United States of America v. Jose Enrique Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ENRIQUE HERNANDEZ,
Defendant - Appellant.
No. 12-50463
D.C. No. 3:12-cr-00250-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 6, 2013
Pasadena, California
Before: WARDLAW and RAWLINSON, Circuit Judges, and GLEASON, District
Judge.**
Jose Enrique Hernandez (Hernandez) appeals his conviction and sentence for
importation of cocaine in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
FILED
APR 01 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.

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1. Hernandez argues that due process required the Government to conduct
tests to determine the percentage of pure cocaine included in the seized cocaine
mixture. We disagree. “[T]he government need only show that the defendant knew
that he imported . . . some controlled substance.” United States v. Carranza, 289 F.3d
634, 644 (9th Cir. 2002) (citation omitted) (emphasis in the original). Because “a
finding of drug quantity is not necessary to convict [the defendant] of violating . . .
[section] 960(a),” United States v. Minore, 292 F.3d 1109, 1117 (9th Cir. 2002), the
Government’s failure to collect such information cannot give rise to a due process
violation.
2. We also reject Hernandez’s arguments based on destruction of evidence.
In order for destruction of evidence to rise to the level of a constitutional violation,
Hernandez must show that the Government acted in bad faith and that any “missing
evidence is of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means. . . .” United States v. Sivilla, 714 F.3d
1168, 1172 (9th Cir. 2013) (citations and internal quotation marks omitted). The
failure to preserve material that if collected “could have been subjected to tests, the
results of which might have exonerated the defendant,” does not, without more,
constitute bad faith. Tennison v. City & Cnty of S.F., 570 F.3d 1078, 1087 (9th Cir.
2009), as amended (citations omitted).
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3. Hernandez’s claim under Brady v. Maryland, 373 U.S. 83 (1963) fails.
The Government did not improperly withhold the seized substance because Hernandez
had the opportunity to test it before trial. See United States v. Bond, 552 F.3d 1092,
1096 n.4 (9th Cir. 2009) (holding that exculpatory evidence was disclosed where the
Government provided “the means of obtaining” it). Even if the Government
suppressed the laboratory chemist’s report by belatedly disclosing it, Hernandez has
not shown that the report was favorable to the defense or that any failure to disclose
it was prejudicial. See Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002).
4. The district court did not abuse its discretion in admitting evidence of
Hernandez’s 1996 and 2000 drug importation attempts or felony conviction. Prior bad
acts evidence may be admissible to show “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident. . . . ” Fed. R. Evid.
404(b)(2). Though this prior conduct was relatively old, there is no bright-line rule
to determine when past conduct is too remote, and the evidence remained probative
of Hernandez’s knowledge despite the passage of time. See United States v. Johnson,
132 F.3d 1279, 1283 (9th Cir. 1997). Rule 609(a) provides that evidence of a felony
conviction may be admitted in a criminal case to attack the defendant-witness’s
credibility, if the probative value of the evidence outweighs its prejudice. See Fed. R.
Evid. 609(a)(1)(B). Despite the similarity between the crime of conviction and the
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charged crime, the district court weighed all of the appropriate factors and acted
within its discretion in admitting the evidence. See Untied States v. Alexander, 48
F.3d 1477, 1488 (9th Cir. 1995).
5. The district court properly instructed the jury that Hernandez’s prior
conviction was to be considered only for the purpose of assessing Hernandez’s
credibility. The court did not imply that the mere existence of a conviction deprived
Hernandez of credibility, or instruct the jury that it could use a prior felony conviction
as evidence of guilt. Therefore, no abuse of discretion occurred. See United States
v. Portac, Inc., 869 F.2d 1288, 1297 (9th Cir. 1989).
We also reject Hernandez’s assertion that the district court’s instruction
governing the determination of the amount of controlled substance effectively
dispensed with the marketability/usability analysis articulated in United States v.
Robins, 967 F.2d 1387 (9th Cir. 1992). In Robins, we held that the cornmeal
component of a cocaine mixture comprised of cocaine and cornmeal should not be
considered in determining the weight of the cocaine mixture, because the cornmeal
“had to be separated from the cocaine before the cocaine could be effectively used[;]
[t]he cornmeal was thus the functional equivalent of packaging material, which . . .
was not to be included in the weight calculation. . . .” Id. at 1389 (citations omitted).
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Here, as in Robins, the district court instructed the jury not to include the weight of
packaging material.
6. Section 960(b)(1)(B) provides that a defendant who has been convicted
of importing 5 kg or more of a mixture or substance containing a detectable amount,
“shall be sentenced to a term of imprisonment of not less than 20 years,” if he has
been previously convicted “for a felony drug offense . . .” § 960(b)(1)(B). The jury
found that Hernandez imported 5 kg of cocaine and the Government established that
Hernandez had been previously convicted of a felony drug offense. Based on the
jury’s finding and the evidence of Hernandez’s prior conviction, the district court
properly determined that section 960 required the court to impose a statutory
minimum sentence of 240 months. Because no exception to the statutory minimum
applied, see U.S.S.G. § 5G1.1(c)(2), “the court lack[ed] the authority to refuse to
impose the . . . mandatory minimum.” United States v. Sykes, 658 F.3d 1140, 1146
(9th Cir. 2011) (citations omitted).
AFFIRMED.
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