Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Pedro Lopez appeals his conviction, following jury trial, for possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a) (1). Lopez contends that the district court erred by denying his motion to dismiss because the government's deportation of a witness prior to trial resulted in the loss of testimonial evidence, thereby denying him his constitutional rights to due process and compulsory process. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo a district court's denial of a motion to dismiss an indictment on constitutional grounds. United States v. Hurt, 795 F.2d 765, 771 (9th Cir.), amended on other grounds, 808 F.2d 707, cert. denied, 484 U.S. 816 (1987).

The mere fact that the government deports a witness will not establish a violation of the Compulsory Process Clause of the Sixth Amendment or of the Due Process Clause of the Fifth Amendment. Before sanctions will be imposed on the government, the defendant must make a "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 witness." He must also show that there was a reasonable likelihood that the testimony would have affected the judgment. If he establishes a violation of the Fifth or Sixth Amendment, the indictment shall be dismissed.

United States v. Tafollo-Cardenas, 897 F.2d 976, 978 (9th Cir. 1990) (citations omitted).

Here, Lopez' offer of proof in support of his motion to dismiss was that Nunez asked Lopez to go buy some hamburgers at McDonalds and, on Lopez' way out the door, Nunez asked him to deliver a bag to someone who would meet Lopez at the McDonalds. Lopez maintained that he did not know what was in the bag and he stated that Nunez might so testify. At the time of his arrest, however, Nunez maintained that he did not know anything about the heroin, nor did he admit to knowing Lopez.

Lopez failed to demonstrate that the deported witness, Nunez, would testify favorably to his defense. Cf. Tafollo-Cardenas, 897 F.2d at 978-79. Therefore, the district court did not err in denying the motion to dismiss.

AFFIRMED.