United States of America v. Luis Stephen Haro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS STEPHEN HARO,
Defendant-Appellant.
No. 20-50354
D.C. No.
3:19-cr-05229-CAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted December 9, 2021
Pasadena, California
Before: KELLY,** M. SMITH, and FORREST, Circuit Judges.
Defendant Luis Stephen Haro was convicted after a bench trial of illegally
transporting an alien in violation of 8 U.S.C. § 1324(a)(A)(ii). On appeal, he argues
that the district court erred by: (1) denying his motion to suppress evidence because
the border patrol agents lacked reasonable suspicion to stop his car; (2) finding him
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
DEC 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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guilty when the government offered insufficient evidence of his intent to illegally
transport an alien; and (3) admitting Alejandro Vieyra-Manriquez’s deposition
testimony as evidence at trial because it violated his rights under the Confrontation
Clause.
We review each of the issues Haro raises de novo. United States v. Valdes-
Vega, 738 F.3d 1074, 1077 (9th Cir. 2013); United States v. Liew, 856 F.3d 585, 596
(9th Cir. 2017); United States v. Rodriguez, 880 F.3d 1151, 1166 (9th Cir. 2018).
We affirm.
1. Reasonable Suspicion. Border patrol officers had reasonable suspicion for
the stop under the totality of the circumstances. See Valdes-Vega, 738 F.3d at 1078.
After twice observing Haro—a known alien smuggler and gang member—driving a
white Ford Fiesta in loops around Calexico while talking on his phone and looking
around suspiciously, a border patrol agent placed an alert on Haro’s car because he
believed that it would later be used for alien smuggling. See United States v.
Raygoza-Garcia, 902 F.3d 994, 1000 (9th Cir. 2018); Valdes-Vega, 738 F.3d at
1079.
A few weeks later, the alert was triggered when Haro’s car began traveling
westbound along Interstate 8, a high traffic area for smuggling, only thirty minutes
after the border checkpoint closed, which is a common time to travel for alien
smugglers trying to avoid detection. The same agent who placed the alert issued a

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Be-On-The-Lookout (BOLO) to the San Diego border patrol sector for “a white Ford
Fiesta, possibly involved in alien smuggling” driven by a “known gang member.”
The agent who received the BOLO observed Haro and Vieyra-Manriquez in the car
staring forward without talking which, in his experience, is common conduct
between a smuggler and a transported alien. The agent also believed he saw someone
lying down in the back of the car. See Heien v. North Carolina, 574 U.S. 54, 61 (9th
Cir. 2014) (holding that reasonable suspicion can be premised on a reasonable
mistake of fact). Finally, the agent observed Haro slam his fist on the steering wheel
in frustration when the agent made eye contact with him.1
Although some of Haro’s conduct was “innocent or innocuous” on its own,
viewed under the totality of the circumstances, the closed checkpoint, proximity to
the border, BOLO alert, and the agent’s specific observations provided “a
particularized and objective basis” for the stop. Raygoza-Garcia, 902 F.3d at 1000.
2. Sufficiency of the Evidence. In assessing whether there was sufficient
evidence to convict Haro for violating 8 U.S.C. § 1324(a)(A)(ii), we “view[] the
1Although Haro argues that this final act was contradicted by Vieyra-
Manriquez’s testimony that Haro did not slam his fist until after the arresting agent
activated his sirens, Vieyra-Manriquez’s deposition does not clearly state that Haro
did not slam his fist beforehand. Moreover, Vieyra-Manriquez told a private
investigator that “when the Border Patrol was driving behind the[] vehicle,” Haro
did “hit the steering wheel with his hand . . . like he was going to cry.” The district
court found that, while he “might [have] overstated” it, the arresting agent saw Haro
slam his fist before he activated his sirens. This finding is not clearly erroneous.
Valdes-Vega, 738 F.3d at 1077.

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evidence in the light most favorable to the prosecution” to determine whether “any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th
Cir. 2000) (applying this standard to bench trials).
Here, when viewed in favor of the prosecution, the evidence established that
Haro knew Vieyra-Manriquez entered the United States illegally and that he set out
to transport Vieyra-Manriquez to San Bernadino in furtherance of him remaining in
the country illegally. See 8 U.S.C. § 1324(a)(A)(ii); see also Ninth Cir. Crim. Model
Jury Instr. 9.2 (requiring a mens rea of “knowledge” for the “in furtherance of”
element). The district court correctly understood the requisite mens rea and
necessarily concluded it was met when it found that “Haro was driving [Vieyra-
Manriquez] to San Bernardino in order for him to remain in the United States to
work.”
3. Confrontation Clause. The district court did not err in concluding that the
government made good faith, reasonable efforts to locate Vieyra-Manriquez to
testify at trial. During Vieyra-Manriquez’s deposition, the government informed him
that he was obligated to return to the United States, his travel expenses would be
paid, and he would be given a parole letter to enter the United States. About a month
before trial, the government provided Vieyra-Manriquez’s attorney with a parole
letter and travel information after counsel stated that he could contact Vieyra-

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Manriquez. Then, when the government learned that Vieyra-Manriquez was not in
contact with his attorney, it ran records checks, placed investigative alerts, searched
social media, contacted the Mexican government, and asked Vieyra-Manriquez’s
counsel for contact information for Vieyra-Manriquez or his wife. See 8 U.S.C. §
1324(a); Rodriguez, 880 F.3d at 1166. Although the government did not keep
Vieyra-Manriquez in custody after his subsequent illegal entries, Haro did not have
a trial date set at the time of those events and Vieyra-Manriquez was released in
accordance with then-current COVID-19 procedures. See 42 U.S.C. § 265.
We further conclude that the government did not violate Brady in disclosing
Vieyra-Manriquez’s later arrests. To establish a Brady violation, a defendant must
show that the evidence was “exculpatory or impeaching” and “material.” United
States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011) (quoting United States v.
Antonakeas, 255 F.3d 714, 725 (9th Cir. 2001)). Haro primarily makes vague
assertions that Vieyra-Manriquez “may have been lying.” But even if we were to
consider his more specific examples raised for the first time in reply of how he would
have used Vieyra-Manriquez’s subsequent arrests to impeach Vieyra-Manriquez, we
are not persuaded that any use of this information would have been material.
AFFIRMED.

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