United States v. Antonio Hernandez-Gonzalez

аnd course, holding rulings return of this case to the dis- aware, of that our We are move, parties some claims to trict court. If the so force to trial small court may denial of certification district reconsider the dismissal. that the class assure judge may choose either to part as of a “final Thus the district will reviewed deci- or to new dismissal take We are aware that we have said enter a order of sion.” also appropri- rulings other he believes interlocutory [merge] whatever that “[a]ll judgment final and ate. are reviewable on Beaman, appeal v. therefrom.” Sackett AND REMANDED. VACATED Thus, 889 n. 6 ordinarily, denying “an class certifica- order subject

tion effective review after judgment

final at behest the named

plaintiff intervening or class members.” Livesay, supra,

Coopers Lybrand & at 98 S.Ct. at 2458. We have

earlier such an following reviewed order America, obey

dismissal for failure to an order of the UNITED STATES of court, Plaintiff-Appellee, Westgate-California Fendler Corp., (per curiam), 1975) cite, parties found, but and we have HERNANDEZ-GONZALEZ, Antonio authority indicating that we have done so Defendant-Appellant. ruling interlocutory where a order prosecute. effect No. 77-1504. caused a failure These exception circumstances a limited warrant Appeals, Court of merger to the rule. Ninth Circuit. We recognize that we must balance Oct. conflicting hardship interests. The in re fusing review the denial of class certifi allegedly

cation after a dismissal caused forcing

that denial and the of some small

claims to trial must be against measured dilatory prose

the incentive for failure to

cute the district court that would other We,conclude

wise result. balance discourage piecemeal

should be struck to

appeals. Where record shows that the

denial of class certification caused fail prosecute,

ure to nоt ruling merge does judgment purposes appel the final review, here, where,

late least as

resulting proper. dismissal was

Because we here an exception make rule, ‍‌​​‌​​‌​‌‌‌​​​​​​‌​​​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌​‌‌​​​‌​​‍previously stated because we any

would remand in case technical dismissal,

correction of the order of

circumstances of this case warrant vacation July the June 28 30 and

contrast, only resulting Huey challenges hardship the denial of from the denial of not certification, but class also the correction of the class certification. In these circumstances we itself, appealable order dismissal the dismissal al- deem order of but do dismissal though challenges grow to the dismissal out of class certification. review denial

Joseph Milchen, Cal., Diego, San for de- fendant-appellant. (on Wittman, Atty. Asst. U.S. J.

Sandra Knoepp, Atty., brief), Terry J. (ar- Wittman, Atty. J. Asst. U.S. Sandra Cal., plaintiff-appel- gued), Diego, San lee. TRASK, and AN- WALLACE

Before DERSON, Judges. Circuit TRASK, Judge: as was passenger Circuit in the front seat. appeals Antonio Hernandez-Gonzalez a violation Subsequently, only

