United States v. Barajas-Chavez

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 7 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 97-2033

MARTIN BARAJAS-CHAVEZ,

Defendant-Appellee.

OPINION ON REHEARING EN BANC

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-96-174-MV)

John J. Kelly, United States Attorney (Fred J. Federici and Jason Bowles,
Assistant United States Attorneys, with him on the brief), Las Cruces, New
Mexico, for the appellant.

Floyd W. Lopez, Albuquerque, New Mexico, for the appellee.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA,
BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and
MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.
 Defendant Martin Barajas-Chavez was convicted by a jury of transporting

two illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). On defendant’s

motion at the conclusion of the case, the district court set aside the jury’s verdict

and entered a judgment of acquittal on the ground that the evidence was

insufficient to demonstrate defendant acted knowingly “in furtherance of” the

aliens’ illegal presence in the United States. After rehearing the case en banc, we

reverse and remand with directions to the district court to reinstate the jury’s

verdict.

I.

On March 10, 1996, New Mexico state police established a roadblock on

Interstate 40 in Gallup, New Mexico, to check for drunk drivers. Agents from

Immigration and Naturalization Service were on hand in case the police

discovered illegal aliens. At approximately 2:30 a.m., the police stopped a pickup

truck driven by defendant. After checking defendant’s license and registration,

the police requested assistance from INS Agent Joseph Garcia. Upon questioning

by Garcia, defendant admitted he was an illegal alien. In addition to defendant,

there were ten passengers in the pickup, all of whom were determined to be

illegal aliens.

Defendant was indicted on two counts of transporting illegal aliens, in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii). More specifically, he was charged with

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transporting two of the ten illegal aliens found in the pickup, Arturo Lopez-

Arellano and Jesus Macias-Lopez. A jury convicted defendant on both counts.

The district court initially denied defendant’s motion for judgment of acquittal at

the conclusion of the evidence at trial, but defendant renewed his motion

following the verdict and the court granted the motion. United States v. Barajas-

Chavez , 991 F. Supp. 1289 (D. N.M. 1996).

In granting the motion for judgment of acquittal, the district court focused

on the “in furtherance of” element of § 1324(a)(1)(A)(ii), and concluded it

recognized a distinction between “those who support the presence of illegal aliens

in this country through a smuggling operation or some other form of illicit

transportation,” and those “‘who come into daily contact with undocumented

aliens and who, with no evil or criminal intent, intermingle with them socially or

otherwise.’” Id. at 1292 (quoting United States v. Moreno , 561 F.2d 1321, 1323

(9th Cir. 1977)). Based upon this perceived distinction, the court proceeded to

review the evidence for the presence or absence of three factors: whether

defendant received compensation for transportation, whether defendant took

precautionary efforts to conceal the illegal aliens, and whether the illegal aliens

were defendant’s friends or coworkers or were merely human cargo. Although

the court acknowledged defendant and his passengers were traveling “to Denver

in search of employment,” id. at 1294, it found defendant (1) did not profit from

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his transportation of Lopez-Arellano and Macias-Lopez, (2) did not attempt to

conceal any of the illegal aliens, and (3) was a relative of Lopez-Arellano and an

acquaintance of Macias-Lopez. The court concluded defendant’s transportation

of the two illegal aliens “was an act merely incidental to the aliens’ presence [in

this country] and [wa]s too attenuated to constitute a furtherance of their illegal

presence.” Id.

The district court’s decision was originally affirmed in United States v.

Barajas-Chavez , 134 F.3d 1444 (10th Cir. 1998).

II.

Defendant was charged with and convicted of violating 8 U.S.C. §

1324(a)(1)(A)(ii), which makes it illegal for

[a]ny person who . . . knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the United States in
violation of law, transports, or moves or attempts to transport or
move such alien within the United States by means of transportation
or otherwise, in furtherance of such violation of law.

To establish a violation, the government must prove “(1) the transporting or

moving of an alien within the United States, (2) that the alien was present in

violation of law, (3) that the defendant was aware of the alien’s status, and (4)

that the defendant acted willfully in furtherance of the alien’s violation of the

law.” United States v. Diaz , 936 F.2d 786, 788 (5th Cir. 1991) (examining

predecessor statute); see United States v. Hernandez , 913 F.2d 568, 569 (8th Cir.

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1990) (same); see also United States v. Parmelee , 42 F.3d 387, 391 (7th Cir.

1994) (“a defendant’s guilty knowledge that his transportation activity furthers an

alien’s illegal presence in the United States is an essential element of the crime”).

Only the “in furtherance of” element is at issue in this appeal.

We have previously considered convictions under the identically-worded

predecessor statute to § 1324(a)(1)(A)(ii). See United States v. Chavez-Palacios ,

30 F.3d 1290 (10th Cir. 1994); United States v. Perez-Gomez , 638 F.2d 215 (10th

Cir. 1981). In both cases, we briefly discussed the “in furtherance of” element.

Today, we are called upon to more fully analyze the element and to determine

whether evidence presented by the government in this case was sufficient to

satisfy that element.

We begin with the language of the statute. See Muscarello v. United

States , 118 S. Ct. 1911, 1914 (1998). The statute makes it illegal for a person

who, knowing or in reckless disregard of the fact that an individual is an illegal

alien, transports or moves, or attempts to transport or move, the alien “in

furtherance of” the alien’s illegal entry or continued illegal presence in the United

States. Since the statute does not specifically define the term “in furtherance of,”

we must “construe it in accord with its ordinary or natural meaning.” Smith v.

United States , 508 U.S. 223, 228 (1993); see United States v. Roberts , 88 F.3d

872, 877 (10th Cir. 1996) (if Congress does not define statutory term, “its

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common and ordinary usage may be obtained by reference to a dictionary”);

United States v. Floyd , 81 F.3d 1517, 1523 (10th Cir. 1996) (“In interpreting

Congressional intent, a reviewing court must determine whether the language

used in a statute is ambiguous, or whether it has an ordinary meaning.”).

Webster’s defines “furtherance” as “a helping forward: advancement, promotion.”

Webster’s Third International Dictionary 924 (1993). Similarly, Black’s defines

“furtherance” as the “[a]ct of furthering, helping forward, promotion,

advancement, or progress.” Black’s Law Dictionary 675 (6th ed. 1990). In light

of these definitions, we conclude the “in furtherance of” language is

unambiguous. The statute requires that a defendant know or act in reckless

disregard of the fact that an individual is an illegal alien, and that defendant’s

transportation or movement of the alien will help, advance, or promote the alien’s

illegal entry or continued illegal presence in the United States. 1

Given our interpretation of the “in furtherance of” element, we reject the

distinction recognized by the district court. Although we agree the element does

1
In other settings, we have construed the term “in furtherance of” in a
similar, broad manner. See , e.g. , United States v. Sinclair , 109 F.3d 1527, 1534-
35 (10th Cir. 1997) (concluding statements intended to promote conspiratorial
objectives were made “in furtherance of” conspiracy and were thus admissible
under Fed. R. Evid. 801(d)(2)(E)); United States v. McCullah , 76 F.3d 1087,
1102-03 (10th Cir. 1996) (discussing “in furtherance of” element of 21 U.S.C. §
848), cert. denied 117 S. Ct. 1699 (1997). Because the term is not ambiguous,
“the rule of lenity--or strict construction--may not be applied.” United States v.
Oxx , 127 F.3d 1277, 1279 (10th Cir. 1997).

