USA v. Castro

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Hernan Rafael Castro,
Defendant.
No. CR-25-02525-001-TUC-RCC (MSA)
REPORT AND
RECOMMENDATION
Hernan Castro, a native and citizen of Mexico and lawful permanent resident of the
United States, is charged with knowingly making a false certification in an application for
naturalization. Castro claims that the Government violated due process when it failed to
preserve evidence that may have been helpful to his defense. He thus moves for an order
dismissing the indictment or, in the alternative, granting him a lesser remedy. The Court
will recommend that his motion be denied.
Background
This case arises from a discrepancy between two applications for naturalization filed
by Castro with United States Citizenship and Immigration Services (USCIS). Castro filed
his first, uncounseled application in 2014. (Ex. 53.) As relevant here, he checked a box
indicating “Yes” to Question 30(C): “Have you ever . . . [s]old or smuggled controlled
substances, illegal drugs, or narcotics?” (Id. at 513.)1 An Immigration Services Officer
(ISO) interviewed Castro in connection with his application later that year. (Ex. 16.) There,
1 Exhibit citations are to the Bates numbering at the bottom center of each exhibit.
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Castro stated under oath that he had sold Klonopin while in high school. (Id. at 1–2.) He
also stated that he had been arrested several times for shoplifting. (Id. at 2.) A few months
after the interview, USCIS denied Castro’s application on the ground that he had failed to
show he was a person of good moral character. (Ex. 17.)
In March 2015, immigration officials served Castro with a notice to appear in
removal proceedings. (Ex. 22 at 62.) The notice alleged that Castro was removable for
having been convicted of a crime of moral turpitude, namely, shoplifting. (Id. at 63.) Castro
was represented in his removal case by immigration attorney Margo Cowan. (See id. at 48.)
The case was dismissed in August 2015 after the relevant shoplifting convictions were
vacated. (Id. at 66, 70, 80.)
In June 2022, Castro filed his second application for naturalization, this time with
Cowan’s help. (Ex. 19.) Cowan signed the application, certifying that she had filled it out
on Castro’s behalf and that Castro had confirmed the accuracy of the information within it.
(Id. at 28.) As relevant here, Cowan checked the “No” box in response to Question 30(C).
(Id. at 24.) In May 2023, Castro appeared for an interview with ISO Livia Lopez. (Ex. 21.)
The Electronic Immigration System (ELIS) record of the interview reflects that Cowan was
not present. (Ex. 20 at 40.) It further reflects that Castro amended several of the answers in
his application. (Id. at 42–43.) Among other things, he changed his response to Question 25
(“Have you EVER been convicted of a crime or offense?”) from “No” to “Yes.” (Id. at 42.)
In a written sworn statement, he added that he had been placed in removal proceedings in
2015 “due to some convictions allegedly occurring before 2009,” but that he was released
after the convictions “were all voided in the interest of Justice.” (Ex. 21 at 46.) The record
does not reflect that Castro amended his answer to Question 30(C).
Castro’s application would not be denied until August 2025. (Ex. 48.) Meanwhile,
in February 2025, the USCIS Fraud Detection and National Security Directorate (FDNS)
referred Castro to Homeland Security Investigations (HSI) for investigation. (Ex. 57.) That
investigation resulted in Castro being indicted in May 2025 for knowingly making a false
certification as to Question 30(C) of his second application for naturalization. (Doc. 1.)
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After this case was filed, Castro’s counsel learned that there are no recordings of the
October 2014 and May 2023 interviews. Counsel thus filed the currently pending motion
to dismiss, asserting that the Government’s failure to preserve such evidence constitutes a
due process violation warranting relief. (Doc. 35.) The motion has been fully briefed.
(Docs. 56, 58, 69, 83.) At a two-day evidentiary hearing, Castro offered numerous exhibits
and presented the testimony of several witnesses. (Docs. 74, 84, 85, 86.) Among the
witnesses were HSI Special Agent Randall Dillman, who participated in the investigation
leading to the indictment; ISO Lopez, who conducted and recorded the interview of Castro
in May 2023; and Field Office Director Julie Hashimoto, who oversees operations at the
office where ISO Lopez works. (Doc. 85.) At the conclusion of the testimony, the Court
heard oral argument and then took this matter under advisement. (Doc. 84.)
