Federal appeals court says witness can testify wearing wig, fake mustache

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A federal appeals court decided Wednesday that a confidential informant could wear a wig and fake mustache when he testified against an alleged member of a Mexican drug cartel.

“[D]espite his disguise, the jury was able to hear his voice, see his entire face including his eyes and facial reactions to questions, and observe his body language,” wrote 9th Circuit Judge Carlos T. Bea in U.S. v. Jesus-Casteneda. “These are all key elements of one’s demeanor that shed light on credibility.”

In 2011, a federal jury in Arizona convicted Jorge de Jesus-Casteneda for possession with intent to distribute methamphetamine. According to prosecutors, on Feb. 17, 2010, de Jesus-Casteneda delivered ten pounds of methamphetamine to a Phoenix, Ariz. warehouse for the purpose of completing an arms deal. The drugs were supposed to be payment for military grade weaponry to be delivered to a Mexican drug cartel.

Unfortunately for de Jesus-Casteneda, the warehouse turned out to be part of a sting operation run by undercover agents from the Bureaus of Alcohol, Tobacco, Firearms and Explosives.

At de Jesus-Casteneda’s trial, the government introduced the testimony of a confidential informant who had been part of the ATF sting operation as well as part of a larger investigation into perhaps the worst of Mexico’s drug rings, the deadly Sinaloa Cartel.

To protect its informant’s identity, the government wanted the trial judge to allow the witness to testify wearing a wig, fake mustache and sunglasses. In something of a compromise, the judge let the informant keep the wig and mustache, but had him drop the sunglasses. On direct examination, the informant right off the bat acknowledged that he was testifying in disguise.

However, in something of an oversight, defense counsel failed to ask for a curative instruction telling the jury not to draw any negative inferences against the defendant from the disguise.

De Jesus-Casteneda appealed his conviction to the 9th Circuit, complaining that the informant’s testimony in disguise violated his Confrontation Clause rights.

But the court didn’t buy it. Addressing an issue of first impression for the 9th Circuit, Judge Bea concluded that there was no constitutional violation.

Writing for a unanimous three-judge panel, Bea first acknowledged that a criminal defendant generally has the right to physically face those who testify against him, as well as ensure that jurors may observe the demeanor of those witnesses.

However, the judge observed that the U.S. Supreme Court has never recognized an absolute right to face-to-face confrontation. Here, Bea found that the disguise was justified given the need to protect the identity of an informant who would continue to be involved in Sinaloa Cartel drug investigations as an undercover agent.

Further, the judge was persuaded that the reliability of the informant’s testimony was otherwise assured because the witness was physically present in the courtroom, testified under oath and was subject to cross-examination in de Jesus-Casteneda’s presence.

“Thus, we hold that in this case, the disguise in the form of a wig and mustache did not violate the Confrontation Clause,” the judge wrote.

Bea also rejected the de Jesus-Casteneda’s alternate argument that the disguise violated his due process rights.

While conceding the danger that the disguise might have given the jury the impression that de Jesus-Casteneda was a particularly dangerous character, Bea explained that any unfair prejudice was outweighed by evidence of the man’s guilt.

“Even without the possibly prejudicial effect of the [informant’s] disguise, it is clear beyond a reasonable doubt that the jury would have delivered a guilty verdict,” the judge wrote.

There’s not a lot of federal authority on whether a witness’s testimony in disguise violates the Confrontation Clause. Given the novelty of the issue, don’t be surprised if the 9th Circuit rehears the case en banc. Of course, the case presents a juicy issue that should be of interest to the U.S. Supreme Court.