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not encompass persons “‘who come into daily contact with undocumented aliens

and who, with no evil or criminal intent, intermingle with [illegal aliens] socially

or otherwise,’” we do not agree that the element is limited solely to “those who

support the presence of illegal aliens in this country through a smuggling

operation or some other form of illicit transportation.” Barajas-Chavez , 991 F.

Supp. at 1291. Instead, we conclude the element is sufficiently broad to

encompass any person who acts, regardless of profit motive or close relationship,

with knowledge or with reckless disregard of the fact that the person transported

is an illegal alien and that transportation or movement of the alien will help,

advance, or promote the alien’s illegal entry or continued illegal presence in the

United States.

Before proceeding to determine whether the evidence presented at trial was

sufficient to satisfy the “in furtherance of” element, we briefly consider how other

circuits have dealt with the “in furtherance of” element. The Eighth Circuit and

Ninth Circuit have adopted what the Ninth Circuit refers to as the “direct or

substantial relationship” test for purposes of deciding whether the “in furtherance

of” element has been satisfied. See , e.g. , United States v. Velasquez-Cruz , 929

F.2d 420 (8th Cir. 1991); Moreno , 561 F.2d at 1323. Under this test, “there must

be a direct or substantial relationship between [the defendant’s] transportation [of

the alien] and its furtherance of the alien’s presence in the United States.” Id.

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Stated in contrary terms, the “in furtherance of” element is not satisfied if a

defendant’s transportation of an alien is “only incidentally connected to” the

alien’s illegal entry or continued illegal presence. Id. at 1322. Although neither

circuit has provided precise guidelines for determining when a “direct or

substantial relationship” exists, the Ninth Circuit has suggested relevant factors

include the “time, place, distance and overall impact” of the transportation. Id. at

1323.

The Sixth Circuit has expressly rejected the “direct or substantial

relationship” approach on the grounds it “is unable to distinguish between

someone who knowingly smuggles illegal aliens across the country from someone

who knowingly gives an illegal alien a ride to a shelter for the homeless.” United

States v. 1982 Ford Pick-Up , 873 F.2d 947, 951 (6th Cir. 1989). In its place, the

Sixth Circuit has adopted what it describes as an “intent-based” approach, under

which a factfinder is directed to consider all credible evidence concerning a

defendant’s intentions in transporting an illegal alien. As examples, the court has

noted a factfinder may “look to see whether the defendant was compensated for

the transportation,” “what efforts the defendant took to conceal or harbor the

illegal aliens,” and “whether the illegal aliens were friends, co-workers, or

companions of the defendant, or merely human cargo that was being shipped.” Id.

The Fifth Circuit appears to have adopted a more general approach that

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encompasses the “direct or substantial relationship” test, but also focuses on

defendant’s intent in transporting the alien. United States v. Merkt , 764 F.2d 266,

271-72 (5th Cir. 1985). With respect to the issue of intent, the court has stated a

jury “should be instructed to consider all of the evidence it finds credible about [a

defendant’s] intentions” in moving or transporting the alien at issue. Id. at 272.

The Seventh Circuit has specifically refused to adopt either the “direct or

substantial relationship” test or the “intent-based” approach. Parmalee , 42 F.3d at

391. Instead, the court has adopted a general approach that allows the

government to prove the “in furtherance of” element “by reference to the facts

and the circumstances surrounding [each particular] case.” Id.

In light of our construction of the “in furtherance of” language, we reject

the use of any particular “test” or “formula” for determining whether the “in

furtherance of” requirement has been satisfied. Cf. United States v. Reyes , 798

F.2d 380, 384 (10th Cir. 1986) (“This Circuit has no talismanic formula for

ascertaining when a conspirator’s statements are ‘in furtherance’ of the

conspiracy.”). Instead, we believe the proper approach is a general one, similar to

those espoused by the Fifth Circuit and the Seventh Circuit. Under such an

approach, a factfinder may consider any and all relevant evidence bearing on the

“in furtherance of” element (time, place, distance, reason for trip, overall impact

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of trip, defendant’s role in organizing and/or carrying out the trip). 2
Naturally,

the relevant evidence will vary from case to case.

We now turn to the evidence in this case. Applying a de novo standard of

review, we view the evidence, both direct and circumstantial, in the light most

favorable to the government and, without weighing conflicting evidence or

considering the credibility of witnesses, we determine whether that evidence, if

believed, would establish the “in furtherance of” element. See United States v.

Evans , 42 F.3d 586, 589 (10th Cir. 1994).

It is uncontroverted that defendant, having lost his job in Arizona because

of his status as an illegal alien, planned, organized, and attempted to carry out a

trip from Prescott, Arizona, to Denver, Colorado, so that he and the two illegal

aliens he was charged with transporting could look for work. Although the

2
We conclude the district court erred in focusing on only three factors
(whether defendant received compensation for transportation, whether defendant
took precautionary efforts to conceal the illegal aliens, and whether the illegal
aliens were human cargo). Certainly, depending upon the facts of a particular
case, all of these factors could be relevant in the “in furtherance of” inquiry.
However, relying solely on these factors effectively limits the intended reach of
the statute. In particular, it creates exceptions for cases involving transportation
of illegal aliens who are friends or relatives of defendant, transportation not
involving any profit motive, and transportation that is not furtive or concealed.
Although it is not uncommon to find situations where a person furtively transports
“human cargo” for profit, it is undoubtedly more common to find situations where
a person transports an illegal alien who is also a friend or relative to enable the
person to find work and/or to evade immigration authorities. The statute
criminalizes both acts of transportation.

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district court discounted this evidence, we believe it is sufficient, standing alone,

to satisfy the “in furtherance of” element. In particular, we conclude defendant’s

transportation of the two illegal aliens would have advanced or promoted their

continued illegal presence in the United States in two respects. First, the

transportation would arguably have assisted the aliens in evading immigration

authorities by relocating them to a city much farther from the United States-

Mexico border. Second, the transportation was intended to assist them in finding

employment. If their efforts had been successful, the benefits from finding

employment undoubtedly would have assisted them in remaining in the United

States. See generally United States v. Sanchez-Vargas , 878 F.2d 1163, 1169 (9th

Cir. 1989) (“the transport offense was directed, in large part, at curbing the

widespread practice of transporting illegal immigrants, already in the United

States, to jobs and locations away from the border where immigration

enforcement resources may have been more scarce”).

We note in passing that the “in furtherance of” element is also supported by

additional evidence. In carrying out the trip, defendant utilized a vehicle that is

commonly associated with illegal transportation of aliens (a pickup with a camper

shell with darkened windows). Both of the aliens, at least for part of the trip,

rode inside the camper shell. Defendant was the sole driver of the pickup. He

drove through the night and was stopped at the checkpoint during the early

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morning hours. Further, both aliens paid defendant to take them to Denver. 3

The judgment of the district court is REVERSED and the case is

REMANDED to the district court with instructions to reinstate the verdict of the

jury.

3
We emphasize that this additional evidence is not critical to our holding
that the “in furtherance of” element was satisfied. Indeed, even discounting all of
this additional evidence, we would reach the same conclusion.

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 28 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
v.
No. 97-2033
MARTIN BARAJAS-CHAVEZ,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-96-174-MV)

John J. Kelly, United States Attorney, (Lauren A. Mickey, Assistant U.S. Attorney with
him on the brief), Las Cruces, New Mexico, for Plaintiff - Appellant.

Floyd W. Lopez, Albuquerque, New Mexico, for Defendant - Appellee.

Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.

PORFILIO, Circuit Judge.

