FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50040
Plaintiff-Appellee,
v. D.C. No.
3:07-CR-03405-W-2
ERNESTO FLORES-BLANCO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
January 12, 2010—Pasadena, California
Filed October 4, 2010
Before: William C. Canby, Jr., Cynthia Holcomb Hall and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge Canby
16725
UNITED STATES v. FLORES-BLANCO 16729
COUNSEL
David D. Leshner, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
Sylvia Baiz, San Diego, California, for the defendant-
appellant.
OPINION
CANBY, Circuit Judge:
Ernesto Flores-Blanco was arrested after border patrol
agents observed him coordinating the illegal crossing of a
Mexican national into the United States. Following a jury
trial, Flores-Blanco was convicted of bringing an unautho-
rized alien to the United States for financial gain; conspiracy
to bring an unauthorized alien to the United States; and induc-
ing and encouraging an unauthorized alien to enter the United
States, all in violation of various subsections of 8 U.S.C.
§ 1324(a). Flores-Blanco now appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm. The district court did not err either in its handling of
a co-defendant’s invocation of the Fifth Amendment privilege
against self-incrimination or in its admission of evidence of
prior bad acts by Flores-Blanco. There also was sufficient evi-
dence to uphold Flores-Blanco’s conviction, as an aider and
16730 UNITED STATES v. FLORES-BLANCO
abettor, for bringing an unauthorized alien to the United
States, as well as his conviction for conspiracy.
BACKGROUND
The underlying events took place in Calexico, California,
which is located just north of the international boundary fence
that separates the United States from Mexico. The city of
Mexicali, Mexico, is located on the opposite side of the fence.
It is possible to see through the fence.
The portion of the border fence in question is known for a
high incidence of alien smuggling. According to expert testi-
mony at Flores-Blanco’s trial, guides operating on the Mexi-
can side of the fence typically direct or lead small numbers of
aliens to the fence, where a counterpart waits for the alien or
aliens on the United States side. The guides on each side of
the fence coordinate the crossing through the use of cell
phones, hand signals, whistles, and eye contact through the
fence. When an alien crosses over or through the fence, the
guide in the United States is tasked with hiding the alien as
quickly as possible and typically leads the alien to a predeter-
mined location. These guides normally work for profit and
usually are not paid until the alien reaches his or her final des-
tination, which typically is beyond Calexico.
On December 9, 2007, border patrol agents Stephen Carter
and Seth Sedano were conducting surveillance on the Calex-
ico side of the fence from separate concealed locations. At
approximately 8:00 p.m., the agents observed Flores-Blanco
and co-defendant Mario Fernandez talking as they walked to
the back yard of Flores-Blanco’s residence on Second Street,
located one block north of the border. For the next thirty to
forty-five minutes, Flores-Blanco and Fernandez remained
together in the back yard looking toward the border, which
was clearly visible from their vantage point. Fernandez then
left the back yard and walked to the yard of a residence on
First Street located just north of the border fence, where he
UNITED STATES v. FLORES-BLANCO 16731
attempted to conceal himself. Over the next four to five hours,
Fernandez went back and forth between the First Street resi-
dence and Flores-Blanco’s back yard, talking on his cell
phone each time. Flores-Blanco remained in his back yard,
also talking on his cell phone and looking either south toward
the border or toward Fernandez.
At about 12:40 a.m., Fernandez returned to the First Street
residence one final time. Agent Carter observed two males
standing on the Mexican side of the fence, directly south of
Fernandez’s position. One of these males was talking on a cell
phone and looking north toward Fernandez, who also was
talking on his phone. Fernandez then motioned with his hand
for the men to move east. When the men on the Mexico side
moved east, Fernandez left his First Street hiding place, while
continuing to talk on his cell phone. Agent Carter heard him
say in Spanish, “We are ready. Now, now.”
Agent Sedano then observed Flores-Blanco leave his back
yard and proceed to an area known as the “White Apart-
ments,” which is located just north of the border fence and
east of Fernandez’s former vantage point on First Street.
Agent Sedano also observed two individuals moving east on
the Mexican side of the fence. Flores-Blanco crouched down
outside of the White Apartments facing the fence and talked
on his cell phone. Agent Sedano then saw Flores-Blanco
make a waving motion with his hand and heard him inquire
in Spanish, “I’m here?” Flores-Blanco then suddenly looked
in Agent Sedano’s direction, became startled, and walked
north, away from the White Apartments and the border fence.
