least make some
plausible showing of how their testimony would have been both
material and favorable to his defense. [
Footnote 7]
When we turn from
Washington to other cases in what
might loosely be called the area of constitutionally guaranteed
access to evidence, we find
Washington's intimation of
a
Page 458 U. S. 868
materiality requirement more than borne out.
Brady v.
Maryland, 373 U. S. 83
(1963), held
"that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution."
Id. at
373 U. S. 87.
This materiality requirement was emphasized in
Moore v.
Illinois, 408 U. S. 786
(1972), where we stated that a defendant will prevail upon a
Brady claim "where the evidence is favorable to the
accused and is material either to guilt or to punishment."
Id. at
408 U. S. 794.
And in
United States v. Agurs, supra, we noted that
"[a] fair analysis of the holding in
Brady indicates
that implicit in the requirement of materiality is a concern that
the suppressed evidence might have affected the outcome of the
trial."
Id. at
427 U. S. 104.
We further explained:
"The proper standard of materiality must reflect our overriding
concern with the justice of the finding of guilt. . . . This means
that the omission must be evaluated in the context of the entire
record. If there is no reasonable doubt about guilt whether or not
the additional evidence is considered, there is no justification
for a new trial. On the other hand, if the verdict is already of
questionable validity, additional evidence of relatively minor
importance might be sufficient to create a reasonable doubt."
Id. at
427 U. S.
112-113 (footnotes omitted).
Similarly, when the Government has been responsible for delay
resulting in a loss of evidence to the accused, we have recognized
a constitutional violation only when loss of the evidence
prejudiced the defense. In
United States v. Marion,
404 U. S. 307
(1971), for example, the Court held that preindictment delay claims
were governed by the Due Process Clause of the Fifth Amendment, not
by the speedy trial guarantee of the Sixth Amendment. Elaborating
on the nature of the guarantee provided by the Due Process
Clause
Page 458 U. S. 869
in such cases, the Court emphasized the requirement of
materiality:
"Nor have appellees adequately demonstrated that the
pre-indictment delay by the Government violated the Due Process
Clause. No actual prejudice to the conduct of the defense is
alleged or proved, and there is no showing that the Government
intentionally delayed to gain some tactical advantage over
appellees or to harass them."
Id. at
404 U. S. 325.
Five Terms later, in
United States v. Lovasco,
431 U. S. 783
(1977), we summarized this aspect of
Marion:
"Thus,
Marion makes clear that proof of prejudice is
generally a necessary, but not sufficient, element of a due process
claim, and that the due process inquiry must consider the reasons
for the delay as well as the prejudice to the accused."
Id. at
431 U. S.
790.
The same "prejudice" requirement has been applied to cases of
postindictment delay. In
Barker v. Wingo, 407 U.
S. 514 (1972), the Court set forth several factors to be
considered in determining whether an accused has been denied his
Sixth Amendment right to a speedy trial by the Government's
pretrial delay. One of the four factors identified by the Court,
and a factor more fully discussed in
United States v.
MacDonald, 435 U. S. 850,
435 U. S.
858-859 (1978), was whether there had been any
"prejudice to the defendant from the delay."
Id. at
435 U. S. 858.
Although the Court recognized that prejudice may take the form of
"
oppressive pretrial incarceration'" or "`anxiety and concern
of the accused,'" the "`most serious'" consideration, analogous to
considerations in this case, was impairment of the ability to mount
a defense. See ibid. (quoting Barker v. Wingo,
supra, at 407 U. S.
532). Thus, other interests protected by the Sixth
Amendment look to the degree of prejudice incurred by a defendant
as a result of governmental action or inaction.
Page 458 U. S. 870
The principal difference between these cases in related areas of
the law and the present case is that respondent simply had no
access to the witnesses who were deported after he was criminally
charged. Respondent contends that requiring him to show materiality
is unreasonable in light of the fact that neither he nor his
attorney was afforded an opportunity to interview the deported
witnesses to determine what favorable information they possessed.
But while this difference may well support a relaxation of the
specificity required in showing materiality, we do not think that
it affords the basis for wholly dispensing with such a showing.
The closest case in point is
Roviaro v. United States,
353 U. S. 53
(1957). While
Roviaro was not decided on the basis of
constitutional claims, its subsequent affirmation in
McCray v.
