Case 3:17-cr-02661-KC Document 16 Filed 06/11/18 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
UNITED STATES OF AMERICA,

Plaintiff-Appellee
v.
BLANCA NIEVE
VASQUEZ-HERNANDEZ, ELBA LUZ
DOMINGUEZ-PORTILLO, MAYNOR
ALONSO CLAUDIO LOPEZ, JOSE
FRANCIS YANES-MANCIA,
NATIVIDAD ZAVALA-ZAVALA

Defendant-Appellants,

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No. 3:17-CR-02660-KC
Consolidated case Nos.
3:17-CR-02661-KC
3:17-CR-02662-KC
3:17-CR-02663-KC
3:17-CR-02664-KC

ORDER
This consolidated appeal illustrates the difficult and controversial nature of our country’s
immigration laws and their enforcement. Appellants are five asylum seekers who were
apprehended shortly after entering into the United States with their minor children. Ultimately,
they were separated from the children, prosecuted by the government for the misdemeanor offense
of improper entry under 8 U.S.C. § 1325(a), and found guilty by the Magistrate Court after
separate trials. On appeal, Appellants challenge only their criminal convictions. Although
Appellants’ separation from their children is a cause of great concern not only for Appellants but
also for many in public at large, the soundness of the government’s policies regarding arriving
asylum seekers and their minor children is not before the Court in this appeal. Because this Court
finds no error in the proceeding below, the judgment of the Magistrate Court is affirmed.
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I.
Appellants are citizens of El Salvador and Honduras. Each was apprehended by agents
from United States Customs and Border Protection (“CBP”) in unrelated incidents between
October 21 and October 23, 2017, moments after they crossed into the United States from Mexico
at a place that was not designated as a port of entry. At the time of their apprehension, Appellants
were not alone; each was traveling with their minor child or grandchild.1
During initial processing by CBP, Appellants sought asylum based on a fear of persecution
in their home countries. Shortly after, Appellants were charged by complaint with improper entry
of an alien under 8 U.S.C. § 1325(a). In addition, because Appellants did not possess
documentation establishing a familial relationship with the minor children, CBP concluded that
they were unaccompanied minors and transferred custody of the children to the Office of Refugee
Resettlement (“ORR”).
A.
At each of their initial appearances, the Magistrate Judge asked Appellants whether they
were traveling with a minor child or sibling and, if so, whether the government had provided any
information regarding the child’s whereabouts or well-being. Initial Appearance Tr. at 7–8, ECF
No. 14.2 Appellants responded that they had received little or no information regarding their

1

Appellants Blanca Nieve Vasquez-Hernandez, Elba Luz Dominguez-Portillo, Maynor Alonso Claudio
Lopez, and Jose Francis Yanes-Mancia were traveling with their minor children. Appellant Natividad Zavala-Zavala
was traveling with her minor grandchild.
2

A record from the trial court in the form of a single, paginated document does not exist for any of these
cases. Rather, the trial record is comprised of individual entries that can be found on the Court’s electronic docketing
system. Because the entries in each of Appellants’ underlying cases are substantively identical, the Court cites only
to the docket entries in United States v. Vasquez-Hernandez, No. 3:17-MJ-4499 (W.D. Tex.), to establish the
background facts. Similarly, although these cases have been consolidated on appeal, identical briefing is available in
five separate electronic dockets. Therefore, the Court cites to the entries in United States v. Vasquez-Hernandez, No.
3:17-CR-2660 (W.D. Tex.) when citing to the parties’ briefs. In sum, citations to any materials other than the briefing
can be found at 3:17-MJ-4499, and citations to the briefing can be found at 3:17-CR-2660.
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children. Id. Concerned about the legal impact that Appellants’ separation from the children
could have on the criminal proceedings, the Magistrate Judge scheduled a status conference to
discuss the issue with counsel.
At the status conference, the Magistrate Judge explained that he had noticed a marked
increase in cases where migrants that claimed to have been accompanied by their minor children
were charged with improper entry and separated from the children at their time of arrest. Status
Conference Tr. at 2–3, ECF No. 54. Similar to Appellants, the defendants in those cases often
told the Court that they were kept in the dark concerning their children’s whereabouts and
well-being. Id. The Magistrate Judge went on to express concern that, should Appellants
consider pleading guilty, their pleas might be susceptible to a future challenge as involuntary. Id.
at 4–5. Given Appellants’ inability to communicate with their children during the course of the
criminal proceedings, the Magistrate Judge posited that Appellants might be induced to plead
guilty based solely on their understandable desire to reunite with the children as quickly as
possible. Id.
In response to the Magistrate Court’s request for briefing, counsel for Appellants informed
the Court that he was already preparing a dispositive motion for each of Appellants’ cases that
would address the issues raised by the Court. Id. at 9. Agreeing that Appellants were similarly
situated as to the Magistrate Court’s concerns, the government consented to consolidate
Appellants’ cases for the purposes of the briefing. Id. at 10. Following the status conference, the
Magistrate Court entered a briefing schedule, and Appellants filed a motion to dismiss several days
later. See generally Mot. to Dismiss, ECF No. 13.
B.
Appellants’ motion essentially raised four arguments in support of dismissal. First,
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Appellants argued that the government’s actions in these cases were inconsistent with previous
expressions of governmental policy relating to families detained for violating immigration laws.
Id. at 3–8. In essence, Appellants asserted that various federal entities have expressed a
preference that families remain unseparated as they navigate immigration-related proceedings, and
that this preference runs counter to “the government’s mechanism of separating the family unit and
simultaneously charging and prosecuting [Appellants] with a § 1325 crime.” Id. at 8.
Second, Appellants argued that the government violated their right to due process by
charging them with improper entry before resolving their asylum claims. Specifically,
Appellants characterized the criminal charges as “a violation of due process because [Appellants]
are being deprived of an opportunity to explore and exhaust any administrative remedy they may
have with respect to the issue of bond and possible refugee or asylum status.” Id. at 9.
Appellants further elaborated that the charges were “premature” because, should Appellants
“qualify for refugee or asylum status, they cannot be prosecuted for being illegally in this country.”
Id. at 10.
Third, Appellants asserted an additional due process violation based on the conditions
surrounding their potential guilty pleas. Id. at 10–13. Echoing the concerns expressed by the
Magistrate Court, Appellants explained that they were “extremely worried about the safety and
well-being of their minor children and want to put these § 1325 charges behind them as quickly as
possible.” Id. Consequently, given that Appellants’ children were being held “in unknown
places and under unknown conditions,” Appellants asserted that they were being “induce[d] . . . to
plead guilty while under duress.” Id. at 12.
And fourth, Appellants argued that, taken together, the government’s actions implicated
the outrageous government conduct doctrine. Id. at 14. In Appellants’ view, the steps taken by
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the government—i.e. separating Appellants from their children, prosecuting Appellants instead of
allowing them to proceed with their asylum claims, and coercing them to plead guilty by
withholding information about the well-being of the children—were so cumulatively egregious
that the government forfeited its right to prosecute these cases. Id.
C.
After Appellants filed their motion to dismiss, the government filed a response. See
generally Resp., ECF No. 17. In its response, the government asserted, inter alia, that the
Magistrate Court lacked jurisdiction over issues unrelated to Appellants’ criminal prosecution,
that there was no basis to dismiss the indictments, that Appellants failed to demonstrate any
violation of due process, and that the expressions of federal policy relied on by Appellants are
applicable only in the context of civil removal proceedings. See generally id. The Magistrate
Court then held an evidentiary hearing where both sides largely re-urged many of the arguments
made in their filings. That said, Appellants also appeared to raise two additional arguments
touching on their right to due process.
First, after reiterating that they should be allowed to pursue their asylum claims prior to any
criminal prosecution, Appellants asserted: “So going to trial . . . it’s also a violation of due process.
Why? Because we are missing the most important thing, the material witnesses, the children.
They don’t have them here . . . . So even going to trial would be a violation of due process.”
Evidentiary Hr’g Tr. at 10, ECF No. 41.
And second, while addressing the government’s assertion that separating the children was
lawful and consistent with the government’s obligations, Appellants argued: “They are using that
mechanism to terminate parental rights . . . . Because these clients are going to plead guilty, they
are going to be deported, and they are not guaranteeing to keep track of their children . . . . And that
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is terminating parental rights.” Id. at 13.
In response, the government maintained that Appellants’ asylum claims were not relevant
to their criminal prosecution, that “pressures related to family concerns” do not render a plea
involuntary, that Appellants’ remedy for any involuntary plea would be to go to trial rather than
dismissal of their indictments, and that “the government doesn’t necessarily know” whether the
minors were, in fact, Appellants’ children.3 Id. at 15–18, 27. At the hearing’s conclusion, the
Magistrate Court denied the motion to dismiss. Id. at 49.
D.
Several days after the hearing, the Magistrate Court conducted separate bench trials for
each Appellant. The evidence at trial consisted entirely of facts and exhibits stipulated to by both
sides. Stipulated Exs., ECF No. 47. After the government presented the evidence and rested,
Appellants moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29.
Bench Trial Tr. at 7, ECF No. 49. In support of the motion, Appellants incorporated by reference
all of the arguments previously made in their motion to dismiss and at the evidentiary hearing. Id.
The Magistrate Court denied the motion, and Appellants then proceeded to close. Id. at 8.
In closing, Appellants asserted that the children were “key material witnesses,” that information as
to children’s whereabouts was not provided by the government during discovery, and that the
children possessed “exculpatory” evidence. Id. Appellants also argued that by withholding