Martin Barajas-Chavez stood trial on charges of knowingly transporting two

named undocumented aliens in furtherance of the aliens’ illegal presence
within the United States, a violation of 8 U.S.C. § 1324(a)(1)(A)(ii). At the end of the

trial, Mr. Barajas-Chavez moved for judgment of acquittal, arguing there was insufficient

evidence to show he acted “in furtherance of” his passengers’ illegal presence within the

United States. The district court took Mr. Barajas-Chavez’ motion under advisement and

submitted the case to the jury. The jury returned a guilty verdict, but the district court,

acting on Mr. Barajas-Chavez’ motion, set the verdict aside and entered a judgment of

acquittal on the ground the evidence was insufficient to support the conviction. The

government appeals the district court’s ruling. We affirm.

I

Mr. Barajas-Chavez, an illegal alien, lost his job in the Arizona flagstone quarries

following an immigration inspection and decided to go to Denver to look for work.1 As

Mr. Barajas-Chavez discussed his plans with friends and acquaintances, others agreed to

accompany him. Arturo Lopez-Arrellano, one of Mr. Barajas-Chavez’ relatives, wished

to go to Denver and mentioned Jesus Macias-Lopez, an acquaintance, might also be

interested. Mr. Macias-Lopez knew Denver well and would be able to orient the group

upon their arrival. Mr. Barajas-Chavez approached Mr. Macias-Lopez and Mr. Macias-

Lopez’ brother in a hotel lobby and told them about his plans, and they expressed an

interest in going. When the group left Phoenix, it had swelled to eleven people: Mr.

1
The following facts were abstracted from uncontested testimony presented
at trial. Where witness testimony is conflicting or subject to interpretation, we
have identified the witness who provided the testimony.

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Barajas-Chavez; Mr. Lopez-Arrellano; Mr. Macias-Lopez; Mr. Macias-Lopez’ brother;

Pedro and Maria Ramona and their two children; a female friend of the Ramonas; and

two other, unnamed passengers.

In preparation for the journey, Mr. Barajas-Chavez purchased a camper shell at a

yard sale for his pickup truck; some, but not all, of the camper shell’s windows had been

painted by a previous owner. Mr. Macias-Lopez gave Mr. Barajas-Chavez $150 for

vehicle expenses on the trip. Mr. Lopez-Arrellano paid $50 to fill the pickup truck’s gas

tanks. Pedro Ramona gathered $250 for expenses from the other passengers. In all, the

ten passengers gave Mr. Barajas-Chavez approximately $450.

The group set out from Phoenix bound for Denver. They stopped in Flagstaff for

dinner, and the passengers moved freely about during this and other stops. At 3:00 a.m.,

police stopped Mr. Barajas-Chavez at a temporary roadblock on I-40 in McKinley

County, New Mexico. At the roadblock, Joseph Garcia, an INS agent, asked Mr.

Barajas-Chavez if he had any documentation showing he was in the United States

legally. Mr. Barajas-Chavez admitted he was in the United States illegally and did not

have any documentation. Agent Garcia saw a man and a woman in the cab with Mr.

Barajas-Chavez, and, shining his flashlight into the camper shell, Garcia could see eight

other people lying in the back of the truck. Agent Garcia questioned the passengers,

each of whom admitted being undocumented. Garcia and other INS agents on the scene

placed Mr. Barajas-Chavez and all the passengers under arrest. Mr. Barajas-Chavez was

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eventually charged with the transportation of Mr. Macias-Lopez and Mr. Lopez-

Arrellano in furtherance of their illegal presence within the United States in violation of

8 U.S.C. § 1324(a)(1)(A)(ii).

At trial, the government’s case consisted of testimony from Mr. Macias-Lopez,

Mr. Lopez-Arrellano,2 and arresting agents Joseph Garcia and Steve Alba. Agents

Garcia and Alba testified to the events surrounding the detection and arrest of Mr.

Barajas-Chavez and his passengers. The agents said Mr. Barajas-Chavez told them he

was charging his passengers $300 each for the transportation. Agent Garcia also

observed, in his experience, alien smugglers frequently use camper shells with darkened

windows to conceal their cargo and make their illegal passengers lie down to escape

detection.

In his testimony, Mr. Lopez-Arrellano said he had initially told immigration

officials he met Mr. Barajas-Chavez for the first time in Phoenix and paid $250 to be

transported to Denver. Mr. Lopez-Arrellano admitted that these statements were untrue,

that Mr. Barajas-Chavez was a relative, whom he had known for some time, and that he

2
Agent Garcia testified Mr. Barajas-Chavez’ passengers were interviewed
for the purpose of enlisting them as material witnesses, but only Mr. Lopez-
Arrellano and Mr. Macias-Lopez were deemed “credible.” In exchange for their
testimony, Mr. Lopez-Arrellano and Mr. Macias-Lopez received temporary social
security cards and temporary work permits, valid through the end of Mr. Barajas-
Chavez’ trial. The other passengers were allowed to voluntarily return to Mexico.

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had only given $50 to Mr. Barajas-Chavez for gas. The familial relationship was later

confirmed by other witnesses.

At the end of the trial, defense counsel moved for a judgment of acquittal based

on insufficiency of the evidence. The district court took the motion under advisement

and submitted the case to the jury. The jury returned a guilty verdict. The district court

subsequently set the verdict aside and entered a judgment of acquittal. In its order, the

district court stated:

In this case Defendant, Defendant’s relative, and an acquaintance of
Defendant’s relative, were driving to Denver in search of employment.
This was not a furtive transportation of undocumented aliens which
inhibits government enforcement of immigration laws but was an act
merely incidental to the aliens’ presence here and is too attenuated to
constitute a furtherance of their illegal presence. Specifically, the Court
finds that the relationship between Defendant and the passengers, the fact
that the transportation was not committed for profit, and the lack of
furtiveness or concealment indicate this transportation was not “in
furtherance” of the aliens’ violation of law. The evidence, when viewed in
the light most favorable to the Government, does not support the jury’s
verdict.

This appeal ensued.

II

A district court decision setting aside a jury verdict and granting a judgment of

acquittal is entitled to no deference on appeal, and we review it de novo. United States

v. Santistevan, 39 F.3d 250, 255 (10th Cir. 1994). We must therefore view the direct

and circumstantial evidence in the light most favorable to the government and determine

whether a reasonable jury could have found the defendant guilty beyond a reasonable

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doubt of each element of the crime. Id.; United States v. Evans, 42 F.3d 586, 589 (10th

Cir. 1994); United States v. Calloway, 562 F.2d 615, 617 (10th Cir. 1977).

The statute upon which the government’s case rests, 8 U.S.C. § 1324(a)(1)(A)(ii),

provides “[a]ny person who . . . knowing or in reckless disregard of the fact that an alien

has come to, entered, or remains in the United States in violation of law, transports, or

moves or attempts to transport or move such alien within the United States by means of

transportation or otherwise, in furtherance of such violation of law . . . shall be punished

. . . .” Mr. Barajas-Chavez was charged with illegally transporting Mr. Macias-Lopez

and Mr. Lopez-Arrellano. Evidence presented at trial clearly demonstrates Mr. Barajas-

Chavez knew or had reason to know these two passengers were undocumented aliens

and transported them from Arizona to New Mexico. The only issue in this appeal is

whether the evidence presented at trial was sufficient to prove Mr. Barajas-Chavez

conducted this transportation “in furtherance of” Mr. Macias-Lopez’ and Mr. Lopez-

Arrellano’s illegal presence within the United States.

