NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50276

Plaintiff-Appellee, D.C. No. 3:20-mj-20169-JLB-AJB-1 v.

JHOANTAN VILMAR BERNAL- MEMORANDUM*

SANCHEZ,

Defendant-Appellant.

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

Argued and Submitted August 15, 2023 Pasadena, California

Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges. Partial Concurrence and Partial Dissent by Judge CHRISTEN.

Jhoantan Bernal-Sanchez appeals the district court’s denial of his appeal

from his misdemeanor conviction for attempted illegal entry under 8 U.S.C.

§ 1325, following a bench trial before a magistrate judge. We have jurisdiction

under 28 U.S.C. § 1291, and we conditionally vacate and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The magistrate judge abused its discretion by denying discovery under

Brady v. Maryland, 373 U.S. 83 (1963) as to Agent Monroy’s “I’m 10-15”

Facebook activity, and the district court erred by affirming without ordering that

the magistrate judge examine the material in camera to determine whether there

was any prejudice. To succeed on a Brady claim, Bernal-Sanchez must show that:

“(1) the evidence at issue was favorable to him, either because it was exculpatory

or impeaching; (2) the evidence was suppressed by the State, either willfully or

inadvertently; and (3) that he was prejudiced.” United States v. Bruce, 984 F.3d

884, 894–95 (9th Cir. 2021).

The magistrate judge concluded that the requested information was

immaterial and undiscoverable, without requiring the government to review the

information or provide it for in camera review. Although it is undisputed that the

government possessed information about the 10,000 open investigations, it is also

undisputed that the government did not search for or produce Agent Monroy’s

“I’m 10-15” activity and simply relied on the fact that no disciplinary action

related to the Facebook group was in his personnel file. The government and the

magistrate judge also erroneously relied upon Agent Monroy’s representation that

he did not participate in the group. Nothing in the record establishes that the

investigations into all Border Patrol agents’ Facebook group activities had been

completed or that all “I’m 10-15” disciplinary actions had been recorded in each

2 agent’s files. Further, due to the racist, violent, and degrading nature of the

comments on the “I’m 10-15” group pages and because Agent Monroy denied

posting, liking, or commenting on the group, any activity by Agent Monroy would

have impeached Monroy’s statement that he had not contributed to the group

pages. See Davis v. Alaska, 415 U.S. 308, 316 (1974). However, it is now

impossible for us to determine whether the potential discovery undermines our

confidence in the outcome or shows a reasonable probability of a different result.

See United States v. Doe, 705 F.3d 1134, 1152–53 (9th Cir. 2013). The

government’s argument that Agent Krawcion’s testimony alone was sufficient to

prove the elements of Bernal-Sanchez’s conviction is unavailing, given that the

government did call Agent Monroy to testify, and the magistrate judge relied on

some of that testimony in its findings.

Under these circumstances, we follow the procedures set forth by the

Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and “vacate the

defendant’s conviction and remand to the district court” for an in camera review of

any Agent Monroy “I’m 10-15” materials in the government’s possession to

determine whether the Facebook “I’m 10-15” pages “contain probative, relevant,

and material information” that “could have affected the outcome of the trial.”

United States v. Alvarez, 358 F.3d 1194, 1209 (9th Cir. 2004). If the pages contain

material information, the district court shall “release the appropriate information to

3 the defense and order a new trial,” but if the district court “determines that a new

trial is not warranted, the court shall reinstate the judgment of conviction.” Id.; see

also Doe, 705 F.3d at 1152.

2. The district court also erred by affirming the admission of employment

documents secured through the government’s misuse of a Rule 17(a) subpoena.

Fed. R. Crim. P. 17(a) sets forth the procedure for the issuance of subpoenas

commanding attendance and testimony at court proceedings. By contrast, Fed. R.

Crim. P. 17(c) governs the production of documents and objects “in court before

trial or before they are to be offered in evidence.” But the court must approve the

issuance of a Rule 17(c) subpoena and, upon motion, the court may quash or

modify such subpoena.

Here, the government obtained a subpoena pursuant to Rule 17(a) that

commanded the custodian of records for Bernal-Sanchez’s employer, 20/20

Plumbing & Heating, to appear at his trial with documents to be produced at that

proceeding. The specific documents sought were listed on Attachment A. The

items listed on Attachment A were all of Bernal-Sanchez’s employment records for

the past six years and eight months. And Attachment A informed the employer

that it could “provide the information by e-mail” directly to the U.S. Attorney’s

office. However, when the agents served the subpoena, they simply collected hard

copies of the subpoenaed records at that time.

