United States v. Florencio Serna-Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2020
• Docket: 19-50021
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50021

Plaintiff-Appellee, D.C. No. 3:18-cr-01226-LAB-1 v.

FLORENCIO SERNA HERNANDEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding

Submitted April 17, 2020** Pasadena, California

Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District Judge.

* 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). *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Florencio Serna Hernandez appeals his convictions for illegal entry and

illegal re-entry in violation of 8 U.S.C. § 1325 and 8 U.S.C. § 1326. Serna

Hernandez contends that the prosecutor impermissibly vouched during closing

arguments when she said that the evidence had showed that he was born in

Mexico. United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir. 1985). He also

contends that the district court should have dismissed the illegal re-entry count

pursuant to 8 U.S.C. § 1326(d)(3) because his prior deportation proceeding was

fundamentally unfair and violated due process. United States v. Rojas-Pedroza,

716 F.3d 1253, 1263 (9th Cir. 2013). We affirm.

The record contains considerable evidence that Serna Hernandez was born in

Mexico. In January 2018, Serna Hernandez was apprehended by Border Patrol

agents while crossing the United States-Mexico border. At that time, Serna

Hernandez told a Border Patrol Agent that he was born in Michoacan, Mexico and

that he did not have paperwork authorizing him to enter the United States. And,

before trial, Serna Hernandez stipulated that he had four times stated under oath

that he was “not a citizen of the United States.”

At trial, defense counsel argued in closing that, because the government

failed to produce Serna Hernandez’s birth certificate, the government had failed to

establish alienage beyond a reasonable doubt. The prosecutor responded to this

2 argument by summarizing the evidence of alienage and arguing the evidence was

sufficient to support a finding of alienage beyond a reasonable doubt.

Serna Hernandez contends that the prosecutor impermissibly vouched during

closing arguments. A prosecutor may not make statements during closing

arguments that the jury would perceive to be “based on [her] personal knowledge

of the evidence,” that amounts to “testimony” or that “vouch[es] for . . . evidence

not produced at trial.” McKoy, 771 F.2d at 1211. In responding to the comments

of defense counsel, however, the prosecutor here was saying no more than that the

evidence had shown that Serna Hernandez was born in Mexico. See United States

v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (explaining that the prosecution has

“the freedom to argue reasonable inferences based on the evidence”); United States

v. Redlightning, 624 F.3d 1090, 1123 (9th Cir. 2010); see also United States v.

Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993) (explaining that inviting the jury to

make inferences is “the very essence of jury summation”). The district court,

therefore, did not err by overruling Serna Hernandez’s objections to the

prosecutor’s statements during closing argument.

Serna Hernandez challenges his 2009 removal hearing in two respects. First,

he contends that the Immigration Judge (IJ) did not individually advise him of the

availability of voluntary departure relief. We have held, however, that there is no

3 need for each individual to be addressed separately during deportation proceedings.

See United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978) (explaining

that “deportation hearings may . . . include multiple respondents without

automatically transgressing the bounds of due process.”). The IJ asked if Serna

Hernandez understood the IJ’s group explanation of voluntary departure earlier

that day, and Serna Hernandez indicated he did. Second, Serna Hernandez argues

that the IJ failed to meaningfully investigate whether he was eligible for relief. In

this case, however, the IJ inquired about his eligibility for relief, and Serna

Hernandez has not identified any inadequacy or prejudice. There was no due

process violation at Serna Hernandez’s 2009 removal hearing. The district court

therefore properly denied Serna Hernandez’s motion to dismiss under section

1326(d).

AFFIRMED.