Illinois, 386 U. S. 300
(1967), where both due process and confrontation claims were
considered by the Court, suggests that
Roviaro would not
have been decided differently if those claims had actually been
called to the Court's attention.
Roviaro deals with the obligation of the prosecution to
disclose to the defendant the name of an informer-eyewitness, and
was cast in terms of the traditional governmental privilege to
refuse disclosure of such an identity. The
Roviaro Court
held that the informer's identity had to be disclosed, but only
after it concluded that the informer's testimony would be highly
relevant:
"This is a case where the Government's informer was the sole
participant, other than the accused, in the transaction charged.
The informer was the only witness in a position to amplify or
contradict the testimony of government witnesses. Moreover, a
government witness testified that [the informer] denied knowing
petitioner or ever having seen him before. We conclude that, under
these circumstances, the trial court committed prejudicial error in
permitting the Government to withhold the identity of its
undercover employee in the face of repeated
Page 458 U. S. 871
demands by the accused for his disclosure."
353 U.S. at
353 U. S.
64-65.
"What Roviaro thus makes clear is that this Court was unwilling
to impose any absolute rule requiring disclosure of an informer's
identity,"
MCray v. Illinois, supra, at
386 U. S. 311,
despite the fact that criminal defendants otherwise have no access
to such informers to determine what relevant information they
possess.
Roviaro supports the conclusion that, while a
defendant who has not had an opportunity to interview a witness may
face a difficult task in making a showing of materiality, the task
is not an impossible one. In such circumstances, it is, of course,
not possible to make any avowal of how a witness may testify. But
the events to which a witness might testify, and the relevance of
those events to the crime charged, may well demonstrate either the
presence or absence of the required materiality.
In addition, it should be remembered that respondent was present
throughout the commission of this crime. No one knows better than
he what the deported witnesses actually said to him, or in his
presence, that might bear upon whether he knew that Romero-Morales
was an illegal alien who had entered the country within the past
three years. And, in light of the actual charge made in the
indictment, it was only the status of Romero-Morales which was
relevant to the defense. Romero-Morales, of course, remained fully
available for examination by the defendant and his attorney. We
thus conclude that the respondent can establish no Sixth Amendment
violation without making some plausible explanation of the
assistance he would have received from the testimony of the
deported witnesses. [
Footnote
8]
Page 458 U. S. 872
B
Having borrowed much of our reasoning with respect to the
Compulsory Process Clause of the Sixth Amendment from cases
involving the Due Process Clause of the Fifth Amendment, we have
little difficulty holding that at least the same materiality
requirement obtains with respect to a due process claim. Due
process guarantees that a criminal defendant will be treated
with
"that fundamental fairness essential to the very concept of
justice. In order to declare a denial of it we must find that the
absence of that fairness fatally infected the trial; the acts
complained of must be of such quality as necessarily prevents a
fair trial."
Lisenba v. California, 314 U.
S. 219,
314 U. S. 236
(1941). In another setting, we recognized that Jencks Act
violations, wherein the Government withholds evidence required by
statute to be disclosed, rise to the level of due process
violations only when they so infect the fairness of the trial as to
make it "more a spectacle or trial by ordeal than a disciplined
contest."
United States v. Augenblick, 393 U.
S. 348,
393 U. S. 356
(1969) (citations omitted). Such an absence of fairness is not made
out by the Government's deportation of the witnesses in this case
unless there is some explanation of how their testimony would have
been favorable and material.
See United States v. Lovasco,
431 U. S. 783
(1977);
United States v. Marion, 404 U.
S. 307 (1971).
IV
To summarize, the responsibility of the Executive Branch
faithfully to execute the immigration policy adopted by Congress
justifies the prompt deportation of illegal alien witnesses upon
the Executive's good faith determination that they possess no
evidence favorable to the defendant in a criminal prosecution. The
mere fact that the Government
Page 458 U. S. 873
deports such witnesses is not sufficient to establish a
violation of the Compulsory Process Clause of the Sixth Amendment
or the Due Process Clause of the Fifth Amendment. A violation of
these provisions requires some showing that the evidence lost would
be both material and favorable to the defense.
Because prompt deportation deprives the defendant of an
opportunity to interview the witnesses to determine precisely what
favorable evidence they possess, however, the defendant cannot be
expected to render a detailed description of their lost testimony.
But this does not, as the Court of Appeals concluded, relieve the
defendant of the duty to make some showing of materiality.
