USA v. Hernandez-Zamora

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ROLANDO HERNANDEZ-ZAMORA,
Defendant.
3:21-CR-00062-JMK-MMS-1
REPORT AND RECOMMENDATION
ON MOTIONS AT DKTS. 170, 172, &
174–75
I. 	MOTIONS PRESENTED
The indictment charges Rolando Hernandez-Zamora (“Hernandez-Zamora”) with
one count of cyberstalking.1 Dkts. 2 and 31. On April 5, 2024, Mr. Hernandez-Zamora,
with the non-substantive assistance2 of his hybrid counsel, filed several motions to dismiss.
Dkts. 170, 172, and 174–75.
The defendant’s first motion is to dismiss for fraud, wherein he accused the Alaska
Federal Public Defender’s Office, the Criminal Justice Act Panel, and his previous counsel
of waiving his speedy trial rights without his consent for the purposes of receiving
additional funds for his now prolonged defense. 	See generally, Dkt. 170. 	His second
1 18 U.S.C. §§ 2261A(2)(A) and (B), 2261(b)(6).
2 Alexis Elise Howell assisted Mr. Hernandez-Zamora with matters such as translation,
transcription, and compliance with the Local Rules, such as preparing a proposed order for
each motion. Otherwise, the motions are his own words. Her assistance is welcome and
appreciated by this Court.
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 1 of 9

motion asks this Court to find that it does not have jurisdiction because the alleged events
and individuals involved were located within Alaska, and therefore, it should be tried
before an Alaska state court. See generally, Dkt. 172. His third motion asks for dismissal
after his prior counsel, he argues, breached his duty of confidentiality. See generally, Dkt.
174. His last motion asks this Court to dismiss under Brady because the government has
not provided him an extraction of his cellphone, thumb drives, or his computer. 	See
generally, Dkt. 175.
The 	government 	submitted 	an 	omnibus 	response. 	Dkt. 	183 	(sealed). 	The
government, after a lengthy description of the allegations that it seeks to prove at trial,
argued that Mr. Hernandez-Zamora’s arguments lacked merit as a matter of law, and
consequently, should be denied. 	Id. 	Specifically, it argued that conduct by parties other
than the government, such as his prior counsel or the Criminal Justice Act Panel, do not
implicate this Court’s supervisory powers to dismiss an indictment, that Congress has the
right to regulate the cyberstalking alleged in the indictment, and that there was no Brady
violation. Id.
No evidentiary hearings were held, nor were there any motion hearings. However,
at the April 19, 2024 discovery management conference, this Court heard briefly from the
parties on the Brady issue. 	Dkt. 184. 	The government argued that it has not withheld
discovery from the defendant because his cellphone is locked, and the government has not
been able to extract information from it absent the defendant’s assistance. 	Id. 	The
government also argued that it has no record of being in possession of a computer or thumb
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 2 of 9

drives. Id. Whether Mr. Hernandez-Zamora will assist with the extraction appeared to be
an open question, one on which this Court takes no position at this time.
This Court hereby issues its Report and Recommendation regarding Hernandez-
Zamora’s Motions. Dkts. 170, 172, and 174–75. For the reasons below, the motions should
be DENIED. 28 U.S.C. § 636(b)(1)(B).
II. 	DISCUSSION
Mr. Hernandez-Zamora’s recent motions should be denied. 	His motions at Dkts.
170, 172, and 174 should be denied for legal insufficiency, even assuming that the
allegations within are true. His motion to dismiss under Brady (Dkt. 175) should also be
denied, as this Court does not believe that the government’s conduct here amounts to a
Brady violation, and even if it did, dismissal is not the proper remedy.
a. 	The motions to dismiss for fraud and for attorney misconduct should be
denied.
Mr. Hernandez-Zamora has two motions seeking to dismiss the indictment for the
misconduct of those outside of the United States Attorney’s Office. 	Dkts. 170 and 174.
Because this Court does not believe that the principle of deterrence would be served by
dismissing a prosecution for the actions of defense counsel or the Criminal Justice Act
Panel, it believes that these motions should be denied.
Federal courts have the inherent supervisory authority to dismiss an indictment.
However, this is a drastic and severe measure to be used sparingly. When an indictment is
dismissed 	for 	misconduct, 	that 	misconduct 	must 	be 	worse 	than 	simply 	wrong.
“[O]utrageous government conduct[,]” conduct which violates a defendant’s Due Process
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 3 of 9

