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United States v. Colima-Monge
Citations: 983 F. Supp. 1337; 1997 U.S. Dist. LEXIS 19797; 1997 WL 769388Docket: Cr No. 96-305-FR
Court: District Court, D. Oregon; December 7, 1997; Federal District Court
The court addresses Noe Colima-Monge's motion to dismiss based on the deportation of material witness Misael Monge Delgado. Both defendants were arrested on July 3, 1996, after heroin was discovered in their vehicle. Delgado was initially granted bail of $750,000, reduced to $100,000, and then to $70,000 following a court appearance. On July 9, they were indicted on drug charges. Special Agent Lee Peterson from the Immigration and Naturalization Service (INS) identified Delgado as an illegal alien during an interview on July 9. Once informed of Delgado's status, the INS typically deports individuals held only due to an INS detainer. Although Delgado’s INS file lacked documentation indicating he was solely held for that reason, he was ultimately deported after admitting to illegal entry. Although the exact date Delgado posted bail is unclear, it triggered his detention by the INS, which serves a deportation warrant within 72 hours of bail posting. Delgado was served a deportation order on July 18, 1996, and subsequently deported on August 13, 1996, after failing to appear for a scheduled certification hearing on August 9. On August 14, a bench warrant was issued for Delgado's arrest, and a federal grand jury indicted both defendants for heroin possession and related offenses. Prosecutor Kathleen Bickers was aware of Delgado's illegal status shortly after his arrest and engaged in plea negotiations with his attorney, who did not inform her of Delgado's bail efforts or his absence from the hearing. The prosecutor’s file is not presented at the certification hearing to record nonappearances; instead, such failures are noted on a master docket. Bickers learned from Ferder that Delgado was not in custody and informed Wilham Gray that Delgado had been deported. Bickers also consulted with INS agent Larry Vallodalid, who was unaware of Delgado's deportation and became involved only at Bickers' request in December 1996. Colima-Monge seeks to dismiss the indictment, arguing that Delgado, a potential material witness whose initial statements exonerated him, was deported before he could be interviewed. The government counters that there was no bad faith in Delgado's deportation and his statements ultimately implicated Colima-Monge. Legal standards require a defendant to demonstrate that the deported witness’s testimony would be materially favorable and not merely cumulative, along with a showing of government bad faith and resultant prejudice. Negligence alone does not constitute bad faith. The court found that Bickers was unaware of the deportation proceedings and did not know Delgado failed to appear at the certification hearing prior to his deportation. Past case law indicates that negligence does not equate to bad faith, and Colima-Monge did not demonstrate that the government deviated from standard deportation procedures or acted with unfair intent. Though Delgado’s testimony could have been beneficial to Colima-Monge’s defense, the court does not determine if it would have ultimately favored him. The motion to dismiss based on the deportation of a material witness is therefore denied.