Sanctions may be imposed on the Government for deporting witnesses
only if the criminal defendant makes a plausible showing that the
testimony of the deported witnesses would have been material and
favorable to his defense, in ways not merely cumulative to the
testimony of available witnesses. In some cases, such a showing may
be based upon agreed facts, and will be in the nature of a legal
argument, rather than a submission of additional facts. In other
cases, the criminal defendant may advance additional facts, either
consistent with facts already known to the court or accompanied by
a reasonable explanation for their inconsistency with such facts,
with a view to persuading the court that the testimony of a
deported witness would have been material and favorable to his
defense. [
Footnote 9] Because,
in the latter situation, the explanation of materiality is
testimonial in nature, and constitutes evidence of the prejudice
incurred as a result of the deportation, it should be verified by
oath or affirmation of either the defendant or his attorney.
See Fed.Rule Evid. 603; Fed.Rule Crim.Proc. 47.
As in other cases concerning the loss of material evidence,
sanctions will be warranted for deportation of alien witnesses
Page 458 U. S. 874
only if there is a reasonable likelihood that the testimony
could have affected the judgment of the trier of fact.
See
Giglio v. United States, 405 U. S. 150,
405 U. S. 154
(1972). In making such a determination, courts should afford some
leeway for the fact that the defendant necessarily proffers a
description of the material evidence, rather than the evidence
itself. Because determinations of materiality are often best made
in light of all of the evidence adduced at trial, judges may wish
to defer ruling on motions until after the presentation of
evidence. [
Footnote 10]
In this case, the respondent made no effort to explain what
material, favorable evidence the deported passengers would have
provided for his defense. Under the principles set forth today, he
therefore failed to establish a violation of the Fifth or Sixth
Amendment, and the District Court did not err in denying his motion
to dismiss the indictment. Accordingly, the judgment of the Court
of Appeals is
Reversed.
[
Footnote 1]
Section 1324(a)(2) applies to "[a]ny person" who "transports, or
moves, or attempts to transport or move," "any alien,"
"knowing that [the alien] is in the United States in violation
of law, and knowing or having reasonable grounds to believe that
his last entry into the United States occurred less than three
years prior"
to the transportation or attempted transportation with which the
person is charged.
[
Footnote 2]
Other Courts of Appeals have adopted slight variations of the
position held by the Court of Appeals for the Ninth Circuit.
See, e.g., United States v. Armijo-Martinez, 669 F.2d 1131
(CA6 1982);
United States v. Rose, 669 F.2d 23 (CA1 1982);
United States v. Avila-Domingez, 610 F.2d 1266 (CA5 1980);
United States v. Calzada, 579 F.2d 1358 (CA7 1978).
[
Footnote 3]
The joint appendix contains excerpts of transcribed testimony
from a hearing on June 2, 1980, at which the District Court heard
arguments of counsel and the testimony of Romero-Morales. At the
conclusion of this testimony, counsel for respondent proposed the
highly unusual step of calling the Assistant United States Attorney
as a witness. App. 45. The attorney testified at further
proceedings held on June 12, 1980, and was interrogated,
inter
alia, about his understanding of various decisions of the
Court of Appeals for the Ninth Circuit and about the Government's
litigating strategy in these cases.
Id. at 664. This
procedure seems to us highly unusual, if not bizarre; ordinarily,
the litigating strategies of the United States Attorney are no more
the subject of permissible inquiry by his opponent than would be
the litigating strategies of the Public Defender by his
opponent.
[
Footnote 4]
As the Court of Appeals explained:
"The conceivable benefit in Mendez-Rodriguez stemmed from the
fact that the deported aliens were eyewitnesses to, and active
participants in, the crime charged, so that there was a strong
possibility that they could have provided material and relevant
evidence concerning the events constituting the crime. Conversely,
where a missing deported alien was not an eyewitness to the
offense, we have been unwilling to assume that the alien's
testimony could conceivably benefit the defendant."
647 F.2d at 74 (citation and footnotes omitted).
As described by the Court of Appeals, the "conceivable benefit"
test
"impose[s] no requirement of government misconduct or negligence
before dismissal of an indictment is warranted. Nor is a defendant
required to show specific prejudice caused by the unavailability of
the alien eyewitnesses."