Section 1324 does not define the phrase “in furtherance of.” However, courts

seeking to define the phrase and evaluate the evidence required to prove the element

have found it probative (1) the defendant profited from the transportation; (2) the

defendant actively attempted to conceal the passengers; and (3) the passengers were

mere “human cargo” (i.e., the passengers were not related to the defendant by blood,

friendship, or acquaintance and their movements were guided, dictated, or controlled by

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the defendant during the transportation). See, e.g., United States v. Parmelee, 42 F.3d

387, 391 (7th Cir. 1994) (discussing evidence relevant to an “in furtherance of” inquiry);

United States v. 1982 Ford Pick-Up, 873 F.2d 947, 951 (6th Cir. 1989) (same). In

general, the central object of inquiry is the defendant’s purpose in conducting the

transportation, rather than the transportation’s logical result or effect. See United States

v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir. 1994) (holding legally sufficient

evidence existed to support the jury’s conclusion “defendant had the intent to further the

aliens’ presence” in the United States); United States v. Perez-Gomez, 638 F.2d 215,

218-19 (10th Cir. 1981) (holding evidence “amply demonstrate[d] [the defendant’s]

concern that the aliens be kept secreted to avoid suspicion”); United States v. Salinas-

Calderon, 585 F. Supp. 599, 602 (D. Kan. 1984) (holding the government “failed to

prove beyond a reasonable doubt that the defendant acted in willful furtherance of the

aliens’ illegal presence in the United States”).

The paradigmatic conduct proscribed by the statute is well-represented by United

States v. Perez-Gomez, 638 F.2d 215, 218 (10th Cir. 1981), in which the defendant

attempted to transport nineteen undocumented aliens in a van from Los Angeles to

Chicago. In Perez-Gomez, the alien passengers had crossed the United States border

illegally only days before the transportation, and the defendant made all the arrangements

for food and accommodations during the trip. Id. The defendant had not met any of the

passengers before transporting them, and none of the aliens even knew the defendant’s

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name until the arresting officers mentioned it. Id. A partition had been placed between

the driver and the cargo area of the van, concealing the passengers; and before setting

out for Chicago, the defendant led the passengers two at a time from a hotel room,

locking each pair inside the van before returning to the room to escort another. Id.

After the trip began, the nineteen passengers were confined in the back of the van for

twenty-eight hours without an opportunity to eat or leave. Id. Cases like Perez-Gomez

fit squarely within the prohibition of the statute.

At the other end of the spectrum lie cases like United States v. Salinas-Calderon,

585 F. Supp. 599 (D. Kan. 1984), in which the defendant set out to transport six

undocumented aliens in a pickup truck from Colorado to Florida:

Mr. Salinas-Calderon knew his passengers for about four months prior to
their trip, . . . they worked together, and . . . they were on friendly terms
with each other. The defendant and the aliens individually planned to go
to Florida; the defendant planned to drive his family in their pickup, and he
agreed to give his coworkers a ride. They shared the expense of the trip;
the defendant was not compensated in any way. The vehicle was not
specially designed to conceal the passengers, and there was no attempt to
conceal or harbor the passengers.

585 F. Supp. at 602. Cases like Salinas-Calderon, in which the defendant and the

passengers are friends, family, or acquaintances simply pooling their resources during

travel, fail to demonstrate an intent to transport undocumented aliens “in furtherance of”

their unlawful presence within the United States and therefore fall outside the range of

activities prohibited by the transportation statute.

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 The district court, relying in part on Salinas-Calderon, ruled the evidence

presented at Mr. Barajas-Chavez’ trial was insufficient to show the transportation of the

two aliens named in this case was “in furtherance of” the aliens’ violation of the law. In

reaching this conclusion, the district court found (1) Mr. Barajas-Chavez did not receive

compensation for transporting the named undocumented aliens, (2) Mr. Barajas-Chavez

made no attempt to conceal his passengers, and (3) the relationship between Mr. Barajas-

Chavez and the named passengers refuted any inference the passengers were “human

cargo.” The government maintains the district court’s conclusions are unsupported by

the record, the opposite conclusions are supported by the record, and the jury’s verdict is

therefore valid. In addition, the government contends, even if the record does support

the district court’s factual findings, evidence presented at trial showing Mr. Barajas-

Chavez knowingly transported the named undocumented aliens a substantial distance for

the purpose of seeking employment proves the “in furtherance of” element and supports

the jury’s verdict. We consider each of these arguments in turn.

A. The district court’s factual findings.

The government claims the evidence presented at trial was sufficient for a

reasonable jury to find: (1) Mr. Barajas-Chavez intended to charge each of his

passengers $300 for their transportation and therefore intended to profit from the

transportation; (2) Mr. Barajas-Chavez attempted to conceal the passengers during the

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journey by purchasing a camper top with darkened windows for the pickup truck and

having the passengers lie down in the bed of the truck; and (3) Mr. Barajas-Chavez did

not know the majority of his passengers, indicating his passengers were mere “human

cargo.” The jury’s ability to reach these conclusions from the evidence presented at trial,

the government argues, adequately supports the “in furtherance of” element of the

transportation charge, and therefore renders the district court’s judgment of acquittal

invalid.

The testimony of Agents Garcia and Alba, the government argues, shows Mr.

Barajas-Chavez intended to profit from the transportation. Agent Garcia testified Mr.

Barajas-Chavez “had $360 that he had collected from [the passengers], or $300 that he

was going to charge.” Agent Alba testified Mr. Barajas-Chavez told him “he was

transporting [the illegal aliens] to the Denver, Colorado, area, and that he was charging

them a fee of approximately $300 per person.” These statements, even if accepted as

true, do not indicate whether Mr. Lopez-Arrellano or Mr. Macias-Lopez, the aliens

actually named in the indictment, were among those persons being charged for the

transportation. The alleged statements do not indicate all of the truck’s occupants were

to be charged, and no specific evidence indicating Mr. Lopez-Arrellano or Mr. Macias-

Lopez were “charged” anything for the trip was presented at trial. However, the

evidence in the record does show Mr. Lopez-Arrellano and Mr. Macias-Lopez agreed to

“chip in” for the expenses of the trip. Mr. Lopez-Arrellano testified he spent $50 to fill

- 10 -
the gasoline tanks of the pickup truck, and Mr. Macias-Lopez testified he agreed to pay

$150 toward vehicle expenses for the trip. This evidence indicates the financial

arrangements between Mr. Barajas-Chavez, Mr. Macias-Lopez, and Mr. Lopez-Arrellano

were cooperative. The record therefore does not support the conclusion Mr. Barajas-

Chavez intended to profit from transporting Mr. Macias-Lopez and Mr. Lopez-Arrellano.

The government claims the darkened windows of the camper shell and the

passengers’ reclining position in the pickup bed indicate Mr. Barajas-Chavez intended to

conceal the undocumented aliens during their transportation. Assuming the relevance of

the evidence where the indictment charges transportation of only two aliens, the

inference is not tenable in light of other evidence presented at trial. Some of the camper

shell’s windows were unpainted, and Agent Garcia could see the passengers simply by

looking through a window with his flashlight. Mr. Barajas-Chavez did not paint the

windows of the camper shell himself; they had been painted before he purchased the

shell, and yet no effort was made to darken the remaining windows. During the trip,

many of the passengers, including Mr. Lopez-Arrellano, sat in the cab with Mr. Barajas-

Chavez, in plain view of persons outside the truck. During stops for food and gas, the

passengers did not behave in a furtive manner, and Mr. Barajas-Chavez and the other

passengers made no effort to conceal their undocumented status when questioned by

Agents Garcia and Alba. Although the passengers were lying down when the truck

entered the roadblock, there is nothing unusual about passengers lying down at 3:00 a.m.

