FILED
NOT FOR PUBLICATION
NOV 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10619
Plaintiff-Appellee, D.C. No.
4:14-cr-01729-CKJ-DTF-1
v.
RAFAEL GUZMAN-SOLIS, AKA Rafael MEMORANDUM*
Bugas Guzman,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10620
Plaintiff-Appellee, D.C. No.
4:12-cr-01696-CKJ-DTF-1
v.
RAFAEL GUZMAN-SOLIS, AKA Rafael
Bugas Guzman,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted November 15, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and EZRA,***
District Judge.
Rafael Guzman-Solis appeals his conviction for illegal reentry after
deportation, and the revocation of his supervised release. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the
history of this case, we need not recount it.
I
The district court did not err in denying Guzman-Solis’s request for a
Kastigar hearing on the improperly recorded attorney-client meeting. Under our
precedent, Guzman-Solis had the burden to establish a prima facie case of
prejudice resulting from the intrusion. United States v. Danielson, 325 F.3d 1054,
1071 (9th Cir. 2003). To make out a prima facie case under Danielson, he had to
show that the government acted affirmatively to intrude into the attorney-client
relationship; passive possession of information is not enough. Id. The district
court reasonably found, based on evidence in the record, that the government’s
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
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recording of the attorney-client meeting was inadvertent and that no members of
the prosecution team learned the contents of the privileged conversation. As a
result, it did not abuse its discretion in declining to hold a Kastigar hearing or in
declining to shift the burden to the government. See United States v. Anderson, 79
F.3d 1522, 1525 (9th Cir. 1996).
The district court also did not err in declining to grant the motion to dismiss
the indictment based on due process grounds. See United States v. Black, 733 F.3d
294, 301 (9th Cir. 2013) (stating standard of review is de novo). “To violate due
process, governmental conduct must be so grossly shocking and so outrageous as
to violate the universal sense of justice,” United States v. Barrera-Moreno, 951
F.2d 1089, 1092 (1991) (citing United States v. Restrepo, 930 F.2d 705, 712 (9th
Cir. 1991)), and to “absolutely bar the government from invoking judicial
processes to obtain a conviction.” Black, 733 F.3d at 302.
Guzman-Solis failed to meet this “extremely high standard.” See Id. at 298.
Guzman-Solis was not prejudiced by the recorded conversations or by the
government’s use of an improper process to obtain his medical records.
Danielson, 325 F.3d at 1069 (clarifying there is no Sixth Amendment violation
unless there is “substantial prejudice”); see also Unites States v. Rogers, 751 F.2d
1074, 1077 (9th Cir. 1985) (citing United States v. Sears, Roebuck & Co., Inc., 719
3
F.2d 1386, 1391–92 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984); United
States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978)) (stating “an indictment may not
be dismissed for governmental misconduct absent prejudice to the defendant”).
II
The district court did not abuse its discretion by declining to use its
supervisory powers to dismiss the indictment. See Black, 733 F.3d at 301 (stating
standard of review is abuse of discretion). The government’s conduct, even if
improper, was not so “patently egregious” as to warrant dismissal of the indictment
against Guzman-Solis. See Unites States v. Rogers, 751 F.2d 1074, 1080–81 (9th
Cir. 1985). Moreover, Guzman-Solis did not show that he was prejudiced by the
government’s possession of the recorded conversations or by the government’s
failure to use the proper process to obtain his medical records.
III
The district court did not err in denying the motion for acquittal. In
reviewing a district court’s denial of a motion for judgment of acquittal based on
insufficient evidence of identification, we apply the same test that the district court
must employ in deciding whether to grant the motion in the first instance. United
States v. Alexander, 48 F.3d 1477, 1489–90 (9th Cir. 1995) (citing United States v.
Lucas, 963 F.2d 243, 247 (9th Cir. 1992); United States v. Kaplan, 554 F.2d 958,
4
963 (9th Cir. 1977), cert. denied sub nom. Dolwig v. United States, 434 U.S. 956
(1978); United States v. Leal, 509 F.2d 122, 125 (9th Cir. 1975)).
“A motion for judgment of acquittal should be granted only if, viewing the
evidence in the light most favorable to the government, no rational trier of fact
could find beyond a reasonable doubt that the defendant is the person who
committed the charged crime.” Id. at 1490 (citing Lucas, 963 F.2d at 247). We
draw all reasonable inferences that can be drawn from the evidence in favor of the
government. Id. “[I]n-court identification by a witness is not necessarily required”
if “the evidence at trial is sufficient to permit the inference that the person on trial
was the person who committed the crime.” Id. (citing United States v. Fern, 696
F.2d 1269, 1276 (11th Cir. 1983)).
Viewing the evidence in the light most favorable to the government and
crediting the government with all the inferences that can be drawn from the
evidence, a rational trier of fact could find beyond a reasonable doubt that
Guzman-Solis is the person who committed the charged crime.
AFFIRMED.
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