United States District Court, Southern District of New York
February 20, 1990
UNITED STATES OF AMERICA
RICHARD HAMILTON, EVERALD B. GALLIMORE-DALY, A/K/A "MICHAEL PALMER," AND IVAN RUTIBA, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
This case arises out of a serious disturbance that occurred
on October 4, 1989 at an Immigration and Naturalization
Service ("INS") facility. As more fully described below, the
disturbance began as an assault on an INS officer and
escalated into a near-riot, causing loss of control of the
facility for nearly four hours. Defendants Richard Hamilton,
Ivan Rutiba and Everald Gallimore-Daly, a/k/a "Michael Palmer"
are alleged to have been among the participants in the events
of that day.
Defendant Rutiba moves this Court for an order dismissing
the indictment against him on the grounds that the government
violated his rights to due process under the Fifth Amendment
and compulsory process under the Sixth Amendment. He contends
that his ability to establish his defense, namely that he was
misidentified as one of the participants in the disturbance,
has been significantly damaged by actions of the government.
Specifically, it is argued that the government violated Mr.
Rutiba's rights by (1) deporting a witness whose testimony
would have been material and favorable to his defense, and (2)
deporting several eyewitnesses to the alleged assault without
ascertaining whether their testimony would be helpful to the
defense and without granting the defendant access to these
eyewitnesses prior to deporting them.
The prosecution and the defense are in general agreement as
to the events of October 4, 1989.*fn1 On that day, there were
approximately 90 detainees housed in Dormitories 15 and 16 of
the INS Special Processing Center at 201 Varick Street in
Manhattan ("SPC"). The 90 detainees were all English-speaking
and predominantly black. They had access to both dormitories
and the recreation and dining facilities which served them. A
significant number of the detainees were in the facility's
dining room serving Dorms 15 and 16 at approximately 9:15 a.m.
At that time, one detainee, alleged to be defendant Hamilton,
refused to submit to a routine search as he left the dining
room after breakfast, and allegedly threatened the INS Officer
attempting to conduct the search, Officer Mark Saccamano. The
situation quickly deteriorated. A number of detainees
surrounded Officer Saccamano and assaulted him. Additional INS
Officers were called to assist him but were confronted by
several detainees and were forced to withdraw. For the next
four hours, until approximately 1:00 p.m., the facility was
out of the control of the officers. During that period,
unidentified detainees are said to have vandalized the
recreation and dormitory areas of the facility by, among other
things, starting a fire and breaking windows, all of which
caused substantial damage.
When order was reestablished in the facility, defendant
Rutiba, a black English-speaking man, was identified as having
participated in the attack on Officer Saccamano and in the
harassment of other immigration officers during the
disturbance. After he, Hamilton and Gallimore-Daly were
arrested, Mr. Rutiba was immediately removed from the general
detainee population and has since been housed at the Manhattan
On October 24, 1989, the Grand Jury, in a one-count
indictment, charged the three defendants with forcibly
resisting, opposing, impeding, intimidating and interfering
with immigration officers on October 4, 1989, in violation of
18 U.S.C. § 111, 2.
The government and the defense have submitted affidavits
describing the events leading up to the present motion. The
relevant facts are undisputed.
On October 18, 1989, Mr. Rutiba's defense counsel, Paul
Davison of the Federal Defender Services Unit of the Legal Aid
Society, began his effort to prevent the deportation of
witnesses who could potentially
exculpate Mr. Rutiba. On that day, Mr. Davison sent a letter
to the Assistant United States Attorney ("AUSA") assigned to
the case requesting that the government temporarily suspend
the deportation of the approximately 90 or so detainees who
were in Dorms 15 and 16 at the time of the disturbance. The
AUSA replied by letter dated October 20, 1989, requesting that
Mr. Davison specify the names of the detainees he did not want
deported and stating that Mr. Davison should contact him if he
Because Mr. Rutiba had been removed from the SPC immediately
after the disturbance, and because Mr. Rutiba knew many of his
fellow detainees only by their nicknames, if at all, Davison
was unable to provide a complete list of possible alibi
witnesses. Nonetheless, on October 26, 1989, Mr. Davison sent
a letter to the AUSA giving the names of five potential
witnesses: "Kwadwo," Eupert Morgan, Kenneth Williams,
"Belhomme," and "Uncle."
