                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 21 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50135

               Plaintiff - Appellee,             D.C. No. 3:13-cr-00752-AJB-1

 v.
                                                 MEMORANDUM*
HUGO MONTES DE OCA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Anthony J. Battaglia, District Judge, Presiding

                              Submitted June 6, 2016**
                                Pasadena, California

Before: FERNANDEZ, RAWLINSON, and BEA, Circuit Judges.

      Hugo Montes De Oca appeals his judgment of conviction for being a

removed alien found in the United States in violation of 8 U.S.C. § 1326. We

affirm.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      First, Montes De Oca argues that the district court should have dismissed the

charge or granted a new trial because Manuel Gomez-Navarez, who was found

with Montes De Oca, was deported before Montes De Oca’s trial took place.1

According to Montes De Oca, Gomez’s deportation amounted to a due process

violation because he would have provided testimony favorable to the defense.




1
  The United States asserts that Montes De Oca argues for the first time on appeal
that the indictment should have been dismissed because Gomez’s deportation
violated his due process rights. According to the United States, the dismissal
request is both waived under Federal Rule of Criminal Procedure 12(b)(3) and
barred by operation of common law. However, in his Motion for Discovery and
Motion for New Trial, Montes De Oca argued that Gomez’s deportation was a due
process violation under United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982). Both the government and district court interpreted this as raising a motion
to dismiss for a due process violation.
       Montes De Oca’s dismissal argument was raised in his post-trial discovery
motion. The United States argues that under Rule 12(b)(3), Montes De Oca’s
failure to raise this claim by pretrial motion bars its consideration on appeal
without good cause. However, there are two limitations on Rule 12(b)(3): (1) the
basis for the motion must be one that is “then reasonably available”; and (2) the
motion must be one that the court can determine “without a trial on the merits.”
See Fed. R. Crim. P. 12(b)(3).
       The United States argues that Montes De Oca knew about Gomez’s
deportation before trial. In support of this argument, the United States points only
to the fact that Montes De Oca proposed a “missing witness” jury instruction a few
days before trial, without mentioning Gomez specifically. Montes De Oca asserts
that the first time the government produced discovery on Gomez was during the
post-trial hearing on the motion for new trial. At the hearing, the government
indicated that it produced the reference of record of deportable alien pertaining to
Gomez on October 30, 2013, after the trial took place. Accordingly, Montes De
Oca’s argument will be addressed on the merits.

                                          2
      We apply a two-part test to determine whether the government

unconstitutionally deported a witness: “[T]he defendant must make an initial

showing that the Government acted in bad faith and that this conduct resulted in

prejudice to the defendant’s case.” United States v. Medina-Villa, 567 F.3d 507,

517 (9th Cir. 2009), as amended (June 23, 2009) (internal quotation marks

omitted).

      Montes De Oca has failed to show that the government acted in bad faith.

He does not argue that the United States departed from normal deportation

procedures for the purpose of preventing testimony favorable to Montes De Oca.

In addition, he failed to show that Gomez could offer exculpatory evidence, or that

he could have offered such evidence at the time he was deported. Moreover, the

United States was unaware before the trial that Montes De Oca would raise those

arguments because Montes De Oca did not seek pretrial discovery of Gomez’s

arrest reports, post-arrest statement, or A-File.

      In addition, Montes De Oca has not shown that the government’s conduct

resulted in prejudice to his case. Montes De Oca argues that Gomez may have

testified about several matters, including: Montes De Oca’s demeanor, that they

were lost at the time of apprehension, that he was acting as Monte De Oca’s guide,

and the reason they were lying under a tarp when apprehended. There is no


                                           3
indication that Gomez’s testimony on these matters would have been favorable to

Montes De Oca. Montes De Oca has not made a plausible showing that Gomez’s

testimony would have affected the jury’s verdict. See United States v. Bagley, 473

U.S. 667, 681-82 (1985).

      To warrant a new trial for newly discovered evidence, a defendant must

satisfy a five-part test: “(1) the evidence must be newly discovered; (2) the failure

to discover the evidence sooner must not be the result of the defendant’s lack of

diligence; (3) the evidence must be ‘material’ to the issues at trial; (4) the evidence

may not be (a) cumulative or (b) ‘merely impeaching’; and (5) the evidence must

indicate that a new trial would ‘probably’ result in acquittal.” United States v.