Discussion
Castro claims that the Government violated due process in failing to preserve
recordings of his October 2014 and May 2023 naturalization interviews. For a remedy, he
requests dismissal of the indictment, or at least the reading of a remedial jury instruction at
trial or entry of a remedial discovery order. Castro, however, is not entitled to relief.
I. Castro is not entitled to dismissal of the indictment.
The test for determining whether the Government violated due process “depends on
whether the [lost] evidence was material exculpatory evidence or simply potentially useful
evidence.” United States v. Del Toro-Barboza, 673 F.3d 1136, 1149 (9th Cir. 2012) (citing
Illinois v. Fisher, 540 U.S. 544, 549 (2004) (per curiam)). If the evidence was materially
exculpatory—i.e., it had “an exculpatory value that was apparent before [it] was destroyed”
and was “of such a nature that the defendant [is] unable to obtain comparable evidence
by other reasonably available means”—due process is violated regardless of whether the
Government acted in bad faith. California v. Trombetta, 467 U.S. 479, 489 (1984); Arizona
v. Youngblood, 488 U.S. 51, 57 (1988). If the evidence was only potentially useful, due
process is not violated unless the defendant can show that the Government acted in bad
faith. Youngblood, 488 U.S. at 58.
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To begin, although Castro alleges in his motion that the Government violated due
process by not preserving a recording of the October 2014 interview, he made no attempt
to prove such a violation at his evidentiary hearing. There is no evidence that a recording
of the October 2014 interview ever existed, let alone evidence that any such recording was
materially exculpatory, potentially useful, or destroyed in bad faith. Indeed, at the close of
the testimony, Castro’s counsel confined his arguments to the May 2023 interview. Given
the foregoing, the Court finds that there was no due process violation with respect to the
October 2014 interview.
Next, the Court finds that there was no due process violation with respect to the May
2023 interview. Beginning with the Trombetta test, Castro has failed to establish that the
interview recording had “exculpatory value that was apparent before [it] was destroyed.”
467 U.S. at 489. Castro is charged with knowingly making a false certification as to
Question 30(C). (Doc. 1.) Should this case proceed to trial, Castro will argue that he relied
on Cowan’s advice and thus did not knowingly make a false certification. (Doc. 91 at 122.)
Neither Castro’s written sworn statement nor the ELIS record, both of which were made
during the interview, reference Cowan or Castro’s answer to Question 30(C). (Exs. 20, 21.)
Aside from Castro, who did not testify, only ISO Lopez was present during the interview.
(Doc. 79 at 63–64.) ISO Lopez recalls very little about the interview beyond what is
documented in the sworn statement and ELIS record. She does not recall whether she
reviewed Castro’s 2014 application before the interview. (Id. at 66.) She does not recall
whether Castro offered information about his criminal history verbally while filling out his
written statement. (Id. at 85.) And she does not recall whether there was any discussion
about Cowan. (Id. at 91, 98–99.)
There has been no showing that the recording was affirmatively exculpatory, or that
any exculpatory value was apparent before the recording was lost. Therefore, Castro has
not shown a due process violation under Trombetta. See Youngblood, 488 U.S. at 56 n.*
(stating that a mere “possibility” that lost evidence could have exculpated the defendant “is
not enough to satisfy the standard of constitutional materiality in Trombetta”). Castro’s
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counsel appeared to accept this conclusion during oral argument. (Doc. 91 at 129–30.)
Turning to the Youngblood test, Castro has shown that the recording was potentially
useful. Youngblood explains that potentially useful evidence includes “material of which
no more can be said than that it could have been subjected to tests, the results of which
might have exonerated the defendant.” 488 U.S. at 57 (emphasis added). This bar is not
high. In Fisher, for instance, the police seized a white powdery substance from the
defendant and tested it four times before destroying it. 540 U.S. at 545–46. Although all
four tests confirmed that the substance was cocaine, the Supreme Court held that the
substance “was plainly the sort of ‘potentially useful evidence’ referred to in Youngblood,”
since the defendant “could hope that, had the evidence been preserved, a fifth test conducted
on the substance would have exonerated him.” Id. at 545, 548.
While the recording of the May 2023 interview could not have been subjected to
tests, it still might have been helpful to Castro’s defense. Again, Castro intends to present
an advice-of-counsel defense should this case proceed to trial. (Doc. 91 at 122.) There is
support in the record for that defense. For instance, before applying, Castro asked Cowan’s
assistant whether “the thing in [his] past” would create “problems” with his application.