conviction of U.S.C. four of the five aliens 1324(a)(2), transporting illegally were retained in the States as mate- § ‍‌​​‌​​‌​‌‌‌​​​​​​‌​​​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌​‌‌​​​‌​​‍apparently rial witnesses. alien within The fifth the United States. We affirm. convinced another alien the detention apprehended Appellant was on December information, center to reveal to him such as 29, 1976, Agents Gilford of Hemley and and his mother’s maiden name the address- Border States Patrol. On that рarents, es was used of which day, Agent Hemley observing was north- purposes for identification authorities re- bound on De Luz Canyon traffic Road near leasing illegal Consequently, aliens. Murietta, is about California. area 60 patrol fifth alien deceive border was able to miles north of Mexican and border by impersonating officers the other alien road bypasses under observation one that qualified voluntarily who was as one to be checkpoint Border Patrol Temecula on returned Mexico. Interstate 15. Appellant issues appeal: raises four on placed along leading Sensors the road Agents (1) Did the Border Patrol have rea- monitoring from equipment Mexico with stop suspicion appellant’s sonable vehi- Hemley’s signaled approach car of two (2) appel- cle? Did the violate cars, together. close traveling Two cars right by аllowing of confrontation a lant’s canyon lengths exited the about three car witness, illegal material the fifth alien apart passed and within 10 to feet of car, appellant’s found return to Mexi- Hemley’s marked car vehicle. Each had (3) appellant’s right Was of co? confronta- and, two occupants, visible according to abridged by tion the district court’s curtail- Hemley, all four were of Latin descent. of ment further cross-examinаtion concern- Appellant car, driving was the lead and ing (4) the location of the sensor devices? Hemley riding described that as car Did on two acquittal the verdicts of “heavy.” finding constitute that there counts was Appellant straight looked as his ahead an essential element of the offense that had passed Hemley, passen- automobile and his proved been a reasonable beyond doubt ger straightened up straight and loоked of the extent that guilty the verdicts on passenger ahead. The in the second vehicle remaining are improper? two counts driver; turned something and said to the By court, argument order of oral was the second vehicle then slowed down of single limited to the whether issue fell further behind the lead car. district court committed reversible error in Agent Hemley, having in the worked De failing to to the return dismiss due to Mexi- Luz Canyon years, fairly area nine alien, co of the fifth Flores-Bravo. The familiar with the residents their vehi- argument was to include whether cles, but he never seen these vehi- government properly any duty exonerated occupants. Hemley cles or their testified may maintaining it have custody had in approximately 100 cars travel road not, and, Flores-Bravo if whether Hernan- day, partner stop each and his and he about prejudiced, dez-Gonzalez was and if not 50 percent of the northbound traffic and prejudiced, whether lack of such demon- illegal find approximately 80 to 90 prejudice strated result in should affirm- percent of the time. ance of the judgment the trial court. ourselves, however, partner, We address Hemley radioed ahead to his to each of Agent Gilford, car, stopped by appellant. who first four issues raised stopped while car. Hemley the second Af- I

ter being stopped, appellant advised Gilford persons there were four more Roving border officers trunk of the car. All of them were stop inquire vehicles and as to the citizen- ship immigration smuggling, status its occu- use road for and the if pants the officers have “reasonable inability agent experienced recog- suspicion” that the vehicle contains occupants nize the on a lightly vehicles or Brignoni-Ponee, aliens. (see, g., traveled road 2574, S.Ct. L.Ed.2d 607 Lujan-Miranda, (1975). Because of the limited nature of 1976)). stopping We hold the vehi- intrusion, justified are stops such justified. cles facts that do not rise to level proba- required ble cause an arrest. Id. at II However, 95 S.Ct. 2574. the reasonable Appellant that he was contends de suspicion “specific must be based on articu- right facts, nied his Fifth Amendment due together lable with rational inferenc- right process and his Amendment es those Sixth from facts.” Id. at S.Ct. at compulsory process when the fifth 2582. alien, car, who in his passenger was a Brignoni-Ponee court in sug by a able ruse to his return to obtain Mexi gests the following factors that He co. relies on United States Mendez- into judging taken account in whether the Rodriguez, (9th 1971) 450 Cir. F.2d 1 suspicion reasonable standard has been sat support position. (1) area; of isfied: Characteristics the (2) In border; appellant Proximity (3) Mendez-Rodriguez, was con- patterns the Usual road; smuggle victed of conspiracy of traffic on into particular (4) the Offi transporting previous traffic; cer’s States and ille- experience with alien (5) gal aliens District Information within the regarding recent Southern area; held that the crossings (6) border in California. The court Driver’s government returning of the (e. three of the g., driving behavior erratic or obvious officers; six car to attempts to aliens found in Mexi- (7) appellant’s evade Aspects of cо, itself, oppor- without an giving first vehicle such as the load of the vehicle, tunity if the inter- large compartments interview them for folddown tires, proved appellant’s view spare seats or de- favorable extraordinary num appearance subpoena ber fense to at passengers, or them passengers trying to hide; they (8) were still in Appearance appellant’s trial of the while occupants, such court, deprived jurisdiction haircut, as mode of dress of the style or which right proc- of his to due they would indicate Fifth Amendment reside in Mexico. Id. at 884-85, right 95 ess and his Amendment to con- S.Ct. 2574. Sixth Moreover, expressly frontation. the court A consideration of these factors clearly held that appellant need show that the demonstrates that there are a sufficient question witnesses in would have offered of specific number articulable facts along favorable testimony. with rational inferences from those facts to warrant reasonable suspicion that the ve- The holding in rests on the this case fact hicles involved in this case contained illegal that the made unavailable witnesses were aliens. The lack proximity to the border by government unilateral act of compensated by the availability returning them The court to Mexico. frequent use of particular road to by- quotes language earlier Ninth Cir from an pass the fixed checkpoint on Interstate opinion 15 cuit the de which indicates at addition, Temecula. In there was obvi- rights fendant’s are violated Constitutional good ously deal more than the ap- Latin whenever made unavaila “witnesses [are] pearance of occupants: “heavy” through procurement, ble the suggestion, or car, ride of first the two cars traveling negligence [government].” Ferrari in tandem аnd separating sight States, (9th v. United 141 (see, car g., Garza, Cir.), denied, United States v. cert. 355 U.S. S.Ct. (5th 1976)), Cir. the traditional (1957). 2 L.Ed.2d 78 government pro- “failure of the dice holding Mendez-Rodriguez was transported.” Tsutagawa, 500 duce one of the four aliens

