Defendants 1 and 2 (which together form N.B.) conspired - with their employees Defendants 3 to 6 - to commit and cover up immigration violations during the hiring of aliens who worked in their packinghouse. Specifically, from 31 July 2000, "through on or about December 5, 2000," the defendants "willfully, and knowingly" conspired to commit various offenses including hiring irregular migrants, providing false immigration documents, completing false immigration forms, and representing to the Nebraska United States) Department of Labor that false social security numbers provided by irregular migrants were genuine. Six overt acts are alleged on various dates. The conduct of two confidential informants and an undercover Immigration and Naturalization Service (INS) agent prior to 5 December 2000, provides the factual basis for the overt acts.
Defendants 7 to 9 (who managed to escape authorities) are alleged of having - in El Paso, Texas (U.S.A.) and elsewhere - recruited irregular migrants to work at N.B., transported them to Omaha, Nebraska (U.S.A.) via bus and supplied them with false documents.
The defendants acted with the purpose of obtaining a financial or other material benefit.
On 5 December 2000, the INS executed search warrants and conducted a raid at N.B. The INS found and detained over 200 irregular migrants at N.B. The precise number of aliens is unclear because the government's records were poor. The number was probably between 209 and 213 people. Apparently because it was costing the Government over 11000 USD per day to hold the migrants, on 6 and 7 December 2000, approximately 152 migrants were removed from the United States. Other 19 migrants were held in custody and sent to Dallas, Texas (U.S.A.) to appear before immigration judges. Others – 30, according to INS estimation - were released on their own recognizance. Of those released on their own recognizance, at least 11 became fugitives. Ultimately, the INS admitted that at least 181 migrants were either deported or were "voluntarily returned". The whereabouts of the others remained unknown to the INS.
In ascertaining the facts, authorities relied on testimonial and documentary evidence as well as undercover surveillance and the input of confidential informants.
Through a superseding indictment, the defendants were charged with conspiring to commit and covering up immigration violations during the hiring of irregular migrants. Defendants 1 to 6 were then indicted with various substantive counts in furtherance of the conspiracy. Defendants 7 to 9 were charged with recruiting irregular migrants to work at N.B., transporting them to via bus, and supplying them with false documents. The Prosecution asserted a forfeiture count against N.B.
Defendants 1 to 6 presented motions to dismiss the indictment due to loss of material and favourable evidence.
The Judge a quo entered an order precluding the Government from using at trial any evidence regarding the hundreds of irregular migrants who were removed from the country. The Prosecution appealed against this order.
The U.S. District Court for the District of Nebraska granted the motions of the defendants, consequently dismissing the indictments. It dismissed the appeal of the Prosecution.
For further details, see “Procedural History” and “Commentary”.
Following an investigation, a raid was ordered to the installations of N.B. This raid was different than a typical Immigration and Naturalization Services (INS) enforcement sweep whereas a specific criminal investigation is not the focus of the foray. Prior to the raid, a special briefing was held. While INS agents were present at the briefing, no Government lawyers were present. Regarding the pending charges, the agents were told that if they found irregular migrants, they were to interview them. The agents were told to "go into great depth" and look for and preserve both inculpatory and exculpatory information. The agents were instructed to record information on a certain form ("I-213") as well as to report potentially inculpatory or exculpatory information to supervising agents. The I-213 form had been amended in order to effectively meet the purpose of the raid/investigation. Notably, extra lines had been added, requiring the agents to ask: (i) who hired the migrant; (ii) who recruited the migrant; (iii) how the migrant traveled to Omaha, Nebraska (U.S.A.); (iv) who assisted in completing the relevant immigration forms; (v) from whom the migrant received his or her documents, and; (vi) how much the migrant paid for the documents.
Through a superseding indictment, the defendants were charged with conspiring to commit and covering up immigration violations during the hiring of irregular migrants. Defendants 1 to 6 were then indicted with various substantive counts in furtherance of the conspiracy. Defendants 7 to 9 were charged with recruiting irregular migrants to work at N.B., transporting them to Omaha, Nebraska (U.S.A.) via bus, and supplying them with false papers.
Even though the general practice of the INS was not to remove anyone who was considered a material witness for the Defense, the Government seized all migrants found at the raid, deported most of them and lost trace of all of them. The Judge a quo ruled the migrants were thus unavailable to defendants. Indeed, it is undisputed that defense counsels were not given an opportunity to interview any of the irregular migrants before they were removed from the country.
Against this background, the Judge a quo recommended that the Judge ad quem denied the motion of Defendants 1 to 6 to dismiss the indictment due to loss of testimonial evidence. Although concluding the Government acted in bad faith, the Judge a quo believed that the irregular migrants who were removed from the United States could not have provided "material" testimony to the Defense (see “Commentary”). On the other hand, because of its bad-faith conduct, the Judge a quo entered an order precluding the government from using at trial any evidence regarding the hundreds of irregular migrants who were removed from the country country. The Prosecution appealed against this order
The defendant argued the indictment should be dismissed because the Government acted in bad faith in deporting most irregular migrants detained at the raid to N.B. and losing trace of the others. Likewise, the irregular migrants could have provided material and favorable evidence to the Defense.
Ibidem Defendant 1