Object, Object, and Object Again
United States v. Gonzalez-Perez, 2014 WL 3827586; No. 13-2147 (N.M.)(unpublished): another opinion that points out why it is important to object and preserve in the lower court. Gonzalez raised numerous compelling issues. First, he argued that his 5th and 6th Amendment rights were violated when the government let a material witness be “voluntarily deported” before defense counsel could speak with him. Gonzalez asked the court to adopt the rule developed by the 9th Circuit in Leal del Carmen, 679 F.3d 964, 970 (9th Cir. 2012). There the Court found that when the government interviews a witness or has other information suggesting that he could offer exculpatory evidence, the government may not deport him without giving defense counsel a chance to interview him. The panel rejected that rule but said the “more prudent practice” would have been to hold the witness until defense counsel could talk to him. Still, the agent who let him go was merely negligent - he didn’t do that in bad faith.
Gonzalez next argued that his right to confrontation was violated when the court let an agent tell the jury about the missing witness’s statements. Gonzalez had successfully moved pretrial to exclude the witness’s statements about his immigration status. At trial the government brought them in anyway and defense counsel didn’t object. On appeal the parties agree defense counsel had preserved the issue. That is the Court’s decision, said the panel. It then explained it would review the issue for plain, not harmless error, because even the granting of a pretrial limine motion does not relieve the party from objecting when the excluded evidence is admitted. Gonzalez couldn’t satisfy this standard because there was abundant other evidence of Gonzalez’s immigration status.
Finally, Gonzalez said that the court shouldn’t have allowed an agent to give an opinion on his mental state at the time of the alleged offense. Here again the court commented it had some concern with how the government manipulated the agent’s testimony but since Gonzalez didn’t object he couldn’t meet his burden of proving plain error.
Gonzalez next argued that his right to confrontation was violated when the court let an agent tell the jury about the missing witness’s statements. Gonzalez had successfully moved pretrial to exclude the witness’s statements about his immigration status. At trial the government brought them in anyway and defense counsel didn’t object. On appeal the parties agree defense counsel had preserved the issue. That is the Court’s decision, said the panel. It then explained it would review the issue for plain, not harmless error, because even the granting of a pretrial limine motion does not relieve the party from objecting when the excluded evidence is admitted. Gonzalez couldn’t satisfy this standard because there was abundant other evidence of Gonzalez’s immigration status.
Finally, Gonzalez said that the court shouldn’t have allowed an agent to give an opinion on his mental state at the time of the alleged offense. Here again the court commented it had some concern with how the government manipulated the agent’s testimony but since Gonzalez didn’t object he couldn’t meet his burden of proving plain error.
posted by Anonymous at 9:44 AM
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