3

More than a month after these appeals were filed, the government filed a motion with the Magistrate Court
to amend the written opinion denying Appellants’ motion to dismiss. In its motion, the government argued that the
Magistrate Court’s opinion contained several “misstatements of the government’s position” concerning the extent to
which the government acknowledged the existence of Appellants’ parental rights. The government also reasserted its
contention that Appellants’ parental rights are irrelevant to their prosecution for improper entry, and that Appellants
had failed to offer any evidence substantiating their claims as to the relationship between them and the minor children.
The Magistrate Court ultimately denied the government’s motion on April 26, 2018, which was after these appeals
became fully briefed. Therefore, the government’s contention and the Magistrate Court’s ruling on that issue is
beyond the scope of these appeals.
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information as to the children’s whereabouts, the government violated Appellants’ right against
self-incrimination because it “forces the [Appellants] to take the stand in order to establish their
defense.” Id.
Afterwards, the government made a brief closing argument, and the Magistrate Court
ultimately found Appellants guilty of improper entry. Id. at 12. Appellants then renewed their
Rule 29 motion, which the Court again denied. Id. at 12–13. A sentencing hearing was held
later that afternoon where the Magistrate Court sentenced Appellants to one year of non-reporting
probation. Id. at 47–48.
E.
About one week after the trials, Appellants filed a motion for reconsideration and new trial
in which they asserted that their convictions would render them ineligible for relief from
deportation. Mot. to Reconsider at 2, ECF No. 42. Therefore, while acknowledging that the
Magistrate Court sentenced them each to probation, Appellants argued that “the true punishment
for their conviction is deportation without their minor children.” Id. Appellants argued further
that subjecting them to deportation without their children was a “de facto termination of their
parental rights” and “contrary to universal human standards of decency,” thus implicating
Appellants’ rights under the Eighth Amendment. Id. at 3.
In its response, the government made a number of both procedural and substantive
arguments. See generally Resp., ECF No. 45. First, the government explained that a motion for
reconsideration cannot be used to raise new arguments that could have been raised before. Id. at
2. Here, the government argued, Appellants never objected to their punishment at sentencing,
and therefore, had waived any argument that it was excessive. Id. at 2–3. The government also
argued that no determination as to Appellants’ removal from the country or the termination of their
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parental rights was made during the criminal proceedings because such determinations are civil in
nature. Id. at 3–4. And lastly, the government noted that Appellants failed to offer any newly
discovered evidence or provide an alternative basis that would support their motion for a new trial.
Id. at 4.
Agreeing with the government, the Magistrate Court denied Appellants’ motion. See
generally Order, ECF No. 52. The Court explained that Appellants did not provide any new
evidence or identify a manifest error of law or fact. Id. at 2. The Court additionally declined to
consider the merits of any arguments raised for the first time in the motion. Id.
F.
On March 2, 2018, Appellants filed a supplemental memorandum to apprise the Magistrate
Court of recent developments concerning their civil removal proceedings. See generally Suppl.
Mem., ECF No. 65. Appellants explained in the memorandum that Immigration and Customs
Enforcement (“ICE”) removed four of them to their home countries between January and
February. Id. at 2. In the case of Appellant Vazquez-Hernandez, an immigration judge granted
her an immigration bond on February 21, 2018. Id.
II.
Appellants were charged with improper entry, which carries a maximum penalty of six
months imprisonment for first time offenders. See 8 § U.S.C 1325(a). Accordingly, the
Magistrate Court had jurisdiction over Appellants’ criminal cases. See 18 U.S.C. §§ 3401(a),
3559(a)(7); see also Local Court Rule CR-58(a). Further, “[i]n all cases of conviction by a United
States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a
judge of the district court of the district in which the offense was committed.” 18 U.S.C. § 3402.
Therefore, this Court has jurisdiction over these appeals. See id. In cases where the District
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Court reviews a judgment from the Magistrate Court, “[t]he scope of the appeal is the same as in an
appeal to the court of appeals from a judgment entered by a district judge.” Fed. R. Crim. P.
58(g)(2)(D).
III.
In their brief, Appellants argue that their constitutional rights were violated, necessitating
reversal of their convictions and sentences. That said, they do not ground their challenges in any
particular ruling made by the Magistrate Court, nor do they specify when or how the Magistrate
Court erred. For example, Appellants do not argue that the Magistrate Court erroneously denied
their motion to dismiss, motion for judgment of acquittal, or motion for reconsideration and new
trial. Similarly, Appellants’ attack neither the Magistrate Court’s reasoning in ruling on those
motions nor the sufficiency of the evidence presented at trial. Instead, Appellants simply raise the
same challenges they made in the motions, albeit in a somewhat more refined fashion.
Specifically, they assert: (1) that their right to a fair trial was violated by their inability to
voluntarily plead guilty and by the government’s failure to produce material witnesses in support
of a duress defense; (2) that the government impermissibly placed a penalty on their right against
self-incrimination; (3) that the conditions of their pretrial detention constituted a punishment; (4)
that their sentences were cruel and unusual under the Eighth Amendment; (5) that the government
committed a Brady violation; and (6) that the steps taken by the government in prosecuting these
cases implicates the outrageous government conduct doctrine. Generally, constitutional claims
such as these are reviewed de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.
2000).
The government argues, however, that Appellants failed to sufficiently preserve their
claims as to the duress defense, Brady violation, and right against self-incrimination. The
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government thus urges the Court to review these issues only for plain error. See United States v.
Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015). Appellants disagree, contending that they
adequately raised these issues during oral argument at the evidentiary hearing and at their closings
during trial. The Court need not resolve the issue. Instead, the Court reviews Appellants’ claims
de novo because, as explained below, Appellants’ claims are unavailing even under a more lenient
standard.4
IV.
A.
The Court first takes up Appellants’ argument that they were deprived of their right to a fair
trial. Appellants advance two separate bases. First, they argue that being separated from their
minor children rendered them unable to enter a voluntary guilty plea. Appellants’ Br. at 8–9, ECF
No. 11. And second, they argue that they were refused the opportunity to present witnesses who
would have offered testimony that was material to their defense. Id. at 10–13.
1.
Appellants’ argument on appeal concerning their inability to enter a voluntary guilty plea
mirrors the argument made in their motion to dismiss; in essence, they argue that their right to due
process was violated because they could not enter a voluntary plea given their understandable
anxiety as to the well-being of their children.
Appellants are correct that an involuntary plea offends due process. E.g., Boykin v.
4