Ibid. (citation omitted). Other Courts of Appeals have
recognized the Ninth Circuit rule as requiring no showing of
prejudice,
United States v. Calzada, 579 F.2d at 1362, and
as permitting dismissal of the indictment even when the
"'record is completely devoid of anything which would suggest
that the testimony of any one, or more, of the deported persons
would have been helpful' to the defendants."
United States v. Avila-Dominguez, 610 F.2d at 1269-1270
(quoting
United States v. Mendez-Rodriguez, 450 F.2d 1, 6
(CA9 1971) (Kilkenny, J., dissenting)).
[
Footnote 5]
As evidence of the effectiveness of Congress' policy and of the
colossal problem presented by illegal entries from Mexico, the
United States notes that approximately one million illegal aliens
were detained by Border Patrol officials during each of the three
years preceding 1981. Brief for United States 19;
see U.S.
Department of Justice, Internal Audit Report, U.S. Border Patrol
Management of the Mexican Border 1, 6 (Jan.1981).
[
Footnote 6]
See n 4,
supra.
[
Footnote 7]
That the Sixth Amendment does not guarantee criminal defendants
the right to compel the attendance of any and all witnesses is
reflected in the Federal Rules of Criminal Procedure. Rule 17(b)
requires the Government to subpoena witnesses on behalf of indigent
defendants, but only "upon a satisfactory showing . . . that the
presence of the witness is necessary to an adequate defense."
See also Isaac v. United States, 159 U.
S. 487,
159 U. S. 489
(1895);
Crumpton v. United States, 138 U.
S. 361,
138 U. S.
364-365 (1891).
[
Footnote 8]
Respondent's knowledge of the truth distinguishes this case from
United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va.
1807), a case cited by respondent in support of his argument that
it is unreasonable to require him to explain the relevance of the
missing testimony. In
Burr, Chief Justice Marshall found
it unreasonable to require Aaron Burr to explain the relevancy of
General Wilkinson's letter to President Jefferson, upon which the
President's allegations of treason were based, precisely because
Burr had never read the letter, and was unaware of its contents. In
this case, respondent observed the passengers, heard their
comments, and is fully aware of the ways in which they influenced
his knowledge about the status of Romero-Morales.
[
Footnote 9]
In adopting this standard, we express no opinion on the showing
which a criminal defendant must make in order to obtain compulsory
process for securing the attendance at his criminal trial of
witnesses within the United States.
[
Footnote 10]
The counsel of
United States v. Agurs, 427 U. S.
97,
427 U. S.
112-113 (1976), is helpful here:
"[T]he omission must be evaluated in the context of the entire
record. If there is no reasonable doubt about guilt whether or not
additional evidence is considered, there is no justification for a
new trial. On the other hand, if the verdict is already of
questionable validity, additional evidence of relatively minor
importance might be sufficient to create a reasonable doubt."
JUSTICE BLACKMUN, concurring in the judgment.
I concur in the judgment of the Court essentially for the
reasons set forth by Judge Roney, in writing for a panel of the
former Fifth Circuit, in
United States v. Avila-Dominguez,
610 F.2d 1266, 1269-1270,
cert. denied sub nom. Perez v. United
States, 449 U.S. 887 (1980). At least a "plausible theory" of
how the testimony of the deported witnesses would be helpful to the
defense must be offered. None was advanced here; therefore, the
motion to dismiss the indictment was properly denied by the
District Court.
Page 458 U. S. 875
JUSTICE O'CONNOR, concurring in the judgment.
"The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendant's version of
the facts as well as the prosecution's to the jury so it may decide
where the truth lies."
Washington v. Texas, 388 U. S. 14,
388 U. S. 19
(1967). In short, the right to compulsory process is essential to a
fair trial. Today's decision, I fear, may not protect adequately
the interests of the prosecution and the defense in a fair trial,
and may encourage litigation over whether the defendant has made a
"plausible showing that the testimony of the deported witnesses
would have been material and favorable to his defense."
Ante at
458 U. S. 873.
A preferable approach would be to accommodate both the Government's
interest in prompt deportation of illegal aliens and the
defendant's need to interview alien witnesses in order to decide
which of them can provide material evidence for the defense.
Through a suitable standard, imposed on the federal courts under
our supervisory powers, a practical accommodation can be reached
without any increase in litigation.
