As the COVID-19 pandemic continues to stunt progress in the trial of three men accused of conspiring to defraud the city of Weslaco of millions of dollars, a new wrinkle has emerged that may further hamper the case: the potential inability for one witness to testify.
At least one witness in the federal government’s case against the three codefendants is suffering a medical condition that may jeopardize his ability to testify by the time the trial — already twice delayed — gets underway.
To that end, federal prosecutors — in a motion filed last Wednesday — requested the court’s permission to depose the unnamed witness in order to preserve his testimony.
However, attorneys for the three defendants — former Precinct 1 Hidalgo County Commissioner Arturo “A.C.” Cuellar, Weslaco businessman Ricardo Quintanilla, and Daniel J. Garcia, an attorney from Rio Grande City — opposed the government’s request to take sworn testimony from the man ahead of the trial.
The government’s motion came just two days after defense counsel filed a motion of their own requesting a 90-day delay of the proceedings in light of the COVID-19 pandemic.
The pandemic has already caused one delay of the trial, after U.S. District Judge Micaela Alvarez granted a continuance of a July trial date for the same reason.
Now, just one month before the case was set to begin jury selection, Alvarez called a status conference to discuss the new issues Tuesday morning.
Alvarez addressed the government’s deposition request first, saying that though prosecutors requested to take the man’s testimony, they had not provided evidence to support granting the request.
It was a point the defense latched onto as Alvarez questioned the attorneys in turn regarding their opposition.
“The government hasn’t made an evidentiary showing,” said Quintanilla’s attorney, Jaime Peña.
Peña also shared his concern that the deposition process — via the videoconferencing application, Zoom — would deprive his client of his Sixth Amendment right to confront witnesses against him.
“The defense would not be present with the witness… that raises constitutional concerns,” Peña said.
The attorney cited the Federal Rules of Criminal Procedure, which state the court can grant a deposition motion in “exceptional circumstances and in the interest of justice” but that the defendant’s right to be present must be preserved.
The defense is entitled to the same access to the witness as it would be at trial.
“The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial,” Rule 15 reads, in part.
Carlos A. Garcia, attorney for Cuellar, agreed, saying the deposition would present “a Sixth Amendment confrontation issue.”
After hearing from the defense, Alvarez turned her attention to prosecutors, pressing them for answers on why they hadn’t filed evidence to support their motion.
“The situation is somewhat fluid and developing with regard to the witness’ treatment,” replied Peter M. Nothstein, an attorney with the U.S. Department of Justice’s Public Integrity Section.
While Nothstein offered to supplement the motion via an affidavit from the witness or his attorney, a comment from his colleague, Assistant U.S. Attorney Roberto “Bobby” Lopez Jr., hinted at the precariousness of the witness’ current condition.
“As it stands right now, even if the court were to permit the government to do so, I don’t think the medical condition would allow us to proceed at this moment,” Lopez said.
“I learned that the condition does not expect to become better. In some respects it’s become worse,” he added.
Unswayed, Alvarez chastised the two prosecutors for making their request without evidence, reminding them that the allegations laid out in a motion do not constitute evidence to support it.
Unconvinced by their argument that the worsening health of the witness warranted the extraordinary step of granting a deposition prior to trial, Alvarez issued a gentler version of an admonition she had given another government attorney in a case that had immediately preceded the Weslaco case Tuesday.
“I hate wasting anybody’s time. I do not like to waste my own time,” the judge said.
“Based on the fact that at this time the government has no evidence … I’m denying it,” Alvarez said of the government’s motion.
However, Alvarez did so “without prejudice,” leaving room for prosecutors to try again should they rustle up the evidence necessary to rehear the request.
Finally, Alvarez turned her attention to the defense’s request to delay proceedings for at least three months.
While Carlos Garcia and Peña cited the pandemic’s continued health threats, Daniel Garcia’s attorney noted a different reason for needing more time to prepare.
Until last week, Conrad had been representing Daniel Garcia jointly with attorney Gocha Allen Ramirez. However, as Ramirez prepares to assume office as the 229th Judicial District Attorney come January, Alvarez granted his request to withdraw from the case.
“I’m not a trial lawyer, so he (Daniel Garcia) will need someone who can fulfill that role for him,” Conrad said of Ramirez’s withdrawal from the case.
“That person will need to get up to speed,” he added.
With both prosecutors and the defense moving for a January date to hold the next status conference, Alvarez urged Daniel Garcia to retain additional representation soon.
“I would move urgently on that Mr. Garcia, because otherwise, Mr. Conrad may have to become a trial lawyer,” Alvarez quipped.
Though McAllen’s three federal judges have been given the latitude to set trial dates on a case by case basis during the pandemic, Alvarez agreed the complexity of the Weslaco case, and the number of people required to be in the courtroom during trial, poses higher risks.
The judge estimated the trial could be delayed well into the spring. In the meantime, the next pandemic litmus test will come on Jan. 21, 2021, when the two sides will meet for another status conference.