The Court notes that the government does not include Appellants’ Eighth Amendment argument among the
issues it believes were inadequately preserved on appeal. The government did, on the other hand, argue in its
response to the motion for reconsideration and new trial that Appellants waived the issue by failing to object at the
sentencing hearing. While the Fifth Circuit has held that “a defendant’s failure to object at sentencing to the
reasonableness of his sentence triggers plain error review,” the Court nonetheless addresses Appellants’ Eighth
Amendment argument de novo for the same reason it addresses de novo Appellants’ other arguments that the
government believes are subject to plain-error review. See United States v. Ross, 582 F. App’x 528, 529 (5th Cir.
2014) (citing United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007)).
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Alabama, 395 U.S. 238, 242 (1969). Generally speaking, a plea is involuntary if “the accused
does not understand the nature of the constitutional protections that he is waiving, or because he
has such an incomplete understanding of the charge that his plea cannot stand as an intelligent
admission of guilt.” Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976) (citation omitted). A
plea is also involuntary when it has been procured through threats of physical harm, mental
coercion, or “state-induced emotions so intense that the defendant was rendered unable to weigh
rationally his options with the help of counsel.” Matthew v. Johnson, 201 F.3d 353, 365 (5th Cir.
2000).
The requirement that a plea be voluntary is rooted in three different constitutional rights.
See Boykin, 395 U.S. at 243. By pleading guilty, a criminal defendant waives his right against
self-incrimination, id. (citing Malloy v. Hogan, 378 U.S. 1 (1964)), his right to go to trial, id.
(citing Duncan v. Louisiana, 392 U.S. 947 (1968)), and his right to confront his accusers, id.
(citing Pointer v. Texas, 380 U.S. 400 (1965)). Thus, “a plea of guilty is more than an admission
of conduct; it is a conviction.” Id. at 242.
Implicit in Appellants’ argument is that they have a right to enter a guilty plea. No
authority cited by Appellants supports that proposition. In Weatherford v. Bursey, 429 U.S. 545
(1977), the Supreme Court observed: “It is a novel argument that constitutional rights are infringed
by trying the defendant rather than accepting his plea of guilty.” Id. at 561. Other courts have
relied on that observation to conclude that a criminal defendant has no right to plead guilty.
Simmons v. Warren, No. 2:13-CV-12531, 2014 WL 902848, at *3 (E.D. Mich. Mar. 7, 2014);
Visconti v. United States, 454 F. Supp. 417, 418 (D. Mass. 1978); accord United States v.
Alvarado-Arriola, 742 F.2d 1143, 1144 (9th Cir. 1984) (“Appellant had no right to plead guilty to
the misdemeanors charged in the complaint; he had only a right to offer to make such a plea and to
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have the court, in its discretion, determine its propriety.”). Appellants do not argue to the
contrary.
Furthermore, the constitutional rights guarded by the voluntary-plea requirement were not
violated in the proceedings below. Rather, Appellants exercised each of them. The Magistrate
Court held five separate bench trials. At those trials, Appellants were not compelled to testify
against themselves, and they had the opportunity to confront the evidence against them.
Therefore, it would be counter-intuitive to conclude that Appellants were deprived of their right to
a fair trial based on their inability to enter a voluntary plea when they were able to exercise each of
the rights guarded by the voluntary-plea requirement, and Appellants do not otherwise specify
how their trials were affected. Further, “a defendant has no right to be offered a plea.” See
Missouri v. Frye, 566 U.S. 134, 148 (2012). Consequently, to the extent Appellants assert that
their inability to accept the government’s plea agreement was a due process violation, that
argument lacks merit.
In sum, the Magistrate Court did not err in its disposition of this issue. Without an actual
plea to evaluate or any basis in the record indicating that Appellants were deprived of their right to
a fair trial, the Court cannot find a due process violation on the ground advanced by Appellants.5
2.
Appellants’ second argument as to why they were deprived of a fair trial relates to their
assertion that they were refused the opportunity to call their children as material witnesses. At the
evidentiary hearing on their motion to dismiss, Appellants explained to the Magistrate Court that
the children were missing material witnesses. Evidentiary Hr’g Tr. at 10. Appellants then
5

