Well over a year ago, just weeks after I have been sworn into practice law by Judge David Hittner, I was asked by a family friend who practices criminal law to help him write a brief for a federal sex trafficking case.
I jumped at the opportunity to make a few bucks and get some writing experience, in federal court, nonetheless.
This case was about a massive
human trafficking and sex
slavery ring in Houston. The ring was allegedly led by a family matriarch known as "Tencha." She owned some property off Telephone road and her bars and restaurants as brothels. Girls would be lured to America by promise of work and freedom, but instead they found themselves as indentured servants never able to pay off their debts, and forced to have sex with Johns to make payments. The way this works is that guys show up to the bars, pay a door fee, then they pay exorbitant money for a few beers, then pay for a room fee, then pay for a condom, then pay for sex with the girl. It is really horrible stuff. It really makes you wonder what would happen to the human trafficking trade if prostitution were legalized.
So, a massive federal task force conducted a 10 year investigation into this brothel. Can you imagine, they let this shit go on for 10 years? What a joke. Finally, they do a bust and arrest everyone at the scene. Three of the girls who were arrested hire Ellis Munoz, who hires me to write a brief.
The government held our clients in federal custody because the government felt they were material witnesses. In other words, they were victims of human trafficking and slavery that could help make the government's case. Our stance was that they were just at the wrong place at the wrong time, or just not material.
I wrote a nice long brief explaining the law and why our girls, who just wanted to go back to Mexico, were not material witnesses. There was a hearing held in the magistrate's courtroom. The hearing was basically depositions to find out who the material witnesses were. At this point, none of the 24 defendants had plead. So there were 24 defendants in orange and green jumpsuits, and their high-powered lawyers.
Then there was Ellis and I. Examinations were conducted. I was new and awkward and stupid, so I hurried off too lunch. Little did I know, the magistrate made her recommendation that the our girls were not material witnesses. The federal government fought very hard to make sure they were.
The recommendation, army of lawyers, and defendants moved to Judge Hittner's courtroom. I was stupid and went to lunch. Judge Hittner looked at Ellis and said something along the lines of "whoever wrote this did an excellent job." JUDGE HITTNER, THE JUDGE WHO SWORE ME IN AND SAID HE WOULD LIKE TO SEE ME IN FRONT OF HIS COURT SAID THAT ABOUT MY WORK AND I WASN'T THERE TO HEAR IT, AND HE DIDN'T EVEN REALIZE IT WAS ME.
Well, my motion was granted and the girls were allowed to get their live's back. My first federal case, my first federal victory. Come to think of it, that was my first case period. Ellis and I have worked together since then, including winning a NOT GUILTY VERDICT in my first trial on a felony solicitation of a minor case in Montgomery County, and motion to suppress that we also won. I'm undefeated with him.
The Tencha case went to the jury yesterday. It should be interesting to see what happens.
READ MY MOTION HERE
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
UNITED STATES OF AMERICA §
Plaintiff § CRIMINAL DOCKET 4:13-CR-628 § HONORABLE NANCY JOHNSON VS §
§ § HORTENCIA MEDELES-ARGUELLO § Defendant §
MATERIAL WITNESSES’ RESPONSE TO DEFENDANT’S MOTION REQUESTING DEPOSITION OF MATERIAL WITNESSES
TO THE HONORABLE NANCY JOHNSON:
The Defendant’s Motion Requesting Deposition of Material Witnesses should be denied
because the Defendant failed to demonstrate that the Material Witnesses’ testimony will be
favorable and material to her defense. Moreover, the anticipated deposition testimony is
cumulative, and the witnesses will respectfully invoke their Fifth Amendment privilege against
self-incrimination to any and all incriminating questions. Should this Honorable Court allow the
depositions, the Material Witnesses hereby request an inquiry into, and screening of, the proposed
deposition questions. In support of their position, the Material Witnesses represented by the
undersigned counsel would show:
PROCEDURAL HISTORY AND RELEVANT FACTS
1. On October 9, 2013, the United States indicted Hortencia Medeles-Arguello
(“Defendant"), and thirteen co-conspirators, on one count of Sex Trafficking Conspiracy,
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one count of Conspiracy to Harbor Illegal Aliens, four counts of Money Laundering and
one count of Conspiracy to Commit Money Laundering.