In the meantime, the defense had also begun an effort to
interview detainee witnesses. On October 23, 1989, Meredith
Randall, a law student working with Mr. Davison, visited the
SPC in an effort to arrange such interviews. Ms. Randall was
informed that such interviews would have to be arranged
through INS executives at 26 Federal Plaza, but the people
with whom she spoke were unable to specify whom she should
contact or to which office she should go in order to make such
Because the defense had encountered these difficulties in
identifying and gaining access to the detainees, Mr. Davison
also requested in his October 26 letter to the AUSA that the
government assist him in obtaining a roster of the detainees
present in Dorms 15 and 16 on October 4, 1989. Mr. Davison
further requested that the government assist in developing a
procedure whereby defense counsel could enter the SPC or other
INS detention facilities to interview detainees to determine
if their presence at trial would be necessary. The AUSA
subsequently attempted to obtain the list Mr. Davison
requested, but was advised by the INS that no such list was
A pre-trial conference was held before the Court on November
2, 1989. During the conference, the AUSA made assurances to
the Court that the government would attempt to facilitate
defense interviews. Transcript, Nov. 2, 1989, at 4. Defense
counsel and the government agreed to proceed informally in
identifying material witnesses, and the Court instructed all
counsel to proceed quickly.*fn3
During November 1989, Mr. Rutiba compiled, as a result of
correspondence it appears, a list containing the names of 23
detainees who were in Dorms 15 and 16 on the day of the
disturbance. After several communications between the
government and defense counsel concerning access to the
detainees at the SPC, the government advised on Friday,
December 1, 1989 that interviews could be arranged through INS
official Carl Gaglia. Defense counsel made such arrangements
On Monday, December 4, 1989, Ms. Randall went to the SPC to
interview ten detainees Mr. Rutiba had designated as
especially important. Ms. Randall was able to interview only
six of them, as the others
were no longer located there. One of those she interviewed was
In an affidavit submitted in connection with the present
motion, Ms. Randall states that Winston DeVerteuil told her
that he and Mr. Rutiba had been in Dorm 16 throughout the
disturbance on October 4, 1989, in contradiction to the
allegations of the complaint that Mr. Rutiba participated in
the attack on Officer Saccamano in Dorm 15, and that Mr.
Rutiba had not participated in any of the attacks on or
interference with INS officers that occurred during the course
of the disturbance. Ms. Randall's affidavit further states
that Mr. DeVerteuil was intelligent and well-spoken and spoke
English with no discernible accent; in short, that Mr.
DeVerteuil would make an excellent witness. The defense
asserts that Mr. DeVerteuil's testimony is not cumulative of
the testimony of other witnesses they have been able to
The following morning, December 5, 1989, a pre-trial
conference was held before the Court. After other matters were
discussed, Mr. Rutiba voiced his concern that material
witnesses not be deported. After some discussion, the AUSA
I will contact the INS and the standing order of
the court is that nobody should be moved that can
potentially be a witness as of today's date.
Transcript, Dec. 5, 1989, at 7. The Court directed the
defendants to supply it and the government with the names of
the specific witnesses they did not want deported so that it
could issue an order suspending their deportation.*fn4
After the conference, the AUSA telephoned Mr. Gaglia and
informed him that the Court would be signing an order
suspending the deportation of certain detainees. The AUSA was
told that compliance with the Court's Order would have to be
worked out with the office of the INS District Director.
That afternoon, the defense provided the Court and the AUSA
with a proposed order listing the 23 detainees Mr. Rutiba had
previously identified as potential defense witnesses,
including Winston DeVerteuil. The Court signed the order on
December 5, 1989, and notified counsel. The order was filed in
the clerk's office on December 6, 1989. A certified copy of
the order was served on the INS on December 6, 1989 at 11:13
Winston DeVerteuil was deported at approximately 9:15 a.m.
on December 6, 1989. A second man identified in the December
5, 1989 order as "T. Jarvis" was deported on December 10,
1989. It was later learned that two of the five people named
in Mr. Davison's October 26, 1989 letter, Eupert Morgan and
Kenneth Williams, had been deported in November 1989.
