                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 17 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10619

              Plaintiff-Appellee,                D.C. No.
                                                 4:14-cr-01729-CKJ-DTF-1
 v.

RAFAEL GUZMAN-SOLIS, AKA Rafael                  MEMORANDUM*
Bugas Guzman,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-10620

              Plaintiff-Appellee,                D.C. No.
                                                 4:12-cr-01696-CKJ-DTF-1
 v.

RAFAEL GUZMAN-SOLIS, AKA Rafael
Bugas Guzman,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                          Submitted November 15, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and EZRA,***
District Judge.

      Rafael Guzman-Solis appeals his conviction for illegal reentry after

deportation, and the revocation of his supervised release. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the

history of this case, we need not recount it.

                                           I

      The district court did not err in denying Guzman-Solis’s request for a

Kastigar hearing on the improperly recorded attorney-client meeting. Under our

precedent, Guzman-Solis had the burden to establish a prima facie case of

prejudice resulting from the intrusion. United States v. Danielson, 325 F.3d 1054,

1071 (9th Cir. 2003). To make out a prima facie case under Danielson, he had to

show that the government acted affirmatively to intrude into the attorney-client

relationship; passive possession of information is not enough. Id. The district

court reasonably found, based on evidence in the record, that the government’s


      **
             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, United States District Judge for the
District of Hawaii, sitting by designation.
                                           2
recording of the attorney-client meeting was inadvertent and that no members of

the prosecution team learned the contents of the privileged conversation. As a

result, it did not abuse its discretion in declining to hold a Kastigar hearing or in

declining to shift the burden to the government. See United States v. Anderson, 79

F.3d 1522, 1525 (9th Cir. 1996).

      The district court also did not err in declining to grant the motion to dismiss

the indictment based on due process grounds. See United States v. Black, 733 F.3d

294, 301 (9th Cir. 2013) (stating standard of review is de novo). “To violate due

process, governmental conduct must be so grossly shocking and so outrageous as

to violate the universal sense of justice,” United States v. Barrera-Moreno, 951

F.2d 1089, 1092 (1991) (citing United States v. Restrepo, 930 F.2d 705, 712 (9th

Cir. 1991)), and to “absolutely bar the government from invoking judicial

processes to obtain a conviction.” Black, 733 F.3d at 302.

      Guzman-Solis failed to meet this “extremely high standard.” See Id. at 298.

Guzman-Solis was not prejudiced by the recorded conversations or by the

government’s use of an improper process to obtain his medical records.

Danielson, 325 F.3d at 1069 (clarifying there is no Sixth Amendment violation

unless there is “substantial prejudice”); see also Unites States v. Rogers, 751 F.2d

1074, 1077 (9th Cir. 1985) (citing United States v. Sears, Roebuck & Co., Inc., 719


                                            3
F.2d 1386, 1391–92 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984); United

States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978)) (stating “an indictment may not

be dismissed for governmental misconduct absent prejudice to the defendant”).

                                           II

      The district court did not abuse its discretion by declining to use its

supervisory powers to dismiss the indictment. See Black, 733 F.3d at 301 (stating

standard of review is abuse of discretion). The government’s conduct, even if

improper, was not so “patently egregious” as to warrant dismissal of the indictment

against Guzman-Solis. See Unites States v. Rogers, 751 F.2d 1074, 1080–81 (9th

Cir. 1985). Moreover, Guzman-Solis did not show that he was prejudiced by the

government’s possession of the recorded conversations or by the government’s

failure to use the proper process to obtain his medical records.

                                          III

      The district court did not err in denying the motion for acquittal. In

reviewing a district court’s denial of a motion for judgment of acquittal based on

insufficient evidence of identification, we apply the same test that the district court

must employ in deciding whether to grant the motion in the first instance. United

States v. Alexander, 48 F.3d 1477, 1489–90 (9th Cir. 1995) (citing United States v.

Lucas, 963 F.2d 243, 247 (9th Cir. 1992); United States v. Kaplan, 554 F.2d 958,


                                           4
963 (9th Cir. 1977), cert. denied sub nom. Dolwig v. United States, 434 U.S. 956

(1978); United States v. Leal, 509 F.2d 122, 125 (9th Cir. 1975)).

      “A motion for judgment of acquittal should be granted only if, viewing the

evidence in the light most favorable to the government, no rational trier of fact

could find beyond a reasonable doubt that the defendant is the person who

committed the charged crime.” Id. at 1490 (citing Lucas, 963 F.2d at 247). We

draw all reasonable inferences that can be drawn from the evidence in favor of the

government. Id. “[I]n-court identification by a witness is not necessarily required”

if “the evidence at trial is sufficient to permit the inference that the person on trial

was the person who committed the crime.” Id. (citing United States v. Fern, 696

F.2d 1269, 1276 (11th Cir. 1983)).

      Viewing the evidence in the light most favorable to the government and

crediting the government with all the inferences that can be drawn from the

evidence, a rational trier of fact could find beyond a reasonable doubt that

Guzman-Solis is the person who committed the charged crime.


      AFFIRMED.




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