(Ex. 38 at 370; Ex. 58 at 773.) In addition, Cowan filled out the application on Castro’s
behalf and signed it as the preparer. (Ex. 19 at 27–28.) Notably, during the interview, Castro
changed some of Cowan’s answer selections and provided information about his criminal
history that had been omitted from the application. (Exs. 20, 21.) Considering Castro’s
concern about applying and revision of Cowan’s work during the interview, the recording
of the interview might have included discussion about the extent of Castro’s reliance on
Cowan.
Castro has failed, however, to show that the recording was destroyed in bad faith.
“The presence or absence of bad faith by the police for purposes of the Due Process Clause
must necessarily turn on the police’s knowledge of the exculpatory value of the evidence
at the time it was lost or destroyed.” Youngblood, 488 U.S. at 56 n.*. “[W]ithout knowledge
of the potential usefulness of the evidence, the evidence could not have been destroyed in
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bad faith.” United States v. Robertson, 895 F.3d 1206, 1211 (9th Cir. 2018) (quoting United
States v. Zaragoza-Moreira, 780 F.3d 971, 977 (9th Cir. 2015)).
As an initial matter, no one knows for certain when the recording was lost. ISO
Lopez, who recorded the interview and saved it to her hard drive, testified that she did not
purposely destroy the recording and that she does not know for certain when it might have
been lost. (Doc. 91 at 11–13, 33, 45.) ISO Lopez explained that she experienced computer
issues later in 2023 and into January 2024, and that her computer was cloned and replaced
more than once during that period. (Id. at 26–28.) The Court credits this testimony. As there
is no other direct evidence on this issue, the Court finds that the recording was more than
likely lost no later than January 2024 as a result of those computer issues. Castro’s counsel
agreed that it is “reasonable” to conclude that the recording “was destroyed before the
government decided to bring a criminal prosecution in this case.” (Id. at 133, 143.)2
This finding all but ends the bad-faith inquiry. The HSI investigation that led to this
prosecution did not begin until February 2025, when HSI received a referral about Castro
from FDNS. (Ex. 57; Doc. 79 at 41.)3 As noted, bad faith turns on the Government’s
“knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”
Youngblood, 488 U.S. at 56 n.* (emphasis added). ISO Lopez and her supervisors could
not have known in January 2024 that the recording had exculpatory value as to Castro’s
charge—because the charge would not be investigated, and this criminal case would not
be filed, until more than a year later. See United States v. Little, 308 F. App’x 256, 258–59
(10th Cir. 2009) (finding a lack of bad faith because the relevant authorities “lacked any
knowledge that criminal proceedings were on the horizon” at the time the evidence was
destroyed). Accordingly, Castro cannot show that the recording was destroyed in bad faith.
2 Director Hashimoto explained that some ISOs receive an error message when their
computer hard drives are too full to hold another interview recording, and that the ISOs
must manually delete old recordings to make room for new ones. (Doc. 91 at 108–11.) She
did not know whether ISO Lopez ever received that message, and ISO Lopez was not
asked. (Id. at 110–11.) Again, though, the Court credits ISO Lopez’s testimony that she did
not purposely destroy the recording. If she did not delete it, then there must be some other
explanation for its absence. Her computer issues provide that explanation.
3 Before February 2025, Castro was under investigation only for conduct unrelated to
this case. (Doc. 79 at 41.)
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Castro’s theory of bad faith is not persuasive. He argues that the caselaw requires
only that the evidence have known exculpatory value, not that it have known exculpatory
value as to the charge actually brought. (Doc. 91 at 133–34.) In other words, he believes
that he can establish bad faith by showing that the lost recording had known exculpatory
value as to any crime, including an uncharged, factually unrelated crime. (Id.) And here,
he goes on, “there was a clear potential for a criminal . . . prosecution” for alien smuggling
under 8 U.S.C. § 1324. (Id. at 134.) Finally, he asserts that bad faith is established because
ISO Lopez and her supervisors had a duty under USCIS policy to make a DVD copy of the
recording but failed to do so. (Id. at 132, 137, 143–44.)
