                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 8 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50048

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00652-WVG-AJB-1
 v.

HIPOLITO GUERRERO-HIDROGO,                      MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Southern District of California
                  William V. Gallo, Magistrate Judge, Presiding

                           Submitted February 6, 2018**
                              Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and PRATT,*** District
Judge.

      Hipolito Guerrero-Hidrogo (“Guerrero-Hidrogo”) appeals from a federal

bench-trial conviction of attempted illegal entry into the United States under 8


      *
             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 Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
U.S.C. § 1325(a)(1). Guerrero-Hidrogo contends that the Government’s routine

destruction of the video showing him crossing the border violated his due process

rights. Reviewing the district court’s legal determinations de novo and its factual

findings for clear error, United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir.

2013), we affirm.1

      On January 11, 2015, while Guerrero-Hidrogo, a citizen of Mexico, was

attempting to enter the United States unlawfully, the Department of Homeland

Security’s (“DHS”) Border Patrol (“USBP”) station’s Remote Video Surveillance

System (“RVSS”) video recorded him near Imperial Beach, California. USBP

agents also saw him, and one arrested him. Guerrero-Hidrogo was tried for

attempted illegal entry into the United States under 8 U.S.C. § 1325. He was

convicted after a bench trial before a Magistrate Judge, and given a time-served

sentence of 4 months’ custody.

      To establish a due process violation, Guerrero-Hidrogo must make three

showings—all of which he fails to make. First, Guerrero-Hidrogo must

demonstrate that the RVSS video “possess[ed] exculpatory value that was apparent

before the evidence was destroyed.” California v. Trombetta, 467 U.S. 479, 489

(1984). Any exculpatory value of the RVSS video was not apparent to the USBP



      1
       As the parties are familiar with the facts and procedural history, we restate
them only as necessary to explain our decision.

                                          2
agents and prosecutors before the tape was destroyed since the tape was likely

blurry due to the weather and a USBP agent was the first to spot Guerrero-Hidrogo

entering the United States, before the RVSS spotted him. Indeed, the district court

found that Guerrero-Hidrogo was under official restraint, which was beside the

point for § 1325(a)(1)’s purposes. Second, Guerrero-Hidrogo must show that he

was “unable to obtain comparable evidence by other reasonably available means.”

Id. Guerrero-Hidrogo obtained comparable evidence through the USBP agents’

testimony and the dispatch tapes. Third, Guerrero-Hidrogo must demonstrate that

the Government acted in “bad faith” when it destroyed the RVSS video, assuming

it were potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 58

(1988). Even if the RVSS video were potentially useful evidence, the district court

did not clearly err by finding that the Government did not act in bad faith because

the Government’s routine overwrite of the RVSS video every sixty days was not a

product of “official animus” or of a “conscious effort to suppress exculpatory

evidence.” Trombetta, 467 U.S. at 488. Consequently, Guerrero-Hidrogo’s

constitutional claim lacks merit.

      AFFIRMED.




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