PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 05-4962

FRANCISCO SORIANO-JARQUIN, a/k/a

Raul Jarquin,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CR-05-276)

Argued: March 16, 2007

Decided: July 11, 2007

Before WILKINSON and TRAXLER, Circuit Judges, and

WILKINS, Senior Circuit Judge.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Traxler and Senior Judge Wilkins joined. 

COUNSEL

ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant.

Marla Brooke Tusk, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Chuck Rosenberg, United States Attorney, Stephanie Bibighaus Hammerstrom,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee. 
OPINION

WILKINSON, Circuit Judge: 

Francisco Soriano-Jarquin challenges his conviction for re-entering

the United States after deportation in violation of 8 U.S.C. § 1326(a)

(2000). The defendant claims that a Virginia State Police officer violated his Fourth Amendment rights by requesting identification from

him while he was a passenger in a lawfully stopped vehicle. He also

claims that his Fourth and Fifth Amendment rights were violated

when the government produced another man, rather than the defendant, at his preliminary hearing, and that his re-indictment after dismissal of his first indictment for clerical error violated his Sixth

Amendment right to a speedy trial. Finally, he contends that Department of Homeland Security regulations governing the testimony of

agency employees interfered with his attempt to call an immigration

agent as a defense witness, in violation of his Sixth Amendment rights

to confrontation of witnesses and compulsory process. For reasons

that follow, we affirm the judgment of the district court.

I.

On the night of April 12, 2005, a Virginia State Police officer,

accompanied by two police trainees, stopped a van with a defective

headlight on Interstate 95 in Spotsylvania County, Virginia. Trooper

Rodney Ward approached the vehicle and discovered that it also had

a cracked windshield and contained an unrestrained infant. In addition

to the driver and the front passenger, there were eleven people in the

van, including the defendant, Francisco Soriano-Jarquin. 

While a police trainee processed the identification of the driver and

prepared citations for the broken headlight, cracked windshield, and

unrestrained infant, Ward asked the passengers for identification.

Although asking for passenger identification is not a requirement of

Virginia State Police procedure, Ward asserted that he personally did

so as a matter of routine at every traffic stop. When it appeared that

the passengers did not understand English, Ward produced his own

ID and pointed to it, to communicate that he wished to see their identification. The passengers shook their heads, indicating that they did

2 UNITED STATES v. SORIANO-JARQUIN
not have identification. Ward observed that the passengers appeared

to be nervous.

After returning to his vehicle, Ward stated to the police trainee that

he was concerned that the passengers might be illegal aliens. At this

the driver of the van, who spoke some English, smiled and nodded.

When Ward asked him to confirm that his passengers were illegal, he

again smiled and nodded. Ward then contacted U.S. Immigration and

Customs Enforcement ("ICE"). ICE advised him to take the van off

the interstate at the nearest exit and await the arrival of ICE agents.

An ICE agent arrived and spoke to Ward about what he had

observed. When the agent interviewed the driver in Spanish, the

driver maintained that he did not know anything about the immigration status of the passengers. The agent then spoke to the passenger

in the front passenger seat, who stated that he was a second driver of

the van and that he and the other driver worked for a transportation

company that had paid them to transport the passengers. He stated

that he himself and all of the passengers in the back of the van were

illegal aliens.

An ICE agent then spoke to the other passengers in Spanish, asking

for name and immigration status. The passengers all stated that they

were from Mexico and were in the United States illegally. The passengers remained in the van until other ICE agents arrived, at which

point they were handcuffed and transported to an ICE facility in Merrifield, Virginia, for processing. When the defendant’s fingerprints

were entered into the ICE Automated Fingerprint Identification System, it showed that he had been deported from Arizona the month

before. ICE held the defendant and other passengers in administrative

custody.

ICE agents interviewed the defendant on April 13, 2005, and on

April 28, 2005. Before each interview, an ICE agent read the defendant Miranda warnings in Spanish, and the defendant indicated that

he understood and waived his rights. In each interview, the defendant

made a sworn statement that he had previously been deported and did

not have permission to re-enter the United States. 

