FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50618 Plaintiff-Appellee,

D.C. No.

v.  CR-04-01463-JAH

LOUIS JOSEPH BAHAMONDE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

August 2, 2005—Pasadena, California

Filed April 25, 2006

Before: William C. Canby, Jr., Alex Kozinski, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Canby;

Dissent by Judge Rawlinson

4595
COUNSEL

Kurt D. Hermansen, Federal Defenders of San Diego, Inc.,

San Diego, California, for the appellant. 

4598 UNITED STATES v. BAHAMONDE
Stephen R. Cook, Assistant United States Attorney, San

Diego, California, for the appellee. 

OPINION

CANBY, Circuit Judge: 

Louis Bahamonde appeals his jury convictions for knowingly importing marijuana and possession of marijuana with

intent to distribute. 21 U.S.C. §§ 841(a)(1), 952, 960. Bahamonde contends that the district court erred by excluding the

testimony of the government’s case agent, called by the

defense, on the sole ground that Bahamonde failed to comply

with the Department of Homeland Security’s regulations governing testimony by its employees. We reverse for two reasons: (1) the regulation, which required disclosure by

Bahamonde without reciprocal disclosure by the government,

violated Bahamonde’s due process rights, and (2) the district

court abridged Bahamonde’s Sixth Amendment rights by

imposing the severe sanction of exclusion of the agent’s entire

testimony without weighing the countervailing interests, such

as Bahamonde’s constitutional rights, prejudice to his

defense, or the availability of alternative sanctions.1

BACKGROUND

In the Southern District of California, a grand jury indicted

Bahamonde for knowingly importing marijuana and possession of marijuana with intent to distribute. 21 U.S.C.

§§ 841(a)(1), 952, 960. A jury convicted him of both counts.

1Bahamonde also contends that the indictment must be dismissed

because of improper instructions to the grand jury, but this challenge is

foreclosed by our recent decision in United States v. Navarro-Vargas, 408

F.3d 1184 (9th Cir.) (en banc), cert. denied, 126 S. Ct. 736 (2005). Our

disposition of this appeal makes it unnecessary for us to address Bahamonde’s other contentions. 

UNITED STATES v. BAHAMONDE 4599
The district court sentenced him to twenty-seven months in

prison on each count, to run concurrently, followed by three

years of supervised release. 

Bahamonde was convicted because, four hours after driving

from California into Tijuana, Mexico, he attempted to drive

back into the United States carrying twenty-seven kilograms

of marijuana hidden in his car. Customs and Border Protection Officers stopped Bahamonde’s car and searched it

because Bahamonde appeared nervous at the port of entry.

The case agent, Don Rodmel, interviewed Bahamonde,

arrested him, and conducted the investigation leading to

Bahamonde’s prosecution. 

During questioning and at trial, Bahamonde maintained

that, although there was a large quantity of marijuana hidden

in the car, he did not know it was there. He contended that the

acquaintance from whom he had bought the car, Raul Fuentes, must have hidden the marijuana in the car without telling

Bahamonde. He further contended that, at the time of its

investigation of Bahamonde’s case, the government possessed

substantial information about Fuentes, including his involvement in transporting controlled substances across the border.

Bahamonde sought to show that the government failed to

investigate the possibility that Fuentes, and not Bahamonde,

was the guilty party and that this failure resulted in the wrong

man being prosecuted. 

Agent Rodmel attended the entire trial, sat next to the prosecutor at the prosecutor’s table, assisted him throughout, and

was listed on the government’s witness list. When Bahamonde attempted to call Agent Rodmel as a witness, however,

the government objected on the sole ground that Bahamonde

had failed to comply with 6 C.F.R. § 5.45(a) (requiring a litigant to “set forth in writing, and with as much specificity as

possible, the nature and relevance of the official information

sought” from Department of Homeland Security witnesses). 

4600 UNITED STATES v. BAHAMONDE
When the district judge asked Bahamonde’s counsel why

he had failed to comply, Bahamonde’s counsel stated that he

believed that the regulation was not a requirement; he merely

followed it sometimes as a courtesy to the government. Bahamonde’s counsel stated, however, that he would “be happy to

give [Agent Rodmel] a C.F.R. letter right now.” The district

court ruled that this offer to comply was untimely, and

excluded the agent’s testimony. In later denying Bahamonde’s

motion for a mistrial, the district judge specified that he

excluded the witness because Bahamonde’s counsel knew of

the regulation and of the fact that he would need Agent Rodmel’s testimony, but failed to comply with the regulation. 