adopted United States held that Men- There, 454 F.2d at 214. The court the court F.2d 420 inapplicable because the deported dez-Rodriguez was government held that where was not due to unavailability be- of the witness aliens to Mexico apprehended of 39 the court governmеnt Specifically, action. ranch foremen who appellants, two fore the Mendez-Rodriquez govern- harboring and conceal- stated: charged with “[I]n the witness to them, them, appel- apparently ment ‘returned’ ing could interview is silent. we So Mexico. Here the record denied their Fifth and Sixth lants were missing happened to rights process ‍‌​​‌​​‌​‌‌‌​​​​​​‌​​​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌​‌‌​​​‌​​‍of due and com- do not know what Amendment speculate.” alien. And we should not process. The сourt reasoned: pulsory F.2d Mendez-Rodriguez prevents govern- determining ment from who will be a Verduzco-Macias, helpful witness for the accused. The ac- 1972), it was also deter- (or here, accused) prospective cused has mined that the witnesses were not made right to make that decision for him- overt action. unavailable self, by interviewing potential either The court stated: by waiving right or alien witnesses Mendez-Rodriguezis different from the so. 500 F.2d at 423. dо in- cases before us. After the aliens explanation In further rationale of Mendez-Rodriguez and in these volved in holding and the of this unlawfully cases were discovered within

case, the court states: by the border States Mendez-Rodriguez The trust of is to agents, government three alter- the had prevent allowing the basic unfairness of (1) with viola- charge natives: the aliens government to determine which the wit- 1325; (2) deport tion them of U.S.C. § help nesses will not either side and then 1251; (3) or immediately under 8 U.S.C. § witnesses, practi- to release those for all country allow them in this until to remain purposes, beyond cal the reach of the trials, deport the and then them. With defendant. The vice lies in the unfet- in Mendez- respect to the aliens involved ability government tered of the to make chosen; Rodriguez, the course was second (Citations the unilaterally. decision Id. involved in the respect with to the aliens omitted). us, сourse was cho- cases before the third not itself take government sen. The did The holdings of these two cases are based remove witnesses action which would government’s on the making action in power from court. subpoena witnesses unavailable. There are essential- positive fact, took government In ly grounds upon two basic which the cases steps in aliens would be order that following Mendez-Rodriguez are distin- trials; appеllants’ testify at available to (1) guished: unavailability The of the wit- pay and half their they were farmed out govern- nesses not the result of unilateral appearances at pending their action; withheld (2) ment The unavailability of the at 106. the trials. 463 F.2d prejudicial witnesses is not to the defend- ant. illegal The of nine release of two interview them appellant before the could analysis