I
One cannot discount the importance of the Federal Government's
role in the regulation of immigration. [
Footnote 2/1] As the Court points out, Congress and the
Immigration and Naturalization Service, the agency authorized to
make such policy decisions,
Page 458 U. S. 876
have decided that prompt deportation is the appropriate response
to the tremendous influx of illegal aliens.
Ante at
458 U. S. 864.
The Court is also correct that the Federal Government has
legitimate reasons for reducing the number of illegal aliens
detained for possible use as material witnesses. Particularly
because most of the detained aliens are never called to testify, we
should be careful not to permit either needless human suffering or
excessive burdens on the Federal Government. Under these
circumstances, courts should be especially circumspect about
interfering with congressional judgments.
Nevertheless, the constitutional obligation of the Executive to
"take Care that the Laws be faithfully executed," U.S.Const., Art.
II, § 3, including the immigration laws, does not lessen the
importance of affording the defendant the "fundamental fairness"
inherent in due process,
Lisenba v. California,
314 U. S. 219,
314 U. S. 236
(1941). Moreover, the defendant's express right in the Sixth
Amendment to compel the testimony of "witnesses in his favor,"
requires recognition of the importance, both to the individual
defendant and to the integrity of the criminal justice system, of
permitting the defendant the opportunity to interview eyewitnesses
to the alleged crime. A governmental policy of deliberately putting
potential defense witnesses beyond the reach of compulsory process
is not easily reconciled with the spirit of the Compulsory Process
Clause.
II
The Court's solution to this apparent conflict between the
Executive's duty to enforce the immigration laws and its duty not
to impair the defendant's rights to due process and compulsory
process is to permit the Government to deport potential alien
witnesses, and to put the burden on the defendant of making a
plausible showing that the deported aliens would have provided
material and relevant evidence. The Court's approach thus permits
the Government to make
Page 458 U. S. 877
a practice of deporting alien witnesses immediately, taking only
the risk that the defendant will be able to show that the deported
witnesses, whom the defendant's counsel never will be able to
interview, would have provided useful testimony. In effect, to the
extent that the Government has conflicting obligations, the
defendant is selected to carry the burden of their resolution.
As the Court poses the issue today, the only alternatives are
either to (1) permit routine deportation of witnesses and require
the defendant to make some showing of prejudice, or (2) delay
deportation so that defense counsel can interview the potential
witnesses, and provide for automatic dismissal of the indictment if
the witnesses are deported. There is, however, another alternative
that would avoid unduly burdening either the Government or the
defendant. The Court could require that deportation of potential
alien witnesses be delayed for a very brief interval to allow
defense counsel, as well as the Government, to interview them. That
approach is somewhat similar to the Ninth Circuit's practice,
originally described in
United States v. Mendez-Rodriguez,
450 F.2d 1 (1971). Under the holding in that case, illegal alien
witnesses were held in custody for a short period, an average of
five days, following the appointment of counsel. During that time,
defense counsel had the opportunity to interview the witnesses and
determine whether any of them might provide material and relevant
evidence. Following the interviews, a Federal Magistrate held a
hearing to determine whether any of the witnesses could provide
material evidence, and ordered deportation of those aliens who
could not provide such testimony. On those occasions when the
Government nevertheless deported potential witnesses before the
materiality hearing was held, the District Court determined whether
the deported witnesses could have been of some "conceivable
benefit" to the defendant. If the defendant met that standard, the
court dismissed the indictment.
Page 458 U. S. 878
The principal difficulty with the Ninth Circuit's approach was,
as the Court notes,
ante at
458 U. S.
866-867, that it required virtually no evidence that the
deported witness' testimony would have been material to the
defense. Under the Ninth Circuit's formulation, the Government's
deportation of an alien witness resulted in virtually an automatic
dismissal of the indictment.
In adopting a standard requiring brief detention of potential
alien witnesses, the Court need not take so extreme a position. In
United States v. Avila-Dominguez, 610 F.2d 1266 (1980),
for example, the Fifth Circuit followed the Ninth Circuit's
rationale in concluding that a defendant's constitutional rights
are violated if the Government deports an alien witness before the
defendant has had an opportunity to interview him. The court
nevertheless affirmed the defendant's conviction because he could
not offer a "plausible theory" explaining how the witness'
testimony would have been helpful to the defense.
Id. at
1270. The court thus adopted a more stringent test than the Ninth
Circuit's "conceivable benefit" test.