ANALYSIS

We conclude that the district court erred in excluding the

agent’s testimony for two reasons.2

A. The Regulation Violates Wardius’s Reciprocal

Discovery Requirement 

[1] The regulation of the Department of Homeland Security

provides, in part: 

If official information is sought, through testimony

or otherwise, by a request or demand, the party seeking such . . . testimony must . . . set forth in writing,

and with as much specificity as possible, the nature

and relevance of the official information sought. . . .

Department employees may only . . . testify concern2We review de novo whether the district court violated Bahamonde’s

due process or compulsory process rights. See Guam v. Palomo, 35 F.3d

368, 374 (9th Cir. 1994), overruled on other grounds by United States v.

Galindo-Gallegos, 255 F.3d 1154 (9th Cir. 2001); United States v. Lewis,

979 F.2d 1372, 1374 (9th Cir. 1992). In other respects, we review for an

abuse of discretion whether the district court erred by admitting or excluding evidence. United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir.

1997) (per curiam). 

UNITED STATES v. BAHAMONDE 4601
ing those matters which were specified in writing

and properly approved by the appropriate Department official designated in § 5.44. 

6 C.F.R. § 5.45(a).3 4 The regulation contains no requirement

that the government specify the nature of testimony or other

evidence that it intends to use to rebut the demanded testimony. 

[2] The regulation, as applied in this criminal prosecution,

violates due process by failing to provide reciprocal discovery. The governing principle is established by Wardius v.

Oregon, 412 U.S. 470 (1973). In Wardius, the Supreme Court

addressed Oregon’s requirement that a criminal defendant

seeking to offer alibi evidence give notice in advance, “which

3The subsection provides in full: 

(a) If official information is sought, through testimony or otherwise, by a request or demand, the party seeking such release or

testimony must (except as otherwise required by federal law or

authorized by the Office of the General Counsel) set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought. Where documents or

other materials are sought, the party should provide a description

using the types of information suggested in § 5.3(b). Subject to

§ 5.47, Department employees may only produce, disclose,

release, comment upon, or testify concerning those matters which

were specified in writing and properly approved by the appropriate Department official designated in § 5.44. See United States ex

rel. Touhy v. Ragen, 340 U.S. 462 (1951). The Office of General

Counsel may waive the requirement of this subsection in appropriate circumstances. 

4Section 5.45(a) does not create a privilege against divulging evidence

because its enabling statute, 5 U.S.C. § 301, states that “[t]his section does

not authorize withholding information from the public or limiting the

availability of records to the public.” See Exxon Shipping Co. v. United

States Dep’t of Interior, 34 F.3d 774, 778 (9th Cir. 1994). The Supreme

Court in a civil case has held, however, that a government agency can

require employees to secure approval of the agency head before responding to a subpoena. See United States ex rel. Touhy v. Ragen, 340 U.S. 462,

467-68 (1951). 

4602 UNITED STATES v. BAHAMONDE
notice shall state specifically the place or places where the

defendant claims to have been at the time or times of the

alleged offense together with the name and residence or business address of each witness upon whom the defendant

intends to rely for alibi evidence.” Or. Rev. Stat. § 135.875

(since renumbered as § 135.455). The statute imposed no

reciprocal requirement on the State to provide names and

addresses of witnesses the State intended to call to rebut the

alibi. The Supreme Court held that this imbalance of discovery requirements violated due process when the statute was

invoked to exclude the testimony of the defendant’s alibi witness. Wardius, 412 U.S. at 472. The Court stated: 

It is fundamentally unfair to require a defendant to

divulge the details of his own case while at the same

time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence

which he disclosed to the State. 

Id. at 476. This same unfairness inheres in the present criminal case. Bahamonde was required to state with specificity the

testimony he expected from Agent Rodmel but the government was not required at any time to state what evidence it

expected to offer in rebuttal, either from Rodmel or anyone else.5

Nor was there any other requirement in force to compel the

government to reveal that information. See FED. R. CRIM. P.

16 (requiring statements of expected testimony only with

regard to expert witnesses). 

