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Attorneys defending an immigration agent charged with slamming an inmate's face into a concrete floor have accused a federal prosecutor of influencing witness testimony in the case.
Jon Martinson Jr. was charged last June with deprivation of rights under color of law for allegedly impeding the inmate's right to "be free from the use of unreasonable force by a law enforcement officer."
The U.S. Immigration and Customs Enforcement agent's attorneys have asked that Assistant U.S. Attorney Carlos Esqueda be banned from prosecuting the case, saying he may have influenced the testimony of a fellow ICE agent who witnessed the incident.
According to the defense motion filed Monday, three ICE agents were with Martinson as he escorted Fabian Maldonado-Pineda to another cell on July 3, 2013, and witnessed the "hip toss" that prosecutors deem constituted excessive force.
One agent wrote a report and was interviewed after the incident, but did not incriminate Martinson, according to the defense.
But when the agent was called to testify before the grand jury, her testimony changed and she inculpated Martinson.
The defense alleges that Esqueda talked to the agent alone just before she testified, and may have intimidated her or influenced her testimony.
"While [Esqueda] was interviewing her, he firmly told her that he thought a conspiracy had transpired and that she could be sent to prison for up to 10 years," private investigator Carlos Villar said in an affidavit written after speaking with the witness. "Carlos Esqueda told her that he felt they [the ICE agents] had all gotten together to [get] their stories straight. "
But the witness and her attorney have since "disputed the accuracy" of the private investigator's affidavit, according the defense motion.
Martinson's attorneys said they will try to elicit testimony at trial — set to begin Monday — about whether she felt threatened. This means Esqueda could be a witness and the defense attorneys believe he should be recused from the case.
In a Tuesday response filing, federal prosecutors asked the judge for an evidentiary hearing on the issue — but did not address the specific allegations surrounding Esqueda.
Meanwhile, defense attorneys are scheduled to argue Thursday before Judge Dee Benson that the case should be dismissed because prosecutors mounted their case under an alleged violation of the Fourth Amendment right against unreasonable force during search and seizure. University of Utah law professor Paul Cassell, who joined the defense team last week, claims Maldonado-Pineda was neither being searched by Martinson nor being arrested during the incident in question.
But in the prosecutor's written response, Esqueda argued that Maldonado-Pineda was more of a "pretrial detainee" than an inmate at the time. Esqueda claims Maldonado-Pineda had completed his sentence for his criminal case, and had been in ICE custody after a judge ordered that he be deported.
"...[He] was no longer an inmate serving a sentence and was not facing a punishment for a criminal conviction," Esqueda wrote. "Because the victim was no longer an 'inmate' and was seized pending a civil deportation hearing, his seizure fell within the 'other seizure' provision of the Fourth Amendment."
A federal indictment alleges Martinson slammed Maldonado-Pineda "onto the concrete floor face first."
But Martinson's attorneys argue that Martinson was merely trying to move Maldonado-Pineda to a different cell. When the inmate pulled away repeatedly, the agent responded with a "hip toss."
If Martinson is convicted, he could be imprisoned for up to 10 years and fined $250,000.