                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 25 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10219

              Plaintiff - Appellee,              D.C. No. 4:11-cr-02628-CKJ-
                                                 BPV-1
 v.

MARCOS SOTO-MENDOZA,                             MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-10220

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01277-CKJ-
                                                 BPV-1
 v.

MARCOS SOTO-MENDOZA, AKA
Marco Soto-Mendoza, AKA Vicente Soto-
Mendoza,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
                    Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted October 20, 2015
                            San Francisco, California

Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.

      After a jury trial, the district court entered judgment and sentenced Marcos

Soto-Mendoza on five counts of bringing illegal aliens into the United States for

profit. Soto-Mendoza appeals from his judgment of conviction, raising several

different claims. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      The district court did not err in refusing to order a new trial. On Count I, the

jury responded to a special interrogatory by finding the government had not proven

beyond a reasonable doubt that Soto-Mendoza acted for financial gain or

commercial advantage. Even assuming there was an inconsistency between this

finding on Count I and the jury’s convictions on Counts II-VI, a defendant cannot

attack a conviction based on an inconsistent acquittal on another count. See, e.g.,

United States v. Powell, 469 U.S. 57, 60 (1984).

      As to Counts II-VI, the trial evidence was sufficient to establish that Soto-

Mendoza acted for financial gain or commercial advantage. The evidence showed

the aliens arranged to pay a third-party for their passage, this third-party supplied

Soto-Mendoza as their guide, and Soto-Mendoza referred to guiding the aliens as



                                           2
“his job.” We have repeatedly upheld convictions for the same offense on similar

evidence. See, e.g., United States v. Schemenauer, 394 F.3d 746, 751 (9th Cir.

2005); United States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002).

      The district court did not err in admitting videotaped witness depositions

because the witnesses were unavailable to testify. Where an illegal alien is

detained for the purposes of providing material testimony, upon the alien’s motion,

the government must depose and release the alien unless a “failure of justice”

would ensue. See Torres-Ruiz v. U.S. Dist. Court for the S. Dist. of California, 120

F.3d 933, 935 (9th Cir. 1997) (citing Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th

Cir.1992)); see also 18 U.S.C. § 3144. The government deposed and released the

witnesses upon their own motion. After the witnesses returned to Mexico, the

confrontation clause required that the government make a good-faith effort to

produce the witnesses at trial. See United States v. Matus-Zayas, 655 F.3d 1092,

1101 (9th Cir. 2011). The government made such an effort by communicating

with the witnesses’ counsel, sending both witnesses letters requesting their

presence at trial, and offering to pay for their transportation back to the United

States.

      Nor did the district court abuse its discretion in admitting a border agent’s

hearsay testimony that one of the unavailable witnesses identified Soto-Mendoza

                                           3
as the group’s guide. This testimony was admissible as an excited utterance. See

Fed. R. Evid. 803(2). In any event, the hearsay testimony could not have

prejudiced Soto-Mendoza because the jury heard direct testimony from the witness

identifying Soto-Mendoza as the guide.

      The district court did not err by denying Soto-Mendoza’s motion for a

mistrial due to two alleged Brady violations. First, Soto-Mendoza does not explain

how his cross-examination of the two material witnesses would have been altered

by additional evidence about the government’s chain of custody of a cell phone

recovered at the scene. Defense counsel had the opportunity to cross-examine the

witnesses about their testimony that they had seen Soto-Mendoza use a cell phone.

Nor has Soto-Mendoza shown that he was prejudiced by the absence of this chain-

of-custody evidence. The cell phone’s immateriality to Soto-Mendoza’s defense

also disposes of his related argument that this chain-of-custody evidence was

necessary for him to present a complete defense at trial.

      We also reject Soto-Mendoza’s argument that the government committed a

Brady violation by failing to produce pre-deposition interview notes because he

has not identified how information from the notes would have been helpful to him

in cross-examining the material witnesses. See Martinez-Serrano v. I.N.S., 94 F.3d




                                          4
1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported by

argument are deemed abandoned.”).

      The district court did not abuse its discretion by excusing a juror to

accommodate the juror’s pre-existing international travel plans. See United States

v. McFarland, 34 F.3d 1508, 1512 (9th Cir. 1994).

      Nor did the district court abuse its discretion by not granting a pre-trial

motion for substitution of counsel. See Daniels v. Woodford, 428 F.3d 1181, 1197-

98 (9th Cir. 2005) (describing factors to consider when deciding motion to

substitute counsel). The district court held a hearing on the motion and correctly

recognized that, given the timing of the motion, any substitution of counsel would

have required a trial continuance. Also, during a hearing on the motion, Soto-

Mendoza stated “it was a mistake” to request that counsel withdraw. Soto-

Mendoza elaborated that he had “always cooperated” with counsel and would

continue to do so in the future. Counsel described Soto-Mendoza as “pleasant and

patient.”

