Facts: It would appear that the government deported all the people that could have exculpated defendant Ramirez-Lopez.
KOZINSKI, Circuit Judge, dissenting:
One can only imagine the conversation between Ramirez-Lopez and his lawyer after this opinion is filed:
Lawyer: Juan, I have good news and bad news.
Ramirez-Lopez: OK, I’m ready. Give me the bad news first.
Lawyer: The bad news is that the Ninth Circuit affirmed your conviction and you’re going to spend many years in federal prison.
Ramirez-Lopez: Oh, man, that’s terrible. I’m so disappointed. But you said there’s good news too, right?
Lawyer: Yes, excellent news! I’m very excited.
Ramirez-Lopez: OK, I’m ready for some good news, let me have it.
Lawyer: Well, here it goes: You’ll be happy to know that you had a perfect trial. They got you fair and square!
Ramirez-Lopez: How can that be? Didn’t they keep me in jail for two days without letting me see a judge or a lawyer? Weren’t they supposed to take me before a judge right away?
Lawyer: Yes, they sure were. But it’s OK because you didn’t show that it harmed you. We have a saying here in America: No harm, no foul.
Ramirez-Lopez: What do you mean no harm? There were twelve guys in my party who said I wasn’t the guide, and they sent nine of them back to Mexico.
Lawyer: Yeah, but so what? Seeing the judge sooner wouldn’t have helped you.
Ramirez-Lopez: The judge could have given me a lawyer and my lawyer could have talked to those guys before the Migra sent them back.
Lawyer: What difference would that have made?
Ramirez-Lopez: My lawyer could have taken notes, figured out which guys to keep here and which ones to send back.
Lawyer: Hey, not to worry, dude. The government did it all for you. They talked to everyone, they took notes and they kept the witnesses that would best help your case. Making sure you had a fair trial was their number one priority.
Ramirez-Lopez: No kidding, man. They did all that for me?
Lawyer: They sure did. Is this a great country or what?
Ramirez-Lopez: OK, I see it now, but there’s one thing that still confuses me.
Lawyer: What’s that, Juan?
Ramirez-Lopez: You see, the government took all those great notes to help me, just so we’d know what all those guys said.
Lawyer: Right, I saw them, and they were very good notes. Clear, specific, detailed. Good grammar and syntax. All told, I’d say those were some great notes.
Ramirez-Lopez: And twelve of those guys all said I wasn’t the guide.
Lawyer: Absolutely! Our government never hides the ball. The government of Iraq or Afghanistan or one of those places might do this, but not ours. If twelve guys said you weren’t the guide, everybody knows about it.
Ramirez-Lopez: Except the jury. I was there at the trial, and I remember the jury never saw the notes. And the officers who testified never told the jury that twelve of the fourteen guys that were with me said I wasn’t the guide.
Lawyer: Right.
Ramirez-Lopez: Isn’t the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.
Ramirez-Lopez: The jury was supposed to decide whether I was the guide or not, right? Don’t you think they might have had a reasonable doubt if they’d heard that twelve of the fourteen guys in my party said it wasn’t me?
Lawyer: He-he-he! You’d think that only if you didn’t go to law school. Lawyers and judges know better. It makes no difference at all to the jury whether one witness says it or a dozen witnesses say it. In fact, if you put on too many witnesses, they might get mad at you and send you to prison just for wasting their time. So the government did you a big favor by removing those nine witnesses before they could screw up your case.
Ramirez-Lopez: I see what you mean. But how about the notes? Surely the jury would have gotten a different picture if they had just seen the notes of nine guys saying I wasn’t the guide. That wouldn’t have taken too long.
Lawyer: Wrong again, Juan! Those notes were hearsay and in this country we don’t admit hearsay.
Ramirez-Lopez: How come?
Lawyer: The guys writing down what the witnesses said could have made a mistake.
Ramirez-Lopez: You mean, like maybe one of those twelve guys said, “Juan was the guide,” and the guy from Immigration made a mistake and wrote down, “Juan was not the guide”?