For the same reasons, the Court need not address the parties’ arguments nor the Magistrate Court’s
interpretation concerning the immigration consequences of a guilty plea as discussed by the Supreme Court in Padilla
v. Kentucky 559 U.S. 356 (2010).
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expanded on that argument in their closing arguments during the bench trials, specifying that the
children were “exculpatory regarding the Defendants [sic] well-founded fear for leaving their
countries.” Bench Trial Tr. at 8. Appellants further refined this argument on appeal. In their
brief, Appellants now argue that the children were material to establishing a duress defense.
Appellants’ Br. at 10–13.
The government may violate both the Fifth and Sixth Amendment when it prevents a
defense witness from offering testimony. See United States v. Valenzuela-Bernal, 458 U.S. 858,
873 (1982). This is so because the Due Process Clause of the Fifth Amendment guarantees an
opportunity to put on an effective defense, and the Compulsory Process Clause of the Sixth
Amendment guarantees a right to compel witness testimony. U.S. Const. amend. VI; see
California v. Trombetta, 467 U.S. 479, 486 (1984); Valenzuela-Bernal, 458 U.S. at 873. The
Supreme Court explained in Washington v. Texas, 388 U.S. 14 (1967):
The right to offer the testimony of witnesses, and to compel their attendance, if necessary,
is in plain terms the right to present a defense, the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just
as an accused has the right to confront the prosecution’s witnesses for the purpose of
challenging their testimony, he has the right to present his own witnesses to establish a
defense. This right is a fundamental element of due process of law.
Id. at 23. Because Appellants frame their challenge as a violation of due process, the Court
focuses on whether the absence of the children’s testimony deprived Appellants of their
opportunity to present an effective defense. There are several contexts where the government’s
treatment of a defense witness may constitute a due process violation.
For example, the government violates a defendant’s right to due process when it threatens
or intimidates a witness into refusing to testify. See United States v. Hammond, 598 F.2d 1008,
1012 (5th Cir. 1979); United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977). The
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government likewise commits a due process violation when it hides witnesses or conceals their
whereabouts. Hernandez v. Estelle, 674 F.2d 313, 315 (5th Cir. 1981); Lockett v. Blackburn, 571
F.2d 309, 314 (5th Cir. 1978). The same is true when the government deports witnesses without
considering the exculpatory value of their testimony or allowing the defendant an opportunity to
interview them. See United States v. Villanueva, 408 F.3d 193, 200 (5th Cir. 2005); United States
v. Hernandez, 347 F. Supp. 2d 375, 386 (S.D. Tex. 2004).
Unsurprisingly, the applicable framework differs in these lines of cases. To show witness
intimidation, the defendant must establish that the government used improper tactics to coerce a
witness into refusing to testify. See United States v. Girod, 646 F.3d 304, 312 (5th Cir. 2011)
(“Presenting the potential defense witnesses with the facts of the investigation and the crimes
charged does not amount to witness intimidation; there must be evidence of threats or
intimidation.”). That framework is necessarily less applicable when the government hides or
deports witnesses because, in those cases, the witness’s unavailability is not premised on
intimidation. See Villanueva, 408 F.3d at 200. Another difference concerns the available
remedies. Unlike witness intimidation, which usually results in remand for a new trial,
deportation of a material witness may warrant dismissal of the indictment. Compare Henricksen,
564 F.2d at 198, with Hernandez, 347 F. Supp. 2d at 389.
Setting aside any differences, however, there is a salient commonality in these cases; to
establish a due process violation, the defendant must demonstrate that the witness’s testimony is
material. Indeed, when witnesses are deported, the defendant must offer “some explanation of
how their testimony would have been favorable and material.” Valenzuela-Bernal, 458 U.S. at
872. Likewise, in the intimidation cases, the defendant must show “that a prospective witness
was intimidated or that he refused to testify,” or that the “testimony would have contained . . .
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material exculpatory evidence.” United States v. Viera, 839 F.2d 1113, 1115 (5th Cir. 1988).
While the facts underlying this appeal do not fit neatly into one of the categories of cases discussed
above, it is nevertheless clear that Appellants must show materiality to establish a due process
violation.
In formulating the materiality requirement in Valenzuela-Bernal, the Supreme Court
canvased prior decisions relating to “what might loosely be called the area of constitutionally
guaranteed access to evidence.” 458 U.S. at 867. Looking to Brady v. Maryland, 373 U.S. 83
(1963) and its progeny, the Court explained “that implicit in the requirement of materiality is a
concern that the suppressed evidence might have affected the outcome of the trial.”
Valenzuela-Bernal, 458 U.S. at 868 (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)).
The Court ultimately held that “sanctions will be warranted for deportation of alien witnesses only
if there is a reasonable likelihood that the testimony could have affected the judgment of the trier
of fact.” Id. at 873–74.
Thus, it is clear that materiality turns on whether the evidence could have affected the
outcome of the trial. Following Valenzuela-Bernal, the Court explained that in the context of a
Brady violation, “evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985). In addition, the Court invoked
Valenzuela-Bernal’s materiality requirement in defining the prejudice prong for ineffective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 694 (1984). To demonstrate
prejudice by deficient counsel, a criminal defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. Therefore, the children’s testimony is material only if there is a reasonable
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probability that the outcome of the Appellants’ trials would have been different had the children
testified. See Bagley, 473 U.S. at 682.
Appellants argue that the children were material witnesses because they could have helped
to establish the affirmative defense of duress. In support, Appellants point to their “well-founded
fear claims” and assert that the children’s testimony would have corroborated those claims such
that Appellants could have demonstrated that they were under duress when they illegally entered
the United States. Appellants’ Br. at 10–11. Duress requires the defendant to show (1) that he
was under an unlawful, present, imminent, and impending threat that would induce “a
well-grounded apprehension of death or serious bodily injury,” (2) that he had not recklessly or
negligently placed himself in the situation at issue, (3) that he had no legal and reasonable
alternative to violating the law, and (4) that it was reasonable to anticipate that the avoidance of
harm directly caused the criminal action. United States v. Posada-Rios, 158 F.3d 832, 873 (5th
Cir. 1998).
Because the absence of any one element precludes a defendant from mounting a duress
defense, the Court focuses on elements one and three. As to the first element’s requirement that
the threat be imminent, “[f]ear of future harm” is insufficient. United States v. Ramirez-Chavez,
596 F. App’x 290, 293 (5th Cir. 2015) (citing United States v. Harvey, 897 F.2d 1300, 1305 (5th
Cir. 1990)). Rather, a defendant must show that there was “a real emergency leaving no time to
pursue any legal alternative.” Posada-Rios, 158 F.3d at 874. In other words, there must be
evidence that the defendant was in imminent danger “at the moment he [committed the offense].”
United States v. Harper, 802 F.2d 115, 118 (5th Cir. 1986). Concerning the third element, “[a]
reasonable legal alternative exists if a defendant has ‘a chance both to refuse to do the criminal act
and also to avoid the threatened harm.’” Ramirez-Chavez, 596 F. App’x at 293 (quoting United
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States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998)). To demonstrate that no legal
alternative existed, a defendant must present evidence “that he had actually tried the alternative or
had no time to try it, or that a history of futile attempts revealed the illusionary benefits of the
alternative.” Harper, 802 F.2d at 118.
Appellants have not demonstrated that there is a reasonable probability that the outcome of
the bench trials would have been different had the children testified in support of a duress defense.
Improper entry requires only that the government prove (1) the defendant was an alien (2) who
entered or attempted to enter the United States (3) at a time or place other than as designated by
immigration officers. 8 U.S.C. § 1325(a). Therefore, to successfully assert a duress defense, an
alien charged with improper entry must show that an imminent threat essentially caused him or her
to cross into the United States at an undesignated time or place. See Posada-Rios, 158 F.3d at
873. But Appellants offer little more than a recitation of the elements for duress and an assurance
that those elements would have been fulfilled had the children testified. See Appellants’ Br. at 12.
Appellants provide no facts or explanation as to how the testimony of the children would show that
they faced an imminent threat at the time they entered the United States. Rather, by relying on
their “well-founded fear claims,” they undercut their duress defense because those claims are
rooted in the danger they faced in their home countries, not at the time of crossing the border into
the United States. Nothing suggests that those dangers followed them to the border. Similarly,
there is no basis to believe that Appellants did not have a reasonable legal alternative to crossing
the border into the United States at an undesignated place. As the government argued here,
Appellants could have simply gone to a legal entry point at the border to enter the country. See
Ramirez-Chavez, 596 F. App’x at 293 (agreeing that a reasonable legal alternative to illegal

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reentry existed when the defendant could have gone to a designated entry point).6
The Court is mindful that Appellants face a difficult task in demonstrating a reasonable
probability that the outcome would have been different given that counsel never had the
opportunity the interview the children. In Valenzuela-Bernal, the Supreme Court recognized this
concern and explained that “the defendant cannot be expected to render a detailed description of
[the] lost testimony.” 458 U.S. at 873. Nevertheless, the Court held that there must be “a
plausible showing” as to materiality. Id. Here, Appellants have not made any showing. As set
out above, their arguments are devoid of detail and are largely conclusory. That does not suffice
to show materiality. See United States v. Edwards, 442 F.3d 258, 268 n.10 (5th Cir. 2006)
(rejecting a Brady claim where the appellant offered only “speculative and conclusory allegations”
as to the materiality prong).
B.
Appellants’ second argument is that their right against self-incrimination was violated.
Appellants assert that the government “orchestrated a situation where [Appellants] would have to
testify against themselves at trial.” Appellants’ Br. at 14. The crux of this assertion is that the
government separated Appellants from their children, knowing that the children were material
witnesses. Therefore, in Appellants’ view, they had no choice but to plead guilty or go to trial and
testify against themselves, which “placed a penalty on [Appellants’] self-incrimination privilege.”
Id.