2. On October 10, 2013, a joint task force composed of several law enforcement agencies
executed a search warrant at Nuevo Amanecer, 5618 Telephone Rd., Houston, Texas.
Nuevo Amanecer was once known as Las Palmas Club and/or Las Palmas II. Although
that address was once owned by the Defendant, it had not been under her ownership for
approximately one year before the raid. Las Palmas Club ceased to exist in November
2012.
3. The task force decided to detain dozens of people found inside Nuevo Amanecer on
October 10, 2013. The arrested individuals were detained subject to removal proceedings
by the Department of Homeland Security's Immigration and Customs Enforcement,
Enforcement Removal Operations.
4. The federal agencies interrogated all of the arrestees. None of the arrestees were
represented by counsel. None of the arrestees were advised of their Miranda rights. None
of the interrogations were conducted under oath or affirmation of perjury. These
interrogations form the basis of the Defendant's Motion to which this response addresses.
5. On October 11, 2013, the Government filed an Affidavit in Support of Detention of
Material Witnesses. (See, Affidavit in Support of Detention of Material Witnesses). The
Government determined that based on the aforementioned interviews, in which the
arrestees were denied due process, that the "aliens can provide testimony that will be
material to the prosecution of this case. Specifically, the aliens can provide testimony
related to Sex Trafficking, other illegal activities, and the day to day activities occurring at
Las Palmas II.”
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6. The Government continued, and requested twenty-five aliens to be detained as "Material
Witnesses" pursuant to Title 18, United States Code, Section 3144, and order the United
States Marshal to detain them so that depositions may be taken within thirty (30) days of
the order. This Honorable Court granted the order, as well as an extension of that order.
7. The undersigned counsel was hired to represent six Material Witnesses: (1) Maria Hilda
Duran Nava; (2) Angelica Lopez Leon; (3) Ana Karin Gutierrez Texis; (4) Elizabeth Martin
Matias; (5) Maria Esther Casemiro-Deroteo; and (6) Natividad Hernandez Cerino. Ms.
Matias has been released from being a Material Witness.
8. On November 27, 2013, at this Court's order, the Defendant submitted a Motion Requesting
Deposition of Material Witnesses. (See, Defendant's Motion Requesting Deposition of
Material Witnesses).
9. The Defendant’s Motion includes summaries of the information the witnesses could testify
about. The summaries are based on the recorded interviews of the Material Witnesses
conducted by law enforcement after the October 10, 2013, raid of Nuevo Amanecero. The
summaries strongly indicate that the Material Witnesses can provide no information that is
favorable or material for the Defendant. (See, Defendant's Motion Requesting Deposition
of Material Witnesses, P.5-9).
10. The Defendant's Motion requests this Court to order the deposition of thirteen witnesses,
including those represented by the undersigned counsel. (See above, paragraph 7).
11. On November 20, 2013, counsel for the Material Witnesses informed the Court that the
Material Witnesses will invoke their Fifth Amendment privilege against self-incrimination.
12. Eight (8) of the material witnesses have been released.
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Material Witnesses Maria Casemiro-Doroteo and Nohemi Homan will be deposed on Friday,
December 6, 2013.
ARGUMENT
I. THE DEFENDANT FAILED TO DEMONSTRATE THAT THE MATERIAL WITNESSES’ TESTIMONY IS RELEVANT, FAVORABLE AND MATERIAL TO HER DEFENSE.
This Honorable Court should deny the Defendant's Motion Requesting Deposition of
Material Witnesses Maria Hilda Duran Nava, Angelica Lopez Leon, Ana Karin Gutierrez Texis,
Elizabeth Martin Matias, Maria Esther Casemiro-Deroteo, and Natividad Hernandez Cerino. The
Defendant's Motion should be denied because she failed to demonstrate that the designated
witnesses can offer testimony that is relevant, not cumulative, favorable and material to her
defense.
A. THE MATERIAL WITNESSES’ TESTIMONY FAILS TO REBUT THE GOVERNMENT’S ALLEGATIONS.
The testimony of aliens who are not alleged to have any connection to a crime or
conspiracy, and who cannot rebut the allegations against the defendant is inadmissible. U.S. v.