- 11 -
on a long road trip. The only evidence supporting an inference of concealment,

therefore, is Agent Garcia’s testimony that, in his experience, darkened windows and

reclining passengers are indicative of an alien smuggler’s attempt to conceal his cargo.

No reasonable trier of fact could conclude from the evidence presented at trial Mr.

Barajas-Chavez intended to conceal his passengers.

The government claims Mr. Macias-Lopez was a stranger to Mr. Barajas-Chavez

prior to the transportation and submits the lack of prior relationship indicates Mr.

Macias-Lopez was “human cargo.” However, knowing a person for only a short time

before transporting him or her does not by itself indicate the person is a defendant’s

“human cargo;” something more is required. The trial testimony shows Mr. Macias-

Lopez was Mr. Lopez-Arrellano’s acquaintance and Mr. Barajas-Chavez approached Mr.

Macias-Lopez on his relative’s suggestion. Mr. Barajas-Chavez did not curtail, control,

or dictate Mr. Macias-Lopez’ movements during the trip. No reasonable trier of fact

could conclude from this evidence Mr. Macias-Lopez was “human cargo.”

The evidence in the record does not show Mr. Barajas-Chavez profited or

intended to profit from transporting Mr. Lopez-Arrellano or Mr. Macias-Lopez. Nor

does the evidence show Mr. Barajas-Chavez sought to conceal Mr. Lopez-Arrellano or

Mr. Macias-Lopez, either by ordering them to remain concealed in the camper or by

purposefully darkening the camper shell windows in preparation for the trip. Finally, the

evidence indicates Mr. Lopez-Arrellano and Mr. Macias-Lopez were not human cargo,

- 12 -
but rather Mr. Barajas-Chavez’ relative and acquaintance. We therefore find no error in

the district court’s factual findings.

B. Transportation a substantial distance for the purposes of seeking employment.

The government contends, even if the district court’s factual findings are not in

error, the jury verdict is nonetheless supported by the evidence. The government claims

the prosecution established the “in furtherance of” element of 8 U.S.C.

§ 1324(a)(1)(A)(ii) by showing Mr. Barajas-Chavez knowingly transported

undocumented aliens a substantial distance for the purpose of seeking employment.

Employment within the United States, the government argues, is an undocumented

alien’s “life-line” to this country and enables the alien to obtain food, shelter, and other

necessities, thereby permitting the undocumented alien to maintain his or her illegal

presence within the United States. When a defendant transports an undocumented alien

to a place in which the alien can seek employment, the government contends, the

defendant necessarily “furthers” the alien’s illegal presence. Under this theory, the

government has presented sufficient evidence to support the “in furtherance of” element

of the conviction by demonstrating Mr. Barajas-Chavez transported Mr. Macias-Lopez

and Mr. Lopez-Arrellano from Arizona to New Mexico for the purpose of seeking

employment in Denver.

- 13 -
 The majority of courts interpreting § 1324(a)’s “in furtherance of” language have

rejected the reasoning the government urges here. Transportation of an undocumented

alien simply for the purpose of seeking or enabling employment is not, by itself,

prohibited by the statute. See 1982 Ford Pick-Up, 873 F.2d at 952 (reversing forfeiture

of vehicle because defendant merely transported aliens for purpose of seeking

employment, a showing which was insufficient to prove the “in furtherance of” element

of the transportation charge); United States v. Moreno, 561 F.2d 1321, 1322 (9th Cir.

1977) (holding transportation of illegal aliens during the ordinary and required course of

the defendant’s employment “was only incidentally connected to the furtherance of the

[aliens’] violation of law, if at all”); United States v. Moreno-Duque, 718 F. Supp. 254,

259 (D. Vt. 1989) (concluding the transportation statute requires “more than mere

knowing employment and employment-related transportation of illegal aliens to satisfy

all of its essential elements”); United States v. One 1982 Toyota SR 5 Pick-Up Truck,

642 F. Supp. 335, 338 (N.D. Ill. 1986) (rejecting the “government’s position that all

transportation in the employment context of known and undocumented aliens is in

furtherance of their unlawful presence within the meaning of [the transportation

statute]”); Salinas-Calderon, 585 F. Supp. at 602-03 (rejecting argument that a

defendant’s transportation of illegal aliens to an area where the aliens might obtain

employment could, by itself, satisfy the “in furtherance of” element of the transportation

charge). Furthermore, the government’s focus on the possible effect of the defendant’s

- 14 -
transportation--the prospective employment of the defendant’s passengers and the

potential for resulting sustenance--is misplaced given § 1324's focus on the defendant’s

intent in conducting the transportation. See, e.g., 1982 Ford Pick-Up, 873 F.2d at 951

(“To be found guilty of violating [the transportation statute] the government must prove

that the defendant transported an alien with the purpose of supporting or promoting his

or her illegal presence.”); Moreno-Duque, 718 F. Supp. at 259 (“In other words, the

government must prove that the defendants specifically intended by means of the

transportation to advance or assist the alien’s violation of law, not merely that the effect

of the transportation was to allow the alien to remain in the United States.”). We hold

therefore, the government cannot meet its burden to prove a defendant’s transportation of

an illegal alien is in furtherance of that alien’s illegal presence within the United States

simply by showing the defendant has transported the alien a substantial distance for the

purpose of seeking employment. Because no reasonable trier of fact could conclude

from the evidence on record that Mr. Barajas-Chavez’ transportation of the

undocumented aliens named in this case was conducted “in furtherance of” those aliens’

illegal presence within the United States, we AFFIRM the district court’s judgment of

acquittal.

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No. 97-2033, United States v. Barajas-Chavez

BRISCOE, Circuit Judge, dissenting:

I respectfully dissent. The outcome of this case is controlled by the

applicable scope of review. A district court’s decision setting aside a jury verdict

is entitled to no deference. United States v. Santistevan, 39 F.3d 250, 254 (10th

Cir. 1994). This court reviews a district court’s grant of a motion for acquittal de

novo. United States v. Evans, 42 F.3d 586, 589 (10th Cir. 1994). Specifically,

this court views the evidence, both direct and circumstantial, in the light most

favorable to the government and, without weighing conflicting evidence or

considering the credibility of witnesses, determines whether that evidence, if

believed, would establish each element of the crime. Id. If the government has

met that standard, this court, as well as the district court, must defer to the jury’s

verdict of guilty. Id. While the majority cites the correct scope of review, it, like

the district court, ignores the applicable scope of review and views the evidence

in the light most favorable to defendant. The evidence presented at trial is clearly

sufficient, when viewed in the light most favorable to the government, to support

defendant’s convictions for transporting illegal aliens, in violation of 8 U.S.C. §

1324(a)(1)(A)(ii). I would reverse the district court’s judgment of acquittal and

remand with directions to reinstate the jury’s verdict.
 I.

Before applying the applicable scope of review, we must first determine

what the government must prove to satisfy the “in furtherance of” element of the

statute. The statute under which defendant was charged, 8 U.S.C. §

1324(a)(1)(A)(ii), makes it illegal for any person who

knowing or in reckless disregard of the fact that an alien has come to,
entered, or remains in the United States in violation of law,
transports, or moves or attempts to transport or move such alien
within the United States by means of transportation or otherwise, in
furtherance of such violation of law.

