United States v. Betty Madrid

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 13, 2019
• Docket: 18-10175
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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.