6

There are reports that CBP agents are preventing immigrants from presenting themselves to immigration
agents at appropriate border crossing checkpoints in order to stop them from seeking asylum. Robert Moore, Border
Agents Are Using a New Weapon Against Asylum Seekers, Texas Monthly (June 2, 2018), https://www.texasmonthly.
com/politics/immigrant-advocates-question-legality-of-latest-federal-tactics/. Appellants have not made such an
argument to the Court nor presented any evidence that Appellants had reason to believe that CBP agents would
prevent them from presenting themselves at the border to United States agents. The Court does not consider this
troubling possibility further.
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Appellants rely on the Supreme Court’s “penalty cases” in support of this argument. In
those cases “the state not only compelled an individual to appear and testify, but also sought to
induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other
sanctions.” Minnesota v. Murphy, 465 U.S. 420 (1984). For example, when the state of New
York threatened to disbar an attorney for refusing to testify in his disciplinary proceeding, the
Court reasoned that the resultant “loss of professional standing, professional reputation, and of
livelihood” was an impermissible penalty on the right against self-incrimination. Spevack v.
Klein, 385 U.S. 514–15 (1967). A common thread in these cases is a “nexus between remaining
silent and the consequences that follow.” McKune v. Lile, 536 U.S. 24, 44 (2002). Put another
way, they “involve situations where, if a defendant took no action that would incriminate himself,
the government would exact or increase punishment.” United States v. Mourning, 914 F.2d 699,
707 (5th Cir. 1990).
That nexus is not present here. The government did not separate Appellants from their
children because Appellants refused to waive their right against self-incrimination. Nor did the
government offer to reunite Appellants with their children in exchange for waiving that right.
Rather, the record shows that CBP transferred custody of the children to ORR pursuant to 8 U.S.C.
§ 1232, and Appellants offer nothing to the contrary. Furthermore, Appellants’ assertion that the
government did not make “the minor children available for any of the proceedings, including trial,
knowing that . . . the children were the only witnesses who could corroborate credible fear claims”
is not borne out by the record. See Appellants’ Br. at 14. Appellants first asserted that the
children were “material witnesses” at the evidentiary hearing on their motion to dismiss, and the
bench trials took place just four days later. Appellants do not argue, and nothing in the record
suggests, that they made demands that the government produce the children which the government
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rebuffed in an effort to force Appellants to testify. Accordingly, Appellants fail to show that the
government placed a penalty on them for exercising their right against self-incrimination, and
there is no discernable error by the court below on this issue.
C.
The Court next takes up Appellants’ claim that their pretrial detention and separation from
their children is an unconstitutional punishment. The core of Appellants’ argument on this point
is largely unchanged from the motion to dismiss. Appellants point to a constellation of statements
from federal governmental sources that express a policy of allowing family members to remain
unseparated as they navigate immigration-related proceedings. Id. at 15–22. Appellants then
argue that the government’s failure to abide by that policy amounts to a punishment in violation of
their right to due process. Id.
The sources upon which Appellants rely are numerous. Most prominent is the Flores
Settlement, which was agreed to by Immigration and Naturalization Services (“INS”) in the late
1990s. See Flores Settlement, ECF No. 17 Ex. A. The Flores Settlement “sets out nationwide
policy for the detention, release, and treatment of minors in the custody of the INS and . . .
supersede[s] all previous INS policies that are inconsistent with the terms of this Agreement.” Id.
¶ 9. It is binding on successor agencies, including the Department of Homeland Security
(“DHS”). See id. ¶ 1. Its provisions were “intended as a stopgap measure until the United States
could promulgate reasonable, binding standards for the detention of minor[s] in immigration
custody.” Bunikyte, ex rel. Bunikiene v. Chertoff, No. A-07-CA-164-SS, 2007 WL 1074070, at
*2 (W.D. Tex. Apr. 9, 2007). Those standards remain unrealized, and the government does not
dispute that the Settlement is still in effect today.
On the whole, the Flores Settlement expresses “a policy preference for the release of
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minors where possible, and sets out standards for the conditions of detention where release is not
available.” Id. Once the government determines that detention of a minor is unnecessary to
secure his or her timely appearance in immigration court or to protect the public safety, the
government “shall release the minor from its custody without unnecessary delay” to: a parent, a
legal guardian, an adult relative, an adult designated by the minor’s parents or guardian as capable
and willing to care for the minor’s well-being, a licensed program, or, in the government’s
discretion, to an adult individual or entity seeking custody. Flores Settlement ¶ 14. Notably,
however, the Settlement “does not provide any particular rights or remedies for adult detainees,”
and “nothing in the . . . agreement expresses a preference for releasing parents who have violated
immigration laws.” Bunikyte, 2007 WL 1074070, at *16.
Appellants also rely on an ICE policy statement entitled “Parental Interests Directive.”
The directive explains that “ICE personnel should ensure that the agency’s immigration
enforcement activities do not unnecessarily disrupt the parental rights of both alien parents or legal
guardians of minor children.” Appellants’ Br. at 16. The directive goes on to state that it “may
not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by
any party in any administrative, civil, or criminal matter.”7 Gov. Br. at 43, ECF No. 15.
In addition, Appellants point to legislative history that summarizes bill reports
accompanying legislation that provided funding for DHS in 2006 and 2007. One report
7