On May 13, 2005, the defendant was arrested for unlawful re-entry

after deportation, in violation of 8 U.S.C. § 1326(a). At a preliminary

UNITED STATES v. SORIANO-JARQUIN 3
hearing before a magistrate judge on May 17, 2005, the government

mistakenly produced an individual named Francisco Almaraz Soriano, rather than the defendant, Francisco Soriano-Jarquin. At the

time, no one alerted the court to the error. On the stand, ICE Special

Agent Jason Fulton identified the individual present as Francisco

Soriano-Jarquin, though upon cross-examination Fulton stated that he

could not be sure the individual was Soriano-Jarquin. The judge

found probable cause to hold Soriano-Jarquin. 

On June 9, 2005, a grand jury indicted Soriano-Jarquin on one

count of unlawful re-entry after deportation. On June 20, 2005, in a

hearing in district court before the Honorable T.S. Ellis, III, counsel

stated that the copy of the indictment sent to him referred to the

defendant, Francisco Soriano-Jarquin, in the caption but referred to

another individual, "Roberto Perez-Lopez," in the body of the indictment. Judge Ellis requested the copy of the indictment from the

court’s safe and found it to contain the same error. 

The government later asserted that the error had originated in the

U.S. Attorney’s Office. A member of that office caught and corrected

the error on the copy of the indictment that went to the grand jury,

but failed to do so on the other copies. At the time of the June 20

hearing, the government had no explanation for the discrepancy and

moved to dismiss the indictment without prejudice. Judge Ellis did so

on June 23, 2005, and on the same day the grand jury returned a second indictment. 

The defendant was arraigned before the Honorable James C.

Cacheris on July 8, 2005, and on August 10, 2005, the parties

appeared before Judge Cacheris on the defendant’s motion to dismiss

for lack of a speedy trial and to suppress evidence. 

The defendant argued that, because his second indictment was

returned more than thirty days after his May 13 arrest, dismissal was

required under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. The

court rejected this contention, stating that the Speedy Trial Act

required dismissal only where "no indictment or information is filed"

within the requisite period, while in this case the first indictment was

filed within the thirty days and dismissed without prejudice. Id.

§ 3162(a)(1) (emphasis added). 

4 UNITED STATES v. SORIANO-JARQUIN
The defendant also moved to suppress all evidence obtained as a

result of Trooper Ward’s demand for the passengers’ identification,

because it violated the Fourth Amendment and the Equal Protection

Clause of the Fourteenth Amendment. The court held that it did not

violate the Fourth Amendment for an officer to ask passengers for

identification where, as here, he did so for safety purposes and the

questioning of the passengers did not prolong the stop. The court also

rejected the defendant’s equal protection claim. 

On the scheduled trial date, August 22, 2005, defense counsel

moved for a continuance. Defense counsel informed the government

and the court for the first time that another individual, and not the

defendant, had been present at the preliminary hearing. The defendant

stated that he did not wish to receive a new preliminary hearing. Nevertheless, the defendant moved to dismiss on the ground that the

denial of a preliminary hearing violated his Fourth and Fifth Amendment rights. This motion was subsequently denied by the court.

Defense counsel also expressed an intention to call both Francisco

Almaraz Soriano and ICE Special Agent Jason Fulton as witnesses in

support of a misidentification theory of defense. Defense counsel

asked for a continuance because he had as yet been unable to secure

Francisco Almaraz Soriano. The court continued the trial until September 13, 2005. 

Also on August 22, 2005, at the government’s behest, the court

ordered defense counsel to comply with the Department of Homeland

Security ("DHS") Touhy regulations in calling ICE Special Agent

Jason Fulton as a witness. Those regulations provide procedures for

subpoenaing DHS employees and prohibit employees from testifying

about information obtained on the job absent departmental authorization. See 6 C.F.R. §§ 5.41-.49 (2006). On September 7, 2005, however, the defense attempted to serve the government with a subpoena

for Fulton that was not in compliance with the regulations. The government declined service, and defense counsel made no further

attempts to secure Fulton as a witness. At trial, the district court

excluded Fulton as a witness due to the defense’s failure to comply

with the Touhy regulations. 

A jury trial occurred on September 13, 2005, and the jury returned

a verdict of guilty on the single count of unlawful re-entry after

UNITED STATES v. SORIANO-JARQUIN 5
deportation, 8 U.S.C. § 1326(a). The defendant was sentenced to time

served. 

The defendant appeals his conviction on various grounds. 