The premise of Castro’s argument—that he can establish bad faith by showing the
recording had known exculpatory value as to an uncharged, unrelated crime when it was
lost—is incorrect. Castro ignores that “exculpatory value” does not exist in the abstract; it
exists only in relation to a defined criminal charge. In the context of this prosecution for
false certification, information in the recording as to alien smuggling is not “exculpatory.”
Similarly, in the context of this case, the conduct of ISO Lopez and her supervisors cannot
be described as anything more than negligent—and Youngblood is clear that negligence
does not constitute bad faith. 488 U.S. at 58. In any event, the caselaw does make clear that
the “exculpatory value” of evidence for purposes of bad faith must match the “potential
usefulness” of the evidence. The Ninth Circuit Court of Appeals has observed repeatedly
that “Youngblood’s bad faith requirement dovetails with the first part of the Trombetta test:
that the exculpatory value of the evidence be apparent before its destruction,” and that
“without knowledge of the potential usefulness of the evidence, the evidence could not
have been destroyed in bad faith.” Zaragoza-Moreira, 780 F.3d at 977 (emphasis added)
(citations omitted).
During oral argument, the Court asked whether Castro’s counsel knew of “any cases
that hold that the lost evidence standard would apply when there’s just a mere potential for
a prosecution and the evidence is destroyed.” (Doc. 91 at 136.) In response, counsel pointed
to Zaragoza-Moreira. (Id. at 136–37.) However, that case does not stand for the requested
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proposition and is easily distinguishable. There, after charges were filed, the defendant’s
attorney made a formal request to the Government to preserve video footage. Zaragoza-
Moreira, 780 F.3d at 976. An agent who participated in the investigation knew that she had
a professional obligation to preserve exculpatory evidence, that the defendant was claiming
duress, and that there was video that could substantiate the defendant’s claim; yet the agent
allowed the video to be destroyed. Id. at 980. The court held that, given the agent’s
knowledge, her “actions were not merely negligent or reckless” but rose to the level of bad
faith. Id. Here, in contrast, there was no hint of a prosecution for false certification at the
time the recording was destroyed.
Finally, Castro errs in placing significance on Zaragoza-Moreira’s language about
the agent having “a professional obligation to collect and preserve both exculpatory and
inculpatory evidence.” (Doc. 91 at 136–37, 154.) That language does not mean that a mere
failure to meet professional standards constitutes bad faith. In that case, it was the agent’s
failure to meet her obligations combined with her knowledge of the video’s exculpatory
value that constituted bad faith. Here, ISO Lopez and her supervisors did not know the
interview recording had exculpatory value when it was lost. As a result, their failure to
make a copy of the recording does not constitute bad faith, even if such failure fell below
professional standards.
Castro is not entitled to relief under Trombetta or Youngblood. Therefore, the Court
will recommend that his motion to dismiss the indictment be denied.
II. Castro is not entitled to a remedial jury instruction.
A jury instruction regarding lost evidence “is appropriate when the balance between
‘the quality of the Government’s conduct and the degree of prejudice to the accused’
weighs in favor of the defendant.” Robertson, 895 F.3d at 1213 (quoting United States v.
Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979) (en banc) (Kennedy, J., concurring)). In
this analysis, “the government bears the burden of justifying its conduct and the accused
of demonstrating prejudice.” United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013)
(citing Loud Hawk, 628 F.2d at 1152 (Kennedy, J., concurring)). Here, as an initial matter,
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there is no evidence as to the creation or destruction of a recording of the October 2014
interview. So, there is no basis for granting a remedial jury instruction as to that interview.
As to the May 2023 interview, as discussed below, the relevant factors do not support
granting a remedial jury instruction.
In examining the Government’s conduct, the following factors are relevant:
whether the evidence was lost or destroyed while in its custody, whether the
Government acted in disregard for the interests of the accused, whether it
was negligent in failing to adhere to established and reasonable standards of
care for police and prosecutorial functions, and, if the acts were deliberate,
whether they were taken in good faith or with reasonable justification. . . . It
is relevant also to inquire whether the government attorneys prosecuting the
case have participated in the events leading to loss or destruction of the
evidence, for prosecutorial action may bear upon existence of a motive to
harm the accused.
United States v. Wells, 879 F.3d 900, 932 (9th Cir. 2018) (alteration in original) (quoting
Sivilla, 714 F.3d at 1173).