The due process clause of the Fifth Amendment guarantees
that a criminal defendant will be treated "with that
fundamental fairness essential to the very concept of
justice." United States v. Valenzuela-Bernal, 458 U.S. 858,
872, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982) (quoting
Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86
L.Ed. 166 (1941)). The Sixth Amendment guarantees a criminal
defendant "compulsory process for obtaining witnesses in his
favor," U.S. Const., Amndt. 6, a right that "is in plain terms
the right to present a defense." Washington v. Texas,
388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
The compulsory process and due process rights are both
implicated where actions of the government prevent a defendant
from obtaining material and favorable evidence. See, e.g.,
United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct.
3440, 73 L.Ed.2d 1193 (1982). Thus, when a material and
favorable witness is under the government's control, the
government has a certain degree of obligation to ensure that
the witness is not rendered unavailable to the defendant.
In Valenzuela-Bernal, the Supreme Court established a test
for determining whether the deportation of potential defense
witnesses violates a defendant's Fifth Amendment right to due
process and Sixth Amendment right to compulsory process. The
Court held that to establish a violation of these rights, a
defendant must make "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." Id. at 873, 102 S.Ct. at 3449. See
also United States v. Ginsberg, 758 F.2d 823, 831 (2d Cir.
In Valenzuela-Bernal, the defendant, an illegal alien, was
arrested while driving a car with other illegal aliens as
passengers. An Assistant United States Attorney concluded the
three passengers possessed no material evidence and deported
two of them before the defense had an opportunity to interview
them. The defendant claimed his Fifth and Sixth Amendment
rights had been violated. The Court upheld the conviction on
the grounds that the defendant had made "no effort to explain
what material, favorable evidence the deported passengers would
have provided for his defense." Id. at 874, 102 S.Ct. at 3450.
In this case the defendant has made a plausible showing that
the testimony of DeVerteuil would have been material,
favorable to his defense, and non-cumulative. In fact, Ms.
Randall's affidavit indicates that DeVerteuil would have
testified that Mr. Rutiba did not participate in the crime
alleged in the indictment. In light of these facts, the
government's action in deporting Winston DeVerteuil appears to
have significantly damaged his right to receive a fair trial.
Thus, the defense has made the showing required of it under
The government does not dispute that Mr. DeVerteuil's
testimony would have been material and favorable to Mr.
Rutiba's defense. The government argues that, in applying the
Valenzuela-Bernal rule, the Court must consider the diligence
with which the defendant attempted to identify the deported
witness as a material and favorable one. The government's
position in this case is that any prejudice that resulted from
DeVerteuil's deportation is defendant's fault, because his
counsel was dilatory in identifying Mr. DeVerteuil as a
potential witness and interviewing him, and then did not notify
the INS that it should not deport Mr. DeVerteuil until after
the deportation had been accomplished. In support of this
position, the government stresses that, until it received the
December 5, 1989 Order, it did not know which detainees the
defense would claim were material witnesses.
The government's argument is unpersuasive for two reasons.
First, defense counsel for Mr. Rutiba proceeded with
reasonable diligence in their efforts to identify potential
witnesses, interview them and determine if they would be
necessary at trial. Second, the government's deportation of
Mr. DeVerteuil on December 6 violated the December 5 Order of
the Court suspending his deportation, and the AUSA had
specifically undertaken on December 5 to preserve the status
quo while the order was prepared.
1. The Defense's Diligence
The government argues that the defense should have notified
it earlier that Mr. DeVerteuil was a material witness that
should not be deported. The Court finds, however, that Mr.
Davison proceeded diligently in attempting to identify the
approximately 90 detainees who were present in Dorms 15 and 16
on the day of the disturbance, and, once some of those
potential witnesses were identified, proceeded diligently to
arrange interviews and notify the government of those
witnesses the defense considered material.
