NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1290 D.C. No. Plaintiff - Appellee, 3:18-cr-05498-BLM-H-1 v. MEMORANDUM* GABRIEL JIMENEZ-PERALTA,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, Senior District Judge, Presiding
Argued and Submitted September 10, 2024 Pasadena, California
Before: IKUTA and FRIEDLAND, Circuit Judges, and HSU, District Judge.**
Gabriel Jimenez-Peralta appeals his conviction and sentence for attempted
illegal entry. 8 U.S.C. § 1325(a)(1). We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Wesley L. Hsu, United States District Judge for the Central District of California, sitting by designation. I. EQUAL PROTECTION
As an initial matter, 8 U.S.C. § 1325 does not violate the equal protection
component of the Fifth Amendment. Jimenez-Peralta correctly concedes that
United States v. Carrillo-Lopez dictates this result. See United States v. Carrillo-
Lopez, 68 F.4th 1133, 1153−54 (9th Cir. 2023), cert. denied, 144 S. Ct. 703 (2024)
(holding that the defendant did not meet his burden to prove that Congress enacted
§ 1326 because of discriminatory animus against Mexicans or other Central and
South Americans).
II. IN-COURT IDENTIFICATION
The magistrate judge’s admission of the agent’s trial testimony identifying
Jimenez-Peralta as one of the two individuals who ran from the border and hid in
the bushes was not an abuse of discretion. See United States v. Dixon, 201 F.3d
1223, 1229 (9th Cir. 2000) (“[A] district court’s decision to admit in-court
identification testimony” is reviewed “for an abuse of discretion”). “An abuse of
discretion occurs only if the resulting in-court identification procedures are so
‘unnecessarily suggestive and conducive to irreparable misidentification’ as to
amount to a denial of due process of law….” United States v. Domina, 784 F.2d
1361, 1369 (9th Cir. 1986) (quoting United States v. Williams, 436 F.2d 1166,
1168−69 (9th Cir. 1970)). “As long as the witness has an independent recollection
that is ‘wholly untainted by [any] police misconduct,’ an in-court identification is
2 23-1290 permissible.” United States v. Lumitap, 111 F.3d 81, 85 n.4 (9th Cir. 1997)
(quoting United States v. Crews, 445 U.S. 463, 474 (1980)).
Jimenez-Peralta argues that, because the agent saw Jimenez-Peralta seated at
defense table with counsel, the identification was based on Jimenez-Peralta’s
presence in court rather than the agent’s independent recollection of Jimenez-
Peralta. It was not an abuse of discretion, however, for the magistrate judge to
credit the agent’s account that the identification testimony was based on the
agent’s independent recollection of Jimenez-Peralta from reviewing Jimenez-
Peralta’s arrest report and photograph in advance of trial. Id. (holding that in-court
identifications are permissible as long as the witness has an “independent
recollection” that is “untainted by. . . police misconduct” (quotation marks
omitted)).1 The magistrate judge also permitted Jimenez-Peralta’s counsel to
cross-examine the agent about his limited recollection of Jimenez-Peralta from the
day of the apprehension. The record accordingly indicates that the district court
took sufficient steps to avoid an identification so “‘unnecessarily suggestive and
1 The agent’s testimony that he had an independent recollection of Jimenez-Peralta based on his review of the photograph also undermines Jimenez-Peralta’s argument that the government failed to prove the identity of the defendant beyond a reasonable doubt.
3 23-1290 conducive to irreparable misidentification’ as to amount to a denial of due process
of law….” Domina, 784 F.2d at 1369 (quoting Williams, 436 F.2d at 1168−69).