4 The government thus transformed a Rule 17(a) subpoena into a Rule 17(c)

subpoena without the court’s approval and thereby deprived Bernal-Sanchez of his

right to move to quash or modify the patently overbroad subpoena under Rule

17(c)(2). Therefore, the government obtained these records in violation of Fed. R.

Crim. P. 17. This conduct also violated the district’s local rule, S.D. Cal. Crim. R.

17.1(b), which expressly prohibits parties in a criminal case from using a subpoena

to require production of documents at a date or time other than the proceedings at

which the documents will be introduced, “unless the Court has entered an order

under Rule 17(c). . . authorizing the issuance of such subpoena.” The local rules

further require service of a Rule 17(c) subpoena on all parties who may want to

object “at least seventy-two hours (72) prior to the return date.”

The government abused its subpoena power, misled 20/20 Plumbing &

Heating about its obligations, and then used these documents to threaten Bernal-

Sanchez with impeachment and potential additional charges, should he decide to

testify. The district court should have reversed the magistrate judge’s denial of

Bernal-Sanchez’s subsequent motion to quash.

Typically, we must assess whether such error “materially affect[ed] the

verdict,” United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).

However, because we are remanding this case to the district court to consider the

materiality and potential prejudice of the “I’m 10-15” materials, we also instruct

5 the district court to consider in the first instance whether admission of the

improperly subpoenaed materials, either alone or in combination with the omission

of the “I’m 10-15” materials, prejudiced Bernal-Sanchez.

In the future, the government should strictly comply with Rule 17 and the

district’s local rules when seeking pretrial discovery in a criminal case.

3. The district court did not err in declining to unseal the government’s

sealed applications for an order regarding disclosure or non-disclosure. Two of the

applications pertain to individuals who did not ultimately testify at trial, and thus

the government had no obligation to produce their personnel files. United States v.

Henthorn, 931 F.2d 29, 31 (9th Cir. 1991). The third application contains

information the government had already disclosed to Bernal-Sanchez. Therefore,

allowing the government’s applications to remain under seal did not prejudice

Bernal-Sanchez.

4. Bernal-Sanchez’s argument that § 1325 violates the equal protection

clause is foreclosed by United States v. Carrillo-Lopez, 68 F.4th 1133 (9th Cir.

2023).

The district court is AFFIRMED IN PART and REVERSED IN PART.

Bernal-Sanchez’s conviction is conditionally VACATED and REMANDED for

further proceedings not inconsistent with this memorandum.

6

FILED

NOV 1 2023

USA v. Jhoantan Bernal-Sanchez, No. 21-50276 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CHRISTEN, Circuit Judge, concurring in part and dissenting in part:

I concur with the majority’s conclusion that the district court erred by failing

to require further discovery of Agent Monroy’s activities in the “I’m 10-15”

Facebook group, and also agree that the court erred by admitting records the

Government improperly obtained via a Rule 17(a) subpoena. But because neither

error prejudiced Bernal-Sanchez and the evidence of his guilt was overwhelming, I

respectfully dissent from the court’s decision to conditionally vacate Bernal-

Sanchez’s conviction and remand.

The undisputed factual circumstances surrounding Bernal-Sanchez’s arrest

are dispositive of the materiality and prejudice inquiries, so I begin with a detailed

explanation of the circumstances under which he was arrested.

On January 17, 2020, at approximately 3:00 a.m., a Marine Corps scope

operator patrolling the United States/Mexico border near the Tecate Port of Entry

spotted two people standing near the border fence. He announced on the Border

Patrol’s radio channel that he had sighted two people, then radioed again to report

that they were running away. Agents Monroy and Krawcion were both on patrol

that night. They heard the scope operator’s broadcast and began searching for two

people. Agent Monroy told Agent Krawcion that he believed the two were in a

fenced lot approximately one tenth of a mile from the border. Agent Krawcion

1 later testified that he entered the lot and found Bernal-Sanchez and another man

lying on the ground in tall weeds, face up and breathing hard. Krawcion

questioned why Bernal-Sanchez was there, and Bernal-Sanchez replied that he had

just been kicked “by three guys.” This response was curious because the area was

deserted at 3:00 a.m. Agent Krawcion again asked why Bernal-Sanchez was there,

and Bernal-Sanchez said he did not know. Agent Krawcion posed a series of

questions to Bernal-Sanchez about his immigration status, and Bernal-Sanchez

answered that he was a Mexican citizen without legal status to enter the United

States. He produced an employment authorization card but it said “Not valid for

reentry into the U.S.”

