Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1988)

MEMORANDUM^** 

Appellants Oscar DelVal-Treviso and Sergio Betancourt-Gutierrez appeal from the judgment of conviction for (1) possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a) (1) and (b) (1), and (2) conspiracy to possess with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 846. Appellants seek reversal on the ground that the district court erred in denying their motion to dismiss the indictment and their motion for a mistrial. They argue that the government violated their right to due process by failing to disclose favorable evidence to them and in allowing a material witness to return to Mexico prior to trial. We dismiss DelVal-Treviso's appeal because it was untimely filed. Because we have concluded that no due process violation has been demonstrated, we affirm the judgment entered against Betancourt-Gutierrez.

* Effect of DelVal-Treviso's Untimely Notice of Appeal

The government contends that we have no jurisdiction to review DelVal-Treviso's appeal because his notice of appeal was not timely filed. We agree.

The judgment was entered on June 16, 1988. DelVal-Treviso's notice of appeal was filed on November 4, 1988. On that same date, DelVal-Treviso's attorney filed a document styled as a "Motion to Deem Notice of Appeal to Have Been Timely Filed." No authority was cited by counsel that would support the granting of such a motion. The district court granted this motion on November 28, 1988. The district court's order states: "The court finds that there was excusable neglect in the failure to file the notice of appeal as to defendant Oscar DelVal-Treviso."

Rule 4(b) of the Federal Rules of Appellate Procedure provides that a notice of appeal must be filed no later than ten days after the entry of a judgment of conviction. Fed. R. App. P. 4(b). DelVal-Treviso did not comply with the ten-day requirement.

A district court may extend the time for filing a notice of appeal "upon a showing of excusable neglect ... for a period of time not to exceed 30 days from the expiration of the [ten day] time prescribed by [Rule 4(b) ]." Fed. R. App. P. 4(b).

Compliance with Rule 4(b) is "both mandatory and jurisdictional." United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir. 1986) (citations omitted). Jurisdiction is a question of law which we review independently without deference to the district court's determination. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

In the instant matter, the district court was without jurisdiction to extend the time for the filing of a notice of appeal by DelVal-Treviso forty days after the entry of the June 16, 1988 judgment. U.S. v. Eccles, 850 F.2d 1357, 1363 (9th Cir. 1988). Thus, the district court's November 28, 1988 order deeming the notice of appeal timely filed because of excusable neglect was in excess of the court's jurisdiction. DelVal-Treviso's notice of appeal was untimely. Accordingly, his appeal must be dismissed.

II

A. Alleged Brady Violation.

Betancourt-Gutierrez asserts that the deportation, prior to trial, of a Mexican national who was apprehended in the same desert area on the date the co-defendants were arrested violated due process. He also claims that failure to make a timely disclosure of the identity of the deported alien violated the government's duty under Brady v. Maryland, 373 U.S. 83 (1963). We review independently and non-deferentially claims based upon a Brady violation. United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988).

Betancourt-Gutierrez and DelVal-Treviso were arrested in the vicinity of the Geromino Trail near the Mexican border. This area is heavily trafficked by undocumented aliens. Betancourt-Gutierrez's shoeprints were found near a stash of 136 pounds of marijuana.

Betancourt-Gutierrez' theory of defense at trial was that he crossed the international border with a "coyote" whom he had paid $175 to guide him to Albuquerque, New Mexico. The guide abandoned him in the desert. Betancourt-Gutierrez testified that he came to the United States to seek work. He had no knowledge of the marijuana found by the Border Patrol agents.

United States Border Patrol Agent C. James Engelhardt testified that before the marijuana was found he came upon an undocumented alien limping across the desert. This person told the officers he crossed the border alone looking for work. He was allowed to return to Mexico voluntarily six hours before the marijuana was found and eight hours before Betancourt-Gutierrez was arrested.

Upon hearing this testimony, Betancourt-Gutierrez made a motion to dismiss the indictment. Alternatively, he made a motion for a mistrial in order to have time to locate the deported alien. Each motion was denied. The district court concluded that Betancourt-Gutierrez had failed to show that the person allowed to depart voluntarily possessed evidence material to the defense. The district court also determined that the government had not failed to disclose Brady material.

Prior to trial, Betancourt-Gutierrez filed a motion for "an order requiring the government and its agents to disclose and produce any exculpatory evidence relating to defendant." (C.R. 13). In the memorandum submitted in support of the motion, Betancourt-Gutierrez requested a copy of the defendant's prior record, if any, the results of all chemical tests, written or recorded statements made by the defendant, plaster casts, reproductions, or photographs of footprints found near the cache of marijuana (C.R. 13). In addition, Betancourt-Gutierrez requested:

All statements, whether written or oral, of witnesses the government intends to call at trial which may in any way be contradictory to or inconsistent with the anticipated trial testimony of such witnesses or which indicate defendant's innocence of the offense alleged in the indictment. If said statements have been tape recorded defendant requests an opportunity prior to trial to listen to said tapes....

All documents, including rough notes of all government witnesses, and specifically including interviews with any representative of the government, including the initial debriefing interview.

Under Brady, a prosecutor has the duty to disclose "evidence [that] is material either to guilt or to punishment." Brady, 373 U.S. at 87. The motion filed by Betancourt-Gutierrez was limited to the disclosure of the statements of governmental witnesses. The alien who was allowed to depart voluntarily was not a government witness in this matter. In fact he was deported to Mexico before any evidence of a narcotics violation was discovered.

The government has the duty, however, to volunteer exculpatory and material evidence to the defense. United States v. Agurs, 427 U.S. 97, 111 (1976).

The defendant has the burden of showing that the government withheld exculpatory evidence. Id. at 106-07. Betancourt-Gutierrez failed to make a showing that the deported alien would present exculpatory evidence. His statement to the Border Patrol agent was that he entered the United States alone to look for work. No Brady violation is shown in this record.

Betancourt-Gutierrez also contends that his right to due process is violated "when the government deports an alien witness without making a good faith determination that the witness possesses no evidence favorable to the Defendant." Opening Brief for Appellant at 12.

In United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), the Supreme Court instructed that an indictment must be dismissed when a potential defense witness is deported if the defendant makes a plausible showing that such testimony would be favorable to the defense and there is a reasonable likelihood that this evidence would have affected the outcome of the trial. Id. at 873-874.

Betancourt-Gutierrez failed to make a showing that the alien was a witness to the defendant's conduct. The alien's statement that he entered the United States alone, looking for work, would not have exculpated Betancourt-Gutierrez or demonstrated a reasonable likelihood that the outcome of the case would have been different if the jury had heard his testimony. The district court did not err in concluding that Betancourt-Gutierrez failed to show a violation of the rule set forth in Valenzuela-Bernal.

AFFIRMED.