1 Under Fed.R.Crim.P. 11(a)(2) a defendant may enter a conditional plea

and reserve the right to appeal the adverse determination of “any specified

pre trial motion.” Fed.R.Crim.P. 11(a)(2). Even though conditional pleas are

usually entered where a defendant seeks to suppress evidence against him, nothing

in the lan g uage of the rule precludes a defendant from entering a conditional

plea in this context as well. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 98-40092

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRISTINO SIERRA-HERNANDEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ October 8, 1999

Before JONES, DeMOSS and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Cristino Sierra-Hernandez appeals from a guilty plea

conditioned on the district court’s denial of his motion to dismiss

the indictment for loss of testimonial evidence. 1 Because the

district court properly found that the defendant failed to show

that the testimony of the deported witnesses would have been

material and favorable, th0is Court affirms his convict ion and

sentence.2 FACTS

On July 23, 1997 Border Patrol Agents in Bro wnsville,

Texas saw a white van stop on the side of the road. As the agents

drove past, they saw several individuals who appeared to be aliens

run and get into the van from behind a nearby bush. When the

agents stopped the van shortly thereafter, they found twelve

illegal aliens inside the van, and S ierra-Hernandez driving the

van. Sierra-Hernandez and the illegal aliens were then arrested.

Th e following day, the government deported ten of the

i llegal aliens. On August 5, 1997, Sierra-Hernandez was charged

with transporting the two illegal aliens detained as material

witnesses: Anselmo Gutierrez-Zendejas and Hector Sanchez-Aguilar.

Sanchez-Aguilar testified in his deposition that SierraHernandez facilitated his illegal entry into the United States and

that Sierra-Hernandez was the driver of the white van. Previously,

Sanchez-Aguilar had given a voluntary statement to defense counsel

in which he denied knowing Sierra-Hernandez. Gutierrez-Zendejas,

the other material witness, testified that he crossed the border on

his own, happened upon the group in the brush and followed them

into the car, but never saw the face of the driver.

For purposes of the guilty plea, Sierra-Hernandez

admitted that he had transported the twelve illegal aliens. He

also acknowledged that he knew the individuals were illegally in

the United States and that in giving them a ride he was advancing

their illegal presence in the United States. He repeated this3

adm ission to the probation officer who prepared his presentence

report.

On appeal, Sierra-Hernandez argues that: 1) the

deportation of the ten illegal aliens violated his rights under the

Fifth and Sixth Amendments; and 2) the difference in treatment of

potential material witnesses by the Houston and the Brownsville

divisions of th e Southern District of Texas violates equal

protection.

STANDARD OF REVIEW

Constitutional challenges are questions of law that are

reviewed de novo. S ee United States v. Lampton

, 158 F.3d 251, 255

(5th Cir. 1998).

DISCUSSION

I. DUE PROCESS

Sierra-Hernandez argues that the deportation of the ten

illegal aliens violated his due process rights because the deported

aliens plausibly could have testified that Sierra-Hernandez was

not involved in bringing them into the United States or in

transporting them within the United States.

Valenzuela-Bernal established the test for determining

whether or not deportation of potential witnesses violates the

defendant’s due process rights. In that case, the Supreme Court

stated that in order to show a due process violation the defendant

must make “a plausible showing that the testimony of the deported

witnesses would have been material and favorable to his defense, in

ways not merely cumulative to the testimony of available2 The Fifth Circuit came closest to addressin g this issue in U nited

States v. Soape

, 169 F.3d 257 (5th Cir. 199 9), in which, citing V alenzuelaBernal

, it held that a district court’s denial of a defendant’s subpoena requests

did not violate his Sixth Amendment right to due process because the defendant

had not met his duty of demonstrating the necessity of the witness’s testimony.

See Soape , 169 F.3d at 267-69.

3 T he Ninth Circuit has gone even further, interpreting

Supreme Court precedent as requiring that the defendant also show

bad faith by the prosecution. See Dring , 930 F.2d at 693.

4 witnesses.” U nited States v. Valenzuela-Bernal

, 458 U.S. 858, 873,

102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1 982). In addition, the

Court stated that due process has been violated “only if there is

a reasonable likelihood that the testimony could have affected the

trier of fact” and recommended that that evaluation be done “in the

context of the entire record.” Id. at 874 & 874 n.10.

Although the Fifth Circuit has never squarely addressed 2

the meaning of this test, many other circuits have. Courts have

uniformly rejected Valenzuela-Bernal -based claims of due process

violations. S ee United States v. Pedraza

, 27 F.3d 1515 (10th Cir.

1994); United States v. Ramirez-J iminez , 967 F.2d 1321 (9th Cir.

1992); United States v. Dring

, 930 F.2d 687 (9th Cir. 1991); United

States v. Nesbitt

, 852 F.2d 1502 (7th Cir. 1988); United States v.

Guzman

, 852 F.2d 1117 (9th Cir. 1988); United States v. MoralesQuinones

, 812 F.2d 604 (10th Cir. 1987); United States v. Ginsberg

,

758 F.2d 823 (2d Cir. 1985); United States v. Saintil

, 753 F.2d 984

( 11th Cir. 1985). Furthermore, courts have strictly evaluated

Valenzuela-Bernal ’s requirements. 3 S ee

, e.g.

, Nesbitt

, 852 F.2d at

1519 (“the strict standard of materiality set forth in ValenzuelaBernal”); Ginsberg

, 758 F.2d at 831 (stating that positing the5

testimony most favorable to defendant that the deported witnesses

could provide does not satisfy the Valenzuela-Bernal test).

In this case, appellant has not plausibly demonstrated

that the deported aliens would have provided testim ony that was

both material and favorable and reasonably likely to influence the

trier of fact or that the government did not act in good faith.

First, the defendant’s assertion tha t the deported aliens would

testify that he was not hired to take them across the border is

immaterial to whether he transported illegal aliens. At most,

defendant could argue that such testimony tends to prove that he

did not know those he was transporting were illegal aliens.

Second, the circumstances of the pick-up

– the twelve aliens

running out from behind a bush in S outh Texas – renders such a

defense weak at best. Third, defendant’s appellate counsel

conceded at oral argument that the government acted in good faith

when it deported the aliens. The district court was therefore

correct in denying the defendant’s motion to dism iss the

indictment.

2. EQUAL PROTECTION

Appellant also asserts that the fact that the Houston

Division of the Southern District of Texas holds all illegal aliens

for seven days to allow the defense a chance to interview them,

while the Brownsv ille Division does not, constitutes a denial of

his right to equal protection. He asserts that this Court should

apply strict scrutiny because the practices in question impinge on

a fundamental right. Because appellant has provided no evidence6

that the two Divisions in fact have different procedures, this

court declines to review his equal protection claim.

AFFIRMED

.