Castellanos-Machorro, 512 F.2d 1181, 1184 (9th Cir. 1975). In Castellanos-Machorro, a husband
and wife were convicted of transporting, concealing, and conspiracy to transport and conceal
aliens. Id. at 1182. A Border Patrol agent, the five aliens they were accused of smuggling, and
four former co-conspirators who drove the aliens and personally interacted with the defendants
testified against the defendants. Id. (Emphasis added.)The defendants appealed, arguing that they
were denied due process because they should have been allowed to interview 88 of the 288 aliens
who we were detained and deported after being found traveling away from, or in the vicinity of
the hotel managed by the defendants. Id.
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The circuit court held that the defendants were not denied due process. Id. at 1184. The
court rationed that because there was no claim the released aliens had any connection to the
conspiracy, or any transaction that formed the basis of the indictment, that their testimony was not
“conceivably exculpatory.” Id. at 1183. The court continued, stating that the defendant-wife failed
to offer a "persuasive basis" for concluding that the released aliens' testimony would be admissible.
Id. (Emphasis added). The court reasoned that the aliens' proffered testimony—that the defendant
wife did not smuggle them—even if true, would not be admissible because it "would not in any
way impeach" the testimony of the witnesses who personally dealt with the defendant and her
conspiracy. Id. 1183-84. (Emphasis added).
Here, the Defendant failed to offer a persuasive basis for concluding the testimony of the
Material Witnesses will be admissible. Like the deported aliens in Castellanos-Machorro, these
aliens had no personal interaction with the Defendant, or transactions that formed the basis of her
indictment. Because the Material Witnesses had no contact with the Defendant, any testimony
they might provide would not in any way impeach the sixteen Grand Jury witnesses. (See,
Criminal Indictment, P. 8-9).
The only alleged connection between the Material Witnesses and the Defendant is that they
were present in a building last owned by the Defendant a year before the raid. Like the 288
deported aliens in Castellanos-Macharro, the Material Witnesses here can only testify that the
Defendant did not smuggle them, force them to prostitute, harbor them, traffic them for sex, aid
them in laundering money, or any related conspiracy. Like the deported aliens in Castellanos
Macharro, such testimony is only possible simply because they had little or no connection to Las
Palmas or the Defendant, and not because they possess exculpatory knowledge. Like the aliens in
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Castellanos-Machorro, the Material Witnesses’ testimony is irrelevant, immaterial, and in no way
rebuts or impeaches the government’s witnesses, as required under Castellanos-Machorro.
B. THE MATERIAL WITNESSES’ TESTIMONY IS NEITHER FAVORABLE NOR CONSEQUENTIAL FOR THE DEFENDANT.
The Defendant counterintuitively claims, without citing any authority, that she does not
need to show that the Material Witnesses possess material knowledge. (See, Defendant’s Motion
Requesting Deposition of Material Witnesses, P. 4, Para. 13). The government, however, is
justified in promptly deporting alien witnesses after making a good faith determination that the
witnesses possess no evidence favorable to the defendant in a criminal prosecution. United States
v. Romero-Cruz, 217 F.3d 374, 377 (5th Cir. 2000); See, United States v. Valenzuela-Bernal, 458
U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Romero-Cruz defines materiality in the
context of material witnesses. Romero-Cruz, at 378. Testimony is material if it impeaches another
witness on a non-collateral matter, or there is a reasonable likelihood the witness’s testimony
would have affected the judgment of the jury. Id.
In Romero-Cruz, the appellant drove a truck from Harlingen, Texas, to near San Manuel,
Texas containing ten (10) illegal immigrants. Id. at 378. Eight (8) of the aliens were deported,
while two (2) were deposed as material witnesses. Id. One of the deported witnesses, Flores
Martinez, stated that she and one of the deposed witnesses, Delgado, were driven from the border
to Harlingen by a woman, and not the appellant. Id. This was inconstant with the deposed witness’s
testimony. Id.
The appellant claimed that the testimony of the deported aliens was favorable and material
because it would have established he did not knowingly engage in illegal conduct. Id. The court
held that the differing testimony was not material, because while Flores-Martinez’s statement may
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have impeached Delgado’s testimony, the statement only impeached a collateral matter, and did
not favorably aid the appellant. Id. Ultimately, the court held there was not a reasonable likelihood
that Flores-Martinez’s statement would not have affected the judgment of the jury. Id.