The standard I propose is an amalgam of the approaches used by
the Fifth and Ninth Circuits. [
Footnote
2/2] As a matter of course, the deportable aliens who are
potential witnesses should be detained for a very brief period to
afford Government
Page 458 U. S. 879
and defense counsel the opportunity to interview them. If,
within that period, the defendant requests that certain aliens not
be deported, a federal magistrate should hold a hearing to
determine whether deportation of any of the witnesses should be
deferred until after trial. As evidenced by the statistics provided
by the respondent, similar procedures in the Ninth Circuit have
produced very little litigation.
See Brief for Respondent
30. Of course, the Government could be expected to abide by such a
rule, but in the occasional event that it deports alien witnesses
without affording the defendant any opportunity to interview them,
the defendant should not be entitled to an automatic dismissal of
the indictment; nor should the defendant be expected to prove
prejudice -- after all, the Government has deported his potential
witnesses. Instead, I agree with the Court that sanctions should be
available against the Government if the defendant sets forth some
plausible theory explaining how the deported witnesses would have
provided material evidence that was not simply cumulative of
evidence readily available to the defendant.
III
In the case before us, the respondent made no plausible
suggestion that the deported aliens possessed any material evidence
that was not merely cumulative of other evidence. Under the
standard I have proposed, the District Court properly denied the
respondent's motion to dismiss the indictment. Accordingly, I
concur in the judgment of the Court.
[
Footnote 2/1]
Article I, § 8, cl. 4, states that Congress shall have the power
"To establish an uniform Rule of Naturalization."
See Mathews
v. Diaz, 426 U. S. 67,
426 U. S. 81
(1976) ("For reasons long recognized as valid, the responsibility
for regulating the relationship between the United States and our
alien visitors has been committed to the political branches of the
Federal Government");
Galvan v. Press, 347 U.
S. 522,
347 U. S. 531
(1954) ("that the formulation of [immigration] policies is
entrusted exclusively to Congress has become about as firmly
imbedded in the legislative and judicial tissues of our body
politic as any aspect of our government").
[
Footnote 2/2]
This Court has not hesitated to use its supervisory power over
federal courts to set standards to ensure the fair administration
of justice. For example, in
McCarthy v. United States,
394 U. S. 459,
394 U. S.
468-472 (1969), this Court, under its supervisory power,
held that, when a district court does not comply fully with Federal
Rule of Criminal Procedure 11 in accepting a guilty plea, the plea
must be set aside and the case remanded for the defendant to enter
a new plea. The Court expressly rejected the rule, adopted by some
Circuits, of holding a hearing to determine whether the defendant
had entered his plea voluntarily with an understanding of the
charge.
See also Marshall v. United States, 360 U.
S. 310,
360 U. S. 313
(1959) (using this Court's "supervisory power to formulate and
apply proper standards for enforcement of the criminal law in the
federal courts" in setting aside a criminal conviction because
several jurors had read inadmissible news accounts of the
defendant's past activities).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
Today's holding flaunts a transparent contradiction. On the one
hand, the Court recognizes respondent's constitutional right, under
the Compulsory Process Clause of the Sixth Amendment, to the
production of all witnesses whose testimony would be relevant and
material to his defense.
Ante at
458 U. S.
867-869. But on the other hand, the Court holds
Page 458 U. S. 880
that the Government may deport illegal alien eyewitnesses to
respondent's alleged crime immediately upon their apprehension,
before respondent or his attorney have had any opportunity to
interview them -- thus depriving respondent of the surest and most
obvious means by which he could establish the materiality and
relevance of such witnesses' testimony.
Ante at
458 U. S.
872-873. Truly, the Court giveth, and the Court taketh
away. But surely a criminal defendant has a constitutional right to
interview eyewitnesses to his alleged crime before they are whisked
out of the country by his prosecutor. The Court's decision today
makes a mockery of that right. Accordingly, I dissent.
The premise of the Court's holding is that
"the responsibility of the Executive Branch faithfully to
execute the immigration policy adopted by Congress justifies the
prompt deportation of illegal alien witnesses,"
ante at
458 U. S. 872;
this governmental power is conditioned only upon the Executive's
"good faith determination" that those witnesses possess "no
evidence favorable to the defendant in a criminal prosecution,"
ibid. The Court sets up this asserted "responsibility" of
the Executive Branch as a counterweight to its responsibility for
"apprehending and obtaining the conviction of those who have
violated criminal statutes of the United States."