5The dissenting opinion here contends that Wardius is inapplicable

because the Department of Homeland Security regulation “was promulgated, not as a discovery device, but as a means to control the flow of

information from the agency and insure that no information was disclosed

that should have remained secreted.” Infra, p. 4609. But the regulation

sought not only to control the release of information; it required disclosure

of information from Bahamonde without offering corresponding information. That kind of imbalance is what Wardius viewed as fundamentally

unfair. 

UNITED STATES v. BAHAMONDE 4603
[3] The government points to two differences between

Wardius and this case. First, Washington “grant[ed] no discovery rights to criminal defendants, and indeed, [did] not

even provide defendants with bills of particulars.” Wardius,

412 U.S. at 475. Federal criminal prosecutions, on the other

hand, allow for liberal discovery. Second, whereas alibi

defenses frequently involve people and places unrelated to the

charged offenses, and thus potentially not covered by traditional discovery rules, the information Bahamonde sought

from Agent Rodmel was available to both parties through the

regular discovery process. According to the government, forcing the defendant to disclose what he planned to ask Agent

Rodmel didn’t give the government any practical advantage.

Wardius held, though, “that in the absence of a strong showing of state interests to the contrary, discovery must be a twoway street,” and “if there is to be any imbalance in discovery

rights, it should work in the defendant’s favor.” Id. at 475 &

n.9. Nothing in Wardius limits its reasoning to alibi defenses

or trial processes entirely lacking in discovery. 

[4] The regulation, as applied in this case, accordingly falls

squarely within the rule of Wardius.

6

 We cannot say, on this

record, that this constitutional error was harmless beyond a

6Our decision does not address the validity of the regulation in other circumstances or contexts. See, e.g., Ragen, 340 U.S. at 467-68 (upholding,

in a civil case, order of Department of Justice prohibiting employees from

responding to subpoenas without permission of the Attorney General or

his Assistants). Nor does our decision conflict with United States v. Henson, 123 F.3d 1226 (9th Cir. 1997), overruling on other grounds recognized by United States v. Foster, 165 F.3d 689, 692 n.5 (9th Cir. 1999) (en

banc). In Henson, the district court quashed the defendant’s subpoena of

a Bureau of Alcohol, Tobacco, and Firearms (ATF) policy manual “because the evidence could be obtained by questioning the witnesses directly” and “because Henson did not follow the procedures for obtaining ATF

records outlined” in the regulation. Id. at 1237. The panel affirmed

because “[t]here was nothing to prevent Henson from immediately serving

another subpoena on the ATF that followed the ATF guidelines.” Id. And

Henson was allowed to cross-examine witnesses on the contents of the

manual. Henson did not address a situation where the defendant was

required to state precisely how he planned to use the evidence at trial, and

thus, quashing the subpoena did not implicate Wardius. Here we deal only

with the application of the regulation requiring a criminal defendant to

state how he plans to use material evidence when the government is under

no reciprocal discovery obligation. 

4604 UNITED STATES v. BAHAMONDE
reasonable doubt. See Chapman v. California, 386 U.S. 18, 24

(1967) (stating standard for harmlessness of constitutional

error). The marijuana was hidden behind the rear seat (the

inspector felt a hard spot in the seat and used a screwdriver

to pry the backrest aside to reveal the marijuana), in the spare

tire, in the rear bumper, and in the rear door panels. We cannot say beyond a reasonable doubt that a jury would reject a

defense based on testimony that the government failed to

investigate the possibility that the former owner, a drug trafficker, had left the marijuana in the car without the knowledge

of Bahamonde. We accordingly reverse Bahamonde’s conviction. See Wardius, 412 U.S. at 479. 

B. Bahamonde Can Challenge the Regulation Without

Having Attempted to Comply With It

The government defends the district court’s ruling by relying primarily on three cases from other circuits, each of which

precluded a defendant from challenging a very similar regulation because he had made no attempt to comply with its

requirements and secure a determination whether the government agency would make the information available. See

United States v. Allen, 554 F.2d 398, 406-407 (10th Cir.

1977); United States v. Marino, 658 F.2d 1120, 1125-26 (6th

Cir. 1981) (following Allen but also noting that excluded evidence was not “material”); United States v. Wallace, 32 F.3d

921, 928-29 (5th Cir. 1994) (following Allen and Marino but

also noting that excluded evidence was “cumulative and marginally relevant”). None of these cases, however, addresses

the problem of imbalance of discovery obligations that were

found to cause a constitutional violation in Wardius, and it is

not clear that this issue was directly raised in the three cases.

