United States v. Florencio Serna-Hernandez ( 2020 )

FILED
NOT FOR PUBLICATION
APR 21 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50021
Plaintiff-Appellee, D.C. No.
3:18-cr-01226-LAB-1
v.
FLORENCIO SERNA HERNANDEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, Chief District Judge, Presiding
Submitted April 17, 2020**
Pasadena, California
Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Florencio Serna Hernandez appeals his convictions for illegal entry and
illegal re-entry in violation of 8 U.S.C. § 1325 and 8 U.S.C. § 1326. Serna
Hernandez contends that the prosecutor impermissibly vouched during closing
arguments when she said that the evidence had showed that he was born in
Mexico. United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir. 1985). He also
contends that the district court should have dismissed the illegal re-entry count
pursuant to 8 U.S.C. § 1326(d)(3) because his prior deportation proceeding was
fundamentally unfair and violated due process. United States v. Rojas-Pedroza,
716 F.3d 1253, 1263 (9th Cir. 2013). We affirm.
The record contains considerable evidence that Serna Hernandez was born in
Mexico. In January 2018, Serna Hernandez was apprehended by Border Patrol
agents while crossing the United States-Mexico border. At that time, Serna
Hernandez told a Border Patrol Agent that he was born in Michoacan, Mexico and
that he did not have paperwork authorizing him to enter the United States. And,
before trial, Serna Hernandez stipulated that he had four times stated under oath
that he was “not a citizen of the United States.”
At trial, defense counsel argued in closing that, because the government
failed to produce Serna Hernandez’s birth certificate, the government had failed to
establish alienage beyond a reasonable doubt. The prosecutor responded to this
2
argument by summarizing the evidence of alienage and arguing the evidence was
sufficient to support a finding of alienage beyond a reasonable doubt.
Serna Hernandez contends that the prosecutor impermissibly vouched during
closing arguments. A prosecutor may not make statements during closing
arguments that the jury would perceive to be “based on [her] personal knowledge
of the evidence,” that amounts to “testimony” or that “vouch[es] for . . . evidence
not produced at trial.” McKoy, 771 F.2d at 1211. In responding to the comments
of defense counsel, however, the prosecutor here was saying no more than that the
evidence had shown that Serna Hernandez was born in Mexico. See United States
v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (explaining that the prosecution has
“the freedom to argue reasonable inferences based on the evidence”); United States
v. Redlightning, 624 F.3d 1090, 1123 (9th Cir. 2010); see also United States v.
Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993) (explaining that inviting the jury to
make inferences is “the very essence of jury summation”). The district court,
therefore, did not err by overruling Serna Hernandez’s objections to the
prosecutor’s statements during closing argument.
Serna Hernandez challenges his 2009 removal hearing in two respects. First,
he contends that the Immigration Judge (IJ) did not individually advise him of the
availability of voluntary departure relief. We have held, however, that there is no
3
need for each individual to be addressed separately during deportation proceedings.
See United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978) (explaining
that “deportation hearings may . . . include multiple respondents without
automatically transgressing the bounds of due process.”). The IJ asked if Serna
Hernandez understood the IJ’s group explanation of voluntary departure earlier
that day, and Serna Hernandez indicated he did. Second, Serna Hernandez argues
that the IJ failed to meaningfully investigate whether he was eligible for relief. In
this case, however, the IJ inquired about his eligibility for relief, and Serna
Hernandez has not identified any inadequacy or prejudice. There was no due
process violation at Serna Hernandez’s 2009 removal hearing. The district court
therefore properly denied Serna Hernandez’s motion to dismiss under section
1326(d).
AFFIRMED.
4