Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

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
2

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