Normally, I reserve my blog posts for immigration cases or federal sentencing cases which have "crimmigration" implications.  But today I'm deviating from my norm.  The Ninth Circuit issued a really interesting decision in a federal drug smuggling case.  At issue was whether the government had an obligation to preserve videotape footage from the port of entry that may have demonstrated the defendant acted under duress.  Below is an excerpt from the decision, where the court chastises the government for acting in bad faith by destroying the videotape footage.

As the district court found, the destroyed video was potentially useful evidence to support defendant’s claim of duress. The video footage may have shown Zaragoza throwing her passport on the ground, trying to loosen the packages of drugs from her body, Karen and Chino removing her from the pedestrian line, and other behavior that Zaragoza allegedly engaged in to make herself “obvious” to law enforcement. Such evidence, especially Zaragoza trying to attract the attention of the border inspectors, would be particularly helpful to Zaragoza establishing the third element of her duress claim. The video may have also shed light on the extent to which Karen was overseeing and controlling Zaragoza, and whether it would have been feasible for Zaragoza to have alerted border inspectors to the contraband at an earlier time. As such, the district court correctly found that the video footage was “potentially useful evidence.” The district court, however, clearly erred in finding that the exculpatory value of the video footage of the Port of Entry pedestrian line was not readily apparent to Agent Alvarado.  A review of the interview transcript establishes Agent Alvarado’s knowledge of the potentially 12 UNITED STATES V. ZARAGOZA-MOREIRA exculpatory value of the pedestrian line video before it was destroyed. From the beginning to the end of Agent Alvarado’s hourlong interview with Zaragoza, Zaragoza repeatedly alerted Alvarado to her duress claim and the potential usefulness of the pedestrian line video footage. Shortly after questioning began, when asked to tell her side of the story, Zaragoza stated “[y]eah, I made it obvious. I was making — I wanted to be known. I didn’t want to do it.” Thereafter, Zaragoza repeatedly stated throughout the interview that she had tried to attract the attention of the authorities while in the pedestrian line by “making a lot of noises so I could be noticed,” and by making herself “obvious.”

Despite Agent Alvarado’s testimony that she “overlooked” retrieving the video footage because it was “just something I didn’t think about doing,” Alvarado undoubtedly appreciated the significance of Zaragoza’s claims during the interview. While discussing Zaragoza and Karen’s interactions in the pedestrian line, Alvarado asked Zaragoza how long she had waited in line, to which Zaragoza indicated that she had been in the pedestrian line for about 40 minutes. Agent Alvarado also asked Zaragoza why she did not alert border inspectors to the drugs earlier, and Zaragoza explained that she was “scared because Karen was with me.” Alvarado then followed up, asking Zaragoza if Karen was “right next to [her],” if the two had been in the “same lines,” and if Karen was “right there.” Later on, Alvarado confirmed that “Karen was right behind you in the same line?” Agent Alvarado obviously recognized the importance of Zaragoza’s statement that Karen was with her in the pedestrian line. 

The government asserts that failure to preserve the video evidence was a mere “oversight,” and that negligence or recklessness is not sufficient to support a finding of bad faith. In the context of the instant case, we disagree. Contrary to the government’s contentions, Agent Alvarado’s actions were not merely negligent or reckless, nor was the video destroyed in the normal course of the government’s usual procedures. Agent Alvarado testified that she has a professional obligation to collect and preserve both exculpatory and inculpatory evidence. She admitted that she understood that a defendant who is threatened or forced to commit a crime has a possible defense to that crime. Agent Alvarado also testified that she knew the pedestrian line at the Port of Entry was under constant video surveillance and that she had the ability to review and preserve the video recordings. However, despite this knowledge, including her knowledge of the apparent exculpatory value of the evidence, Alvarado made no attempt to view or preserve the Port of Entry video before it was destroyed.  In light of the apparent value of the video evidence, which was known to Agent Alvarado, her actions following Zaragoza’s interview are sufficient to establish that she made “a conscious effort to suppress exculpatory evidence,” thereby acting in bad faith. 

In light of these actions, the court found that the defendant's due process rights had been violated and ordered the indictment dismissed.

So why am I writing about this? In part, because I have heard many individuals tell me that they expressed a fear of returning to their home country to CBP, despite the forms CBP later fills out that omit this information.  This case is recognition that CBP does not always act in good faith and is often negligent in its record keeping.  In addition, it's a reminder to immigration attorneys that video footage from the borders exists, and can be a valuable source of evidence (if we can get them before they're destroyed!)

The full text of USA v. Zaragoza-Moreira can be found here: