                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 15 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   16-50235

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-01198-LAB-1
 v.

FREDI VARGAS-ESTUDILLO, AKA                     MEMORANDUM*
Alfredo Vargas-Estudillo,

                Defendant-Appellant.

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

                    Argued and Submitted November 13, 2017
                              Pasadena, California

Before: NGUYEN and HURWITZ, Circuit Judges, and EATON,** Judge.

      Fredi Vargas–Estudillo appeals his conviction for attempted re-entry of a

removed alien in violation of 8 U.S.C. § 1326(a) and (b). We have jurisdiction under

28 U.S.C. § 1291. We hold that the district court erred in denying Vargas–Estudillo’s



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
discovery request, and otherwise deny the challenge to his conviction.

      1. The district court denied Vargas’ motion to dismiss the indictment because

it found that the government’s failure to preserve a video recording of the pedestrian

lane at the Port of Entry was the result of mistake, not bad faith. This finding was

not clearly erroneous. See United States v. Zaragoza–Moreira, 780 F.3d 971, 977

(9th Cir. 2015). Accordingly, the district court did not err in denying Vargas–

Estudillo’s motion to dismiss the indictment.

      2. We conclude, however, that the district court erred in denying Vargas–

Estudillo’s motion for a list of people who applied for admission at the San Ysidro

Port of Entry on March 6, 2015, at approximately 5:23 p.m. through the SENTRI

lane and booth opposite of the SENTRI lane. These people may have been in a

position to observe Vargas and his interaction with the Border Patrol, and the defense

should have been allowed to endeavor to interview them. See United States v. Cadet,

727 F.2d 1453, 1469 (9th Cir. 1984) (“Witnesses, particularly eye witnesses, to a

crime are the property of neither the prosecution nor the defense. Both sides have an

equal right, and should have an equal opportunity, to interview them.” (citation

omitted)); see also United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010)

(holding that the materiality requirement of Fed. R. Crim. P. 16(a)(1)(E)(i) is

satisfied if a defendant presents “facts which would tend to show that the

Government is in possession of information helpful to the defense” (citation


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omitted)).

      3. Because the list of witnesses was not turned over, Vargas cannot know, nor

can he show, that “there is a likelihood that the outcome of the trial would have been

different if discovery had been granted.” United States v. Budziak, 697 F.3d 1105,

1113 (9th Cir. 2012) (citing Stever, 603 F.3d at 754). Nor is it possible, based on the

appellate record, “for us to determine whether the result of [Vargas–Estudillo’s] trial

would have been different if [the list of witnesses] had been disclosed to him.” Id.

Accordingly, we remand and instruct the district court to order the production of the

witness list and determine whether the list “would have led to . . . information that

might have altered the verdict.” Id. (citations omitted). The district court “shall order

a new trial” if it concludes that testimony from any disclosed witness “could have

affected the outcome of the trial.” Id.

      VACATED and REMANDED with instructions.




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