At about this time, Alejandro Portillo-Mendoza, a Mexican
national lacking permission to enter the United States, jumped
over the border fence near the White Apartments. Portillo-
Mendoza had been led to the border fence by a Mexican guide
who talked on his cell phone on the way to the fence. When
they arrived at the fence, Portillo-Mendoza overheard the
guide, who was talking on his phone, urge “[t]hat he not be
16732 UNITED STATES v. FLORES-BLANCO
let down.” The man then helped Portillo-Mendoza climb onto
his shoulders, instructing him to jump over the fence when he
saw a person waiting on the other side and then to run in that
person’s direction. When Portillo-Mendoza saw a person
waiting on the other side wearing a dark-colored, hooded
sweatshirt, he jumped over the fence and ran in that person’s
direction. But when Portillo-Mendoza arrived, the person was
gone, so he tried to hide himself. Portillo-Mendoza soon was
discovered in the vicinity of the White Apartments and
arrested. Shortly thereafter, Flores-Blanco and Fernandez also
were arrested. A video of Flores-Blanco taken after his arrest
showed that he was wearing a dark-colored, hooded
sweatshirt.
A federal grand jury subsequently returned an indictment
against Flores-Blanco and Fernandez, charging them with:
Count 1, conspiracy to bring in unauthorized aliens, 8 U.S.C.
§ 1324(a)(1)(A)(i) and (v)(I); Count 2, bringing in an unau-
thorized alien for financial gain and aiding and abetting, 8
U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2; and Count 3,
inducing and encouraging an unauthorized alien to enter the
United States, 8 U.S.C. § 1324(a)(1)(A)(iv) and (v)(II). Fer-
nandez pleaded guilty to Count 3, but Flores-Blanco pro-
ceeded to trial, where a jury convicted him on all counts.
DISCUSSION
I. Co-Defendant Fernandez’s Invocation of the Fifth
Amendment
We first consider two challenges relating to Fernandez’s
refusal to testify on Flores-Blanco’s behalf.
After Fernandez pleaded guilty, Flores-Blanco subpoenaed
Fernandez to testify. At a hearing held outside of the presence
of the jury, counsel for Flores-Blanco informed the district
court that Fernandez had exculpatory evidence to offer in her
client’s favor. In response to the district court’s request for an
UNITED STATES v. FLORES-BLANCO 16733
offer of proof, counsel claimed that Fernandez would testify
“[t]hat [it] was his job and [Flores-Blanco] had nothing to do
with it.” Fernandez then interjected, “[Flores-Blanco] had
nothing to do with it.”
Nonetheless, after conferring with counsel and being
warned by the district court that he would be subject to cross-
examination if he testified, Fernandez twice stated that, if cal-
led as a witness, he would assert his Fifth Amendment right
against self-incrimination. Counsel for Flores-Blanco asked
the government, and then the district court, to grant Fernandez
use immunity, but both refused. At a later hearing convened
to clarify that Fernandez’s plea agreement did not prohibit
him from testifying, Fernandez again stated his intention to
invoke the Fifth Amendment if he were called to testify.
[1] Flores-Blanco first challenges the district court’s
refusal to compel the government to grant Fernandez use
immunity. We conclude that there was no error.1 To require
the district court, as a matter of due process, to compel use
immunity for Fernandez, Flores-Blanco had to make two
showings. First, he had to show that Fernandez’s anticipated
testimony was relevant. United States v. Straub, 538 F.3d
1147, 1157 (9th Cir. 2008). Second, Flores-Blanco was
required to show either that:
(a) the prosecution intentionally caused [Fernandez]
to invoke the Fifth Amendment right against self-
incrimination with the purpose of distorting the fact-
finding process; or (b) the prosecution granted
immunity to a government witness in order to obtain
that witness’s testimony, but denied immunity to
[Fernandez,] whose testimony would have directly
1
The district court’s refusal to compel use immunity to Fernandez is a
mixed question of law and fact that we review de novo, although the fac-
tual findings underlying the ruling are reviewed for clear error. United
States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008).
16734 UNITED STATES v. FLORES-BLANCO
contradicted that of the government witness, with the
effect of so distorting the fact-finding process that
[Flores-Blanco] was denied his due process right to
a fundamentally fair trial.
Id. at 1162. Even if we assume that Fernandez’s testimony
would have been relevant to Flores-Blanco’s defense, Flores-
Blanco has not met either of the last two requirements. Noth-
ing in the record indicates that the government deliberately
caused Fernandez to invoke his Fifth Amendment rights.
