c-ray
04-27-2006, 03:55 AM
DAVID KRAVETS
Associated Press
http://www.mercurynews.com/mld/mercurynews/news/breaking_news/14426237.htm
SAN FRANCISCO - A federal appeals court overturned the international drug trafficking conviction of a California man Tuesday while ruling that a Homeland Security Department trial rule is unfair and unconstitutional.
A three-judge panel of the 9th U.S. Circuit Court of Appeals, ruling 2-1, rejected a Homeland Security rule that says agents can only testify concerning "matters which were specified in writing and properly approved."
Judge William Canby Jr., writing for the majority, ruled Louis Bahamonde is entitled to a new trial after being convicted and sentenced to 27 months imprisonment in 2004 for driving from Mexico to San Diego with 60 pounds of marijuana. Border agents seized the drugs, and Bahamonde, now 26, claimed he did not know he was traveling with marijuana and pinned the crime on the vehicle's former owner, a known drug dealer.
At trial, the defendant demanded that a border agent assigned to the prosecution, Don Rodmel of the Homeland Security Department, take the stand to testify if the government had investigated whether the car's owner was the real culprit.
U.S. District Judge John Houston said the agent did not have to take the stand. Bahamonde's attorney did not provide the government, in advance, with the questions to be posed to the agent, the judge ruled.
The Homeland Security rule demands that if information is sought from agents, "the nature and relevance of the official information sought" must be "set forth in writing and with as much specificity as possible."
Canby overturned that ruling Tuesday, saying the agent should have taken the stand, and Bahamonde did not have to comply with Homeland Security rules. He said the rule was unfair because while it required the defendant to supply the government with questions, it wasn't required to turn over its answers to those questions in advance of a trial.
"Bahamonde was required to state with specificity the testimony he expected from agent Rodmel, but the government was not required at any time to state what evidence it expected to offer in rebuttal, either from Rodmel or anyone else," wrote Canby, who was joined by Judge Alex Kozinski.
Canby added: "We cannot say, beyond a reasonable doubt, that a jury would reject a defense based on testimony that the government failed to investigate the possibility that the former owner, a drug trafficker, had left the marijuana in the car without the knowledge of Bahamonde."
Bahamonde's attorney, Kurt Hermansen, said the rule prevented his client "from calling the most important witness in the whole case. The defendant has a right to defend himself."
The U.S. Justice Department, which defended the case before the San Francisco-based appeals court, did not immediately return calls for comment.
The case is United States v. Bahamonde, 04-50618.
Associated Press
http://www.mercurynews.com/mld/mercurynews/news/breaking_news/14426237.htm
SAN FRANCISCO - A federal appeals court overturned the international drug trafficking conviction of a California man Tuesday while ruling that a Homeland Security Department trial rule is unfair and unconstitutional.
A three-judge panel of the 9th U.S. Circuit Court of Appeals, ruling 2-1, rejected a Homeland Security rule that says agents can only testify concerning "matters which were specified in writing and properly approved."
Judge William Canby Jr., writing for the majority, ruled Louis Bahamonde is entitled to a new trial after being convicted and sentenced to 27 months imprisonment in 2004 for driving from Mexico to San Diego with 60 pounds of marijuana. Border agents seized the drugs, and Bahamonde, now 26, claimed he did not know he was traveling with marijuana and pinned the crime on the vehicle's former owner, a known drug dealer.
At trial, the defendant demanded that a border agent assigned to the prosecution, Don Rodmel of the Homeland Security Department, take the stand to testify if the government had investigated whether the car's owner was the real culprit.
U.S. District Judge John Houston said the agent did not have to take the stand. Bahamonde's attorney did not provide the government, in advance, with the questions to be posed to the agent, the judge ruled.
The Homeland Security rule demands that if information is sought from agents, "the nature and relevance of the official information sought" must be "set forth in writing and with as much specificity as possible."
Canby overturned that ruling Tuesday, saying the agent should have taken the stand, and Bahamonde did not have to comply with Homeland Security rules. He said the rule was unfair because while it required the defendant to supply the government with questions, it wasn't required to turn over its answers to those questions in advance of a trial.
"Bahamonde was required to state with specificity the testimony he expected from agent Rodmel, but the government was not required at any time to state what evidence it expected to offer in rebuttal, either from Rodmel or anyone else," wrote Canby, who was joined by Judge Alex Kozinski.
Canby added: "We cannot say, beyond a reasonable doubt, that a jury would reject a defense based on testimony that the government failed to investigate the possibility that the former owner, a drug trafficker, had left the marijuana in the car without the knowledge of Bahamonde."
Bahamonde's attorney, Kurt Hermansen, said the rule prevented his client "from calling the most important witness in the whole case. The defendant has a right to defend himself."
The U.S. Justice Department, which defended the case before the San Francisco-based appeals court, did not immediately return calls for comment.
The case is United States v. Bahamonde, 04-50618.