Argued and Submitted, Pasadena, California: February
[Copyrighted Material Omitted]
On Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-CR-00618-WQH-1. William Q. Hayes, District Judge, Presiding.
The panel reversed the district court's denial of a motion to dismiss an indictment charging importation of methamphetamine, in a case in which the defendant asserted that the government destroyed potentially useful evidence -- video footage of a Port of Entry pedestrian line -- that might have supported her claim of duress.
The panel held that the defendant's due process rights were violated because a Homeland Security agent, whose probable cause statement omitted any reference to the defendant's claims of coercion or to her alleged conduct while waiting in the pedestrian line, knew of the potential usefulness of the video and acted in bad faith by failing to preserve it. The panel concluded that the defendant is unable to find comparable evidence to support her duress defense, and remanded with directions to dismiss the indictment.
Harini P. Raghupathi (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter and Randy K. Jones (argued), Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Before: Stephen Reinhardt and Ronald M. Gould, Circuit Judges, and Robert W. Gettleman, Senior District Judge.[*] Opinion by Judge Gettleman.
GETTLEMAN, Senior District Judge:
Defendant Estefani Zaragoza-Moreira (" Zaragoza" ) conditionally pled guilty to importing methamphetamine into the United States in violation of 21 U.S.C. § § 952 and 960. She now appeals the district court's denial of her motion to dismiss the indictment on the basis that the government destroyed potentially useful evidence that might have supported her claim of duress. Zaragoza argues that the district court erred by finding that the government did not act in bad faith and, consequently, did not violate her due process rights in failing to preserve the evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
In the early morning hours of December 22, 2011, Zaragoza entered the pedestrian line for admission into the United States from Mexico at the San Ysidro, California, Port of Entry. At the primary inspection booth, Zaragoza handed Customs and Border Protection (" CBP" ) Officer Grant Patterson her United States passport. Officer Patterson observed that Zaragoza was traveling with another woman, and that the two women were standing " shoulder to shoulder." Based on a computer-generated
referral, Officer Patterson sent Zaragoza to a secondary inspection.
CBP Officer Nancy Cervantes, who was conducting secondary inspections, immediately put on gloves to pat Zaragoza down. Prior to beginning the pat down, Officer Cervantes asked Zaragoza whether she had any weapons or sharp objects on her body. In response, Zaragoza " blurted  out" that she had packages on her. Officer Cervantes subsequently removed a package from Zaragoza's lower back containing .34 ...