Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^** 

Mendoza-Gonzales claims that the district court should have granted his motion to dismiss because the government deported two potential witnesses before trial. Sanctions may be imposed on the government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses may have been material and favorable to his defense in ways not merely cumulative to the testimony of available witnesses. United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). Here, the defendant merely speculated about what the witnesses might say. While he posits two hypothetical statements which the witnesses could make, the two possibilities are contradictory. Moreover, even if the witnesses did provide either version of the testimony that Mendoza-Gonzales hoped for, it would not be sufficient to warrant dismissal. The facts reveal that the deported witnesses were not present at any time when negotiations for the sale of heroin took place. Thus, the statement that the witnesses knew nothing about the importation and intended sale has no relevance as to whether or not those events took place. Accordingly, the appellant has failed to make the plausible showing required by Valenzuela-Bernal.

Mendoza-Gonzales claims that the Sentencing Act of 1984, under which he was sentenced, is unconstitutional because it upsets the balance of powers established by the Constitution among the legislative, executive, and judicial branches of government. This claim is without merit. The Supreme Court has recently decided that the Sentencing Reform Act does not violate the separation of powers doctrine and that Congress properly delegated its authority to the Sentencing Commission. Mistretta v. United States, 109 S. Ct. 647, 658, 675 (1989).

AFFIRMED.