The initial problem facing the defense was one of
identifying the 90 or so people who were present at the time
of his alleged crime. The defense's initial efforts in this
regard were thwarted by lack of cooperation from the INS. The
defense was forced to request the AUSA's assistance in
obtaining a list of the detainees present in Dorms 15 and 16
on the day of the disturbance. The AUSA, however, was unable
to obtain such a list from the INS.
Not until Mr. Rutiba himself was able to develop a list of
23 such detainees through correspondence in November 1989 was
any progress made toward identifying and interviewing
potential witnesses. Once the defense had these names, its
next hurdle was arranging interviews. The defense did not
receive from the AUSA the name of the person to contact at
INS, Mr. Gaglia, until Friday, December 1, 1989. Arrangements
were made immediately, and on the following Monday, December
4, 1989, Ms. Randall was finally able to conduct interviews,
including that of Winston DeVerteuil. In light of these
circumstances, the Court finds that the defense proceeded with
reasonable diligence in attempting to identify material
The government argues that once the Federal Defender became
aware of the importance of Mr. DeVerteuil to Mr. Rutiba's
defense, it was required to notify the government that Mr.
DeVerteuil was a material witness that should not be deported.
However, at the December 5, 1989 conference, the AUSA
undertook to prevent the deportation of potential witnesses
while an order naming specific individuals the defense did not
want deported was prepared. The defense acted reasonably in
relying on that representation.
Accordingly, the Court finds that the defense was diligent
in its attempts to identify, interview and prevent the
deportation of material witnesses.
2. The Court Order
Mr. DeVerteuil's deportation on December 6, 1989 also
violated the Court's order of December 5, 1989. The United
States Attorney's office received a copy of the proposed order
on December 5, and the AUSA was notified by the Court later
that day that the order had been signed.
The fact that the Order was not served on the INS until the
next morning is of no consequence. The United States Attorney
was on notice that Mr. DeVerteuil was included in the order,
and had specifically undertaken the day before to prevent the
deportation of potential witnesses. The Court recognizes that
the INS and the United States Attorney's office are somewhat
independent entities within the Justice Department, and that
notice to one may not always constitute notice to the other.
However, in this situation, where the United States Attorney's
office had the power to secure the assistance of the INS and
in fact undertook to do so, its knowledge of the Court's order
not to deport Mr. DeVerteuil may be imputed to the INS.
The government also contends that the defendant was in the
best position to know who the witnesses were and therefore
should have informed the government of their names earlier.
The government cites to language in Valenzuela-Bernal noting
that the defendant in that case "was present throughout the
commission" of the alleged defense and thus. "[n]o one knows
better than he" what the deported witnesses' testimony would
have been. However, the circumstances of this case are such
that Mr. Rutiba knew most of the numerous potential witnesses
only by nickname or by sight, making specific identification
difficult. The government knew that the defense was making
substantial efforts to establish the identity of material
witnesses, and its assistance had been requested. Accordingly,
the defense cannot be faulted
for not making the names of all potential witnesses available
Nothing in this opinion is meant to imply that the United
States Attorney's Office engaged in misconduct. An unfortunate
chain of events, together with the conflicting missions of two
agencies of the government, is apparently to blame. In
retrospect, it is unfortunate that no agency of the government
did conducted interviews of all ninety detainees to verify the
identification of the three arrestees. The government
alternatively could have informed defense counsel whenever one
of the former occupants of Dorms 15 or 16 was to be deported
so that an interview could be arranged and a determination
made as to whether the deportation should be allowed to go
ahead. In any event, the unavoidable conclusion is that the
procedures followed by the government resulting in the
deportation of Mr. DeVerteuil has unfairly deprived Mr. Rutiba
of a material witness whose testimony at trial would quite
likely have been favorable to his defense. Consequently, Mr.
Rutiba's Fifth Amendment right to due process and his Sixth
Amendment right to compulsory process have been violated.
Accordingly, the indictment against defendant Ivan Rutiba is