Hinkson, 585 F.3d 1247, 1257 (9th Cir. 2009).

      Here, Montes De Oca has failed to satisfy the first and fifth factors. In his

motion for new trial, Montes De Oca speculated that Gomez’s “statements, reports,

or admissions would constitute newly discovered evidence” that Gomez served as

the guide or had been apprehended as a guide on previous occasions. After

receiving and reviewing Gomez’s reports, however, Montes De Oca admitted they

did not contain the information he sought.

      Finally, a new trial may be granted “if the interest of justice so requires.”

Fed. R. Crim. P. 33(a). As discussed above, there is no indication that Gomez


                                           4
could have provided favorable evidence for Montes De Oca. Montes De Oca has

not shown that the “interest of justice” demands a new trial.

      Second, Montes De Oca argues that the district court abused its discretion in

denying his post-trial discovery motion brought under Federal Rule of Criminal

Procedure 16. Under Rule 16, the government must disclose upon the defendant’s

request, all “documents . . . within the government’s possession, custody, or

control . . . [that are] material to preparing the defense.” Fed. R. Crim. P.

16(a)(1)(E)(i). Montes De Oca did not present any facts tending to show that

Gomez’s A-File had any information helpful to his defense. See United States v.

Olano, 62 F.3d 1180, 1203 (9th Cir. 1995) (evidence is “material” if it is helpful to

the development of a possible defense).

      Third, Montes De Oca argues that the district court abused its discretion in

declining to give a “missing witness” instruction. Such an instruction is

appropriate if: (1) “the party seeking the instruction [] show[s] that the witness is

peculiarly within the power of the other party”; and (2) “under the circumstances,

an inference of unfavorable testimony [against the non-moving party] from an

absent witness is a natural and reasonable one.” United States v. Leal-Del Carmen,

697 F.3d 964, 974-75 (9th Cir. 2012) (internal quotation marks omitted). Montes

De Oca has failed to meet the second prong of this test. He requested the


                                           5
instruction because “maybe” Gomez would have “knowledge as to where and how

they entered, what their route was, whether or not he was the guide.” His request

is speculative. As discussed above, defense counsel conceded that Gomez’s sworn

statement and arrest reports did not indicate that he acted as a guide. There is no

evidence that Gomez’s testimony would have supported Montes De Oca.

         Fourth, Montes De Oca argues that the district court abused its discretion

when it precluded “any reference to Manuel [Gomez-Navarez]” in closing

argument by denying defense counsel’s request to mention the missing witness

rule.2

         The court’s limitation on Montes De Oca’s closing argument related only to

any potential inference that Gomez’s absence meant that he would have testified

unfavorably against the United States. The court did not prevent Montes De Oca

from referring to Gomez, noting that the United States did not call Gomez as a

witness, or from questioning whether the absence of his testimony affected the

sufficiency of the government’s evidence.




2
  Montes De Oca argues that because defense counsel did not finish his question, it
is not apparent that he was asking about the missing witness rule. However,
defense counsel specifically mentioned the term “missing witness.” In addition,
the thrust of his question is apparent from the context. He asked it immediately
after the district court denied his request for a missing witness instruction.
                                            6
      It was proper for the district court to prohibit Montes De Oca from making a

“missing witness” inference during closing argument. As explained above, the

district court correctly found that there was not “any basis in the evidence” to

suggest that Gomez’s testimony would be unfavorable to the United States. A

missing witness inference must be permissibly based on the evidence. See United

States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982) (court may refuse to allow a

missing witness argument when it would be misleading); see also United States v.

Miguel, 338 F.3d 995, 1001 (9th Cir. 2003) (“A district court certainly retains the

power to preclude closing arguments on defense theories that are not supported by

the evidence.”).

      AFFIRMED.




                                           7
                                              FILED
U.S. v. Montes De Oca, Case No. 14-50135
                                               JUL 21 2016
Rawlinson, Circuit Judge, concurring:
                                           MOLLY C. DWYER, CLERK
                                            U.S. COURT OF APPEALS
     I concur in the result.