Appellants and the government both provide the same hyperlink to ICE’s website in citing to the Parental
Interests Directive. Although the Court previously reviewed the document by using the link provided by the parties,
curiously, that link is no longer functional. The Policy Number associated with the Parental Interests Directive is
11064.1. On August 29, 2017, ICE promulgated a policy entitled “Detention and Removal of Alien Parents or Legal
Guardians.” This new policy is numbered 11064.2, and it purports to supersede ICE policy 11064.1. See Detention
and Removal of Alien Parents or Legal Guardians, ICE, https://www.ice.gov/doclib/detention-reform/pdf/directive
DetainedParents.pdf. It is unclear why the previous policy was still available on ICE’s website months after it was
apparently superseded. More unclear is why the government never pointed out that Appellants were relying on an
outdated policy. In any event, the outcome of this appeal does not turn on the validity of the Parental Interests
Directive.
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“expresse[d] deep concern about reports [of] children . . . being separated from their parents and
placed in shelters operated by the Department of Health and Human Services while parents are
held in separate jail-like facilities.” Department of Homeland Security Appropriation Act 2006,
151 Cong. Rec. E1025-01, 2005 WL 1185446. The report went on to direct DHS to “release
families or use alternatives to detention whenever possible.” Id. The second bill report
expressed similar concerns and “encourage[d] ICE to house family members together in nonpenal,
home-like environments until the conclusion of their immigration proceedings.” Department of
Homeland Security Appropriation Act 2007, 152 Cong. Rec. E1113-02, 2006 WL 1594390.
And finally, Appellants invoke Supreme Court precedent discussing parental rights, as
well as an immigration statute that ensures aliens who claim asylum receive an interview with an
asylum officer. Appellants rely on Stanley v. Illinois, 405 U.S. 645 (1972), which held
unconstitutional a state law requiring that the children of unwed fathers become wards of the state
upon the death of the mother without first conducting a hearing on the father’s parental fitness.
Id. at 646. There, the Court reiterated the importance of parental rights, referring to them as one
of the “basic civil rights of man.” Id. at 651. As to the immigration statute cited by Appellants, it
provides that, if an arriving alien requests asylum or indicates a fear of persecution, an immigration
officer “shall refer the alien for an interview by an asylum officer.” See 8 U.S.C. §
1225(b)(1)(A)(ii).
There are several problems with these materials as they relate to Appellants’ argument on
appeal. Most significantly, none of them speak to the rights of adult parents in the midst of a
criminal proceeding. Although the statute cited by Appellants appears to create a right to meet
with an asylum officer, the statute is silent on whether an alien can first be prosecuted for
immigration offenses. See id. In evaluating a regulatory provision with an identical
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requirement, the Fifth Circuit explained that even if the government violated the provision by
failing to allow the asylum interview, “such a violation has no relevance to the prosecution for
illegal reentry.” United States v. Brizuela, 605 F. App’x 464, 465 (5th Cir. 2015); accord United
States v. Reyes-Salgado, 13 F. App’x 705, 706 (9th Cir. 2001) (finding no due process violation
where the government prosecuted a defendant for illegal entry before granting him an asylum
hearing); see also United States v. Polanco-Gomez, 841 F.2d 235, 238 (8th Cir. 1988) (“A criminal
trial for the felony of illegal reentry after deportation, however, is not the proper forum to argue a
case for political asylum.”).
Furthermore, while the Court agrees that these materials articulate an unequivocal
preference against separating families, that is all they appear to amount to—a policy preference.
The ICE directive, by its own terms, does not create any enforceable rights. Likewise, the
remarks in the legislative history merely express concerns and encourage DHS to refrain from
separating families when possible. Although the Flores Settlement is legally binding, as
discussed above, the rights created under the agreement are applicable only to minors, and none of
its provisions suggest that minors should be released to an adult who has been charged with, and is
being detained for, an immigration offense. See Bunikyte, 2007 WL 1074070, at *16. In short,
nothing in these materials requires that the government cease or suspend Appellants’ criminal
prosecution, reunite them with their children, and allow them to press forward with their asylum
claims.
How these materials support Appellants’ argument that their pretrial detention amounts to
a punishment in violation of their right to due process is not readily apparent. More importantly,
Appellants do not cite, and the Court has not found, any authority supporting dismissal of a
criminal indictment under these circumstances. At bottom, Appellants’ real claim is that their
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conditions of confinement are unconstitutional and that the government is abusing its prosecutorial
discretion. Appellants take issue with their inability to communicate with their children while
their criminal proceedings were pending, and with the government’s decision to prosecute them
for improper entry instead of allowing them to pursue their asylum claims. While these concerns
of course merit thoughtful attention and consideration, they are the subject matter of a civil action,
not a misdemeanor criminal case. See Suggs v. Brannon, 804 F.2d 274, 279 (4th Cir. 1986)
(noting that “pretrial detention issues cannot be raised in defense of a criminal prosecution”); see
also United States v. Salinas, No. CR. C-07-357, 2009 WL 593941, at *2 (S.D. Tex. Mar. 4, 2009)
(“To the extent he is seeking to raise a claim challenging his current conditions of confinement or
a claim that his civil rights have been violated, such claims should be asserted in a civil
complaint.”); cf. Dupont v. Linden, 81 F.3d 155 (5th Cir. 1996) (“Allegations of malicious
prosecution in a criminal case are actionable under § 1983.”). Accordingly, the Magistrate Court
did not err in its disposition of this issue.
D.
Appellants’ next argument is that their sentences for misdemeanor improper entry are cruel
and unusual in violation of the Eighth Amendment. Appellants contend that the true punishment
of their crime is not one year of non-reporting probation but rather deportation to their home
countries and the de facto termination of their parental rights. Appellants’ Br. at 25–26.
Appellants’ parental rights were terminated, in their view, because “[n]othing indicates that they
left for their Central American countries in the company of their children” and “there is no
guarantee to be reunited with them.” Id. at 25.
The Court notes that some of Appellants’ arguments on this point are difficult to square
with the record. Although Appellants assert that the Magistrate Court entered a “written
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judgment of guilt and deportation,” that is simply not true. See Reply Br. at 15, ECF No. 16.
The judgments entered after Appellants’ trials say nothing of deportation, nor could they. See
Judgment and Commitment, ECF No. 44. This is because “[d]eportation, however severe its
consequences, has been consistently classified as a civil rather than a criminal procedure.”
Harisiades v. Shaughnessy, 342 U.S. 580, 593 (1951). The Magistrate Court did not sentence
Appellants to deportation. Rather, as Appellants implicitly acknowledge in their supplemental
memorandum, they were removed only at the conclusion of separate removal proceedings before
the immigration court. And, to the extent Appellants suggest that their removal orders were cruel
and unusual, that argument is foreclosed; it is well-established that the Eighth Amendment does
not apply to removal proceedings. See Reyes-Gomez v. Gonzales, 163 F. App’x 293, 295 (5th Cir.
2006) (citing Cortez v. Immigration & Naturalization Serv., 395 F.2d 965, 968 (5th Cir. 1968)).
Moreover, Appellants’ parental rights were not terminated. A termination of parental
rights “extinguish[es] the parent-child relationship.” Santosky v. Kramer, 455 U.S. 745, 747
(1982). Afterwards, the parent no longer has a right of custody or care over the child. See
Stanley, 405 U.S. at 652. Similar to removal, these rights can be terminated only through a civil
proceeding. See Santosky, 455 U.S. at 747–48 (“Before a State may sever completely and
irrevocably the rights of parents in their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.”). Consequently, it is clear that Appellants’
criminal convictions did not terminate their parental rights. That is not to say, however, that the
actions taken by the government did not at all interfere with Appellants’ rights. Indeed, any time
the government detains or imprisons a parent for criminal activity, that parent’s rights as to her
children are implicated. Cf. Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of
Homeland Sec., 510 F.3d 1, 22 (1st Cir. 2007) (“That a detention has an impact on the
