NOT FOR PUBLICATION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
 2 

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. 
 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-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.