In addressing the appeal, the U.S. District Court for the District of Nebraska (U.S.A.) noted as follows:

• In the instant case, the Court is called to answer the following question: “When the government removed hundreds of (irregular) aliens from this country before their testimony could be preserved, did the government act in bad faith and deny the defendants material and favorable evidence?”.
• It is admitted that the Government seized all irregular migrants found at N.B., deported most of them and did not now know where any of them were. Accordingly, all such migrants were unavailable to the defendants. It is undisputed that defense counsel were not given an opportunity to interview any of the irregular migrants before they were removed from the United States.
• The Immigration and Naturalization Service (INS) did not have the input of the United States Attorney's office when it conducted the interviews or removed the irregular migrants. It also does not appear that the United States Attorney's office was asked to review the interview forms before the migrants were removed from the country.
• It is difficult to summarize the actual results of the interviews. This is so because many of the interviews were not conducted in accordance with the amended I-213 form and the instructions that the agents were given regarding those forms. Specifically, the agents frequently failed to fill out the amended form or the agents never asked the special questions called for on the said form (e.g. re the person who recruited the irregular migrants even though they had been specifically instructed to do so). At least 55 of the forms I-231, or roughly 25% of the interviews, were not completed as required.
• Despite the difficulty in summarizing the interviews caused by the failure of the agents to follow instructions, much of the information provided by the irregular migrants was admittedly exculpatory. The case agent testified to an example of an excluded irregular migrant who could have given exculpatory testimony in favor of Defendants 1 to 6. Specifically, the said migrant would have inter alia declared to have rented false documents to a third party, not covered by the proceedings under assessment. Likewise, the case agent admitted that at least one of the irregular migrants could have given exculpatory testimony regarding all of the defendants (e.g. declaring to have obtained documents from aunts, cousins, brothers, people in Omaha, in Texas (U.S.A.), with the same applying to who had assisted them in obtaining those documents).
• Importantly, some interviews were thought to be potentially exculpatory by the agents conducting them. These agents reported that view to the respective supervisors. However, the record revealed no serious attempt to detain those migrants as material witnesses, clarify the situation or take sworn statements from them to preserve their potentially exculpatory testimony.
• The Sixth Amendment's assurance of compulsory process and the Fifth Amendment's guarantee of due process both prohibit the government from seizing irregular migrants and removing them from this country when the result of that action is to deny criminal defendants favorable and material testimony from those absent aliens (United States v. Valenzuela-Bernal, 1982). Notably, “when a witness has been deported prior to a criminal trial, the defendant can demonstrate a denial of compulsory and due process which require the dismissal of the indictment if he or she makes "a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses". See also United States v. Lin, 2001.
• While not explicitly enshrined in Valenzuela-Bernal, some Circuits have required that defendants also prove that the Government's removal action be a result of "bad faith". See, e.g., United States v. Chaparro-Alcantara (2000, Seventh Circuit), United States v. Iribe-Perez (1997, Tenth Circuit). Although in the competent Eight Circuit, this remains an open question, it is likely that "bad faith" would be required if the Court of Appeals were to consider that issue. Accordingly, the defendants are obligated to prove bad faith in order to secure dismissal of the indictment.
• The element of bad faith can be proven in one of two ways: show that the Govrnment (i) departed from normal deportation procedures, or (ii) deported the irregular migrants to gain an unfair tactical advantage over the defendant at trial. The proper focus is "on the Government's knowledge when, exercising its deportation authority, it arranged for the departure of the witnesses, not on any of its subsequent conduct” (Chaparro-Alcantara (2000, Seventh Circuit)).
• In view of the facts of the case, the Government acted in bad faith when deporting the detained irregular migrants. The Government did not follow its own deportation procedures. It is undisputed that the normal INS procedure in a case involving a sweep to obtain evidence of a targeted criminal prosecution was to faithfully search for and preserve exculpatory evidence, as well as to gather and preserve inculpatory evidence. The involved agents knowingly failed to preserve exculpatory evidence. Three factors illustrate the point:
  • The I-213 form was amended by the INS to require the agents to gather pertinent information in a particular format. The agents were instructed to fill out the amended form. Yet, in a significant percentage of the cases the amended I-213 forms were not filled out as required.
  • It was clearly the policy of the INS not to remove anyone who the INS agents believed possessed exculpatory information. The case agent referred to irregular migrants in position to provide potential exculpatory evidence in respect of all or most defendants.
  • It is undisputed that if the interviewing agents had a question about whether an irregular migrant possessed exculpatory information, INS policy dictated that such information should have been reviewed by a supervisor so that appropriate action could be taken to preserve the potentially exculpatory information. Despite the fact the that (i) one agent testified that he made at least two referrals for review by supervisors and (ii) the case agent testified that at least some of the migrants in fact possessed exculpatory information, the record reveals no serious attempt on the part of supervisors to detain those migrants as material witnesses, clarify the situation or take sworn statements from them to preserve their potentially exculpatory testimony.
• Contrarily to the view of the Judge a quo, the irregular migrants were in the position of providing material evidence. In making a determination of this kind, the Court must keep in mind the Supreme Court's observations that the witnesses' unavailability through no fault of the defendants "may well support a relaxation of the specificity required in showing materiality" and the defendants in this situation "cannot be expected to render a detailed description of their lost testimony". In support of the conclusion that the excluded migrants could provide material evidence, the following factors are to be taken into account:

(i)            Even the Government had admitted that the migrants’ testimony was central to the case by stating – while motioning for the declarations of untraceable migrants to be admitted as evidence – that it "constitutes a large portion of the government's case".

(ii)           It had been proven that many of the excluded "witnesses had information relating directly to the defendants' knowledge of whether their workers were” irregular," and that evidence is certainly both material and favourable to the defense of accusations relating to hiring irregular migrants.

(iii)          The Judge a quo concern that the migrants’ evidence would not specifically rebut each overt act or substantive count misses the point. Initially, for evidence to be favorable and material, it is not required that it serve as a defense to every Prosecution’s allegation. On the contrary, the question is whether the evidence "might be expected to play a significant role in the suspect's defense".

(iv)          The exculpatory testimony of the irregular migrants would not have been cumulative and could not have been provided by anyone else. Indeed, that is why the Government used over 100 agents to raid N.B. For the same reason, the superseding indictment alleged a conspiracy spanning 5 December 2000. No other witnesses could provide an unbiased, equally effective, substitute for their exculpatory knowledge of what went on at N.B.

• The overt acts and substantive counts are much based on the conduct of two confidential informants and an undercover INS agent. Testimony from irregular migrant witnesses found at N.B. - who had no bias in favor of the Government or the defendants, that corroborated the assertion of the defendants that they did not intentionally and knowingly provide bogus forms or help to fill them out - would have served to dilute the significance of the testimony of the informants and undercover agent. Likewise, such testimony would buttress the defendants' obvious mistake defense. Thus, it would be wrong to suggest that the migrant witnesses would not have played a significant role as far as the Defence is concerned.
• In light of the above, it is clear the Government faced a delicate dilemma in the instant case. On the one hand, it must enforce the criminal laws. On the other, it must enforce immigration laws. In so doing, it must also be sensitive to the very real humanitarian concerns, which require it to act in a prompt fashion when dealing with the often poor and abused irregular migrants who become wards of the Government. Thus, "It simply will not do, therefore, to minimize the Government's dilemma in cases like this". The Government must abide by its own procedures.

Against this background, U.S. District Court for the District of Nebraska granted the defendants’ motions and dismissed the indictments.

NOTE: As per USA national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime of smuggling of migrants but rather an aggravating circumstance (see SHERLOC Database of Legislation – USA).