United States v. Hugo Montes De Oca

FILED

NOT FOR PUBLICATION

JUL 21 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50135

Plaintiff - Appellee, D.C. No. 3:13-cr-00752-AJB-

v.

MEMORANDUM*

HUGO MONTES DE OCA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted June 6, 2016** Pasadena, California

Before: FERNANDEZ, RAWLINSON, and BEA, Circuit Judges.

Hugo Montes De Oca appeals his judgment of conviction for being a

removed alien found in the United States in violation of 8 U.S.C. § 1326. We

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). First, Montes De Oca argues that the district court should have dismissed the

charge or granted a new trial because Manuel Gomez-Navarez, who was found

with Montes De Oca, was deported before Montes De Oca’s trial took…

MEMORANDUM **

Hugo Montes De Oca appeals his judgment of conviction for being a removed alien found in the United States in violation of 8 U.S.C. § 1326 . We affirm.

First, Montes De Oca argues that the district court should have dismissed the charge or granted a new trial because Manuel Gomez-Navarez, who was found with Montes De Oca, was deported before *833 Montes De Oca’s trial took place. 1 According to Montes De Oca, Gomez’s deportation amounted to a due process violation because he would have provided testimony favorable to the defense.

We apply a two-part test to determine whether the government unconstitutionally deported a witness: “[T]he defendant must make an initial showing that the Government acted in bad faith and that this conduct resulted in prejudice to the defendant’s case.” United States v. Medina-Villa, 567 F.3d 507, 517 (9th Cir. 2009), as amended (June 23, 2009) (internal quotation marks omitted).

Montes De Oca has failed to show that the government acted in bad faith. He does not argue that the United States departed from normal deportation procedures for the purpose of preventing testimony favorable to Montes De Oca. In addition, he failed to show that…

concurring:

I concur in the result.