                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 19 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                           No. 14-30169

              Plaintiff - Appellee,                 D.C. No. 2:13-CR-06049-EFS-3

  v.
                                                    MEMORANDUM*
JESUS LOPEZ-TRUJILLO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                    Submitted on the briefs October 16, 2015 **
                               Seattle, Washington

Before: FLETCHER and GOULD, Circuit Judges, and EZRA, District Judge.***

       Jesus Lopez-Trujillo (“Appellant”) appeals his conviction for conspiracy to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
                                      Page 1 of 5
distribute methamphetamine and possession of methamphetamine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

      Appellant first contends that the district court erred by failing to sua sponte

require the government to grant use immunity to defense witness Manuel

Sandoval-Valdivia (“Sandoval-Valdivia”). Appellant did not ask the government

to grant use immunity to Sandoval-Valdivia, and did not request that the district

court compel such immunity. Where a defendant does not ask the district court to

compel use immunity, whether the district court should have done so sua sponte is

reviewed for plain error. United States v. Olano, 507 U.S. 725, 730–36 (1993).

      The record is clear that Sandoval-Valdivia’s decision to assert his right

against self-incrimination was based on the advice of his counsel, and there is no

evidence that the government engaged in any conduct that could be said to

“amount to something akin to prosecutorial misconduct.” United States v. Straub,

538 F.3d 1147, 1157 (9th Cir. 2008). The record is also clear that the failure to

grant immunity to Sandoval-Valdivia did not “so distort[] the fact-finding process

that the defendant was denied his due process right to a fundamentally fair trial.”

Id. at 1162. Sandoval-Valdivia’s proffered testimony was consistent with the

testimony of government witness Juan Trinidad-Magdaleno (“Trinidad-


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Magdaleno”), and would have done nothing to rebut Trinidad-Magdaleno’s

testimony regarding Appellant’s role in the conspiracy prior to the date on which

they were arrested. The district court therefore did not plainly err by failing to

compel use immunity for Sandoval-Valdivia sua sponte.

      Appellant further argues that the district court erred in failing to hold an

evidentiary hearing to explore Sandoval-Valdivia’s proffered testimony. A district

court’s failure to conduct such a hearing is reviewed for plain error. United States

v. Flores-Blanco, 623 F.3d 912, 918 n.2 (9th Cir. 2010). A district court is not

required to conduct an evidentiary hearing to determine whether to compel use

immunity for a defense witness, see id. at 917–18 (affirming district court’s refusal

to compel immunity following defense counsel’s proffer of witness’s testimony);

United States v. Duran, 189 F.3d 1071, 1087–88 (9th Cir. 1999) (same), and

Appellant did not request that the district court conduct such a hearing. Given that

a district court need not always conduct an evidentiary hearing even when the issue

of compelled immunity has been raised before the court, the district court did not

plainly err by failing to conduct an evidentiary hearing where Appellant had

neither raised the issue of immunity nor requested an evidentiary hearing.

      Appellant next contends that the district court abused its discretion in

declining to issue a missing-witness jury instruction. The district court correctly


                                      Page 3 of 5
found that a missing-witness instruction was inappropriate because Sandoval-

Valdivia was not “peculiarly within the power of the other party” and because

there was no “natural and reasonable” inference that Sandoval-Valdivia would

have given testimony unfavorable to the government. See United States v. Leal-

Del Carmen, 697 F.3d 964, 974 (9th Cir. 2012). Sandoval-Valdivia’s

unavailability as a witness was the result of his invocation of his Fifth Amendment

privilege against self-incrimination, and he was therefore unavailable to both

Appellant and the government. United States v. Brutzman, 731 F.2d 1449,

1453–54 (9th Cir. 1984), questioned on other grounds by United States v.

Charmley, 764 F.2d 675, 677 n.1 (9th Cir. 1985). Additionally, the testimony

proffered by defense counsel was consistent with the relevant testimony given by

Trinidad-Magdaleno, and the factual basis in Sandoval-Valdivia’s plea agreement

implicates Appellant in the charged drug transaction. Sandoval-Valdivia’s plea

colloquy, in which he pled guilty to conspiring with Appellant and Trinidad-

Magdaleno, similarly implicates Appellant. The district court was well within its

discretion in declining to give a missing-witness instruction.

      Appellant finally contends that his attorney’s failure to request that the

government grant use immunity to Sandoval-Valdivia constitutes ineffective

assistance of counsel. The factual record currently before the court is not


                                      Page 4 of 5
sufficiently developed to permit determination of this issue on direct appeal. See

United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). The court therefore

declines to consider Appellant’s ineffective assistance claim on direct appeal.

      AFFIRMED.




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