The statute was not intended to criminalize purely innocent conduct, such as, for

example, “the actions of a cab driver who transports in a routine commercial

transaction an individual who announces his illegal alien status during the course

of the ride.” United States v. Parmelee, 42 F.3d 387, 391 (7th Cir. 1994). Rather,

“the transport offense was directed, in large part, at curbing the widespread

practice of transporting illegal immigrants, already in the United States, to jobs

and locations away from the border where immigration enforcement resources

may have been more scarce.” United States v. Sanchez-Vargas, 878 F.2d 1163,

1169 (9th Cir. 1989) (analyzing legislative history of statute).

To establish a violation of § 1324(a)(1)(A)(ii), the government must

establish “(1) the transporting or moving of an alien within the United States, (2)

that the alien was present in violation of law, (3) that the defendant was aware of

-2-
the alien’s status, and (4) that the defendant acted willfully in furtherance of the

alien’s violation of the law.” United States v. Diaz, 936 F.2d 786, 788 (5th Cir.

1991) (listing elements for violation of § 1324(a)(1)(B), the predecessor statute to

§ 1324(a)(1)(A)(ii)); see United States v. Hernandez, 913 F.2d 568, 569 (8th Cir.

1990) (same); see also Parmelee, 42 F.3d at 391 (“a defendant’s guilty knowledge

that his transportation activity furthers an alien’s illegal presence in the United

States is an essential element of the crime”). Only the final element is at issue in

this appeal. Currently, there is disagreement among the circuits concerning how

to interpret this final element, and three different approaches have been utilized.

Direct or substantial relationship approach

The first approach was adopted by the Ninth Circuit in United States v.

Moreno, 561 F.2d 1321 (9th Cir. 1977), in which a foreman for a reforestation

company who transported workers from one job site to another was charged with

violating 8 U.S.C. § 1324(a)(2) (a predecessor statute to § 1324(a)(1)(A)(ii)).

Noting the defendant’s employment required him to transport the workers, the

Ninth Circuit concluded the transportation “was only incidentally connected to the

furtherance of the violation of law, if at all.” Id. at 1322. In order to satisfy the

“in furtherance of” element, the court held, “there must be a direct or substantial

relationship between that transportation and its furtherance of the alien’s presence

in the United States.” Id. at 1323. Although the Moreno court provided little

-3-
guidance in how to determine when such a relationship exists, it did suggest

factors such as the transportation’s “time, place, distance and overall impact” are

relevant. Id.; see also United States v. One 1984 Ford Van, 826 F.2d 918, 919-20

(9th Cir. 1987) (applying Moreno and holding “[t]ransportation at remote

jobsites” does not violate the statute).

Some courts that have subsequently adopted the “direct or substantial

relationship” approach have indicated an alternative way of describing it is that

the transportation of an illegal alien does not violate § 1324(a)(1)(A)(ii) if the

transportation is only incidentally connected to furtherance of an alien’s violation

of the law. See, e.g., United States v. Velasquez-Cruz, 929 F.2d 420 (8th Cir.

1991). In Velasquez-Cruz, the defendant was an illegal alien who had applied for

amnesty from the government. While in Los Angeles, defendant met six illegal

aliens from Ecuador who, like defendant, were interested in moving to New York.

The aliens pooled their money to buy a used car and a van and set out for New

York. While defendant was driving the car through Arkansas, with some of the

other aliens as passengers, she was stopped and eventually arrested for illegal

alienage. Defendant was subsequently charged and convicted of willfully

transporting aliens in violation of § 1324(a)(1)(B) (a predecessor statute). On

appeal, defendant argued the evidence presented at trial was insufficient to

demonstrate that she acted in furtherance of the aliens’ violation of the law. In

-4-
particular, defendant argued “her transportation of illegal aliens was merely

incidental to her own journey to New York, because she did not instigate the

aliens’ plan to move or persuade them to do so, did not seek to conceal the aliens,

did not sell the car or receive the money for its sale, and shared the driving with

other aliens.” Id. at 424. The Eighth Circuit rejected defendant’s arguments and

concluded there was sufficient evidence to support her conviction. Specifically,

the court noted there was substantial evidence to support the conclusion that

defendant organized the aliens’ journey (e.g., by playing a key role in buying the

car, by directing at least some of the aliens to meet her at a safe house to begin

the journey, and by being the sole or at least primary driver of the car). Id.

Intent-based approach

The Sixth Circuit has expressly rejected the “direct or substantial

relationship” approach on the grounds that it “is unable to distinguish between

someone who knowingly smuggles illegal aliens across the country from someone

who knowingly gives an illegal alien a ride to a shelter for the homeless.” United

States v. 1982 Ford Pick-Up, 873 F.2d 947, 951 (6th Cir. 1989). In its place, the

Sixth Circuit adopted an “intent-based” approach which purportedly focuses on

the intent of the person accused of transporting illegal aliens. Under this

approach, the fact finder is directed to consider all evidence it finds credible

about the defendant’s intentions. As examples, the Sixth Circuit noted a fact

-5-
finder may “look to see whether the defendant was compensated for the

transportation,” “what efforts the defendant took to conceal or harbor the illegal

aliens,” and “whether the illegal aliens were friends, co-workers, or companions

of the defendant, or merely human cargo that was being shipped.” Id.

In 1982 Ford, two pickup trucks owned by Juana and Luis Mendoza were

seized by INS because of alleged use in transporting illegal aliens in violation of

§ 1324(a)(1)(B). More specifically, it was uncontroverted the Mendozas had used

the trucks to transport citizens of El Salvador, all of whom were friends, relatives,

and former co-workers of the Mendozas, from Dallas, Texas, to Covington,

Kentucky, for the admitted purpose of helping them obtain construction jobs (Luis

Mendoza owned a construction company and had relocated it from Dallas to

Covington). Purportedly applying its intent-based approach, a divided panel

concluded “that the Mendozas’ actions were quite innocent.” Id. at 952. More

specifically, the two members of the majority noted (1) the Mendozas made no

attempt to hide their passengers or otherwise conceal the fact they were illegal

aliens, (2) the Mendozas received no financial remuneration for their actions, (3)

the illegal aliens were friends, relatives, and co-workers of the Mendozas, (4) the

aliens sought transportation to Kentucky to find employment and not to escape

prosecution or otherwise evade the law, and (5) the Mendozas’ purpose “was to

-6-
promote the well-being of friends and relatives by helping them obtain

employment.” Id. 3

General approaches

The Fifth Circuit appears to have implicitly adopted a more general

approach that utilizes the Ninth Circuit’s “direct or substantial relationship”

approach, but also focuses on the intent of the defendant in transporting aliens. 4

United States v. Merkt, 764 F.2d 266, 271-72 (5th Cir. 1985). In determining the

defendant’s intent, the Fifth Circuit has stated a jury “should be instructed to

consider all of the evidence it finds credible about [a defendant’s] intentions,

direct as well as circumstantial, such as the mode of transportation used, the time

of travel, the route chosen, . . . and the distance from the border at the time of

apprehension.” Id. at 272.

In Parmelee, the Seventh Circuit acknowledged both the “direct or

substantial relationship” and “intent-based” approaches, but refused to adopt

3
The remaining panel member in 1982 Ford filed a dissenting opinion
which I find, at least in part, more persuasive than the majority opinion. In
particular, the dissent criticized the majority’s application of the intent-based
approach, noting that by transporting the aliens to Kentucky for purposes of
obtaining construction jobs, the “defendants clearly intended to further the aliens’
illegal presence.” 873 F.2d at 952.
4
Although the Sixth Circuit in One Ford Pick-Up stated the Fifth Circuit
in Merkt had utilized only an intent-based approach, this is incorrect. The Fifth
Circuit expressly acknowledged and relied on the Ninth Circuit’s direct or
substantial relationship approach as well. 764 F.2d at 271-72.