[5] The issue is squarely raised here, however, and Wardius

itself provides the answer. In Wardius, the government argued

that, because the defendant did not comply with the discovery

rule, he should not be allowed to challenge it as violating due

process, particularly because the state courts might have read

UNITED STATES v. BAHAMONDE 4605
a reciprocal discovery right into the statute and avoided the

constitutional issue. Wardius, 412 U.S. at 477. The Court

rejected this argument because it was speculative, and permitted the defendant to challenge the statute without complying

with its disclosure requirements. Id. At 477-78. The Court

stated: 

To be sure, the state court might have construed the

Oregon statutes so as to save the constitutionality of

the notice requirement and granted reciprocal discovery rights. But the state court would also have

had the option of reading state law as precluding

reciprocal discovery. If the court adopted this latter

alternative, it would have had to strike down the

notice-of-alibi requirement. But petitioner would

have had only a Pyrrhic victory, since once having

given the State his alibi information, he could not

have retracted it. Thus, under this scenario, even

though the notice-of-alibi rule would have been

invalidated, the State would still have had the benefit

of nonreciprocal discovery rights in petitioner’s case

— the very result which petitioner wishes to avoid

by challenging the rule. 

. . . [P]etitioner cannot be faulted for taking the legislature at its word. 

Id. Here, too, Bahamonde cannot be faulted for taking the regulation as written, with its absence of any requirement of

reciprocal discovery. He need not reveal the nature of his

anticipated defense testimony in order to challenge the regulation that improperly requires him to reveal such testimony. If

such a challenge succeeded, he still would have revealed his

defense. We accordingly permit him to challenge the regulation without first complying with its threshold disclosure

requirement. 

4606 UNITED STATES v. BAHAMONDE
C. The District Court Abused Its Discretion By Failing

To Weigh Countervailing Interests Before

Excluding Testimony

[6] We require a district court, before excluding a defense

witness’s testimony, to balance the countervailing interests in

order to ensure that the exclusion complies with a criminal

defendant’s Sixth Amendment rights. See Eckert v. Tansy,

936 F.2d 444, 446 (9th Cir. 1991) (balancing interests);

Fendler v. Goldsmith, 728 F.2d 1181, 1187-90 (9th Cir.

1983); see also Taylor v. Illinois, 484 U.S. 400, 414-15

(1988). The factors to be weighed include “ ‘[t]he integrity of

the adversary process, which depends both on the presentation

of reliable evidence and the rejection of unreliable evidence;

the interests in the fair and efficient administration of justice;

. . . the potential prejudice to the truth determining function

of the trial process’ . . . the ease with which one can comply

with the statute[;] and whether failure to comply was willful

and motivated by a desire to gain a tactical advantage at trial.”

Eckert, 936 F.2d at 446 (alteration in original) (quoting Taylor, 484 U.S. at 414-15). Additional (or, at least, differently

worded) considerations include “the effectiveness of less

severe sanctions, the impact of preclusion on the evidence at

trial and the outcome of the case, the extent of prosecutorial

surprise or prejudice, and whether the violation was willful.”

Taylor, 484 U.S. at 415 n.19 (citing Fendler, 728 F.2d at

1188-90). The “most significant” consideration is “how

important was the witness?” Fendler, 728 F.2d at 1188. 

[7] Agent Rodmel—the case agent—was very important.

He interviewed Bahamonde, arrested him and conducted the

investigation leading to criminal proceedings against Bahamonde. With the exception of Raul Fuentes, Agent Rodmel

was the key player in the defense asserted by Bahamonde—

failure of the government to investigate possible third-party

culpability. See United States v. Sager, 227 F.3d 1138, 1145

(9th Cir. 2000) (noting the legitimacy and importance of a

defense of failure to investigate properly); United States v.

UNITED STATES v. BAHAMONDE 4607
Crosby, 75 F.3d 1343, 1349 (9th Cir. 1996) (noting the same

with respect to third-party culpability defense). The importance of Agent Rodmel to Bahamonde’s defense accordingly

weighs heavily in Bahamonde’s favor. 