Ante at
458 U. S. 863.
Thus, the Court presents this case as involving a governmental
"dilemma,"
ante at
458 U. S. 865,
in which the Executive Branch is caught between the conflicting
demands of its "dual responsibility,"
ante at
458 U. S. 864.
This supposed "dilemma" is a pure figment of the Court's
imagination, repudiated by our precedents and by common sense.
The Executive Branch has many responsibilities, any of which may
conflict with its duty to enforce the federal criminal law. For
example, the Executive Branch has an obvious and imperative
obligation to preserve the national security. But when the
Executive Branch chooses to prosecute a violation of federal law,
it incurs a constitutional responsibility manifestly superior to
its other duties: namely, the responsibility
Page 458 U. S. 881
to ensure that the accused receives the due process of law. The
Government simply cannot be heard to argue that the criminal
defendant's rights may be infringed because of the Executive
Branch's "other responsibilities": given the vast and manifold
character of those responsibilities, to accept such an argument
would be to accede to the rapid evisceration of the constitutional
rights of the accused.
This point is hardly a novel one. In
Jencks v. United
States, 353 U. S. 657
(1957), we noted that "the protection of vital national interests
may militate against public disclosure of documents in the
Government's possession."
Id. at
353 U. S. 670.
But at the same time we noticed:
"[I]n criminal causes, ' . . . the Government can invoke its
evidentiary privileges only at the price of letting the defendant
go free. The rationale of the criminal cases is that, since the
Government which prosecutes an accused also has the duty to see
that justice is done, it is unconscionable to allow it to undertake
prosecution and then invoke its governmental privileges to deprive
the accused of anything which might be material to his defense. . .
.'"
Id. at
353 U. S. 671,
quoting
United States v. Reynolds, 345 U. S.
1,
345 U. S. 12
(1953). We also quoted with approval from the opinion of the Court
of Appeals for the Second Circuit in
United States v.
Andolschek, 142 F.2d 503 (1944), in which Judge Learned Hand
said:
"While we must accept it as lawful for a department of the
government to suppress documents, even when they will help
determine controversies between third persons, we cannot agree that
this should include their suppression in a criminal prosecution,
founded upon those very dealings to which the documents relate, and
whose criminality they will, or may, tend to exculpate. So far as
they directly touch the criminal dealings, the prosecution
necessarily ends any confidential character the documents
Page 458 U. S. 882
may possess; it must be conducted in the open, and will lay bare
their subject matter. The government must choose; either it must
leave the transactions in the obscurity from which a trial will
draw them, or it must expose them fully."
Id. at 506. [
Footnote
3/1]
The principle affirmed in these precedents is directly
applicable to this case. Of course, the Government has a
responsibility to execute our national immigration policy. But that
responsibility does not conflict in the smallest degree with the
Government's "duty to see that justice is done" to the criminal
defendant whom it has chosen to prosecute. If the Government wishes
to pursue criminal remedies against the accused, then its other
"responsibilities" must yield before the rights to which an accused
is constitutionally entitled.
Of course, the Government's duty to enforce the immigration laws
should not be deferred indefinitely. But no inordinate delay is
necessary in cases such as the one before us. The Southern District
of California long ago adopted a procedure to enforce the
Mendez-Rodriguez doctrine announced by the Court of
Appeals for the Ninth Circuit in 1971. [
Footnote 3/2] The Southern District's procedure
represents a practical and sensitive accommodation between a
criminal defendant's constitutional rights under the Compulsory
Process Clause and the Government's policy of prompt deportation of
illegal aliens. Under that procedure, illegal alien eyewitnesses
are
Page 458 U. S. 883
held in custody for a short period of time -- about 10 days --
after appointment of counsel for the criminal defendant. At the end
of that period, the United States magistrate holds a material
witness bail review hearing, pursuant to 18 U.S.C. § 3149. In the
intervening time, counsel for the defendant may interview the
witnesses, and determine whether they can provide testimony
material to the defense. At the hearing, both prosecution and
defense are required to show the materiality of each of the
detained witnesses, or they are released and deported. Brief for
Respondent 7; Brief for United States 13-14, 18. If this
traditional Southern District procedure had been adhered to in the
present case, the Government would have clearly discharged its
constitutional obligation to afford respondent an opportunity to
develop evidence bearing upon the materiality of the testimony of
the witnesses to his alleged offense. In contrast, the Court
permits the Government to adopt a wholly unilateral procedure that
deprives respondent and future criminal defendants of any such
opportunity.