Here, “the government’s conduct may have been imperfect, but it was not
unreasonable or in bad faith.” Robertson, 895 F.3d at 1214. The recording was lost while
in possession of USCIS, a federal agency, and the testimony indicates that a copy of it
should have been made pursuant to USCIS policy. (Doc. 91 at 25, 73–74.) However, the
loss is likely attributable to ISO Lopez’s computer issues, which occurred long before there
was even an investigation into Castro for false certification. This means that USCIS did
not act deliberately or in disregard for Castro’s interests. It also means that the prosecutors
did not participate in the loss or fail to adhere to established prosecutorial standards. Cf.
Sivilla, 714 F.3d at 1173 (holding that “the quality of the government’s conduct was poor”
where “[t]he prosecutor promised to protect the evidence but failed to take any affirmative
action to that end”). So, at most, the loss was the result of negligent conduct untethered to
the relevant criminal investigation.
In examining prejudice to the defendant, the following factors are relevant:
the centrality of the evidence to the case and its importance in establishing
the elements of the crime or the motive or intent of the defendant; the
probative value and reliability of the secondary or substitute evidence; the
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nature and probable weight of factual inferences or other demonstrations and
kinds of proof allegedly lost to the accused; the probable effect on the jury
from absence of the evidence, including dangers of unfounded speculation
and bias that might result to the defendant if adequate presentation of the case
requires explanation about the missing evidence.
Wells, 879 F.3d at 932 (quoting Sivilla, 714 F.3d at 1173–74).
The Government has argued repeatedly that the recording is irrelevant because the
crime was complete at the moment Castro filed the application (around a year before the
interview). (Doc. 91 at 144–45.) Thus, the recording is not central to the Government’s
case. See Robertson, 895 F.3d at 1214 (finding minimal prejudice from the loss of a video
in part because its content was not important to the Government’s case). While the Court
agrees with Castro that evidence postdating the filing of his application could bear on his
mental state at the time of filing, he has not presented evidence showing that the recording
does so. As explained earlier, neither the documentary evidence nor the testimony shows
that the recording contained information helpful to Castro’s defense. The exculpatory value
of the recording is speculative and at most potentially useful. This indicates a lack of
prejudice. See id. (finding minimal prejudice from the loss of a video because it was “not
clear” that the video would have shown anything helpful to the defense); United States v.
Rosales-Aguilar, 818 F.3d 965, 972 (9th Cir. 2016) (finding a lack of prejudice from the
loss of a video where there was “no indication that there was anything on the video that in
any way would be helpful” to the defendant (internal quotation marks omitted)). The value
of the recording is even more speculative in light of Director Hashimoto’s testimony that
some recordings do not capture any audio. (Doc. 91 at 69, 105–06.)
The Government’s conduct was unintentional and not in bad faith, and Castro’s
assertion of prejudice is speculative. Therefore, the Court will recommend that Castro’s
motion for a remedial jury instruction be denied.
III. Castro is not entitled to a remedial discovery order.
The Government must, on the defendant’s request, disclose any item that is “within
[its] possession, custody, or control and . . . material to preparing the defense.” Fed. R.
Crim. P. 16(a)(1)(E)(i). If the Government fails to comply, the Court may “enter any . . .
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order that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2)(D).
Castro is not entitled to a remedial discovery order. The rule’s plain language limits
the Government’s disclosure obligations to items within its possession at the time of the
defendant’s request. Here, Castro requested preservation and disclosure of video evidence
in June 2025. (Doc. 35-5.) The Court has found that the May 2023 interview recording was
more than likely lost no later than January 2024. And if there ever was a recording of the
October 2014 interview, it is safe to assume that it was lost long before then. As the
Government was not in possession of the recordings at the time of Castro’s request, there
is no violation of Rule 16. Therefore, the Court will recommend that Castro’s motion for a
remedial discovery order be denied.
Conclusion
The Court recommends that Castro’s motion to dismiss the indictment or, in the
alternative, motion for a remedial jury instruction or remedial discovery order (Doc. 35),
be denied.
This recommendation is not immediately appealable to the United States Court of
Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections
with the district court. Fed. R. Crim. P. 59(b)(2). The parties have 14 days to respond to
objections. The parties may not file replies on objections absent the district court’s
permission. A failure to file timely objections may result in the waiver of de novo review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 12th day of February, 2026.
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