Circuit Judge (dissenting):
I have had some misgivings about the categorical holding in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), that prejudice need not be shown in order to reverse a conviction once it appears that the government has permitted material witnesses to leave the jurisdiction. However, Mendez-Rodriguez is the law of the circuit and, in my view, requires us to reverse the conviction here.
The substantive distinction drawn by the majority between a case in which the prosecution causes the release of the witnesses (Mendez-Rodriguez) and a case in which the magistrate causes the release (Carrillo-Frausto) makes sense only if administration were our sole concern. However, a defendant on trial without a needed witness is not as concerned about which branch of the government deprived him of the testimony of that witness as he is about the absence of the witness.
Moreover, by failing to propose to the magistrate alternative plans for paroling the witnesses into the United States and housing them at least until Carrillo-Frausto and his attorney could interview them,1 the government denied Carrillo-Frausto his due-process right to offer testimony and to compel the attendance of material witnesses as effectively as if the' prosecution itself had released the witnesses. It is clear from the transcript that were it not for the prosecution’s failure to furnish‘or at least suggest proper facilities the magistrate would have remanded the juvenile witnesses to custody. We can take judicial notice of the power of the prosecution to keep witnesses on hand without jailing them when the prosecution deems such detention necessary. Failure to offer some alternative to custody where the only form of custody available was a jail-like institution left the magistrate little choice but to order the release of the witnesses.
Since Mendez-Rodriguez, decided eighteen months prior to the magistrate’s hearing in this case, the government has been aware of its duty not to make material witnesses unavailable to the defense. A prosecutor acting with due diligence would not, at this late date, still have been unable to suggest alternatives other than release or incarceration in a prison when faced with the problem of how to insure the availability of two juvenile witnesses. Whether we attribute the government’s inaction to bad faith or merely negligence (see United States v. Romero, 469 F.2d 1078, 1079 (9th Cir. 1972), cert. denied, 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973); Ferrari v. United States, 244 F.2d 132, 141 (9th Cir.), cert. denied sub nom., Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78 (1957)), the denial of due process is the same. In this case there is no evidence of bad faith. From the standpoint of preparing an effective defense, however, it matters little whether the witnesses were made available by prosecutorial action or inaction.
I would reverse the conviction.
. Tlie government need not, in every ease, retain alien material witnesses until trial. It must, however, retain them at least until the defendant has had an opportunity to interview them. United States v. Mendez-Rodriguez, 450 F.2d at 4. See United States v. Lomeli-Garnica, 495 F.2d 313 (9th Cir. 1974).