222 F.3d 1080 (9th Cir. 2000), 99-50057, United States v. Pena-Gutierrez

Docket Nº:99-50057
Citation:222 F.3d 1080
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RALPH PENA-GUTIERREZ, Defendant-Appellant.
Case Date:August 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1080

222 F.3d 1080 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RALPH PENA-GUTIERREZ, Defendant-Appellant.

No. 99-50057

Office of the Circuit Executive

United States Court of Appeals, Ninth Circuit

August 11, 2000

Submitted October 13,[1999*]

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Mayra Garcia, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Daniel S. Drosman, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, D.C. No. CR-98-00564-ANB; Alan N. Bloch, District Judge, Presiding

Before: Sidney R. Thomas, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:

Ralph Pena-Gutierrez ("Pena-Gutierrez") seeks reversal of his jury conviction for bringing an illegal alien into the United States, see 8 U.S.C. S 1324(a)(2)(B)(ii), (iii), and transporting illegal aliens within the United States, see id. S 1324(a)(1) (A)(ii). We reject Pena-Gutierrez's argument that the government violated his rights under the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment when it deported an illegal alien whose hearsay statement was admitted at trial, Israel Macias-Limon ("Macias-Limon"), because Pena-Gutierrez failed to demonstrate either bad faith by the government or prejudice to his case. Furthermore, although the district court erred by admitting an INS report, itself inadmissible hearsay, which contained additional inadmissible hearsay in the form of MaciasLimon's out-of-court statement, we find the error was harmless. We also reject Pena-Gutierrez's claims of evidentiary error relating to a diagram of the vehicle Pena-Gutierrez drove to the United States/Mexico border because the diagram and accompanying testimony were both relevant and not unduly prejudicial. Nor did the district court err by denying Pena-Gutierrez a role adjustment for being a minor participant in the illegal smuggling activity. We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a), and we affirm.

I.

On two separate days within a two-week period in early 1998, federal agents discovered illegal aliens secreted in various compartments of a car driven by Pena-Gutierrez across the California/Mexico border.

On January 25, 1998, Pena-Gutierrez drove a 1984 Buick station wagon into the United States from Mexico at the San Ysidro, California Port of Entry. U.S. Customs Inspector Kenneth Slaughter questioned Pena-Gutierrez at the port of entry's primary-inspection area. In response to this questioning, Pena-Gutierrez stated that he had recently purchased the Buick. Inspector Slaughter noticed, however, that the name on the vehicle registration did not match the name on PenaGutierrez's resident-alien card. Inspector Slaughter also found it suspicious that Pena-Gutierrez had only two keys on his key ring, because his "experience . . . is when we have two keys on the vehicle, there's either . . . narcotics or aliens in the vehicle." Based on these and other observations of PenaGutierrez's demeanor, Inspector Slaughter referred PenaGutierrez to the secondary-inspection lot.

There, U.S. Customs Inspector Barbara Thomas inspected the Buick. At the rear of the car, she "dropped the tailgate and then reached inside and pulled down the cover that's over the wheel well on the side of the car." Inside this side spare-tire compartment, Inspector Thomas found an Hispanic male, later identified as Macias-Limon, "kind of crawled up in a little ball and . . . all sweaty." Another Immigration officer then removed Macias-Limon from

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the compartment, and INS agents questioned both Pena-Gutierrez and Macias-Limon.

In response to this questioning, Pena-Gutierrez stated that he did not know that Macias-Limon was hidden in the car, that he had never seen Macias-Limon before, and that he was receiving no monetary payment for transporting MaciasLimon. Macias-Limon stated that he was a citizen and national of Mexico, that he had been placed in the spare-tire compartment on a street in Tijuana, Mexico, that he was en route to Los Angeles to seek employment, and that no money was to be exchanged for his transport. After completing its interviews of the two men, the INS declined to prosecute Pena-Gutierrez. It later released Pena-Gutierrez and deported Macias-Limon to Mexico.