Agent Krawcion next spoke to Bernal-Sanchez’s companion, also found

lying on the ground, and he admitted that he had jumped over the fence with

Bernal-Sanchez. In Agent Krawcion’s written report and subsequent trial

testimony, he recounted that Bernal-Sanchez heard his companion’s response and

interjected, “No, I didn’t. I didn’t jump the fence. I’m just going to work.” Agent

Krawcion asked how Bernal-Sanchez would get to work “at 3:00 in the morning, in

a closed-off city,” and Bernal-Sanchez replied that he had a truck in the lot. But

Bernal-Sanchez was unable to identify a truck that belonged to him, or to identify

what lot the truck was in, and he had no car keys. Agent Krawcion arrested both

men and then inspected the area. He discovered a rope tied to a tree on the Mexico

2 side of the border, dangling over the fence and into the United States. Agent

Krawcion also testified that he observed two sets of footprints on either side of the

border fence leading to and from the rope.

The Government charged Bernal-Sanchez with attempted illegal entry, a

violation of 8 U.S.C. § 1325(a)(1). This statute prohibits a person without lawful

status from “enter[ing] or attempt[ing] to enter the United States at any time or

place other than as designated by immigration officers.” In his testimony at

Bernal-Sanchez’s bench trial, Agent Krawcion described how and where Bernal-

Sanchez and his companion were arrested, that no businesses in the area were open

at 3:00 a.m., and that the Tecate Port of Entry did not open until 5:00 a.m. The

Government also introduced an application that Bernal-Sanchez had filled out in

March 2020 “under penalty of perjury” to renew his employment authorization.

On it, Bernal-Sanchez admitted that he had last arrived in the United States on

January 17, 2020, the date Agent Krawcion arrested him.

Sneaking through an open port of entry is a violation of 8 U.S.C.

§ 1325(a)(2). This offense can be committed, for example, by a person secreted in

the trunk of a car passing through a port of entry. United States v.

Corrales-Vazquez, 931 F.3d 944, 949 (9th Cir. 2019). The offense that Bernal-

Sanchez was charged with violating, § 1325(a)(1), criminalizes entering the

country outside official ports of entry. See id. at 950, 954 (holding that to be

3 convicted under § 1325(a)(2) “the alien’s conduct must occur at a designated port

of entry that is open for inspection and examination,” while to be convicted under

§ 1325(a)(1) the alien must “enter or attempt to enter outside of an open port of

entry” (emphasis added)).

At trial, the defense did not deny that Bernal-Sanchez had crossed the

border—nor could it, given Bernal-Sanchez’s admission on the work authorization

form that he had last entered the United States on January 17, 2020. The defense

was effectively limited to arguing that there was reasonable doubt that Bernal-

Sanchez might have passed through the port of entry without being detected on

January 17, 2020, that he did so sometime between midnight and 3:00 a.m., and

that because the Government did not show when the Tecate port closed, it could

have been open when Bernal-Sanchez passed through it.

The trial court judge considered the evidence and both parties’ arguments.

Acknowledging the strong evidence that Bernal-Sanchez and his companion

jumped the fence, and likely recognizing that the defense theory would have

required the port to be open between midnight and 2:59 a.m., but not open between

3:00 a.m. and 5:00 a.m., the trial court issued a detailed oral ruling that Bernal-

Sanchez was guilty of violating 8 U.S.C. § 1325(a)(1).

I. Brady Information

4 Bernal-Sanchez first argues that the Government violated the discovery

obligations imposed by Brady because it failed to search pages saved from “I’m

10-15,” a now-inactive Facebook group that was formerly used by some Border

Patrol agents. Bernal-Sanchez argues the Government was obligated to look for

evidence that Agent Monroy authored or responded to racist messages posted on

the Facebook page because if such evidence existed, it could have been used to

impeach Agent Monroy’s testimony.