The detained witnesses will not be able to provide material and favorable deposition
testimony for the Defendant. The Material Witnesses are simply ignorant of the Defendant, her
business, and the allegations against her. They can neither support the government’s allegations,
nor aid the defense. Nothing the Material Witnesses can say will impeach the government’s
witnesses on non-collateral matters, nor will anything they can say have a reasonable likelihood
of affecting the jury’s judgment. Simply put, anything they can say will be inconsequential and
favor neither party. The government is justified in promptly deporting the Material Witnesses
without compelling their deposition testimony.
C. ANY ADMISSIBLE TESTIMONY IS CUMULATIVE.
Even where a deported alien’s testimony may have been favorable to the defense, the
defendant’s due process and compulsory process rights are not violated where the defendant fails
to show the testimony is not merely cumulative to the testimony of available witnesses. United
States v. Perez, 217 F.3d 323, 326 (5th Cir. 2000); United States v. Romero-Cruz, 201 F.3d 374,
376 (5th Cir. 2000). Moreover, the government may deport undocumented alien witnesses upon
a good faith showing that they do not possess information favorable to the defendant. Id.
In Perez, police received a tip that several aliens were being held hostage at a house until
the smugglers were paid for their services. Id. at 324. Law enforcement set up surveillance and,
after observing people freely come and go, executed a search warrant. Id. Twenty-four
undocumented aliens were arrested. Id. The defendant, who lived in an apartment attached to the
house, was charged with aiding and abetting the harboring of an undocumented alien. Id. at 325.
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The victim-daughter of the tipster disappeared after being released on bond, and several
witnesses were deported. Id. at 325-26. Of the eight (8) aliens deported before the indictment was
returned, six could not identify the defendant from a photo spread, and provided other relatively
favorable information. Id. at 236. The defendant was able to depose six material witnesses. Id.
The Court held that although the deported witnesses may have provided favorable testimony, the
defendant failed to show that their testimony was not merely cumulative. Id. at 327.
This Court named twenty-five (25) aliens found at Nuevo Amanecero as “material
witnesses.” Eight (8) of the material witnesses in total have been released from their designation
as material witnesses. The Defendant motioned to depose thirteen (13). The undersigned counsel
represents six (6) of those thirteen, one of whom has been released. Nearly all of the remaining
witnesses can testify to the same cumulative things. For example, as per the Defendant’s Motion,
most of the Material Witnesses can testify:
That they did not work for the Defendant;
That they did not know the Defendant;
That they did not know what the Defendant did;
That they owned cell phones;
That the Defendant did not force them to buy cell phones;
That the Defendant did not take away their cell phones;
That the Defendant did not harbor them,
And that they had no interaction with the Defendant.
Two material witness, Maria Casemiro-Doroteo and Nohemi Hogan, will be deposed
Friday, December 6, 2013. It follows that considering the circumstances of the raid, and
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happenstance of the Material Witnesses presence at Nuevo Amanecer, and in light of the precedent
set by Perez and Romero-Cruz, that all possible testimony they could offer is irrelevant and
cumulative. The Defendant has failed her burden of proving the proffered testimony is not
cumulative. The Material Witnesses have made a good faith showing that they can only provide
cumulative testimony, and, per Perez, should be deported without being deposed.
II. THE MATERIAL WITNESSES HAVE BEEN DENIED DUE PROCESS AND ELECT TO EXERCISE THEIR FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION.
The Material Witnesses respectfully notify the Court that they will invoke their Fifth
Amendment privilege against self-incrimination to any and all incriminating questioned at any
deposition. The Material Witnesses invoke this right because “[n]o person… shall be compelled
in any criminal case to be a witness against himself.” U.S. Const., amend. V. (Emphasis added).
Therefore, a person may legitimately refuse to answer questions asked of her in any proceeding,
civil or criminal, formal or informal, where the answers might incriminate him in a future criminal
proceeding. United States v. Davidson, 2010 WL 3521726 (S.D. Tex., 2010), citing Lefkowitz v.
Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L. Ed.2d 274 (1973).
Due process is afforded to all people present in this country. Arab-American Anti
Discrimination Committee v. Reno, 833 F.Supp. 1365, 1373, (C.D. Cal., 1995). It is irrelevant that
the person is here illegally. Id. The Fifth Amendment and Fourteenth Amendment protect
everyone from deprivations of life, liberty and property without due process of law, regardless of
whether their entry into the country was unlawful, involuntary or transitory. Mathews v. Diaz, 96
S.Ct. 1883, 1890 (1976). The Material Witnesses respectfully request that their liberty be
reinstated by means of release from their detention as material witnesses.