-7-
either for purposes of determining a defendant’s guilty knowledge that his

transportation activity furthers an alien’s illegal presence in the United States. 42

F.3d at 391. In doing so, the Seventh Circuit stated:

As in other criminal prosecutions that require mens rea, the
government may prove the defendant’s knowledge by reference to the
facts and the circumstances surrounding the case. Relevant
considerations bearing on this issue include whether the defendant
received compensation for his transportation activity, whether the
defendant took precautionary efforts to conceal the illegal aliens, and
whether the illegal aliens were the defendant’s friends or co-workers
or merely human cargo.

Id. 5 (internal citations omitted).

Tenth Circuit approach

This court has never expressly adopted or rejected any of the above-listed

approaches for determining the “in furtherance of” element. It has, however,

previously discussed the element on two separate occasions. In United States v.

Perez-Gomez, 638 F.2d 215 (10th Cir. 1981), the defendant was arrested in Hays,

Kansas, after INS agents (who had been advised defendant was transporting

illegal aliens from Los Angeles to Chicago) observed him walk from a motel

room to a nearby restaurant, order thirty-two hamburgers and sixteen orders of

5
I do not read the “relevant considerations” listed by the Seventh Circuit
as exclusive determinatives of guilty knowledge. Surely, a defendant can intend
to further an illegal alien’s presence in this country even though he or she
receives no money for doing so, is a friend or relative of the alien’s, and takes
little or no precautionary efforts to conceal the alien during transportation.

-8-
fries to go, return with the food to two motel rooms, and later escort nineteen

people from the rooms to a van parked nearby. After being charged and convicted

of transporting illegal aliens, defendant appealed and contended the evidence

presented at trial was insufficient to establish the transportation was in

furtherance of the aliens’ illegal presence. In rejecting this argument, the court

cited Moreno and held “the transportation of [nineteen] aliens from Los Angeles

to Kansas, en route to Chicago, sufficiently further[ed] the aliens’ illegal presence

in the United States to meet the requirements of the statute.” Id. at 219.

Although the court mentioned other factors (e.g., the aliens had crossed the border

within days of their cross-country journey, none of the aliens knew defendant’s

name, the aliens were transported from Los Angeles to Hays without an

opportunity to eat or leave the van, and the van had a special partition to prevent

outsiders from observing the cargo), it is unclear whether the court considered

those factors relevant to the “in furtherance of” element, to defendant’s

knowledge that his passengers were illegal aliens (an element which the defendant

also challenged on appeal), or to both. Id.

Thirteen years later, in United States v. Chavez-Palacio, 30 F.3d 1290,

1294 (10th Cir. 1994), this court again acknowledged Moreno in noting “that

mere transportation of an illegal alien is, without more, insufficient as a matter of

law to support a conviction under this statute.” In Chavez-Palacio, this court held

-9-
the “in furtherance of” requirement was satisfied where the defendant was driving

a van in New Mexico, en route to Denver, carrying several illegal aliens “so that

the aliens could attempt to find work there.” Id. Although the court noted the

aliens were lying down in the rear of the van when it was stopped by authorities,

there is no mention of any additional factors (e.g., defendant’s receipt of money

for transporting aliens, whether defendant knew the aliens, etc.).

Reviewing these two cases together, I believe this court has implicitly

adopted a general approach, similar to that of the Fifth or Seventh Circuits.

Although the court has expressly cited the Ninth Circuit’s “direct or substantial”

relationship test, it has also implicitly approved of a jury considering all credible

evidence concerning the defendant’s intentions.

The majority’s approach

Unfortunately, the majority erroneously suggests only three factors (i.e.,

profit, active concealment, and “human cargo”) are relevant in determining

whether transportation occurred “in furtherance of” an illegal alien’s presence

within the United States. Not only does this approach ignore circuit precedent, it

effectively limits the intended reach of the statute, and ignores the very problems

to which the statute was intended to respond. Although it is obviously not

uncommon to find situations (such as Perez-Gomez) in which a person is simply

transporting illegal aliens to make a profit, it is undoubtedly more common to find

-10-
situations in which a person agrees to transport an acquaintance, friend, or

relative who is an illegal alien to other parts of the country to enable that person

to find work and/or evade immigration authorities. In the latter situation, the

transporter has as much, if not more, of an intent to further the illegal alien’s

presence in this country than does the transporter in the former situation. Because

of this greater personal interest, it is likely the transporter in the latter situation

will be willing to do so without pay. For these reasons, I believe the general

approach, which allows the fact finder to consider any and all relevant evidence

of intent (e.g., time, place, distance, reason for trip, overall impact of trip,

defendant’s role in organizing and/or carrying out the trip, etc.), is the proper one.

II.

At trial, the government presented the testimony of various witnesses,

including two INS agents, Joseph Garcia and Steve Abla, who interviewed

defendant after his arrest, and the two illegal aliens defendant was charged with

transporting, Arturo Lopez-Arellano and Jesus Macias-Lopez. Defendant testified

on his own behalf, and also presented the testimony of two relatives. Not

surprisingly, the jury was ultimately faced with conflicting evidence about what

transpired.

-11-
 Garcia testified the truck defendant was driving had a camper shell with

windows that had been painted dark, and, in his experience, older trucks with

camper shells were used extensively for alien smuggling. Garcia further testified

such camper shells usually have darkened or curtained windows to hide the illegal

aliens. Both Garcia and Abla, who worked with Garcia at the checkpoint,

testified defendant waived his rights after the arrest and told them he was

charging the other people in the truck approximately $300 per person to transport

them to Denver. When the truck was stopped, another man and a woman were in

the cab with defendant, and eight people (men, women, and children) were lying

in the back of the truck. All of the occupants were determined to be illegal

aliens. According to Abla, defendant stated he had met the illegal aliens at a

motel in the Phoenix area.

Lopez-Arellano testified defendant was a friend of his, and was also his

brother-in-law’s brother-in-law. According to Lopez-Arellano, both he and

defendant had been fired from their employment for not having papers and, after

discussing the situation, they decided to travel to either Denver or Oregon to find

work. Shortly thereafter, defendant traveled to Phoenix and, upon his return, told

Lopez-Arellano it would be better if they traveled to Denver. Lopez testified

defendant offered to drive his truck to Denver and, in return, Lopez-Arellano

agreed to pay for gasoline. Lopez-Arellano further testified he and defendant left

-12-
Prescott, Arizona (where Lopez-Arellano was living) in defendant’s truck and

drove to Phoenix. At Phoenix, defendant drove to a house or hotel, went inside,

and returned with the other people (most of whom Lopez-Arellano did not know),

who got into the truck. According to Lopez-Arellano, they refueled and

continued driving toward Denver. At Flagstaff, Arizona, they stopped to eat at a

fast-food restaurant, and then continued until they reached the checkpoint where

they were stopped. Lopez-Arellano testified he had initially lied to INS agents

and told them he paid $300 to be smuggled into the United States and paid

defendant $250 for the trip to Denver. Lopez-Arellano further testified he told

the government the “truth” on the day prior to trial.

