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Sinking The Boat Of Exculpatory Evidence: The First Circuit Goes On A Fishing Expedition Looking To Excuse The Government’s Bad Faith Destruction Of Evidence


criminal appeals lawyer, exculpatory evidence, government's bad faith, destruction of physical evidence

U.S v. Bresil

Unites States Court of Appeals for the First Circuit

2014 WL 4744670

Decided on: September 24, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Judge Overboard! Jettison All Exculpatory Evidence Ye Lubbers!!!

Issue: Whether the Government violated Federal Rules of Criminal Procedure 16 (a)(1)(G), which provides that the Government must give a Defendant a written summary of any expert testimony that they intend to use during its case-in-chief at trial when the Government pronounced its intention to call an expert five days before trial, and, whether the Government violated Defendant’s due process rights by deporting potential witnesses and for destroying physical evidence.

Summary: Coast Guard and Border Patrol officials found Defendant Bresil with seventeen others in a boat off the coast of Puerto Rico. He was convicted of attempting to illegally reenter the United States. On appeal he argues 1) the District Court erred when it denied him a continuance after the Government announced that they were calling a witness five days before trial; 2) the Government violated his Due Process rights by sinking his boat after it took him into custody, preventing a conclusive determination of whether it contained enough fuel to make it to St. Maarten and; 3) deporting others found in the boat with him who would have testified that the boat was traveling to St. Maarten.

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Holding: The Court of Appeals for the First Circuit held that the Government plainly violated Federal Rule of Criminal Procedure 16, however, in order to obtain a reversal based on Rule 16 claim, a Defendant has to show prejudice.

Rule 16(a)(1)(G) is intended to minimize surprise that often results from unexpected expert testimony, to reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through cross-examination.

The First Circuit Court of Appeals held that Defendants argument concerning the destruction of the boat fails because he does not show that there was anything else the Coast Guard could have safely done and that the Coast Guard was not technically capable of safely towing it to another location.

The First Circuit also held that the Government’s use of deporting potential witnesses did not violate Defendant’s Due Process rights because the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-aliens witnesses upon the Executive’s good-faith determination that they posses no evidence favorable to the Defendant in a criminal prosecution.

Facts: Coast Guard and Border Patrol officials found Defendant Bresil in the middle of the night with seventeen others in a boat twenty-three nautical miles off the coast of Puerto Rico. He was convicted of attempting to illegally reenter the United States. On appeal, he argues that the Government violated his Due Process rights by sinking his boat after it took him into custody, preventing a conclusive determination of whether it contained enough fuel to make it to St. Maarten and for deporting others found in the boat with him who would have testified that the boat was traveling to St. Maarten. The First Circuit Court of Appeals stated that because Defendant never showed that there was anything the Coast Guard could have safely done and wasn’t able to tow it to another location, his argument fails.

The Government also stated that the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-aliens witnesses upon the Executive’s good-faith determination that they posses no evidence favorable to the Defendant in a criminal prosecution.

Legal Analysis: The First Circuit Court of Appeals held that Rule 16(a)(1)(G) provides that at the Defendant’s request, the Government must give to the Defendant a written summary of any expert testimony that the Government intends to use. Rule 16(a)(1)(G) is intended to minimize surprise that often results from unexpected expert testimony, to reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through focused cross-examination.

Here, Defendant knew that the boat’s fuel usage would be at issue at trial, however, this does not excuse the Government of its duty under Rule 16(a)(1)(G) to give timely notice of its intent to call an expert to examine that issue in service of the Governments case. The First Circuit held that it is one thing to be prepared to argue about a fact at trial, but quite another to prepare to rebut an expert who can testify about implications of that fact in a way different from a lay witness. Prior to the Government’s notice, the Government gave no indication that it would be presenting evidence to the jury that, if the Government witnesses were right about the amount of fuel on board, the boat had only a fraction of the fuel it needed to make it to St. Maarten.

The Government’s notice was plainly untimely because it is unreasonable to expect a defense attorney in the midst of trial preparation to drop everything and try to obtain an expert five days before trial. United States v. Martinez, 657 F.3d 811, 617 9th Cir.2011. The First Circuit nonetheless affirmed that Defendant was not prejudiced because to obtain a reversal based on a Rule 16 claim, a Defendant has to show prejudice.

It turns out that, when pressed to explain after the trial what an expert actually could have said that might have helped Defendant’s defense, Defendant made no claim that any expert could have materially challenged the technical claims upon which the testimony of the Government’s expert was based. No defense expert would have challenged the opinion that, given the factual assumptions made by the Government expert, the boat could not have traveled two and a half to three nautical miles per gallon.

Defendant suggests that presenting his own expert would have allowed him to challenge the Government expert’s assumption. The First Circuit held that, however, those assumptions were just that—assumptions dependent on facts to which lay witnesses testified. Moreover, the First Circuit held that it was highly improbable that any changes in the facts could have changed the conclusion.

The First Circuit held that for these reasons, this case was an instance of foul, but no harm. The Court of Appeals cautions the Government, however, because by failing to disclose experts in a timely fashion, parties risk not only undesired and inconvenient continuances but also the exclusion of their expert’s testimony entirely..

Defendant next argues that the Government violated his due process rights by destroying the boat, which contained evidence of whether or not it had enough fuel to travel to St. Maarten, any by deporting other passengers, who, he argues, would have testified in his defense that the boat was traveling to St. Maarten.

The First Circuit held that Defendant’s argument fails because he didi not show that there was anything else the Coast Guard could have safely done. He provides no reason to doubt testimony of Government witnesses that is was unsafe for them to board the boat to conduct a more thorough inventory of its contents; that, had the boat been left where it was, it would have been a hazard of navigation and the Coastguard was unable to safely tow it to another location.

Moreover, because the evidence in the boat was no more than potentially exculpatory evidence, the Defendant is only entitled to a new trial if he can show that the Government acted in bad faith by destroying the boat. Defendant here does not argue, nor would the record support an argument that the Government acted in bad faith.

The Defendant’s argument concerning the destruction of his boat fails. In regards to Defendant’s argument that the Government violated his due process rights by deporting the other people on the boat who he says would have testified that they were going to St. Maarten, five passengers who claimed to be going to St. Maarten, one later recanted and pled guilty to illegally attempting to reenter the United States. Excluding Defendant that left three passengers who made un-retracted claims.

The First Circuit held that other Circuit Court’s have held that the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-aliens witnesses upon the Executive’s good-faith determination that they posses no evidence favorable to the Defendant in a criminal prosecution. Under this view, if the government deports a person with no reason to believe the person would give exculpatory testimony is some case, the Prosecution of that case does not violate the Defendant’s due process rights. Accordingly, the First Circuit Court of Appeals affirmed.


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