The government is required to produce to the defense “evidence favorable to

an accused,” Brady v. Maryland, 373 U.S. 83, 87 (1963), that is “known to . . .

others acting on the government’s behalf,” Kyles v. Whitley, 514 U.S. 419, 437

(1995). That said, the government violates Brady only when it fails to produce

such evidence that is “material.” Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir.

2003). “[E]vidence impeaching an eyewitness may not be material if the State’s

other evidence is strong enough to sustain confidence in the verdict.” Smith v.

Cain, 565 U.S. 73, 76 (2012). “[T]here is never a real ‘Brady violation’ unless the

nondisclosure was so serious that there is a reasonable probability that the

suppressed evidence would have produced a different verdict.” Strickler v.

Greene, 527 U.S. 263, 281 (1999).

The court ordered the Government to disclose that Agent Monroy had been a

member of the “I’m 10-15” Facebook group for several years, but did not require

5 the Government to search the saved Facebook records for activity by Agent

Monroy. I agree with my colleagues that the court erred by declining to order the

Government to search for evidence of Agent Monroy’s participation in the group.

United States v. Bruce, 984 F.3d 884, 895–98 (9th Cir. 2021) (discussing

government’s burden of disclosing potentially exculpatory evidence that could

support defense theory). I do not agree that it is impossible to determine whether

the potential evidence undermines our confidence in the outcome of Bernal-

Sanchez’s trial, or that there is a reasonable probability that the result of the trial

would have differed.

No part of the Government’s case against Bernal-Sanchez depended on

Agent Monroy’s testimony. See Strickler, 527 U.S. at 291 (holding that there must

be a reasonable probability of a different result after “a total, or just a substantial,

discount” of the impeached witness’s testimony). Agent Krawcion testified that

“we heard one of the Marine Corps scope operators put out a call that he saw two

individuals standing next to the fence, and then they were running away.” Agent

Krawcion also testified that, moments later, he found Bernal-Sanchez and another

man lying in tall grass in the lot. Agent Krawcion recounted Bernal-Sanchez’s

explanations for his presence in the lot—which did not make sense—and described

for the trial court that he found a rope still dangling over the border fence and two

sets of footprints leading from it. It was Agent Krawcion, not Agent Monroy, who

6 questioned the two men and testified to Bernal-Sanchez’s companion’s admission

that they had just climbed over the fence. In short, Agent Monroy’s testimony was

not needed to establish any of the elements of the charged offense. The

Government’s other evidence amply supported the court’s judgment.

The cases the majority relies upon do not support Bernal-Sanchez’s

argument that remand is warranted. In Doe, the defendant planned to argue that

the FBI either entrapped him or sanctioned his activities as a confidential

informant. United States v. Doe, 705 F.3d 1134, 1150 (9th Cir. 2013). Given that

defense theory, we held that the government violated Brady by failing to produce

records showing the defendant’s contacts with and provision of information to the

FBI because the withheld evidence “would undoubtedly have been helpful to his

defense.” Id. at 1151. And in Muniz-Jaquez, undisclosed audiotapes could have

been “crucial” to cross-examine the government’s only witness who might have

observed the defendant crossing the border. United States v. Muniz-Jaquez, 718

F.3d 1180, 1184 (9th Cir. 2013). Bernal-Sanchez’s case is not comparable to these

cases because Agent Monroy was not the sole eyewitness, or even a necessary

witness, at Bernal-Sanchez’s trial. Because Agent Krawcion’s testimony

independently proved each element of the Government’s case, evidence

impeaching Agent Monroy’s credibility would not have changed the outcome of

7 Bernal-Sanchez’s bench trial. The failure to produce non-material impeachment

evidence does not require remand. See Strickler, 527 U.S. at 296.

II. Subpoena Error

I agree that the Government misused Federal Rule of Civil Procedure 17(a)

to obtain Bernal-Sanchez’s employment records. The Government later introduced

the records, which noted that Bernal-Sanchez was not working between January 5

and February 3 due to his mother’s death, to show that Bernal-Sanchez was not

working on the day of his arrest, and that he lied when he told Border Patrol that he

was on his way to work.

When evidence is erroneously admitted, the benefitted party must show it is

“more probable than not that the [trier of fact] would have reached the same

verdict” even if the evidence had not been admitted. Obrey v. Johnson, 400 F.3d

691, 701 (9th Cir. 2005). The risk that a judge’s verdict in a bench trial will be

“affected unfairly and substantially by the admission of [improper] evidence is far

less than in a jury trial.” See EEOC v. Farmer Bros. Co., 31 F.3d 891, 898 (9th

Cir. 1994). Here, the Government easily met its burden to show that the

introduction of Bernal-Sanchez’s employment records would not have affected the

outcome of the trial.

