     Case: 16-40312      Document: 00513793068         Page: 1    Date Filed: 12/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-40312                                FILED
                                  Summary Calendar                      December 12, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

IVAN GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-822-2


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Ivan Gonzalez appeals his conviction for conspiracy to transport
undocumented aliens. Gonzalez argues that the Government violated the
Fourth Amendment by illegally and unethically obtaining material witness
warrants for two undocumented aliens, in order to secure their presence for
Gonzalez’s re-trial after they had been released following his original trial.
According to Gonzalez, those warrants also were erroneously granted because


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-40312    Document: 00513793068     Page: 2   Date Filed: 12/12/2016


                                 No. 16-40312

the magistrate judge lacked the authority to grant them and because the
standards under 18 U.S.C. § 3144 were not met for re-detaining the
undocumented aliens as material witnesses.        Gonzalez contends that the
testimony of the undocumented aliens at the second trial should be suppressed
pursuant to the doctrine of fruit of the poisonous tree, the Government should
be held accountable for its conduct in order to protect the integrity of the
federal courts, and Gonzalez’s indictment should be dismissed.
      Gonzalez’s arguments are unavailing. First, “Fourth Amendment rights
are personal rights which . . . may not be vicariously asserted.” Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978) (internal quotation marks and citation
omitted). Gonzalez may not assert a Fourth Amendment challenge on behalf
of the undocumented aliens regarding the propriety of their detention as
material witnesses and may not seek to suppress evidence pursuant to the
exclusionary rule based on their detention. See id.
      Second, the undocumented aliens were called at Gonzalez’s re-trial only
as defense witnesses.       Gonzalez has not demonstrated prosecutorial
misconduct that warrants vacatur of his conviction or dismissal of his
indictment because he has not demonstrated the requisite prejudice to the
defense. See Ohler v. United States, 529 U.S. 753, 755 (2000) (“Generally, a
party introducing evidence cannot complain on appeal that the evidence was
erroneously admitted.”); United States v. Poole, 735 F.3d 269, 278-79 (5th Cir.
2013).   The conduct of the Government here does not establish error so
pervasive that it infected the integrity of the proceedings. See United States v.
Bowen, 799 F.3d 336, 351-55 (5th Cir. 2015).
      Lastly, Gonzalez has waived his appellate challenge to the propriety of
the re-detention of the undocumented aliens because, after the magistrate
judge vacated her order granting the material witness warrants in dispute,



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                                 No. 16-40312

Gonzalez requested that the undocumented aliens be made available for his
re-trial so that he may call them as witnesses and agreed that the district
court’s order to stay their release was a satisfactory way to secure their
presence. See United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010);
United States v. Delgado, 401 F.3d 290, 300-01 (5th Cir. 2005).
      We note that the judgment incorrectly identifies the date Gonzalez was
found guilty of Count 1 of his indictment, the conspiracy count, and makes no
mention of the resolution of the remaining four counts of his indictment.
Accordingly, the case is REMANDED for the limited purpose of amending the
judgment to reflect the correct date of the guilty verdict on Count 1 and to
indicate the resolution of the remaining counts. See FED. R. CRIM. P. 36. In all
other respects, the judgment is AFFIRMED.




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