      As to sentencing, Soto-Mendoza challenges the district court’s application of

a guideline enhancement for smuggling six or more aliens, committing a crime

involving two deaths, and obstruction of justice. Soto-Mendoza had adequate, pre-

trial notice of the need to defend against the government’s claim that he smuggled

                                           5
six or more aliens. Count I of the indictment charged Soto-Mendoza with

conspiring to bring in and transport aliens “including but not limited to” five listed

individuals. Further, the trial evidence, namely the material witness depositions,

established that Soto-Mendoza smuggled six or more aliens.

      Soto-Mendoza argues that the district court violated his Sixth Amendment

rights by enhancing his sentence due to the deaths of two aliens where the jury

acquitted him of causing these deaths in counts VII and VIII. We do not reach

Soto-Mendoza’s constitutional claim because the jury did not actually acquit Soto-

Mendoza of causing the deaths. The jury instructions listed each element of the

crime. The jury did convict Soto-Mendoza of bringing the aliens into the United

States. The parties stipulated that the aliens identified in Counts VII and VIII died

in the desert and that the autopsies indicated they died of heat-related ailments.

There was no clear jury finding regarding Soto-Mendoza’s involvement in the

deaths and thus there is no basis for Soto-Mendoza’s Sixth Amendment claim

based on inconsistency. Relatedly, the deposed witnesses’ testimony supported the

judge’s finding that the aliens’ deaths resulted from Soto-Mendoza’s efforts to

smuggle them across the border.

      Soto-Mendoza cites United States v. Castro-Ponce, 770 F.3d 819 (9th Cir.

2014), and argues that the district court erred by enhancing his sentence without

                                           6
making explicit findings on each element of obstruction of justice. The district

court must make such findings where the defendant objects to the enhancement.

See, e.g., United States v. Dunnigan, 507 U.S. 87, 95 (1993) (“[I]f a defendant

objects to a sentence enhancement resulting from her trial testimony, a district

court must review the evidence and make independent findings necessary to

establish a willful impediment to or obstruction of justice”) (emphasis added);

accord United States v. Shannon, 137 F.3d 1112, 1119 (9th Cir. 1998), overruled

on other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007)

(requiring findings as to all three elements of obstruction of justice “[a]fter

[defendant] objected to the recommended sentence enhancement”). Castro-Ponce

did not disturb our case law; the record in that case includes defendant’s objection

to the enhancement. Soto-Mendoza did not object to the imposition of this

enhancement at trial. Absent such an objection, the district court was not required

to making explicit findings as to each element of obstruction of justice.

      AFFIRMED.




                                           7
                                                                              FILED
United States v. Soto-Mendoza, 14-10219                                        FEB 25 2016

                                                                           MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting in part:                               U.S. COURT OF APPEALS




      This is what we said in U.S. v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir.

2014):



             We follow Jimenez-Ortega today. In light of the government’s

      comment at oral argument that no case within our circuit has held that

      a finding of materiality must be express, we hold today that an express

      finding is required. To hold otherwise would eviscerate the rule

      announced in Jimenez-Ortega. Absent a requirement of express

      findings on all three prongs necessary for a perjury to amount to

      obstruction of justice, we would have to speculate about the district

      court’s legal conclusion on obstruction. Rather than engage in such

      speculation, we require the fact-finder to make those determinations

      explicitly for our review.



      Whatever one thinks of the correctness of that opinion, no one can doubt its

clarity. In fact, it couldn’t be clearer: An express finding of materiality is required

if the district court is going to apply an obstruction of justice enhancement based
                                          -2-
on perjury.



      In fairness to the able district judge, it must be noted that Castro-Ponce was

not decided until about six months after the sentencing in this case occurred.

However, it also must be noted that the case relied on by the Castro-Ponce court,

U.S. v. Jimenez-Ortega, 472 F.3d 1103 (9th Cir. 2007), had been on the books for

several years. Jimenez-Ortega held: “[T]he materiality of a false statement is one

of the predicates of an obstruction enhancement, and we must remand where the

district court failed to make a finding on this point.” Id. at 1103-4.



      The two key facts of our case are: (1) the district court did not make an

express materiality finding before applying the two-level obstruction/perjury

enhancement; and (2) Castro-Ponce holds “that an express finding is required.” Id.

at 822. This was plainly erroneous. I concur in the rest of the majority’s

memorandum, but would reverse the sentence and remand to the district court for

re-sentencing.