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In Davidson, the defendants were charged with two counts of conspiracy to harbor and/or
induce aliens to come to or reside in the United States., and a tax fraud conspiracy. Davidson at
1. 1,200 aliens were arrested and deported as a result of the investigation against the defendants.
Id. One witness, Vargas-Sanchez, voluntarily spoke with defense counsel and was able to testify
that the defendants did not assist his illegal entry into the country, provide him with false paper,
or encourage his employment. Id. The defendants motioned to depose Vargas-Sanchez. Id.
Vargas-Sanchez advised that he would assert his Fifth Amendment privilege against self
incrimination. Id. The Court ordered the deposition to be taken, and the witness asserted the
privilege. Id. at 2. The defendants objected to the assertion, but the Court held that Vargas
Sanchez properly invoked the privilege against self-incrimination, even though his testimony may
have been exculpatory, because any answer might have given regarding his employment, papers,
or entry into the country would incriminate him. Id. The Material witnesses will invoke their
privilege against self-incrimination to any question which may incriminate them.
III. IF THE MATERIAL WITNESSES ARE NOT RELEASED, THEY REQUEST THE COURT TO SCREEN DEPOSITION QUESTIONS.
This Court should conduct an inquiry into the Material Witnesses’ assertion of privilege.
See United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980)(“The trial judge must make a
proper inquiry into the legitimacy and scope of the witness’ assertion of his Fifth Amendment
privilege.”) The court may not accept a “blanket assertion of the privilege” without inquiry. Id.
The Material Witnesses suggest that the Court conduct a hearing to determine whether their fear
of self-incrimination is justified and, if so, what the boundaries of his Fifth Amendment rights are
in relation to the testimony the parties seek. Id. The witness may not have a valid claim to a Fifth
Amendment privilege with respect to relevant questions about which the parties will inquire. Id.
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The Court “must make ‘a particularized inquiry, deciding in connection with each specific
area that the questioning party wished to explore, whether or not the privilege is well-founded.’”
Id. (quoting United States v. Melchor-Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976)). The Material
Witnesses may be totally excused as a witness “only if the court finds that he could ‘legitimately
refuse to answer essentially all relevant questions.’” Id. (quoting United States v. Gomez-Rojas,
507 F.2d 1213, 1220 (5th Cir. 1975)). “Otherwise, ‘only as to genuinely threatening questions
should their silence (be) sustained.’” Id. (quoting Melchor-Moreno, 536 F.2d at 1049).
The Court of Appeals for the Fifth Circuit has held that the witness’s privilege claims must
be judged by the standards of Hoffman v. United States, 341 U.S. 479, 486 (1951). Id. at 700.
Under Hoffman, the privilege applies where the witness has “‘reasonable cause to apprehend
danger from a direct answer.’” Id. (quoting Hoffman, 341 U.S. at 486).
To sustain the privilege, it need only be evident from the implications of the questions that
a responsive answer to the question or an explanation of why it cannot be answered might implicate
oneself. The trial judge in appraising the claim “must be governed as much by his personal
perception of the peculiarities of the case as by the facts actually in evidence.” The privilege must
be sustained if it is not “‘perfectly clear, from a careful consideration of all the circumstances in
the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency’
to incriminate.” Goodwin, 625 F.2d at 700-01 (internal citations to Hoffman omitted).
Consistent with prior Fifth Circuit case law, the Material Witnesses suggests that the Court
ask the Defense to identify the questions it intends to elicit from them and then inquire of them
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which questions he would object to on immunity grounds. The Court may then determine whether
the witness’s claims are valid as to relevant questions, inquiring further, ex parte, if necessary.1
CONCLUSION
The Material Witnesses have been denied due process. They are unable to provide
testimony that is relevant, material and favorable for the Defendant. Nothing the Material
Witnesses can say will impeach the government’s witnesses on non-collateral matters. Nothing
the Material Witnesses can say will affect the jury’s deliberations. Moreover, any admissible
testimony is merely cumulative. Should this Honorable Court permit the Defendant to depose the
Material Witnesses, they ask the Court to screen the proposed questions to weed out incriminating
questions.
Respectfully submitte
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