An of Ninth Circuit cases indi- government was held not to be the result Mendez-Rodriguez cates that not apply does appel- action violative of and therefore not unavailability unless the of the witnesses is rights in lant’s Constitutional unilateral, by the result of overt action Carrillo-Frausto, (9th Cir. government. Peyton, In United 1974). The court reasoned: 1971), appellant F.2d 213 was of transporting distinguishable convicted aliens in present clearly The case is violation of Relying Mendez-Rodriguez 8 U.S.C. 1324. Mendez-Ro- § [from ]. Mendez-Rodriguez,appellant preju- driguez claimed decision of involved the unilateral appellant found effect, evi- was suppress afforded prosecution, court, investigate, designate opportunity case the fair In the instant dence. potential to release alien interview witnesses before discretionary power and its concern for the wel- Con- deported witnesses and out of therefore his they juvenile aged 13 rights fare of were not violated. The stitutional subject potential them to witness not refused to criminal did deportation of case, and, process.” 500 F.2d at this appellant in prejudice ap- does not therefore, released, In that the witnesses were case ply. objection government, over because apparent unavailability of adequate de- Lomeli-Garnica, 495 In United States

tention facilities minors. was convicted (1974), possessing In Francisco-Romandia, United States v. from Mexico importing 1974), marijuana. An aliens were distribute with intent in a appel discovered residence which officers en- with the person was arrested other probable tered with it cause believe was prose not to but the was made lant decision being burglarized. Appellant not available person was cute him. This the house but his codefendants were arrest- he before week for a counsel еd An there. indictment was returned been made released, but effort against appellant, ap- but he was not release. before such to interview him prehended until a month later. alien potential witness was not meantime stipulated two codefendants with deported government. and was not to release all of the alien circumstances, held these the court Under except witnesses nine. court held that person not that failurе detain such did Tsutagawa “elements of unfairness deprive appellant of his Constitutional and Mendez-Rodriguez are here.” absent Amend rights under the Fifth and Sixth

“The aliens were released ments. The court reasoned that to detain Government, unilateral but him after decision was made not by stipulation by a followed court order. on him a prosecute imposed would have The released witnesses were under sub- pos hardship only a remote substаntial poena. released, At the they time were sibility of to the defendant. benefit appellant was fugitive.” F.2d 503 at Mendez-Rodriguez inappli- was held to be McQuillan, 507 cable to States v. United Moreover, the court stated that abuse “[n]o 1974), alleged (9th because the F.2d 30 Cir. of appears failing discretion to detain all nothing witnesses ‍‌​​‌​​‌​‌‌‌​​​​​​‌​​​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌​‌‌​​​‌​​‍were found to have had material custody witnesses the bene- do with crime for which the defend- the fit of unapprеhended defendant who de- were convicted. In that case the ants may day caught some be and who then possessing convicted of mari- fendants were want to interview at his them convenience.” juana with Defend- intent distribute. Id. hiding places along ants were flushed from

Mendez-Rodriguez together has also been held to Border Beach with four the Park be inapplicable unavailability where the of Mexican It aliens. was determined that just happened witness is not been crossing determined to have to be prejudicial to In appellant. United States at the time beach same the defendants were Romero, v. (9th 1972), nothing 469 F.2d 1078 that to do with the they Cir. appellant burning marijuana was of a bar- convicted found near the defendants. racks at the El Detention Center. Consequently, Centro the aliens were returned He later prejudice claimed that he could substantiate no Mexico. there was Because among alibis from the detainees at fa- the defendants the release cility. deported apply. The detainees were with- does not also Mendez-Rodriguez See out the appellant any Ballesteros-Acuna, interviewed of having 527 United States v. them as potential (9th 1975); witnesses. The court United F.2d 928 Cir. States v.

