United States of America, Plaintiff-appellee, v. Jose Enrique Marquez-amaya, Defendant-appellant, 686 F.2d 747 (9th Cir. 1982)

Our previous decision in this case, 647 F.2d 173, has been vacated and remanded for further consideration in light of the Supreme Court's decision in United States v. Valenzuela-Bernal, --- U.S. ----, 102 S. Ct. 3440, 73 L. Ed. 2d ---- (1982). United States v. Marquez-Amaya, --- U.S. ----, 102 S. Ct. 3504, 73 L. Ed. 2d ---- (1982). Our decision in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), has now been overruled. Valenzuela-Bernal, U.S. ----, ----, 102 S. Ct. 3440, 3444, 73 L. Ed. 2d ----. Because our affirmance of the district court's dismissal of the indictment charging Marquez-Amaya with distributing heroin, 21 U.S.C. § 841(a) (1) and (b), and conspiring to distribute heroin, 21 U.S.C. § 846, was based on our decision in Mendez-Rodriguez, we must now reconsider that action. We have carefully reviewed the record on appeal and find our affirmance was in error. Appellant made no "plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." --- U.S. at ----, 102 S. Ct. at 3449. Accordingly, we remand this case to the district court with instructions to set aside its dismissal of the indictment.