United States v. Sierra-Hernandez

                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                         _______________________

                               No. 98-40092
                         _______________________


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                    versus

CRISTINO SIERRA-HERNANDEZ,

                                                       Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                          October 8, 1999


Before JONES, DeMOSS and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

            Cristino Sierra-Hernandez appeals from a guilty plea

conditioned on the district court’s denial of his motion to dismiss

the indictment for loss of testimonial evidence.1                Because the

district court properly found that the defendant failed to show

that the testimony of the deported witnesses would have been

material and favorable, th0is Court affirms his conviction and

sentence.


     1
           Under Fed.R.Crim.P. 11(a)(2) a defendant may enter a conditional plea
and reserve the right to appeal the adverse determination of “any specified
pretrial motion.” Fed.R.Crim.P. 11(a)(2). Even though conditional pleas are
usually entered where a defendant seeks to suppress evidence against him, nothing
in the language of the rule precludes a defendant from entering a conditional
plea in this context as well.
                                  FACTS

           On July 23, 1997 Border Patrol Agents in Brownsville,

Texas saw a white van stop on the side of the road.         As the agents

drove past, they saw several individuals who appeared to be aliens

run and get into the van from behind a nearby bush.             When the

agents stopped the van shortly thereafter, they found twelve

illegal aliens inside the van, and Sierra-Hernandez driving the

van.   Sierra-Hernandez and the illegal aliens were then arrested.

           The following day, the government deported ten of the

illegal aliens.    On August 5, 1997, Sierra-Hernandez was charged

with transporting the two illegal aliens detained as material

witnesses: Anselmo Gutierrez-Zendejas and Hector Sanchez-Aguilar.

           Sanchez-Aguilar testified in his deposition that Sierra-

Hernandez facilitated his illegal entry into the United States and

that Sierra-Hernandez was the driver of the white van. Previously,

Sanchez-Aguilar had given a voluntary statement to defense counsel

in which he denied knowing Sierra-Hernandez.        Gutierrez-Zendejas,

the other material witness, testified that he crossed the border on

his own, happened upon the group in the brush and followed them

into the car, but never saw the face of the driver.

           For   purposes   of   the    guilty   plea,   Sierra-Hernandez

admitted that he had transported the twelve illegal aliens.            He

also acknowledged that he knew the individuals were illegally in

the United States and that in giving them a ride he was advancing

their illegal presence in the United States.             He repeated this




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admission to the probation officer who prepared his presentence

report.

              On   appeal,    Sierra-Hernandez               argues    that:     1)     the

deportation of the ten illegal aliens violated his rights under the

Fifth and Sixth Amendments; and 2) the difference in treatment of

potential material witnesses by the Houston and the Brownsville

divisions     of   the    Southern     District         of    Texas    violates       equal

protection.

                              STANDARD OF REVIEW

              Constitutional challenges are questions of law that are

reviewed de novo.        See United States v. Lampton, 158 F.3d 251, 255

(5th Cir. 1998).

                                    DISCUSSION

I. DUE PROCESS

              Sierra-Hernandez argues that the deportation of the ten

illegal aliens violated his due process rights because the deported

aliens plausibly could have testified that Sierra-Hernandez was

not    involved    in    bringing    them       into    the   United    States    or     in

transporting them within the United States.

              Valenzuela-Bernal established the test for determining

whether or not deportation of potential witnesses violates the

defendant’s due process rights.                 In that case, the Supreme Court

stated that in order to show a due process violation the defendant

must make “a plausible showing that the testimony of the deported

witnesses would have been material and favorable to his defense, in

ways    not    merely     cumulative     to       the    testimony      of     available


                                            3
witnesses.” United States v. Valenzuela-Bernal, 458 U.S. 858, 873,

102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982).               In addition, the

Court stated that due process has been violated “only if there is

a reasonable likelihood that the testimony could have affected the

trier of fact” and recommended that that evaluation be done “in the

context of the entire record.”         Id. at 874 & 874 n.10.

            Although the Fifth Circuit has never squarely addressed2

the meaning of this test, many other circuits have.               Courts have

uniformly rejected Valenzuela-Bernal-based claims of due process

violations.    See United States v. Pedraza, 27 F.3d 1515 (10th Cir.

1994); United States v. Ramirez-Jiminez, 967 F.2d 1321 (9th Cir.

1992); United States v. Dring, 930 F.2d 687 (9th Cir. 1991); United

States v. Nesbitt, 852 F.2d 1502 (7th Cir. 1988); United States v.

Guzman, 852 F.2d 1117 (9th Cir. 1988); United States v. Morales-

Quinones, 812 F.2d 604 (10th Cir. 1987); United States v. Ginsberg,

758 F.2d 823 (2d Cir. 1985); United States v. Saintil, 753 F.2d 984

(11th Cir. 1985).        Furthermore, courts have strictly evaluated

Valenzuela-Bernal’s requirements.3 See, e.g., Nesbitt, 852 F.2d at

1519 (“the strict standard of materiality set forth in Valenzuela-

Bernal”); Ginsberg, 758 F.2d at 831 (stating that positing the



      2
            The Fifth Circuit came closest to addressing this issue in United
States v. Soape, 169 F.3d 257 (5th Cir. 1999), in which, citing Valenzuela-
Bernal, it held that a district court’s denial of a defendant’s subpoena requests
did not violate his Sixth Amendment right to due process because the defendant
had not met his duty of demonstrating the necessity of the witness’s testimony.
See Soape, 169 F.3d at 267-69.
      3
          The Ninth Circuit has gone even further, interpreting
Supreme Court precedent as requiring that the defendant also show
bad faith by the prosecution. See Dring, 930 F.2d at 693.

                                       4
testimony most favorable to defendant that the deported witnesses

could provide does not satisfy the Valenzuela-Bernal test).

           In this case, appellant has not plausibly demonstrated

that the deported aliens would have provided testimony that was

both material and favorable and reasonably likely to influence the

trier of fact or that the government did not act in good faith.

First, the defendant’s assertion that the deported aliens would

testify that he was not hired to take them across the border is

immaterial to whether he transported illegal aliens.                    At most,

defendant could argue that such testimony tends to prove that he

did not   know    those    he    was   transporting   were    illegal    aliens.

Second, the circumstances of the pick-up – the twelve aliens

running out from behind a bush in South Texas – renders such a

defense   weak    at   best.      Third,     defendant’s    appellate    counsel

conceded at oral argument that the government acted in good faith

when it deported the aliens.            The district court was therefore

correct   in     denying   the     defendant’s     motion    to   dismiss    the

indictment.

2. EQUAL PROTECTION

           Appellant also asserts that the fact that the Houston

Division of the Southern District of Texas holds all illegal aliens

for seven days to allow the defense a chance to interview them,

while the Brownsville Division does not, constitutes a denial of

his right to equal protection.          He asserts that this Court should

apply strict scrutiny because the practices in question impinge on

a fundamental right.       Because appellant has provided no evidence


                                         5
that the two Divisions in fact have different procedures, this

court declines to review his equal protection claim.

          AFFIRMED.




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