Lawyer: Exactly.
Ramirez-Lopez: You’re right again, it probably happened just that way. I bet those guys from Immigration wrote down, “Juan wasn’t the guide,” even when the witnesses said loud and clear I was the guide-just to be extra fair to me.
Lawyer: Absolutely, that’s the kind of guys they are.
Ramirez-Lopez: You’re very lucky to be working with guys like that.
Lawyer: Amen to that. I thank my lucky stars every Sunday in church.
Ramirez-Lopez: I feel a lot better now that you’ve explained it to me. This is really a pretty good system you have here. What do you call it?
Lawyer: Due process. We’re very proud of it.
* * *
The question at the heart of this case is both simple and important: May the United States get rid of witnesses it knows would provide evidence helpful to the defendant in a criminal case by putting those witnesses beyond the power of the court and beyond the reach of defense counsel? In all prior cases where witnesses were removed with a prosecution pending, no one knew what those witnesses might say; they could have been as helpful to the prosecution as the defense. Here, we have contemporaneous interview notes showing that twelve of the fourteen witnesses arrested with the defendant made statements unequivocally exculpating him as to the only issue of fact in the case-whether he was the expedition’s guide rather than one of the guided. See p. 1171 n. 14 infra. Yet nine of those exculpating witnesses were removed from the United States before defense counsel was appointed and before the district court had an opportunity to consider the matter. The government did not even trouble to obtain contact information for those witnesses, frustrating all defense efforts to find them.
This is bad enough, but it gets much worse. At trial, the fact that twelve of the fourteen individuals who were traveling with defendant exonerated him was carefully hidden from the jury. No witness was allowed to testify to this fact, and the interview notes were suppressed. In fact, evidence was introduced that misled the jury about what the missing witnesses would have said: On cross-examination, one of the federal agents confidently reported that some of those deported had inculpated defendant, which we know is not true. Defense counsel called this discrepancy to the attention of the district court and sought to introduce just enough evidence to impeach the agent’s statement, but the court would have none of it-the agent’s statement remained uncorrected and unrebutted.
Imagine if the shoe were on the other foot: A corporate defendant suspected of criminal conduct interviews some of its employees, and takes careful notes showing that the employees were aware of criminal activity. Before federal investigators can talk to the witnesses, the corporation whisks most of them to a foreign land where they are beyond the power of the United States. At trial, the corporation opposes the introduction of the inculpatory interview notes, arguing that they are hearsay and cumulative. And, when a corporate officer testifies, he suggests that some of the removed witnesses would have provided exculpatory evidence.
Is there any doubt what would happen in such a case? Any corporation that tried to pull a stunt like this would quickly find itself indicted for obstruction of justice, and the inculpatory notes would be ordered produced and introduced at trial. I can imagine no other result.
Should the outcome be different because the entity that put the witnesses beyond the power of the court is the United States? I think not. Indeed, the United States is subject to far more obligations in a criminal case than the defendant. Not only is it subject to the overarching duty of fairness and objectivity recognized in such cases as Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), but it is under the more specific obligation to provide the defendant all exculpatory evidence within its control, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Should the government be able to avoid its Brady obligation by destroying exculpatory evidence before the defendant knows it exists? Is the government’s duty of fairness and candor satisfied when it allows one of its agents to testify in a way that the prosecutor knows is incorrect? Can the government free itself of the obligation of fundamental fairness and candor-and empower itself to destroy exculpatory evidence and conceal exculpatory witnesses-by getting a signed waiver from a poorly educated defendant who has no understanding of what he is giving up?
I discuss below my specific points of difference with the majority-the various ways in which I believe the United States and the district court failed in their duty to this defendant. I’m not sure that every one of these errors would, standing alone, merit reversal. But the errors build upon one another to the point where I cannot join my colleagues in concluding that Ramirez-Lopez’s trial was fair. I must therefore respectfully dissent.
United States v. Ramirez-Lopez, 315 F.3d 1143, 1159-63 (9th Cir. 2003) (Kozinski, J., dissenting).
