NOT FOR PUBLICATION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, CLER K U.S. COURT OF APPEAL S2

U.S.C. § 1325(a)(1). Guerrero

- Hidrogo contends that the G overnment’s routine destr uction of the video showing him cross ing the border violated his due process rights. Reviewing the district court’s legal determination s de novo and its factual findings for clear error, United States v. Sivilla , 714 F.3d 1168, 1172 (9th Cir. 2013) , we af

firm. 1
On January 11, 2015 , w hile Guerrero

- Hidrogo , a citizen of Mexico, was

a ttempting 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

a ttempted illegal entry into the United States under 8 U.S.C. § 1325. He was

co nvicted after a bench trial before a Magistrate Judge, and given a time

- served sentence of 4 months’ custody. To establish a due process v iolation, Guerrero

- Hidrogo must make three showings

— all of which he f ails 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 th e parties are familiar with the facts and procedural history, we restate them only as necessary to explain our decision.3

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

- H idrogo 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 obtain ed compara ble 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. Youngbloo d , 488 U.S. 51, 58 (1988). E ven 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.
AFFIRM ED

.