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cohesiveness of a family unit is an inevitable concomitant of the deprivation of liberty inherent in
the detention itself.”). But if that kind of interference were actionable under the Eighth
Amendment, every imprisoned parent would arguably have a claim. That is not the state of the
law.
Finally, as to Appellants’ arguments concerning the uncertainty of whether they will be
reunited with their children, the Court understands Appellants’ frustration and anxiety. To be
unexpectedly separated and held incommunicado from a child for an indefinite period of time is an
ordeal no parent would willingly endure. Still, in the conditions-of-confinement context, courts
have found that this type of incidental separation does not amount to a violation of the Eighth
Amendment. See Lindsay v. Mitchell, 455 F.2d 917, 918 (5th Cir. 1972) (concluding that transfer
of an inmate to another prison where his family cannot visit does not constitute cruel and unusual
punishment); Simmons v. Wolff, 594 F. Supp. 2d 6, 9 (D.D.C. 2009) (“Deprivations such as
infrequent or no visits from family . . . simply do not meet the threshold of ‘extreme deprivations’
required to state an Eighth Amendment claim regarding conditions of prison confinement.”).
Moreover, Appellants offer no authority suggesting that a criminal conviction may be vacated on
the basis of an Eighth Amendment violation. Thus, there was no error in the proceedings below
on this issue.
E.
Appellants’ fifth argument is that the government committed a Brady violation. This
argument is essentially a variation on Appellants’ assertion that they were deprived of their right to
a fair trial because their children were material witnesses whom the government made unavailable.
Appellants argue that the government suppressed evidence in that the whereabouts of Appellants’
children were not disclosed during discovery. Appellants’ Br. at 26–27. Appellants argue
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further that the children’s testimony was exculpatory and material because it would have
supported their duress defense. Id. at 30. Appellants also argue, in the alternative, that even if
the children’s testimony would have been only potentially useful rather than exculpatory, the
government acted in bad faith, implicating Arizona v. Youngblood, 488 U.S. 51 (1988). Id. at 36–
37.
1.
To establish a Brady violation, a defendant must show that: (1) favorable evidence (2) was
suppressed by the prosecution (3) that was material to guilt or punishment. Pippin v. Dretke, 434
F.3d 782, 789 (5th Cir. 2005). The prosecution has an affirmative duty to disclose favorable
evidence “even though there has been no request by the accused.” Strickler v. Greene, 527 U.S.
263, 280 (1999). Favorable evidence includes both exculpatory and impeachment evidence.
Kyles v. Whitley, 514 U.S. 419, 434 (1995). Evidence that tends to support an affirmative defense
is also considered favorable. United States v. Cessa, 861 F.3d 121, 131 (5th Cir. 2017).
Nevertheless, there is no suppression when “the defendant either knew, or should have
known, of the essential facts permitting him to take advantage of any exculpatory evidence.”
West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996). The prosecution “bears no responsibility to
direct the defense toward potentially exculpatory evidence that is either known to the defendant or
that could be discovered through the exercise of reasonable diligence.” United States v. Sipe, 388
F.3d 471, 478 (5th Cir. 2004) (footnote omitted). Rather, “Brady claims involve the discovery
after trial of information which had been known to the prosecution but unknown to the defense.”
Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (internal quotation marks omitted).
Furthermore, even where favorable evidence is suppressed, a defendant must demonstrate
that the evidence is material before relief will be granted. Kyles, 514 U.S. at 432. Of the three
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Brady elements, “materiality is generally the most difficult to prove.” Mahler v. Kaylo, 537 F.3d
494, 500 (5th Cir. 2008). “[E]vidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.” See Bagley, 473 U.S. at 682. A reasonable probability arises when “the favorable
evidence could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at 435.
With regard to Appellants’ argument that the government withheld material evidence in
violation of Brady in that the testimony of the children would have supported a duress defense, the
issue is resolved by the Court’s previous analysis on materiality. See supra Section IV(A)(2).
As discussed above, a conviction for improper entry turns on whether an alien entered into the
United States at an undesignated place or time. See 8 U.S.C. § 1325. Therefore, to successfully
assert a duress defense, Appellants must show that an imminent threat—existing at the time they
entered—forced their improper entry. See Harper, 802 F.2d at 118; see also Ramirez-Chavez,
596 F. App’x at 293–94 (concluding that an imminent threat did not exist when the defendant
crossed into the United States after escaping from a house near the border at which he was tortured
because his captors were not in hot pursuit). Appellants do not offer any evidence that speaks to
this requirement. Instead, Appellants’ allegations of duress stem from the dangers they faced in
their home countries rather than any danger that existed when they made their entry into the United
States. Moreover, Appellants do not explain why simply crossing at a designated port of entry
was not a reasonable legal alternative to improper entry. See Ramirez-Chavez, 596 F. App’x at
294. The Magistrate Court therefore did not err as to the substance of Appellants’ Brady claim.
Although that finding is sufficient, the Court notes that there is a serious question as to
whether Appellants have demonstrated that the government suppressed any evidence. In United
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States v. Lanford, 838 F.2d 1351 (5th Cir. 1988), the defendant argued that the government
committed a Brady violation because it did not disclose the name or location of individuals who
witnessed the events leading up to his arrest. Id. at 1355. The court flatly rejected the
defendant’s argument, reasoning that there was no suppression because the defendant was “fully .
. . aware of these ‘witnesses’ (though not their names or how to reach them) and what they might
have observed.” Id. Even with that knowledge, however, the defendant “never requested any
information about them from the government.” Id. Similarly, in Lawrence, 42 F.3d 255, the
defendant did not learn about documentary evidence tending to impeach one of the government’s
witnesses until the middle of trial. Id. at 257. In concluding that there was no suppression, the
court noted that the defendant “could have moved for a recess or continuance in order to prepare
his impeachment of the victim.” Id. at 258 (citing United States v. Kelly, 14 F.3d 1169, 1176 (7th
Cir. 1994)).
Here, as with the alleged witnesses in Lanford, Appellants obviously knew that the
children existed. See 838 F.2d 1355. Further, given that their duress defense is premised on
conditions in their home countries, Appellants were aware of the facts that would have formed the
basis of the children’s testimony. See id. And yet, similar to the defendant in Lanford, there is
no indication in the record that Appellants made an effort to call the children as witnesses. See id.
Nothing suggests that Appellants requested that the children be made available so they could be
interviewed by counsel, and there is no evidence that Appellants attempted to subpoena them.
Instead, Appellants argued for the first time at trial that the government failed to disclose the
children’s whereabouts during discovery. In doing so, Appellants did not request a recess,
continuance, or other relief that would have allowed them to prepare a defense based on the
children’s testimony. See Lawrence, 42 F.3d at 258. Consequently, with so little in the record to
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indicate that Appellants exercised diligence to secure the children as witnesses based on facts that
were known to them, whether the government suppressed any evidence is far from clear. See
West, 92 F.3d at 1399; see also Anderson v. Kelly, No. CV 91-1354 (DRH), 1992 WL 175665, at
*3 (E.D.N.Y. July 14, 1992) (holding that the prosecution’s Brady obligation is not implicated
when the defense is aware of a witness’s identity (citing United States v. Robinson, 560 F.2d 507,
518 (2d Cir. 1977))).
2.
The Court next turns to Appellants’ argument based on Arizona v. Youngblood, 488 U.S.
51 (1988). Appellants argue that if the children’s testimony is insufficiently material to trigger
Brady, it is at least “potentially useful” such that the Youngblood framework is applicable.
Appellants’ Br. at 36–37. Youngblood belongs to a line of cases that imposes a duty similar to but
separate from Brady. Whereas Brady requires the government to disclose favorable evidence that
is material to guilt or punishment, the Youngblood line of cases addresses the extent to which the
government must preserve potentially exculpatory evidence on behalf of criminal defendants.