II.

Soriano-Jarquin argues first that the Fourth Amendment did not

permit Trooper Ward to ask the passengers, including himself, for

identification during the traffic stop. The defendant does not contest

the initial traffic stop; rather, he contends that the stop did not give

the police a legitimate basis to ask passengers for identification. That

request, defendant argues, constituted a separate investigatory detention requiring reasonable suspicion of criminal activity. See Terry v.

Ohio, 392 U.S. 1, 20-21 (1968). Because the officer lacked reasonable

suspicion, the defendant argues, the request constituted an unreasonable seizure in violation of the Fourth Amendment. 

The Supreme Court recently held in Brendlin v. California that a

passenger in a vehicle stopped by the police is seized by the stop

within the meaning of the Fourth Amendment. 551 U.S. ___ (2007).

As the Court in Brendlin explained, "[a] traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the

driver. . . ." 551 U.S. at ___.

If a passenger is considered "seized" for Fourth Amendment purposes when a police officer makes a traffic stop, that passenger may

then challenge the constitutionality of the actions taken during that

stop. See Brendlin, 551 U.S. at ___. Here, that would include the officer’s request for the passengers’ identification.

We believe a simple request for identification from passengers falls

within the purview of a lawful traffic stop and does not constitute a

separate Fourth Amendment event. Assuming a lawful stop, an officer

is entitled to some chance to gain his bearings and to acquire a fair

understanding of the surrounding scene. Just as the officer may ask

for the identification of the driver of a lawfully stopped vehicle, see,

e.g., Delaware v. Prouse, 440 U.S. 648, 659 (1979), so he may

request identification of the passengers also lawfully stopped. No separate showing is required.

6 UNITED STATES v. SORIANO-JARQUIN
The Supreme Court has long held that ensuring officers’ personal

safety is of critical importance in the conduct of traffic stops. It is well

established that officers performing a lawful stop are "authorized to

take such steps as [are] reasonably necessary to protect their personal

safety" thereafter. United States v. Hensley, 469 U.S. 221, 235 (1985).

For example, the Court noted in Maryland v. Wilson, 519 U.S. 408

(1997), that "a police officer may as a matter of course order the

driver of a lawfully stopped car to exit his vehicle." Id. at 410 (citing

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam)). This

safety interest attaches to officers’ interactions with passengers as

well as with drivers, because passengers may likewise present to officers who interrupt their journey a risk of personal harm. Because the

"danger to an officer from a traffic stop is likely to be greater when

there are passengers in addition to the driver in the stopped car," Wilson, 519 U.S. at 414, the Court held that they too could be ordered

by the officer to exit a vehicle, id. at 410, 412. 

If an officer may "as a matter of course" and in the interest of personal safety order a passenger physically to exit the vehicle, id. at

410, he may surely take the minimally intrusive step of requesting

passenger identification. The failure of a vehicle’s occupants to produce any sort of proper identification may heighten an officer’s concerns (suggesting a possible need for backup), while the production

of what appears to be a valid ID may serve to allay them. Indeed, both

the Eighth and the Eleventh Circuits have recognized as much. The

Eighth Circuit has held that an officer may request identification from

both the driver and passengers as part of a valid traffic stop. See

United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir.

2003). Moreover, the Eleventh Circuit has made clear that during a

valid traffic stop, a request for identification and a subsequent check

of the occupants’ criminal history constitute steps "reasonably necessary to protect [officers’] personal safety." United States v. Purcell,

236 F.3d 1274, 1277-78 (11th Cir. 2001). We do not require officers

to make lawful stops at their peril. When an officer legitimately stops

a vehicle, the identity of the persons in whose company the officer

suddenly finds himself may be pertinent to the officer’s well-being.

The request for passenger identification seems especially unobjectionable here. For one thing, it did not prolong the seizure. Indeed, the

UNITED STATES v. SORIANO-JARQUIN 7
Supreme Court has already held that police questioning that does not

prolong a seizure does not provide a legitimate basis for a Fourth

Amendment claim. See Illinois v. Caballes, 543 U.S. 405, 407 (2005).

In this respect, this case resembles Muehler v. Mena, 544 U.S. 93

(2005). During a lawful search of a residence, police officers asked

occupant Mena questions about her immigration status. Id. at 96.

