United States of America v. Hipolito Guerrero-Hidrogo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HIPOLITO GUERRERO-HIDROGO,
Defendant-Appellant.
No. 17-50048
D.C. No.
3:15-cr-00652-WVG-AJB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William V. Gallo, Magistrate Judge, Presiding
Submitted February 6, 2018**
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and PRATT,*** District
Judge.
Hipolito Guerrero-Hidrogo (“Guerrero-Hidrogo”) appeals from a federal
bench-trial conviction of attempted illegal entry into the United States under 8
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
FILED
FEB 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. § 1325(a)(1). Guerrero-Hidrogo contends that the Government’s routine
destruction of the video showing him crossing the border violated his due process
rights. Reviewing the district court’s legal determinations de novo and its factual
findings for clear error, United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir.
2013), we affirm.1
On January 11, 2015, while Guerrero-Hidrogo, a citizen of Mexico, was
attempting to enter the United States unlawfully, the Department of Homeland
Security’s (“DHS”) Border Patrol (“USBP”) station’s Remote Video Surveillance
System (“RVSS”) video recorded him near Imperial Beach, California. USBP
agents also saw him, and one arrested him. Guerrero-Hidrogo was tried for
attempted illegal entry into the United States under 8 U.S.C. § 1325. He was
convicted after a bench trial before a Magistrate Judge, and given a time-served
sentence of 4 months’ custody.
To establish a due process violation, Guerrero-Hidrogo must make three
showings—all of which he fails to make. First, Guerrero-Hidrogo must
demonstrate that the RVSS video “possess[ed] exculpatory value that was apparent
before the evidence was destroyed.” California v. Trombetta, 467 U.S. 479, 489
(1984). Any exculpatory value of the RVSS video was not apparent to the USBP
1 As the parties are familiar with the facts and procedural history, we restate
them only as necessary to explain our decision.

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agents and prosecutors before the tape was destroyed since the tape was likely
blurry due to the weather and a USBP agent was the first to spot Guerrero-Hidrogo
entering the United States, before the RVSS spotted him. Indeed, the district court
found that Guerrero-Hidrogo was under official restraint, which was beside the
point for § 1325(a)(1)’s purposes. Second, Guerrero-Hidrogo must show that he
was “unable to obtain comparable evidence by other reasonably available means.”
Id. Guerrero-Hidrogo obtained comparable evidence through the USBP agents’
testimony and the dispatch tapes. Third, Guerrero-Hidrogo must demonstrate that
the Government acted in “bad faith” when it destroyed the RVSS video, assuming
it were potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 58
(1988). Even if the RVSS video were potentially useful evidence, the district court
did not clearly err by finding that the Government did not act in bad faith because
the Government’s routine overwrite of the RVSS video every sixty days was not a
product of “official animus” or of a “conscious effort to suppress exculpatory
evidence.” Trombetta, 467 U.S. at 488. Consequently, Guerrero-Hidrogo’s
constitutional claim lacks merit.
AFFIRMED.

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