III. SUFFICIENCY OF EVIDENCE
We also find that the evidence was sufficient to sustain Jimenez-Peralta’s
conviction. “In considering a challenge to the sufficiency of the evidence, we
consider whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Alvarez, 358 F.3d 1194, 1201
(9th Cir. 2004) (emphasis in original) (quoting United States v. Bautista-Avila, 6
F.3d 1360, 1362 (9th Cir. 1993)). To convict a defendant of a violation of 8 U.S.C
§ 1325(a)(1), “the government must prove beyond a reasonable doubt that the
individual was an ‘alien who…enter[ed] or attempt[ed] to enter the United States
at any time or place other than as designated by immigration officers.’” United
States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017) (quoting 8 U.S.C.
§ 1325(a)(1)).
A. Alienage
A rational trier of fact could find that the government proved beyond a
reasonable doubt Jimenez-Peralta’s alienage. If the government relies on
defendant’s admission to establish guilt, the corpus delicti doctrine requires that
the admission of an element of a crime “be corroborated by ‘substantial
4 23-1290 independent evidence which would tend to establish the trustworthiness of the
statement[s].’” United States v. Garcia-Villegas, 575 F.3d 949, 950 (9th Cir.
2009) (quoting Opper v. United States, 348 U.S. 84, 93 (1954)); see also United
States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992) (explaining that the
corroboration requirement is “two-pronged” and requires (i) “sufficient evidence to
establish that the criminal conduct at the core of the offense has occurred[,]” and
(ii) “independent evidence tending to establish the trustworthiness of the
admissions…”). “[M]ode of entry evidence [that] comes not only from the
defendant but also from two independent sources” provides sufficient
corroboration. Garcia-Villegas, 575 F.3d at 951.
Here, Jimenez-Peralta admitted that he was a citizen of Mexico and did not
have immigration documents. This admission is corroborated by mode of entry
evidence that comes from even more than the requisite “two independent sources.”
Id. In addition to the two agents who testified about Jimenez-Peralta’s mode of
entry, there was also video evidence corroborating Jimenez-Peralta’s entry in a
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-1290 D.C. No. Plaintiff - Appellee, 3:18-cr-05498-BLM-H-1 v. MEMORANDUM* GABRIEL JIMENEZ-PERALTA,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, Senior District Judge, Presiding
Argued and Submitted September 10, 2024 Pasadena, California
Before: IKUTA and FRIEDLAND, Circuit Judges, and HSU, District Judge.**
Gabriel Jimenez-Peralta appeals his conviction and sentence for attempted
illegal entry. 8 U.S.C. § 1325(a)(1). We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Wesley L. Hsu, United States District Judge for the Central District of California, sitting by designation. I. EQUAL PROTECTION
As an initial matter, 8 U.S.C. § 1325 does not violate the equal protection
component of the Fifth Amendment. Jimenez-Peralta correctly concedes that
United States v. Carrillo-Lopez dictates this result. See United States v. Carrillo-
Lopez, 68 F.4th 1133, 1153−54 (9th Cir. 2023), cert. denied, 144 S. Ct. 703 (2024)
(holding that the defendant did not meet his burden to prove that Congress enacted
§ 1326 because of discriminatory animus against Mexicans or other Central and
South Americans).
II. IN-COURT IDENTIFICATION
The magistrate judge’s admission of the agent’s trial testimony identifying
Jimenez-Peralta as one of the two individuals who ran from the border and hid in
the bushes was not an abuse of discretion. See United States v. Dixon, 201 F.3d
1223, 1229 (9th Cir. 2000) (“[A] district court’s decision to admit in-court
identification testimony” is reviewed “for an abuse of discretion”). “An abuse of
discretion occurs only if the resulting in-court identification procedures are so
‘unnecessarily suggestive and conducive to irreparable misidentification’ as to
amount to a denial of due process of law….” United States v. Domina, 784 F.2d
1361, 1369 (9th Cir. 1986) (quoting United States v. Williams, 436 F.2d 1166,
1168−69 (9th Cir. 1970)). “As long as the witness has an independent recollection
that is ‘wholly untainted by [any] police misconduct,’ an in-court identification is
2 23-1290 permissible.” United States v. Lumitap, 111 F.3d 81, 85 n.4 (9th Cir. 1997)
(quoting United States v. Crews, 445 U.S. 463, 474 (1980)).