rights, may warrant dismissal.3 	To be in violation of Due Process, the government’s
“conduct must be ‘so grossly shocking and so outrageous as to violate the universal sense
of justice.’” 	Id. at 1092. 	It must be both flagrant and cause substantial prejudice to the
defendant.4 Absent either of these conditions, it would be an abuse of discretion for this
Court to dismiss. Id.
The term “government” is narrowly construed for this purpose. 	While one may
colloquially refer to any government employee as being part of the “government,”
governmental misconduct for the purposes of dismissal in this context must refer to the
actions of the prosecution team. The purpose of dismissal for governmental misconduct is
not to establish that a defendant is innocent. 	Instead, it is to punish the prosecution for
making decisions that are so contrary to one’s civil liberties that the court finds it necessary
to deter it from making those same decisions again, even if that means allowing a guilty
defendant to walk free.5 With that in mind, this Court would not be in a position to punish
the United States Attorney’s Office for actions taken outside of its control, such as the
actions of any of Mr. Hernandez-Zamora’s prior attorneys or the Criminal Justice Act
Panel.6
At most, these motions amount to ineffective assistance of counsel claims, but such
arguments have not been developed by the parties, and claims regarding ineffective
3 United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991).
4 United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988).
5 See, United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008).
6 See, United States v. Rogers, 751 F.2d 1074, 1080 (9th Cir. 1985).
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 4 of 9

assistance of counsel are not typically ripe until the final judgment has been entered. As
such, the motions at Dkts. 170 and 174 should be denied.
b. 	The Brady challenge should be denied.
A court can also dismiss a case for the prosecution’s violation of Brady v.
Maryland.7 “There are three components of a Brady violation: ‘The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.’”8 	However, dismissal is not the only remedy for Brady
violations. For instance, a court could suppress evidence that could have been impeached
by the withheld materials. Id. Prior to trial, a court could also order disclosure of the Brady
materials and/or continue the trial to ensure that it will be “of value to the accused.”9 	If
either of these options could remedy the violation, this Court would be hesitant to
recommend the severe sanction of dismissal.
The defendant argues that he did not receive the extraction from his cellphone and
other electronic devices taken from his home. 	Dkt. 175. 	The government argues that it
has not successfully extracted information from the cellphone and that it is not in
possession of the computer or thumb drives that the defendant references. Dkt. 183 at 18–
19. 	In support of its non-possession argument, it proffered a number of Bates ranges
totaling under 20 pages, explaining that they are inventory item logs that do not list these
7 373 U.S. 83 (1963).
8 United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009) (citing Strickler v. Greene, 527
U.S. 263, 281–82 (1999)).
9 United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000).
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 5 of 9

materials. Id. at 18. While the government did not attach these documents as exhibits, this
Court will for now accept its representation. In the event that this proffer is inaccurate, this
Court will reconsider this matter.
As to the cellphone extraction, the government argued at a discovery management
conference that it has not successfully extracted cell phone data, because the phone is
password-protected, and that the defendant has not cooperated with its unlocking. 	Dkt.
184. If the phone cannot be unlocked, the government is not able to disclose what it cannot
access. Further, it appears to this Court that the parties have negotiated whether to unlock
the cellphone and that such discussion may be ongoing. 	This Court does not find this to
fall under Brady.
To the extent that Brady is implicated, the remedy should be to compel production
of the contemplated discovery, rather than to dismiss the case in its entirety. 	As of this
date, Mr. Hernandez-Zamora does not have a trial scheduled. If he were to need additional
time to have these materials be of value to his defense, District Judge Joshua M. Kindred
can take that into account when scheduling the trial.
c. 	18 U.S.C. §§ 2261A and 2261 are constitutional under the Commerce Clause.
The Constitution empowers Congress “[t]o regulate commerce [. . .] among the
several States[.]” 	U.S. Const. Art. I, Sec. 8, cl. 3. 	This includes “regulat[ing] and
protect[ing] the instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate activities.” United States
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 6 of 9