Castellanos-Machorro, (9th prosecution a federal on the basis of de- 512 F.2d 1181 Heiden, evi- secondary 1975); Cir. United Stаtes struction of evidence. The 1974); (9th Cir. dence was therefore admissible.1 1972), Sewar, cert. govern- Equally significant to the lack of denied, 93 S.Ct. pos- ment involvement in this is the remote (1973). L.Ed.2d 278 sibility prejudice. appellant Because vir- case, government In the instant made tually stipulated presence to the five of the materi- every effort to retain all car, only aliens in his element of the al witnesses. The usual extent of knowledge remaining offense that aiding the de- government’s obligation in they only aliens. evidence a “reasonable fense to obtain witnesses is stipulated point on this is the statements of See, g., Tapia-Corona effort.” United passengers two of the met States, agreed smuggle them in Mexico and technique vital data identification used only possible a fee. The them across for facility the detention to retain and release testimony of the fifth alien benefit that рroper aliens is reasonable even clearly provide would be to rebut these wit- could totally especially if not This is failsafe. right waived his nesses. Yet given true large being number of aliens cross-examine them. Since he made no ef- processed difficulty identifying and the testimony fort to undermine their either them at the detention center. through cross-examination or direct testi- mony, hardly compelling penalize it is there was evidencе government for the release of the alien that systematic program shipping of a back to they in fact tried to retain. witnesses, Mexico all but three or four originally matter how detained. many were Ill case, system employed In the in this there negligent Appellant complains was no deliberate nor even selec- also retaining returning judge tive of material trial him from improperly prevented agent present witnesses as was there. The re- as to questioning the border De Luz lease of the fifth alien was not the sensors in Can location negligence, presence result of action or yon which first revealed but, rather, relationship was the result of his own trick- cars. His initial ery impersonating clearly to ascertain purpose another alien who was at trial was properly trickery by trespass to be This had been com any released. whether or not impersonation of who was to of the sensors. He placement another alien mitted merely also distinguishes released this case from now also claims that this Hawk, 76-1906, preliminary inquiry v. Loud Nos. to aid in the determina - - 76-2127, 7, Aug. tion that there had been “in fact a fourth argument His is amendment violation.” frivolous. Hawk, dynamite exploded Loud by pub- government properly points State Police Officers for reasons of The out that lic safety participation part standing any alleged without on the he to contest of federal officials. The trespass, privacy court for no discernible interest See, secondary held that evidence of the of his was invaded its commission. States, photographs consisting g., contraband of the e. Alderman v. United 394 U.S. 171-72, police 961, dynamite testimony of state offi- 22 L.Ed.2d 176 S.Ct. par- (1967). Moreover, cers was sufficient to establish lack of we can conceive of no federal ticiрation part on the officers in violation possible other Fourth Amendment - 76-2127, 1. The order of in this case 76-1906 and F.2d- submission ‍‌​​‌​​‌​‌‌‌​​​​​​‌​​​‌‌‌‌​‌‌​​​​‌‌‌‌​​‌​‌‌​​​‌​​‍entered 7, 1979), pending by Aug. was vacated which time this case was decision Appeals automatically States Court of for the Ninth Circuit resubmitted. Hawk, (En Banc) of United States v. Loud Nos. pursuing. he have been He was rid- could

ing public highway car and his in a on a PEOPLE OF the STATE OF CALIFOR- by sensor privacy was no more invaded YOUNGER, NIA ex rel. J. Evelle Attor- it detecting presence his than was ney General Coastal and California Zone observing patrolman border him a short Commission, Plaintiff-Ap- Conservation time later. pellant, might He have wanted this information purposes, g., that other establish but, existed, ANDRUS, really on basis sensors capacity in his D. official Cecil objection here, at trial and it asserted Secretary Department as judge cannot said that the trial abused Interior, al., Defendants-Appellees. et his discretion. No. 76-1431. IV Appeals, United States Court of on appeal The final contention Ninth Circuit. judge’s that the trial verdicts were incon judge sistent. The trial convicted Oct. 1979. acquitted of two of the counts and him of Rehearing Denied Dec. Appellant acquittal two. claims that indicates latter counts es was missing sential element of crime as

to all four.

Appellant’s argument is nonsense. As earlier, only

noted real issue in the case

was whether the had reasonable

grounds to passengers believe

illegal aliens who had entered the country years. only

within the last three evi- point supplied

dence as to this

stipulated statements of two of the four

passengers that appellant had met them in

Mexico agreed to transport them across

the border for a fee. Appellant was con-

victed on two counts involving the ille-

gal transportation aliens; of these two as to

the other two about whom there was issue,

no evidence on this he was acquitted.

Nothing could have been proper. more judgment is AFFIRMED.

WALLACE, Judge, Circuit concurring: join

I in the majority opinion except for

the issue as to whether Hernandez-Gonzalez prejudiced due to the absence of the

fifth alien. While the law was properly

stated the majority, I would not reach

the issue. The unavailability of the alien

was not due to the unilateral alone, and on that basis Her-

nandez-Gonzalez’s claim

is flawed.

Case Details

Case Name: United States v. Antonio Hernandez-Gonzalez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 31, 1979

Citation: 608 F.2d 1240

Docket Number: 77-1504

Court Abbreviation: 9th Cir.