In Youngblood, the Court considered whether the State committed a constitutional
violation when it failed to properly preserve semen samples taken from a rape victim. 488 U.S. at
52–54. Because the samples were not correctly preserved, the State’s tests yielded inconclusive
results regarding the perpetrator’s identity. Id. at 54. The defendant asserted that, had the State
properly preserved the samples, conclusive testing would have shown that he was innocent. Id.
On appeal, the Court characterized the samples as “evidentiary material of which no more can be
said than that it could have been subjected to tests, the results of which might have exonerated the
defendant.” Id. at 57. The Court went on to hold that such evidence is merely “potentially
useful,” and that the destruction of potentially useful evidence amounts to a constitutional
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violation only if the defendant can demonstrate bad faith on the part of the State. Id. at 58. A
requirement of bad faith, the Court explained, would limit violations to cases where the
government “by [its] conduct indicate[s] that the evidence could form a basis for exonerating the
defendant.” Id.
Thus, the Youngblood line of cases involves evidence that is permanently “lost, destroyed,
or otherwise unavailable.” See Magraw v. Roden, 743 F.3d 1, 7–8 (1st Cir. 2014). Because
evidence in this context is permanently lost, its “exculpatory value therefore [is] speculative and
unknown.” Tennison v. City & Cty. of San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009)
(differentiating Youngblood from Brady and addressing allegations that the prosecution failed to
disclose materials within its possession). At bottom, the concern in these cases can be fairly
conceptualized as an issue of spoliation, see United States v. Greenberg, 835 F.3d 295, 303 (2d
Cir. 2016), and the constitutional duty implicated is “over and above that imposed by cases such as
Brady,” Youngblood, 488 U.S. at 56.
More simply, what Youngblood addresses is the problem that arises when evidence of
unknown value is permanently lost. In those circumstances, a new trial in which the fact finder
can consider the exculpatory evidence is impossible. Cf. Sipe, 388 F.3d at 492 (remanding for a
new trial based on withheld evidence that violated the government’s Brady obligation). Further
complicating the problem is “the treacherous task of divining the import of materials whose
contents are unknown and, very often, disputed.” Trombetta, 467 U.S. at 486. That is why the
Court in Youngblood included a bad faith requirement; it is a proxy from which to infer “that the
evidence could form a basis for exonerating the defendant.” See 488 U.S. at 58. This is in
contrast to Brady, where that kind of inference is unnecessary since the withheld evidence is in the
prosecution’s possession and can be evaluated.
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Appellants, on the other hand, treat Youngblood as an alternative avenue to reach a Brady
violation when a defendant is unable to show that the evidence in question is material and
exculpatory. They cite United State v. Moore, 452 F.3d 383 (5th Cir. 2006) (per curiam), where
the Fifth Circuit said “impermissibly withheld evidence must be either (1) material and
exculpatory or (2) only potentially useful, in combination with a showing of bad faith on the part of
the government.” Id. at 388. At issue in Moore, though, was the destruction of tape recordings,
which fits the Youngblood framework. See id. Appellants do not otherwise explain how
Youngblood is applicable to testimonial evidence where the evidentiary value of the testimony is
known and the witnesses are under the government’s control. The Court therefore declines to
consider the issue further.
F.
Appellants’ final argument concerns the outrageous government conduct doctrine.
Appellants assert that the steps taken by the government in these cases, viewed as a whole, are so
outrageous that due process prohibits the government from prosecuting them. Appellants’ Br. at
37–39. Those steps include separating Appellants from their children, refusing to provide
information as to the children’s well-being or whereabouts, prosecuting Appellants for improper
entry instead of allowing them to proceed with their asylum claims, and attempting to bypass
resolution of Appellants’ then-pending motion to dismiss by filing a trial motion. Id.
The outrageous government conduct doctrine is rooted in United States v. Russell, 411 U.S.
423 (1973) and Hampton v. United States, 425 U.S. 484 (1976). The defendant in Russell argued
that his right to due process would be violated if the government was allowed to prosecute him for
manufacturing methamphetamine when government agents had supplied him with some of the
ingredients he needed. 411 U.S. at 425–28. The Court disagreed but suggested that “we may
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some day be presented with a situation in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the government from invoking
judicial processes to obtain a conviction.” 411 U.S. at 431–32. Later, in Hampton, the Court
clarified that “[t]he limitations of the Due Process Clause of the Fifth Amendment come into play
only when the government activity in question violates some protected right of the Defendant.”
425 U.S. at 490.
Since Russell and Hampton, the Third Circuit is the only court of appeals to rely on the
outrageous government conduct doctrine in reversing a conviction. See United States v. Twigg,
588 F.2d 373, 381 (3d Cir. 1978). Be that as it may, the Fifth Circuit has expounded on its
application; the doctrine applies when the government’s conduct violates due process principles
related to fundamental fairness. United States v. Johnson, 68 F.3d 899, 902 (5th Cir. 1995).
“Such a violation will only be found in the rarest circumstances.” Id. The doctrine is
inapplicable when “the defendant is an active, willing participant in the criminal conduct that leads
to his arrest.” United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997); see United States v.
Posada Carriles, 541 F.3d 344, 361 (5th Cir. 2008). Rather, to successfully assert an outrageous
conduct defense, “the defendant must show government overinvolvement combined with a passive
role by the defendant.” Asibor, 109 F.3d at 1039. For example, the Fifth Circuit refused to apply
the doctrine where the defendant ordered chemicals from a government-operated front to
manufacture cocaine; attempted to cancel his order by telephone because he realized he did not
have the requisite know-how to manufacture cocaine; but was persuaded by a government agent
who answered the phone to instead buy chemicals for the manufacture of PCP after the agent
explained that making PCP would be like “baking a cake.” United States v. Tobias, 662 F.2d 381,
383–88 (5th Cir. Unit B 1981). More recently, another panel hinted that the doctrine might apply
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when the government suborns perjury. See United States v. Mauskar, 557 F.3d 219, 232 (5th Cir.
2009).
Based on the above principles, the Magistrate Court did not err in refusing to apply the
outrageous government conduct doctrine under these circumstances. The doctrine
overwhelmingly turns on the extent to which the government itself had a hand in the activity
leading to a criminal defendant’s arrest and prosecution. When the Third Circuit reversed the
convictions in Twigg for manufacturing a controlled substance, it was because the government had
essentially conceived of and managed the entire operation. See 588 F.2d 375–76. The
defendants “ran errands for groceries or coffee” or were otherwise not involved in the
manufacturing. Id. at 376. Here, by comparison, the conduct that led to Appellants’ arrests was
their crossing of the border into the United States at an undesignated place. There can be little
doubt that Appellants were willing participants in that activity, and they do not argue that the
government was in any way involved. See Asibor, 109 F.3d at 1039. Accordingly, “[t]here is no
basis for a finding of outrageous conduct here.” Posada Carriles, 541 F.3d at 361 (refusing to
apply the outrageous government conduct doctrine where the defendant willingly participated in
the activity underlying his prosecution). Appellants’ argument fails.
V.
For the reasons set forth above, Appellants’ convictions are affirmed. The Magistrate
Court did not err in denying Appellants’ various motions or in entering their criminal judgments
and convictions. Further, the government did not violate Appellants’ constitutional rights on any
ground raised in this appeal. It bears repeating that, in affirming Appellants’ convictions, the
Court does not pass judgment on the manner in which the government elected to administer and
oversee the handling of these migrants and their immigration cases. That issue is not before the
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Court in this criminal case. The Court has no legal basis to consider arguments that challenge
anything other than the legality of Appellants’ convictions for illegally entering the country at a
location other than a port of entry.
SIGNED this 10th day of June, 2018.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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