v. Lopez, 514 U.S. 549, 558 (1995). 	As the government cites, “[t]elephones are
instrumentalities of interstate commerce that fall within the second Lopez category.”10
Mr. Hernandez-Zamora cites Bond v. United States,11 for the proposition “that local
criminal activity should be left to the states[.]” 	Dkt. 172 at 3. 	The holding in Bond,
however, was more a matter of statutory construction than constitutionality. The Supreme
Court held that absent a clear statement of congressional intent to do so, courts should not
read federal statutes to disrupt the traditional balance between the federal and state
governments by prosecuting “purely local crimes[.]” Bond, 572 U.S. at 860 & 866. The
Ninth Circuit devised a clear rule on how to apply Bond: if Congress uses language to the
effect of “in or affecting interstate or foreign commerce[,]” it has provided its clear
statement of intent to apply a statute to purely local criminal activity, at least to the extent
of its constitutional authority to do so.12 The statutes under which Mr. Hernandez-Zamora
is indicted refer to “interstate or foreign commerce” repeatedly, and this Court finds these
references qualify as congressional intent for them to apply to local crimes. See, 18 U.S.C.
Secs. 2261A and 2261.
The discrete question of the constitutionality of Secs. 2261A and 2261 has not been
addressed by the District of Alaska, the Ninth Circuit, or the Supreme Court. 	However,
the handful of courts that have considered this matter have found the statute to be within
the second Lopez category of instrumentalities of interstate commerce, even if the alleged
10 United States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008).
11 572 U.S. 844 (2014).
12 United States v. Walls, 784 F.3d 543, 547 (9th Cir. 2015).
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 7 of 9

conduct was purely local. See, United States v. Roberts, 84 F.4th 659, 671 (6th Cir. 2023),
cert. denied, 144 S. Ct. 867 (2024) (finding Sec. 2261A to be within Congress’s Commerce
Clause powers because it has a “jurisdictional hook” and because it regulates the
“instrumentalities of interstate commerce” under Lopez, even if the alleged conduct is
intrastate.); United States v. Torres, No. 20-CR-608, 2021 WL 1947503, at *4 (S.D.N.Y.
May 13, 2021); United States v. Elkins, No. 3:23-CR-0247, 2024 WL 1318866, at *3 (N.D.
Tex. Mar. 26, 2024).
This Court agrees with the above-cited decisions that Secs. 2261A and 2261 are a
constitutional expression of Congress’s authority under the Commerce Clause. U.S. Const.
Art. I, Sec. 8, cl. 3. 	Interstate communication systems are instrumentalities of interstate
commerce, and telephones qualify as such. Prohibiting cyberstalking and making threats
via a telephone is a permissible regulation of that instrumentality. As such, this Court finds
that the cyberstalking statutes are constitutional under the Commerce Clause and that their
application is appropriate even when the alleged conduct is “purely local.”
III. 	CONCLUSION
For the reasons set forth above, Mr. Hernandez-Zamora’s motions to dismiss should
be DENIED. 28 U.S.C. § 636(b)(1)(B).
DATED this 24th day of April, 2024, at Anchorage, Alaska.
MATTHEW M. SCOBLE
CHIEF U.S. MAGISTRATE JUDGE
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 8 of 9

Pursuant to D. Alaska Loc. Mag. R. 6(a), a party seeking to object to this proposed finding
and recommendation shall file written objections with the Clerk of Court no later than the
CLOSE OF BUSINESS on May 8, 2024. Failure to object to a magistrate judge’s findings
of fact may be treated as a procedural default and waiver of the right to contest those
findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The Ninth
Circuit concludes that a district court is not required to consider evidence introduced for
the first time in a party’s objection to a magistrate judge’s recommendation. United States
v. Howell, 231 F.3d 615 (9th Cir. 2000). 	Objections and responses shall not exceed five
(5) pages in length and shall not merely reargue positions presented in motion papers.
Rather, 	objections 	and 	responses 	shall 	specifically 	designate 	the 	findings 	or
recommendations objected to, the basis of the objection, and the points and authorities in
support. 	Response(s) to the objections shall be filed on or before the CLOSE OF
BUSINESS on May 15, 2024. 	The parties shall otherwise comply with provisions of D.
Alaska Loc. Mag. R. 6(a). Reports and recommendations are not appealable orders. Any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the
District Court’s judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:21-cr-00062-JMK-MMS Document 187 Filed 04/24/24 Page 9 of 9