Harini P. Raghupathi, Federal Defenders of San Diego, SanDiego, California, for the defendant-appellant.Laura E. Duffy, United States Attorney, and Bruce R. Castet-ter and David P. Curnow (argued), Assistant United StatesAttorneys, San Diego, California, for the plaintiff-appellee.
KOZINSKI, Chief Judge:May the government deport an illegal alien who can pro-vide exculpatory evidence for a criminal defendant beforecounsel for that defendant has even been appointed? Webelieve the answer is self-evident, as the government recog-nized in an earlier case where it moved to vacate a convictionafter it deported witnesses whose testimony would haveexculpated defendant.
See United States
,315 F.3d 1143 (9th Cir. 2003),
withdrawn by United States
, 327 F.3d 829 (9th Cir. 2003); Joint Motion toRemand Case to the District Court for the Limited Purpose of Dismissing the Indictment (Feb. 5, 2003);
Appeal Lost, Yet Freedom Won
, L.A. Times, Apr.23, 2003, at B1. We had assumed, following
,that the government would refrain from putting aliens whocould provide exculpatory evidence beyond the reach of thecourt and defense counsel. But whatever wisdom the UnitedStates Attorney for the Southern District of California gainedin
appears to have applied to that case and thatdefendant only. We change that today.
On March 25, 2010, border patrol agents discovered agroup of twelve illegal aliens hiding in the thick brush in