Jimenez-Peralta argues that, because the agent saw Jimenez-Peralta seated at
defense table with counsel, the identification was based on Jimenez-Peralta’s
presence in court rather than the agent’s independent recollection of Jimenez-
Peralta. It was not an abuse of discretion, however, for the magistrate judge to
credit the agent’s account that the identification testimony was based on the
agent’s independent recollection of Jimenez-Peralta from reviewing Jimenez-
Peralta’s arrest report and photograph in advance of trial. Id. (holding that in-court
identifications are permissible as long as the witness has an “independent
recollection” that is “untainted by. . . police misconduct” (quotation marks
omitted)).1 The magistrate judge also permitted Jimenez-Peralta’s counsel to
cross-examine the agent about his limited recollection of Jimenez-Peralta from the
day of the apprehension. The record accordingly indicates that the district court
took sufficient steps to avoid an identification so “‘unnecessarily suggestive and
1 The agent’s testimony that he had an independent recollection of Jimenez-Peralta based on his review of the photograph also undermines Jimenez-Peralta’s argument that the government failed to prove the identity of the defendant beyond a reasonable doubt.
3 23-1290 conducive to irreparable misidentification’ as to amount to a denial of due process
of law….” Domina, 784 F.2d at 1369 (quoting Williams, 436 F.2d at 1168−69).
III. SUFFICIENCY OF EVIDENCE
We also find that the evidence was sufficient to sustain Jimenez-Peralta’s
conviction. “In considering a challenge to the sufficiency of the evidence, we
consider whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Alvarez, 358 F.3d 1194, 1201
(9th Cir. 2004) (emphasis in original) (quoting United States v. Bautista-Avila, 6
F.3d 1360, 1362 (9th Cir. 1993)). To convict a defendant of a violation of 8 U.S.C
§ 1325(a)(1), “the government must prove beyond a reasonable doubt that the
individual was an ‘alien who…enter[ed] or attempt[ed] to enter the United States
at any time or place other than as designated by immigration officers.’” United
States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017) (quoting 8 U.S.C.
§ 1325(a)(1)).
A. Alienage
A rational trier of fact could find that the government proved beyond a
reasonable doubt Jimenez-Peralta’s alienage. If the government relies on
defendant’s admission to establish guilt, the corpus delicti doctrine requires that
the admission of an element of a crime “be corroborated by ‘substantial
4 23-1290 independent evidence which would tend to establish the trustworthiness of the
statement[s].’” United States v. Garcia-Villegas, 575 F.3d 949, 950 (9th Cir.
2009) (quoting Opper v. United States, 348 U.S. 84, 93 (1954)); see also United
States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992) (explaining that the
corroboration requirement is “two-pronged” and requires (i) “sufficient evidence to
establish that the criminal conduct at the core of the offense has occurred[,]” and
(ii) “independent evidence tending to establish the trustworthiness of the
admissions…”). “[M]ode of entry evidence [that] comes not only from the
defendant but also from two independent sources” provides sufficient
corroboration. Garcia-Villegas, 575 F.3d at 951.
Here, Jimenez-Peralta admitted that he was a citizen of Mexico and did not
have immigration documents. This admission is corroborated by mode of entry
evidence that comes from even more than the requisite “two independent sources.”
Id. In addition to the two agents who testified about Jimenez-Peralta’s mode of
entry, there was also video evidence corroborating Jimenez-Peralta’s entry in a
manner consistent with a lack of permission to enter the United States—running
from the border in an area 25 miles from the nearest designated port of entry and
hiding from law enforcement in the bushes. In addition, the facts that Jimenez-
Peralta attempted to avoid detection, did not respond to the agents’ self-
5 23-1290 identification as Border Patrol agents, and was taken into custody near the border
also demonstrate a lack of permission to enter the United States.
