NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,

Plaintiff

- Appellee ,

v. FREDI VARGAS

- ESTUDILLO, AKA Alfredo Vargas

- Estudillo ,

Defendant

- Appell ant

. No. 1 6

- 50235
D.C. No. 3:15

- cr - 01198

- LAB

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Larry A. Burns , District Judge, Presiding Argued and S ubmitted November 13, 2017

Pasadena, California Before: NGUYEN and HUR WITZ, Circuit Judges, and EATON, ** Judge

. Fredi Vargas

– Estudillo appeals his conviction for attempted re

- entry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)

. We have jurisdiction under 28 U.S.C. § 1291

. We hold that the district court erred in denying Vargas

– Estudillo’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. 

# FILED

DEC 15 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

discovery request, and otherwise deny the challenge to his conviction.
1. The district court denied Vargas’ motion to dismiss the indictment because it found that the g overnment’s failure to preserve a video recording of the pedestrian lane at the P ort of Entry was the result of mistake, not bad faith. T his finding was not clearly erroneous. See United States v. Zaragoza

– Moreira , 780 F.3d 971, 977 (9th Cir. 2015)

. Accordingly, the district court did not err in denying Vargas

– Estudillo ’ s motion to dismiss the indictment

. 2. We conclude, however, that the district court erred in denying Vargas

– Estudillo ’ s motion for a list of people who applied f or admission at the San Ysidro Port of Entry on March 6, 2015, at approximately 5:23 p.m. through the SENTRI lane and booth opposite of the SENTRI lane

. These people may have been in a position to observe Vargas and his interaction with the Border Patrol , and the defense should have been allowed to endeavor to interview them. See United States v. Cadet , 727 F.2d 1453 , 146 9 (9th Cir. 1984) ( “ W itnesses, particularly eye witnesses, to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. ” ( citation omitted) ) ; see also United States v. Stever , 603 F.3d 747, 752 (9th Cir. 2010) (holding that the materiality requirement of Fed. R. Crim. P. 16(a)(1)(E) (i ) is

sa tisfied if a defendant present s “facts whi ch would tend to show that the
G overnment is in possession of inf ormation h elpful to the defense” (citation3

omitted) )

. 3. Because the list of witnesses was not turned over, Vargas cannot know, nor can he show, that “there is a likelihood that the outcome of the trial would have been different if discovery had been granted.” United States v. Budziak , 697 F.3d 1105, 1113 (9th Cir. 2012) (citing Stever , 603 F.3d at 754 )

. Nor is it possible, based on the appellate r ecord, “for us to determine whether the result of [ Vargas

– Estudillo ’ s ] trial would have been different if [the list of witnesse s ] had been disclosed to him

. ” Id

. Accordingly, we remand and instruct the district court to order the production of the witnes s list and determine whether the list “would have led to . . . information that might have altered the verdict.” I d

. (citations omitted)

. The district court “shall order a new trial” if it concludes that testimony from any disclosed witness “ could have affected the outcome of the trial .” Id

. VACATED and REMANDED with instructions .