The Court suggests that a criminal defendant should be able to
"demonstrate either the presence or absence of the required
materiality" even without having had an opportunity to interview
the detained eyewitnesses.
Ante at
458 U. S. 871.
But this notion has been flatly rejected by our precedents.
Roviaro v. United States, 353 U. S.
53 (1957), denied the Government's claimed privilege to
withhold the identity of its informer, "John Doe," from the
petitioner. [
Footnote 3/3] Roviaro,
like respondent in the present case, was "present throughout the
commission of this crime."
Ante at
458 U. S. 871;
see 353 U.S. at
353 U. S. 64
("So far as [Roviaro] knew, he and John Doe were alone and
unobserved during the crucial occurrence for which he was
Page 458 U. S. 884
indicted"). But the Court in
Roviaro refused to say, as
the Court does today, that a criminal defendant "can establish no
Sixth Amendment violation without making some plausible explanation
of the assistance he would have received from the testimony" that
he seeks.
Ante at
458 U. S. 871. Rather, the Court in
Roviaro
required disclosure simply because John Doe's testimony
"
might have been helpful to the defense." 353 U.S. at
353 U. S. 63-64
(emphasis added).
"Doe had helped to set up the criminal occurrence and had played
a prominent part in it. His testimony might have disclosed an
entrapment. He might have thrown doubt upon petitioner's identity
or the identity of the package [of heroin]. He was the only witness
who might have testified to petitioner's possible lack of knowledge
of the contents of the package that he 'transported' . . . to John
Doe's car. The desirability of calling John Doe as a witness,
or at least interviewing him in preparation for trial, was a
matter for the accused, rather than the Government, to
decide."
Id. at
353 U. S. 64
(emphasis added). Like Doe in
Roviaro, the illegal aliens
deported by the Government in the present case "played a prominent
part" in respondent's alleged offense -- if, indeed, they did not
help to set it up without the knowledge of respondent. And they,
like Doe, might have testified to respondent's "possible lack of
knowledge" respecting essential elements of the crime charged
against him. [
Footnote 3/4] Under
Roviaro,
respondent, not the
Page 458 U. S. 885
Government, was entitled to decide whether or not the illegal
alien eyewitnesses in this case could give testimony material and
relevant to the defense.
I dissent.
[
Footnote 3/1]
See United States v. Beekman, 155 F.2d 580, 583-584
(CA2 1946).
See also United States v. Burr, 25 F. Cas.
187, 191 (No. 14,694) (CC Va. 1807) ("If this might be likened to a
civil case, the law is express on the subject. It is that either
party may require the other to produce books or writings in their
possession or power, which contain evidence pertinent to the issue.
. . . [I]f the order be disobeyed by the plaintiff, judgment as in
the case of a nonsuit may be entered against him");
United
States v. Nixon, 418 U. S. 683,
418 U. S. 709
(1974) ("To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or the
defense").
[
Footnote 3/2]
See United States v. Mendez-Rodrigez, 450 F.2d 1 (CA9
1971).
[
Footnote 3/3]
Roviaro represented an exercise of our supervisory
jurisdiction.
See McCray v. Illinois, 386 U.
S. 300,
386 U. S. 309
(1967). But as the Court concedes,
ante at
458 U. S. 870,
Roviaro would not have been decided differently if the Due
Process and Confrontation Clause claims implicit in that case had
been brought to the fore.
[
Footnote 3/4]
In order to obtain a conviction under 8 U.S.C. § 1324(a)(2),
quoted
ante at
458 U. S. 860,
n. 1, the Government was required to show (1) that respondent
transported an alien within the United States (2) that the alien
had not been lawfully admitted or was not lawfully entitled to
enter, (3) that this was known to respondent, (4) that respondent
knew that the alien's last entry was within three years, and (5)
that respondent acted willfully in furtherance of the alien's
violation of the law.
United States v. Gonzalez-Hernandez,
534 F.2d 1353, 1354 (CA9 1976). Since the third and fourth elements
of this statutory requirement bear upon respondent's state of mind,
it is plain that the illegal aliens whom respondent was
transporting might very well have been able to testify to his lack
of knowledge on these critical points.