The United States appeals from a final order entered in the United States District Court for the Eastern District of New York (Honorable George C. Pratt, Judge), granting defendant Cecilio Seijo's motion to suppress deposition testimony of five illegal alien witnesses whom the defendant was charged with harboring, in violation of 8 U.S.C. § 1324(a)(3). We reverse and hold that Rule 15(e) of the Federal Rules of Criminal Procedure does not preclude the introduction of the depositions in question into evidence.
Before Moore and Mansfield, Circuit Judges, and Wyatt,*fn* District Judge.
This is an appeal by the United States of America (hereinafter usually "the Government") pursuant to 18 U.S.C. § 3731 from an order of the United States District Court for the Eastern District of New York, made on July 12, 1978, granting defendant's motion to suppress certain depositions taken by the Government. The order appealed from came about under the following circumstances.
On March 20, 1978, pursuant to a search warrant, investigators of the Immigration and Naturalization Service ("INS") discovered five allegedly illegal aliens secreted in the basement of the home of the defendant Cecilio Seijo. All, including Seijo, were arrested. The next day, Seijo, by complaint, was charged with violation of 8 U.S.C. § 1324(a)(3) (harboring illegal aliens). On March 22, 1978, final orders for the deportation of all five aliens were made by an Immigration Judge.
The testimony of the five illegal aliens was needed for prosecution of the offense with which Seijo was charged. However, a final order of deportation lays a statutory duty on the Attorney General to carry out the deportation with "reasonable dispatch" and in any event within six months from the date of the order. 8 U.S.C. § 1252(c). INS takes the position that it has no authority to delay deportation so that an illegal alien can be available in this country to testify; it insists that ordinary material witness procedures be followed with illegal aliens needed to testify. (A 151).
Material witness procedures are not entirely clear-cut. The relevant provisions for criminal cases are in 18 U.S.C. § 3149, which has been construed as authorizing the arrest and detention of a material witness until his needed testimony is given, by deposition or otherwise. Bacon v. United States, 449 F.2d 933, 936-39 (9th Cir. 1971); see Hurtado v. United States, 410 U.S. 578, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973). It should be noted, however, that 18 U.S.C. § 3149 directs release of any material witness "if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice".
The prosecutor in the case at bar proceeded in good faith to try to keep the five witnesses available here to testify. On March 22, 1978, the same day as the final deportation order, he arranged with INS that the aliens not be deported until their status as material witnesses was resolved.
We are told in the Government's brief (pp. 3-4) that in April, 1978, the prosecutor was notified that INS "was concerned about holding the aliens in custody any longer. . . ." To avoid removal of the five witnesses by deportation, the prosecutor, on April 17, 1978, swore to a material witness affidavit before a Magistrate; he asked that they be required to give bail or, in default thereof, that they be held as material witnesses in the custody of the Marshal.
The Government's brief (pp. 4-5) further states that the five witnesses were on the same day brought before Magistrate Chrein, that bail of $1,000 cash was set for each of them as material witnesses, that counsel for them was assigned, that they were told that the matter would be heard again on April 26, and (doubtless having in mind the directions in 18 U.S.C. § 3149 and F.R.Cr.P.Rule 46(g)) that the Magistrate would release them on April 26 if their depositions had not been taken by that time.
The hearing for April 26 was adjourned to April 27, and Magistrate Caden presided. Although given notice, counsel for Seijo, due to other engagements, did not attend. Counsel for the witnesses moved for their immediate release, citing the long time (over a month) they had been in custody. The prosecutor opposed, emphasizing that their testimony was needed and that if they were released as material witnesses, INS would deport them. The Magistrate denied the motion for release but said that he would entertain it anew on Monday, May 1, and indicated a disposition to grant it.
On May 1 the prosecutor turned over to counsel for Seijo the statements the five witnesses had made, furnished an interpreter, and made the witnesses available for interview. On the same day, all (including counsel for Seijo) appeared before the Magistrate. The Government's brief states (p. 6) that the hearing was adjourned to May 2, the Magistrate stating that he would then release the witnesses, whether or not their depositions had been taken. Apparently the five witnesses, knowing they had been ordered deported to El Salvador (their home), preferred to go back there rather than languish in a jail here. Their counsel accordingly was pressing the Magistrate to release them.
On May 2, over the strenuous objections of the prosecutor, Magistrate Chrein ordered the witnesses released for deportation, noting that they would not be deported forthwith and that the prosecutor could go to a district judge. On the next day, May 3, in order to prevent deportation of the witnesses, the prosecutor secured from Judge Pratt a writ of habeas corpus ad testificandum directed to INS, for the witnesses' deposition testimony. On the same day, May 3, a grand jury returned a five-count indictment against Seijo, each count charging a violation of 8 U.S.C. § 1324(a)(3) with respect to one of the five material witnesses. The following day, May 4, Seijo pleaded not guilty to the indictment. The prosecutor then moved for an order that the depositions of the five aliens be taken, supported by an affidavit reciting that INS had no power to keep the aliens in this country, that the Magistrate had ordered their release, and that depositions were the only way their testimony could be secured. After hearing the motion in open court and after hearing objections by counsel for Seijo to any deportation of the alien witnesses, Judge Costantino granted the motion, ordered that the depositions be taken and signed a written order that this be done. (A 7). He explained that he had no power to prevent deportation of the witnesses. (A 134).
The five depositions were then taken on May 4. The attorney for Seijo was present and cross-examined each of the witnesses. The five aliens were then deported to El Salvador on May 9, 1978.
The indictment against Seijo had by now been assigned to Judge Pratt for trial and at a pretrial conference on June 22 counsel for Seijo for the first time raised an objection to the admissibility, as distinguished from the taking, of the deposition ...