Mena contended that the questioning was an independent investigatory detention that, because the officers lacked reasonable suspicion,

constituted a Fourth Amendment violation. Id. at 100. The Court held

that, since Mena’s questioning did not prolong her detention incident

to the search, it was not "a discrete Fourth Amendment event," and

thus "no additional Fourth Amendment justification for inquiring

about Mena’s immigration status was required." Id. at 101; see also

United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229,

240 (4th Cir. 2001), overruled on other grounds by Crawford v.

Washington, 541 U.S. 36 (2004) (reasonable to detain and interview

office employees during execution of valid search warrant). 

In this case, Trooper Ward’s request for identification did not prolong the stop, as it occurred while the police trainee checked the driver’s license and registration and prepared his citations. While Trooper

Ward did contact the ICE, which asked him to hold the vehicle for

an administrative immigration inquiry, that contact came only after

the driver of the van indicated that the passengers were illegal aliens.

Because the request did not extend the stop, it did not alter its lawful

character. 

Moreover, the stopped vehicle had a broken headlight and a

cracked windshield, and there was an unrestrained infant on the floor

of the van. Given the eleven passengers in the vehicle, their high level

of anxiety, and the number of obvious infractions, the drawbacks of

defendant’s claims about the officer’s conduct are apparent.1

1Similarly, the defendant’s contention that his Miranda warnings were

"ineffective" lacks merit. The defendant does not specify in what way his

warnings were ineffective. In fact, however, the defendant received

effective warnings at the appropriate time. Miranda warnings are only

required after the defendant is in custody. See Illinois v. Perkins, 496

U.S. 292, 297 (1990). The defendant was not in custody during his questioning at the roadside. Berkemer v. McCarty, 468 U.S. 420, 440 (1984)

8 UNITED STATES v. SORIANO-JARQUIN
III.

Soriano-Jarquin also contends that he was entitled to dismissal

owing to his failure to receive either a preliminary hearing or a timely

indictment, in violation of the Fourth, Fifth, and Sixth Amendments.

We review the district court’s denial of this claim de novo. See United

States v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002).

A.

The government concedes that the individual present at the defendant’s preliminary hearing was not the defendant, Francisco SorianoJarquin, but another individual named Francisco Almaraz Soriano.

The defendant argues that this error denied him a probable cause

hearing in violation of his Fourth and Fifth Amendment rights. 

This contention must fail. To begin with, the defendant did not

challenge this defect in the preliminary hearing in a timely fashion.

Federal Rule of Criminal Procedure 12(b)(3) provides that a motion

alleging a defect in the preliminary hearing must be raised prior to

trial. See Fed. R. Crim. P. 12(b)(3). Rule 12(c) provides that the court

may set a deadline for such pretrial motions. See Fed. R. Crim. P.

12(c). In this case, the district court set a motions deadline of July 27,

2005. Nevertheless, the defendant did not raise the issue of mistaken

identity by the motions deadline; he in fact did not raise the matter

until the scheduled date of trial. While the defendant contends that he

was entitled to use this issue at trial as part of an identity defense, this

(traffic stop not custodial); United States v. Sullivan, 138 F.3d 126, 130

(4th Cir. 1998) (same). After the defendant was taken into administrative

custody, subsequent questionings were prefaced with a reading in Spanish of his Miranda rights, which he waived. These warnings were effective, the defendant’s waivers were valid, and his two confessions to

having re-entered the country after deportation are thus admissible. 

We are also unpersuaded by defendant’s Equal Protection claim. As

noted above, the officer had ample objective basis for his actions, and

defendant has advanced nothing to indicate a discriminatory animus was

afoot. 

UNITED STATES v. SORIANO-JARQUIN 9
in no way explains the four month delay in raising the issue or in

complying with the rules. 

Moreover, the defendant’s indictment mooted any questions surrounding the preliminary hearing. This court has long held that the

probable cause requirement may be satisfied either by a preliminary

hearing or by indictment by a grand jury. See United States v.

Mackey, 474 F.2d 55, 56-57 (4th Cir. 1973). Because both procedures

aim "to insure the existence of probable cause before an accused is

brought to trial," it has been a "long-standing rule that the return of

an indictment by the grand jury eliminates the requirement of holding

a preliminary hearing." Id. The grand jury indictment of Francisco

Soriano-Jarquin thus rendered moot the confusion at the preliminary

hearing. 