Just two weeks later, on February 10, 1998, Pena-Gutierrez drove a 1990 Ford Probe to the San Clemente, California border-patrol checkpoint. U.S. Border Patrol Agent Brandon Scott, who was on duty at the time, noticed that the car appeared heavily loaded in the back, and he motioned for Pena-Gutierrez to stop. Pena-Gutierrez did not pull over until his car was approximately ten feet past the spot that Agent Scott had indicated. Once he brought his car to a stop, Agent Scott approached, whereupon Pena-Gutierrez volunteered that he and his visible passenger, Ana Maria Hernandez-Rojas ("Hernandez-Rojas"), were United States citizens on their way to Los Angeles. Agent Scott observed, however, that Pena-Gutierrez spoke rapidly and did not make eye contact, and that Hernandez-Rojas was "sitting really stiff and rigid" and stared "straight ahead." On that basis, he referred the two to secondary inspection.

At secondary inspection, Pena-Gutierrez answered the questions of U.S. Border Patrol Agent Claudia Field, stating that he was a United States citizen but that he had no identification with him. Agent Field then asked Pena-Gutierrez if she could look inside the hatchback of his car. Pena-Gutierrez consented, left the Ford, inserted a key in the lock of the hatchback, and turned the key several times without successfully opening the hatchback. Meanwhile, another agent had asked Hernandez-Rojas to identify her citizenship and had determined that she was a Mexican citizen illegally in the United States. Upon this determination, the agents immediately arrested Pena-Gutierrez. Agent Field then opened the hatchback herself and discovered Alberto Bernal-Hernandez, Jose Bernal-Hernandez, and Jesus Michel-Lara inside. These three men stated that they were also Mexican citizens illegally in the United States.

After completing its investigation, the INS allowed Hernandez-Rojas and her son, Alberto Bernal-Hernandez, to return to Mexico voluntarily. The government decided to hold both Jose Bernal-Hernandez and Jesus Michel-Lara as material witnesses.

On April 15, 1998, the United States filed a four-count superseding indictment against Pena-Gutierrez in the Southern District of California. Count one charged bringing in an illegal alien, namely Macias-Limon, for the purpose of commercial advantage or private financial gain, in violation of 8 U.S.C. S 1324(a)(2)(B)(ii). Count two charged Pena-Gutierrez with bringing in Macias-Limon and failing to bring and present him to an appropriate immigration officer, in violation of 8 U.S.C. S 1324(a)(2)(B)(iii). Counts three and four charged Pena-Gutierrez with transportation of illegal aliens, namely Jose Bernal-Hernandez and Jesus Michel-Lara, in violation of 8 U.S.C. S 1324(a)(1)(A)(ii).

During the ensuing two-day trial, the district court admitted into evidence, over Pena-Gutierrez's objection, an INS report that contained the statement Macias-Limon made to INS agents on January 25, 1998. Macias-Limon did not appear as a witness at trial. The district court also admitted over objection a diagram of the Buick station wagon that Pena-Gutierrez drove across the border on January 25, along with accompanying testimony by a

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U.S. Customs inspector. This diagram demonstrated the location of the car's spare-tire compartment and how Macias-Limon was concealed inside it.

A jury found Pena-Gutierrez guilty on all four counts of the indictment, and, after refusing to grant a role adjustment under section 3B1.2 of the U.S. Sentencing Guidelines, the district court sentenced Pena-Gutierrez to sixty months in custody, ordered him to serve three years of supervised release, and required him to pay a $400.00 penalty assessment. This appeal followed.

II.

After declining prosecution on the January 25, 1998 incident, the INS deported Macias-Limon to Mexico. PenaGutierrez contends that, because Macias-Limon was a potential defense witness, this act violated the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment. Because Pena-Gutierrez has demonstrated neither governmental bad faith nor prejudicial conduct, we conclude that the district court did not err in denying his motion to dismiss counts one and two on this basis.1 See United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991) (holding that to establish compulsory process and due process violations by the deportation of an alien witness,"the defendant must make an initial showing that the Government acted in bad...

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