Macias-Lopez testified he walked across the Mexico-United States border

at Del Monte, caught a ride with someone, and eventually took a taxi to a hotel in

Phoenix. Macias-Lopez testified he arrived at the hotel early on a Friday

morning. He subsequently met and talked to defendant in the lobby of the hotel.

Defendant asked if Macias-Lopez and his brother (it is unclear whether Macias-

Lopez traveled with his brother across the border or simply met his brother at the

hotel) wanted to go to Denver, and asked if Macias-Lopez had any money.

Macias-Lopez testified he gave defendant $150 to buy a vehicle (Macias-Lopez’

testimony on this point is unclear), and that his brother gave defendant money for

the trip as well. Macias-Lopez testified he had never met defendant prior to the

-13-
trip, and did not know anyone in the pickup other than his brother (with the

exception of Lopez-Arellano whom he allegedly encountered in a park in Prescott,

Arizona, on the Friday afternoon after he arrived at the hotel). Macias-Lopez’

description of the trip at trial was the same as the description he gave to Garcia at

the time he was arrested.

Defendant testified he was born in Mexico and entered the United States

illegally in 1983. Since that time he has lived and worked in different locations

in Arizona and Oregon. In December 1995, he was working in Arizona when he

lost his job due to his illegal alien status. He contemplated returning to Oregon to

find work. However, he talked with some friends in Phoenix about his situation

and a man named Pedro Ramona told him there were good opportunities in

Denver. Defendant testified that he agreed to take Ramona and his family (wife

and two children) to Denver in return for them finding defendant a place to stay

until he found work. Defendant testified that when he later told Lopez-Arellano

about his plan to go to Denver, Lopez-Arellano expressed interest in going as

well, and wanted to take along two friends who were familiar with Denver and

could help them find work. Defendant testified that on the day of the trip, he

picked up Lopez-Arellano and the two Macias-Lopez brothers in Prescott,

Arizona, then drove to Phoenix where he picked up Ramona and his family at

their apartment. At Ramona’s apartment, Ramona told defendant there were three

-14-
more people who wanted to go to Denver. Defendant agreed to allow the three

additional people to ride with them. Defendant testified they refueled and ate in

Flagstaff before continuing to the checkpoint. According to defendant, he

received a total of $150 from Lopez-Arellano and the two Macias-Lopez brothers

in Prescott, and a total of $250 from the other people in the truck who loaded in

Phoenix. Defendant testified that at the time of his arrest, he had approximately

$500 in cash (which included $140 of his own which he took with him when he

left).

Viewing the evidence in the light most favorable to the government, I

conclude it is more than sufficient to satisfy the “in furtherance of” element with

respect to defendant’s transportation of both Lopez-Arellano and Macias-Lopez.

It is uncontroverted that defendant planned and organized the trip to Denver, a

city much farther away from the Mexico-United States border than Prescott or

Phoenix, so that he, Lopez-Arellano, and Macias-Lopez could look for work. It is

further uncontroverted that in carrying out the trip, defendant utilized a vehicle

commonly associated with the illegal transportation of illegal aliens, i.e., a pickup

truck and a camper shell with darkened windows. It is uncontroverted that the

majority of the aliens (including Macias-Lopez and, for part of the trip, Lopez-

Arellano) rode inside the camper shell and were lying down at the time the truck

reached the checkpoint. It is also uncontroverted that defendant was driving

-15-
through the night and was stopped at the checkpoint in the early morning hours.

All of these basic facts, viewed in the light most favorable to the government,

suggest defendant was acting in willful furtherance of Lopez-Arellano’s and

Macias-Lopez’ illegal presence in this country.

With respect to Lopez-Arellano specifically, the only controverted fact of

importance is whether Lopez-Arellano paid defendant to take him to Denver, or

whether Lopez-Arellano merely paid for gas when they refueled the pickup in

Flagstaff. Viewing the evidence in the light most favorable to the government,

the jury could have reasonably believed Lopez-Arellano was lying at trial and had

actually paid defendant for the trip. Both agent Garcia and agent Abla testified

defendant told them he was charging $300 per person to transport the truck’s

occupants to Denver. Although Lopez-Arellano was a friend of the defendant,

this does not necessarily preclude a finding that defendant acted in furtherance of

Lopez’ illegal presence in this country.

With respect to Macias-Lopez, it is controverted whether he began riding

with defendant in Prescott, Arizona, or whether he met defendant at a motel in

Phoenix and agreed to pay him for a ride to Denver. Viewing the evidence in the

light most favorable to the government, the jury could have reasonably believed

the latter story. Either way, it is uncontroverted that Macias-Lopez paid

defendant some amount of money for the ride. Further, it is uncontroverted that

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Macias-Lopez was, at best, a mere acquaintance of defendant. Thus, the jury

could have reasonably concluded Macias-Lopez was “human cargo.”

In the end, the facts of this case fall somewhere between those of Perez-

Gomez and Chavez-Palacio. Specifically, the facts are arguably less egregious

than Perez-Gomez because defendant knew one of the aliens (Lopez-Arellano),

and because he did not keep the aliens locked up in his vehicle for long periods of

time without food, water, or bathroom breaks. However, the facts are arguably

more egregious than Chavez-Palacio in that defendant received money from the

aliens (one of whom was not his friend or co-worker) for transporting them to

Denver (in Chavez-Palacio, it is unclear whether the defendant received any

money, or whether the defendant knew the people he was transporting).

Accordingly, it is entirely consistent with circuit precedent to conclude there was

sufficient evidence to support defendant’s convictions.

Even if we were to believe defendant’s version of the facts, the evidence

would still demonstrate that he was an “organizer” of the trip, and thus acted “in

furtherance of” the other aliens’ presence in this country, consistent with the

Eighth Circuit’s holding in Velasquez-Cruz. Specifically, defendant researched

two possible destinations (Oregon and Denver) and determined Denver would

have the best employment opportunities for himself and the other aliens. Further,

defendant offered to use his truck to transport everyone from Arizona to Denver.

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In return, defendant received compensation in various forms (e.g., cash from

some of the aliens, payment for gas from others, and payment in the form of a

place to live). Finally, defendant was the sole driver of the truck.

In reversing defendant’s convictions, the district court essentially viewed

the evidence in the light most favorable to the defendant. For example, the

district court concluded Lopez-Arellano contributed only $50 for gasoline, and

did not otherwise pay defendant for the trip. Further, the district court

acknowledged Macias-Lopez paid defendant $150 for the trip, but nevertheless

concluded defendant did not profit from this because defendant’s transportation

expenses included “insurance, licensing, taxes, oil, gasoline and wear and tear on

the vehicle.” District Court’s Opinion at 5. The district court also acknowledged

the camper shell windows were darkened, but nevertheless concluded there was

no concealment or harboring, in part because the camper windows were darkened

when defendant purchased the camper. Finally, the court concluded Macias-

Lopez was not human cargo because he was an acquaintance of Lopez-Arellano.

Unfortunately, the majority does the very same thing in affirming the district

court’s decision. 6

6
Although the majority initially cites the proper de novo standard of
review, it proceeds in section II.A. of the opinion to determine whether the
district court’s “factual findings” were in “error.” Clearly, there are no “factual
findings” to review in this case, nor is the district court’s view of the evidence
(continued...)

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 III.

For the reasons outlined above, I would reverse the district court’s

judgment of acquittal and remand with directions to reinstate the jury’s verdict.

6
(...continued)
entitled to any deference. Rather, our role on appeal is to view the evidence in
the light most favorable to the government and determine whether the jury could
have reasonably found the “in furtherance of” element.

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