The defendant nevertheless argues that the confusion at the preliminary hearing carried over to the grand jury proceedings. He contends

that the grand jury indictment was somehow an indictment of

Almaraz Soriano, rather than the defendant. The district court

described this argument as "tenuous at best." The grand jury made its

finding independently of anything that occurred at the preliminary

hearing, on the basis of evidence pertaining exclusively to SorianoJarquin, including his previous deportation and his fingerprints in the

ICE database. The district court thus concluded that "[t]he grand jury

heard evidence regarding Soriano-Jarquin and returned an indictment

naming him." Almaraz Soriano’s presence at the preliminary hearing

in no way affected the grand jury indictment. The defendant’s motion

to dismiss was properly denied.2

2The defendant’s contention that he should be discharged pursuant to

18 U.S.C. § 3060(d) also lacks merit. The defendant relies on § 3060(d)’s

provision that an arrested person who has not received a preliminary

hearing in the requisite time, except as otherwise provided, shall be discharged without prejudice. See 18 U.S.C. § 3060(d) (2000). But § 3060

also provides that no preliminary hearing shall be required (1) if the

defendant waives such a hearing, see id. § 3060(b), or (2) if an indictment is returned prior to a preliminary hearing, see id. § 3060(e). As

noted above, the defendant delayed four months in raising his argument,

a period that hardly seems consistent with any serious belief that he was

somehow being improperly held. When he finally did raise the argument,

the defendant stated that he waived a second hearing, and he had, in any

case, already been indicted at that point. Even had a dismissal been

required under § 3060(d), it would in any case have been without prejudice. 

10 UNITED STATES v. SORIANO-JARQUIN
B.

The defendant next argues that his indictment violated his right to

a speedy trial. The defendant was arrested on May 13, 2005, and first

indicted on June 9, 2005. On June 20, 2005, it was discovered that

copies of the indictment sent to defense counsel and placed in the district court’s safe named the defendant in the caption but another individual in the body of the charge. While the defendant’s name was

correct on the copy presented to the grand jury, in the interest of caution the government moved to dismiss the indictment without prejudice and filed a new indictment on June 20, 2005. On June 23, 2005,

the first indictment was dismissed without prejudice and the defendant re-indicted. The defendant claims that this indictment, more than

thirty days after his arrest, violated his right to a speedy trial and that

dismissal is required under the Speedy Trial Act, 18 U.S.C. § 3161 et

seq. 

The district court properly rejected this claim. 18 U.S.C. § 3161(b)

requires that an indictment be filed within thirty days of arrest, while

18 U.S.C. § 3162(a)(1) provides that if "no indictment" is filed within

that time limit, the charge must be dismissed. The district court correctly concluded that, under the plain language of the statute,

§ 3162(a)(1) applies to cases where "no" indictment was filed within

the specified period. In this case, by contrast, the first indictment was

filed within the thirty day period. Thus, automatic dismissal is not

required under § 3162(a)(1). 

In United States v. Thomas, 705 F.2d 709 (4th Cir. 1983), this court

rejected the claim that a dismissal without prejudice and re-indictment

violated the right to a speedy trial. The court held that the fact that

a district court may dismiss a faulty indictment without prejudice

"necessarily rebuts [the] argument that the timeliness of any subsequent indictment is to be measured by reference to the original arrest

leading to the first, dismissed indictment." Id. at 710-11. The opposite

outcome would necessarily make the dismissal "prejudicial in effect."

Id. at 711.

This court has likewise held that the prohibition against delay "is

designed (1) to protect against ‘undue and oppressive incarceration

prior to trial,’ (2) to ‘minimize anxiety and concern accompanying

UNITED STATES v. SORIANO-JARQUIN 11
public accusation,’ and (3) to protect the ‘ability of an accused to

defend himself.’" United States v. Goodson, 204 F.3d 508, 515-16

(4th Cir. 2000) (quoting Smith v. Hooey, 393 U.S. 374, 378 (1969)).

