Remand to District Court to Explore Government's Use of Possibly Perjured Testimony in Suppression Case

U.S. v. De La Campa Rangel, 2008 WL 787114 (3/26/08) (Published) - DEA agent Jay Perry's DEA-6 report and trial testimony contradicted his criminal complaint and preliminary hearing testimony as to how he got information that the defendant took a small black bag (subsequently found to contain cocaine) from a larger bag while sitting on the bus. The trial testimony of the bus driver and another bus passenger contradicted both of the agent's versions, indicating the defendant's taking out the black bag occurred close to the time of the bus's arrival in Albuquerque, not four hours earlier, based on the bus driver's observations or the El Paso station manager's relayed report, as the agent alternatively claimed. In the original order, the 10th (Judges Hartz, McWilliams and Holmes) expressed dismay that there were some serious ethical violations, i.e., perjury and suborning perjury, that might be occurring here. The 10th asked the parties to brief whether the 10th should take the unusual step of remanding, before resolution of the appeal, for a 2255 exploration of the government's use of perjurious testimony. Both parties thought a remand would be okay. The 10th thought a remand was appropriate because of the exceptional facts that "cast a dark shadow on a pivotal aspect of the direct appeal and implicate the fundamental fairness of the trial and propriety of the government's actions," quoting U.S. v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981). [The 10th doesn't make clear how the lies affected the trial outcome]. The defendant made two requests: that the 10th clarify the defendant could still file a 2255 at a later time and that he be appointed an attorney below. The 10th denied both requests. The 10th did not feel it had the power under AEDPA to change the successive motion rule and opined the defendant will just have to make sure he raises any other arguments he can think of now. The 10th wanted to leave the counsel issue in the discretion of the district court in the first instance.