The trial court referred to the employment records only once in its oral

ruling, noting that the records, together with Bernal-Sanchez’s inconsistent

8 statements to Agent Krawcion and Bernal-Sanchez’s inability to produce car keys,

proved that he falsely told Border Patrol that he was near the border with his truck

on January 17th because he was on the way to work.1 The issue at trial was not

whether Bernal-Sanchez was working near the border. He was charged with

violating 8 U.S.C. § 1325(a)(1), and to prove that crime, the Government was

required to show that Bernal-Sanchez lacked lawful immigration status and that he

had entered the United States outside of a designated port of entry. United States

v. Aldana, 878 F.3d 877, 882 (9th Cir. 2017). The Government’s evidence

resoundingly established Bernal-Sanchez’s guilt.

Bernal-Sanchez admitted on his employment authorization application that

he had entered the United States on January 17, 2020. This concession left the

defense to argue at trial that Bernal-Sanchez had somehow passed unnoticed

through the Tecate Port of Entry sometime after midnight on the 17th, and that he

had remained hidden in the lot near the border until he was found at 3:00 a.m.

Accepting this theory would have required the trial court to overlook compelling

circumstantial evidence that Bernal-Sanchez had entered exactly as his companion

had admitted: by using the rope that officers found hanging over the border fence.

1 The district court found no prejudice because it mistakenly understood that the representative from Bernal-Sanchez’s employer had brought all the subpoenaed employment records with her to trial. The trial court was aware that the representative did not bring all previously produced documents to trial.

9 Unsurprisingly, the court concluded that the Government had proved its case. In

doing so, the trial court specified that it reached this conclusion “even without

reference to” “the portion of the documentation from the employment records that

indicates that the defendant was [absent from work] due to his mom’s passing.”

We have said that when a court expressly states that improper evidence did not

affect its decision, it is probable that the error was harmless. See Farmer Bros., 31

F.3d at 898. Here, given the trial court’s explicit statement that it relied on other

evidence, remand is not warranted.

The Government compounded its erroneous use of Rule 17(a) and disregard

of Local Criminal Rule 17.1(b) by warning Bernal-Sanchez that if he testified, the

Government would impeach him for an allegedly misleading statement he made to

the court in connection with an earlier request to continue the trial date. The stated

need for the continuance was refuted by the employment records the Government

obtained with the Rule 17(a) subpoena. To avoid undue delay, the court

disallowed this impeachment evidence. Bernal-Sanchez nevertheless argues that

he was prejudiced by this excluded evidence because the Government’s stated

intent to impeach him with the employment records dissuaded him from testifying.

In light of the admission Bernal-Sanchez made on the application to renew his

employment authorization, I can see no realistic likelihood that this is so. Had

Bernal-Sanchez testified, he would have been confronted with the statement he

10 made under penalty of perjury on that application: that he last entered the United

States on January 17, 2020. At that point, the Government would have been free to

ask how he had entered the country on that date, which would have required

Bernal-Sanchez to admit to the charged offense (that he had entered outside a port

of entry), or to admit to another offense (that he had entered uninspected through a

port of entry), or to invoke his Fifth Amendment privilege. On this record, the

Government’s misuse of Rule 17(a) and disregard of Local Criminal Rule 17.1(b)

neither interfered with Bernal-Sanchez’s decision to testify nor affected the verdict.

The majority correctly calls out the Government’s failure to satisfy its Brady

discovery obligation and disregard for Local Criminal Rule 17.1(b). Neither error

warrants remand given the compelling evidence of Bernal-Sanchez’s guilt. I

therefore join the majority’s conclusion that the Government failed to meet its

discovery obligations under Brady and misused Rule 17(a). I also join the

majority’s disposition of the challenge to the Government’s sealed applications for

orders regarding disclosure, and agree that Bernal-Sanchez’s equal protection

argument lacks merit. But because I disagree with the majority’s Brady materiality

analysis and its decision to remand the prejudice analysis of the improperly

subpoenaed employment records, I respectfully dissent from the decision to

conditionally vacate Bernal-Sanchez’s conviction.

11