In this case, the district court properly found that the circumstances

of the indictments did not interfere with these interests. As the

charges in the first and second indictments were identical, the defendant received sufficient notice of the charges against him. Moreover,

the second indictment was filed eight days after the end of the thirty

day period allowed for the first indictment. The government

expressed its willingness to proceed to trial on the original trial date

of July 25, 2005, which was set at the first indictment. It was defense

counsel who stated that a later trial date would be acceptable and who

subsequently sought a continuance and a still later trial date. The district court thus properly concluded that the return of the second indictment more than thirty days after the defendant’s arrest did not require

dismissal.

The fact that defendant’s claims are ultimately lacking in merit

does little, however, to inspire confidence in the government’s handling of the case. The defendant correctly observes that he found himself in an "improbable predicament" — confused with another man at

his preliminary hearing and then called by yet another name in his

indictment. While these mistakes were ultimately righted, in part by

the government’s own precautions in seeking a second indictment, the

problems reflect a regrettable lack of care and attention with respect

to this defendant’s rights.

IV.

Finally, the defendant challenges the district court’s application of

DHS Touhy regulations to the defense’s attempt to call ICE Special

Agent Jason Fulton as a witness. After the defendant failed to comply

with the regulations in attempting to subpoena Fulton, the district

court on the day of the trial granted the government’s motion to

exclude Fulton’s testimony. The defendant claims that the application

of the DHS regulations worked to deny his confrontation and compulsory process rights under the Sixth Amendment. We find that these

contentions are without merit.

Pursuant to 5 U.S.C. § 301, federal agencies may promulgate socalled Touhy regulations to govern the conditions and procedures by

12 UNITED STATES v. SORIANO-JARQUIN
which their employees may testify about work-related issues at trial.

See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951).

The DHS Touhy regulations prohibit DHS employees from testifying

about information obtained on the job absent departmental authorization. See 6 C.F.R. §§ 5.41-.49 (2006). They also provide that the DHS

General Counsel alone may accept service on behalf of DHS employees. See id. § 5.43. The Supreme Court has approved such regulations,

holding that agencies may legitimately promulgate regulations governing employee testimony and may, pursuant to those regulations,

forbid an employee to testify in a court proceeding. See Touhy, 340

U.S. at 468. 

The defendant claims at the outset that Touhy regulations do not

apply to cases in which the United States is a party, but neither the

authorizing statute, 5 U.S.C. § 301, nor the DHS regulations, 6 C.F.R.

§ 5.41, impose any such limitation. Moreover, other courts have

applied Touhy regulations to the testimony of agency employees in

federal criminal prosecutions. See, e.g., United States v. Wallace, 32

F.3d 921, 929 (5th Cir. 1994) (applying Department of Justice Touhy

regulations); United States v. Allen, 554 F.2d 398, 406 (10th Cir.

1977) (same). 

Neither the existence nor the application of the Touhy regulations

deprived the defendant of any right. To begin with, the defendant

made no attempt whatsoever to comply with the DHS regulations.

Given this, he can hardly be heard to complain that the regulations

caused him injury. See Wallace, 32 F.3d at 929 (rejecting constitutional challenge where party did not comply with Touhy regulations);

United States v. Marino, 658 F.2d 1120, 1125 (6th Cir. 1981) (same).

In any case, his constitutional claims must fail. There was no violation of the Confrontation Clause, because the confrontation right pertains only to adverse witnesses offering testimony at trial. See, e.g.,

Crawford v. Washington, 541 U.S. 36, 51 (2004). In this case, the

government neither called Fulton as a trial witness nor introduced any

statements by him. The right to compulsory process was also not violated, not only because the Supreme Court has upheld the Touhy regulations as a valid enactment but also because Fulton’s testimony was

wholly peripheral to the defendant’s case. See United States v.

Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (violation of compulUNITED STATES v. SORIANO-JARQUIN 13
sory process occurs only when "the defendant [i]s arbitrarily deprived

of ‘testimony that would have been relevant and material, and . . .

vital to the defense.’") (quoting Washington v. Texas, 388 U.S. 14, 16

(1967)). Fulton’s testimony at most went to the question of the preliminary hearing. It did not go to the sole issue at trial: whether the

defendant had unlawfully re-entered the country after deportation.

Thus no constitutional violation occurred, and the district court properly excluded Fulton’s testimony.

V.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

14 UNITED STATES v. SORIANO-JARQUIN