[8] The remaining factors mostly weigh in Bahamonde’s

favor, but we do not belabor them because we are reversing

in any event for violation of Wardius’s rule. Having not

weighed any factors militating against exclusion of the witness, the district court abused its discretion. Moreover, the

government does not suggest that it was prejudiced by the

defendant’s failure to follow the regulation.7 Because the

exclusion of Rodmel’s testimony without weighing the countervailing interests impinged on his Sixth Amendment rights,

the error is constitutional. See Fendler, 728 F.2d at 1190. We

conclude that, like the constitutional error of applying the

Department’s regulation and for the same reasons, it is not

harmless beyond a reasonable doubt. See Chapman, 386 U.S.

at 24. This error, too, requires that we reverse Bahamonde’s

conviction and remand for a new trial. 

CONCLUSION

For the reasons stated, Bahamonde’s convictions are

reversed and the matter is remanded to the district court for

a new trial. 

REVERSED and REMANDED.

RAWLINSON, Circuit Judge, dissenting: 

I respectfully dissent. My primary disagreement with my

7At oral argument, we learned that the prosecutor had complied with the

regulation and received permission from the Department of Homeland

Security to have Agent Rodmel testify (at least on certain topics). 

4608 UNITED STATES v. BAHAMONDE
colleagues’ resolution of this case is their characterization of

the pivotal issue as one of reciprocal discovery, because I see

this case as involving the agency’s right to control the disclosure of information within its custody. 

As the majority opinion relates, the Department of Homeland Security (DHS) has promulgated a regulation that

requires one seeking official information from the agency to

describe, in writing, “the nature and relevance of the information sought.” 6 C.F.R. § 5.45(a). The regulation was promulgated, not as a discovery device, but as a means to control the

flow of information from the agency and ensure that no information was disclosed that should have remained secreted. The

regulation cites United States ex rel. Touhy v. Ragen, 340

U.S. 462 (1951), as supporting authority. The majority opinion acknowledges, as it must, that Ragen upheld a Department

of Justice regulation prohibiting its employees from responding to a subpoena absent permission. See Majority Opinion,

p. 4604, n.6. The majority opinion then converts the issue into

one involving a discovery request, although neither the parties

nor the district court viewed it as such. 

Discovery in criminal cases is governed by a detailed, welldefined, specific set of rules. See Fed. R. Cr. P. 16. The

evolvement of discovery in criminal cases is reflected in the

Advisory Committee Notes explaining the various amendments to Rule 16. See id., Advisory Committee Notes. I

would not blithely transpose a regulation governing release of

documents into a non-sanctioned amendment of Rule 16. See

United States v. Alvarez, 358 F.3d 1194, 1207 n.8 (9th Cir.

2004) (confirming that Rule 16 governs discovery in criminal

cases and expressly excludes discovery of “statements made

by prospective government witnesses”) (citation omitted). 

This is not a case where Bahamonde made a discovery

request to the government which was improperly refused. Had

such been the case, the federal rules provide the district court

with an array of options to compel compliance. See, e.g. Fed.

UNITED STATES v. BAHAMONDE 4609
R. Cr. P. 16(d). Rather, in this case, counsel for Bahamonde

disregarded a regulation, of which he was well aware, to call

a witness, not to conduct pre-trial discovery. 

In my view, because this is not a discovery case, Wardius

v. Oregon, 412 U.S. 470 (1973), does not control the outcome. Rather, this case is more akin to United States v. Allen,

554 F.2d 398 (10th Cir. 1977). In Allen, as in this case, the

defendant made no effort to comply with the regulation

requiring similar advance notice and summary of the desired

testimony. In upholding the trial court’s decision declining to

compel the testimony, the Tenth Circuit held: 

Our record shows no effort by defendant to submit

the affidavit or statement summarizing the testimony

desired so that the Department could consider the

request and determine whether to grant permission

for the testimony. In view of this, we feel that defendant is in no position to claim error in the court’s

refusal to require testimony by the prosecutor. We

feel that the regulation controlling such disclosures

by Department of Justice employees is valid. 

Id. at 407 (citations omitted) (emphasis added). 

A similar result is warranted in this case. Bahamonde was

not requesting pretrial discovery. He was seeking to call a

witness without meeting the requirements of a regulation of

which he was indisputably aware. I would follow the ruling

of the Tenth Circuit in Allen and hold that the district court

acted well within its discretion in excluding the testimony.

Therefore, I respectfully dissent.

4610 UNITED STATES v. BAHAMONDE