United States v. Betty Madrid

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10175
Plaintiff-Appellee, D.C. No.
4:16-cr-02180-RM-BGM-1
v.
BETTY LOUISE MADRID, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted September 11, 2019**
Pasadena, California
Before: OWENS, R. NELSON, and MILLER, Circuit Judges.
Betty Louise Madrid appeals her conviction for transportation of an illegal
alien for financial gain and conspiracy to transport an illegal alien for financial
gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(I), and
1324(a)(1)(B)(i). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Madrid contends that the government violated her Fifth and Sixth
Amendment rights by deporting a juvenile percipient witness, one of two
individuals whom border patrol agents found in Madrid’s car during a checkpoint
stop. To prevail, Madrid must demonstrate that the government acted in bad faith
by deporting the witness, and that Madrid suffered prejudice as a result. See United
States v. Leal-Del Carmen, 697 F.3d 964, 969–70 (9th Cir. 2012). The district
court found that Madrid had not satisfied either component of that test, and its
finding was not clearly erroneous.
Bad faith “turns on what the government knew at the time it deported the
witness.” Id. at 970. Accordingly, “[w]hen the government doesn’t know what a
witness will say, it doesn’t act in bad faith” by deporting her. Id. Madrid does not
contest that the government did not interview the juvenile witness before deporting
her, and she presents no other evidence to suggest that the government might have
known that the juvenile witness had exculpatory information. Nor does Madrid
present evidence that the government departed from normal procedures involving
deportation of juvenile noncitizen witnesses. See United States v. Pena-Gutierrez,
222 F.3d 1080, 1085 (9th Cir. 2000). She therefore cannot demonstrate that the
government acted in bad faith.
Madrid also fails to show prejudice. Instead, she asks that we presume
prejudice whenever the government deports a potential percipient witness. We
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have not adopted such an approach, which is foreclosed by Supreme Court
precedent. See United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982)
(defendant must show that deported witness’s testimony “would be both material
and favorable to the defense”); United States v. Dring, 930 F.2d 687, 693–94 (9th
Cir. 1991).
AFFIRMED.
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