B. Attempted Entry and Intent
Viewing the evidence in the light most favorable to the prosecution, there is
also sufficient evidence for a rational trier of fact to find that Jimenez-Peralta
attempted entry at a time and place other than a designated port of entry and had
specific intent to do so. The statute requires that the defendant had specifically
intended “to enter the United States at a time or place other than as designated by
immigration officers,” which includes the specific intent to “enter without being
taken into custody by government authorities[.]” United States v. Rizo-Rizo, 16
F.4th 1292, 1295 & n.1 (9th Cir. 2021). The defendant must also take a substantial
step toward committing that crime. Id. at 1294 (citing plea colloquy); see also
United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir. 2000) (en banc)
(holding that 8 U.S.C. § 1326 incorporates the common law meaning of attempt,
which requires, inter alia, “some overt act that was a substantial step toward
committing [the] crime”).
Because no agent testified that he saw Jimenez-Peralta climb the border
fence, Jimenez-Peralta argues that there is not sufficient evidence that he took a
substantial step toward committing the crime of unlawful entry. Any rational trier
of fact could conclude that Jimenez-Peralta unlawfully crossed the border fence
6 23-1290 and had the specific intent to do so, however, from the fact that he was seen and
videotaped running northbound, yards from the border fence in an area miles from
a designated port of entry, and hiding from law enforcement in the bushes. See
United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir. 2000) (“[A] face
covered by jam near a jam jar is convincing proof of jam-eating unless otherwise
explained.”). We accordingly conclude that Jimenez-Peralta’s conviction is
supported by sufficient evidence.
IV. ALLEGED BRADY MATERIAL
Even assuming an error occurred with respect to the magistrate judge’s
orders regarding the government’s ex parte applications—an issue we do not
reach—a remand is not required. See Strickler v. Greene, 527 U.S. 263, 296
(1999) (holding that the failure to produce non-material impeachment evidence did
not require remand).
A. Personnel File Information
The magistrate judge did not abuse her discretion by ruling that the
government need not disclose the information contained in the personnel file of
one of the agents under United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991).
The information contained in the personnel file is non-material.
7 23-1290 B. Facebook Information
Furthermore, we need not and do not reach Jimenez-Peralta’s argument that
the magistrate judge erred by not ordering the disclosure of the testifying agents’
memberships in certain Facebook groups nor requiring the prosecution to search its
files and United States Customs and Border Protection’s files for any documents
evidencing Facebook activity by the testifying agents in the relevant Facebook
groups. See United States v. Cano, 934 F.3d 1002, 1023 (9th Cir. 2019)
(explaining how the prosecutor is presumed to have knowledge and access to
documents held by an executive branch agency “if the agency participates in the
investigation of the defendant[]”). Even if this were an error, any undisclosed
evidence that could impeach the agents’ testimony would not create a “reasonable
probability that its disclosure would have produced a different result[.]” Kyles v.
Whitley, 514 U.S. 419, 422 (1995).
As to the first agent’s testimony, even if impeachable, it was entirely
corroborated by video evidence depicting “[t]wo individuals running northbound
away from the U.S.-Mexico international border fence.” As to the second agent,
even assuming his credibility was substantially discounted by evidence of bias, the
agent’s testimony that Jimenez-Peralta admitted his alienage was corroborated by
substantial circumstantial evidence that Jimenez-Peralta entered the United States
without permission. As to the agent’s testimony linking Jimenez-Peralta to the
8 23-1290 individuals crossing the border, that too was corroborated by video evidence
indicating that Jimenez-Peralta was apprehended at the location identified by the
first agent. See Strickler, 527 U.S. at 291 (explaining that there must be a
reasonable probability of a different result even after “a total, or just a substantial,
discount” of the impeached witness's testimony). In short, even assuming that the
second agent’s testimony was impeachable by any undisclosed information, his
testimony could not be completely discounted, and in any event was amply
supported by the government’s other evidence.
V. CONCLUSION
Jimenez-Peralta’s conviction and sentence are AFFIRMED.
9 23-1290