Counsel’s contention at oral argument that the district court
intimidated Fernandez into asserting his Fifth Amendment
rights also has no support in the record. Nor does anything in
the record indicate that the government denied use immunity
to Fernandez while granting use immunity to a government
witness: there were no immunized government witnesses.
[2] There also was no plain error in the district court’s fail-
ure to conduct additional inquiry into the propriety of Fernan-
dez’s invocation of his Fifth Amendment privilege.2 The
district court was not required to inquire into Fernandez’s rea-
sons for asserting the Fifth Amendment. Instead, “[t]o sustain
the privilege, it need only [have] be[en] evident from the
implications of the question, in the setting in which it [was]
asked, that a responsive answer to the question or an explana-
tion of why it cannot be answered might [have] be[en] dan-
gerous because injurious disclosure could result.” Hoffman v.
United States, 341 U.S. 479, 486-87 (1951). Here, the district
court did not plainly err by concluding that cross-examination
of Fernandez on his assertion that Flores-Blanco had nothing
2
Because Flores-Blanco did not object to the scope of the district court’s
inquiry into Fernandez’s invocation of his Fifth Amendment rights, the
district court’s decision not to hold further hearings is reviewed for plain
error. United States v. Jaeger, 538 F.3d 1227, 1230-31 (9th Cir. 2008).
Thus, to prevail on that claim, Flores-Blanco must show error that is plain,
that affects substantial rights, and that “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1231 (inter-
nal quotation marks omitted).
UNITED STATES v. FLORES-BLANCO 16735
to do with the charged offenses would have resulted in Fer-
nandez incriminating himself in criminal activity.
[3] For similar reasons, the district court did not plainly err
by not inquiring into the scope of Fernandez’s assertion of his
Fifth Amendment privilege. Although
a district court must ordinarily determine whether
a witness will invoke his Fifth Amendment privilege
“in response to specific questions,” . . . [the district
court] may recognize a witness’s blanket privilege
against self-incrimination if “the court, based on its
knowledge of the case and of the testimony expected
from the witness, can conclude that the witness
could legitimately refuse to answer essentially all
relevant questions.”
United States v. Klinger, 128 F.3d 705, 709 (9th Cir. 1997)
(quoting United States v. Tsui, 646 F.2d 365, 367-68 (9th Cir.
1981)). Here, the district court knew from Flores-Blanco’s
proffer that Fernandez’s testimony inevitably would concern
Fernandez’s own role in the offenses. The district court also
was aware that Fernandez faced un-dismissed charges, despite
pleading guilty to Count 3. Accordingly, even if we assume
that Fernandez’s invocation of the Fifth Amendment could be
construed as a “blanket refusal” to testify, the district court
did not plainly err by allowing Fernandez to assert the Fifth
Amendment without requiring him to be subjected to specific
questions.
II. Admission of Rule 404(b) Evidence
Flores-Blanco also challenges the district court’s admission
of evidence of two of his prior acts. The jury heard testimony
that, in December 2005, soon after two individuals cut
through the border fence and entered the back door of a
nearby residence, Flores-Blanco was seen leaving that resi-
dence through the front door, attempting to conceal the pres-
16736 UNITED STATES v. FLORES-BLANCO
ence of an unauthorized alien who was following him. The
jury also heard testimony that, in January 2006, Flores-Blanco
was seen leading two unauthorized aliens, who had just
jumped the border fence, in a single-file line through his yard.
The district court admitted this testimony pursuant to Federal
Rule of Evidence 404(b), concluding that the evidence was
relevant to Flores-Blanco’s intent, knowledge, and planning
in the present case and that its probative value was not out-
weighed by the testimony’s prejudicial effect.
[4] Rule 404(b) prohibits the introduction of evidence of
“other crimes, wrongs, or acts . . . to prove the character of
a person in order to show action in conformity therewith,” but
permits such evidence for other purposes, including “proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). “So long as the evidence is offered for a proper pur-
pose, . . . the district court is accorded wide discretion in
deciding whether to admit the evidence, and the test for
admissibility is one of relevance.” United States v. Johnson,
132 F.3d 1279, 1282 (9th Cir. 1997). Evidence of other acts
may be admitted if:
(1) the evidence tends to prove a material point; (2)
the prior act is not too remote in time; (3) the evi-
dence is sufficient to support a finding that the
defendant committed the other act; and (4) (in cases
where knowledge and intent are at issue) the act is
similar to the offense charged.
United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994)
(citations omitted). However, “even if all four conditions are
met, the evidence may still be excluded if under a Federal
Rule of Evidence 403 analysis its probative value is substan-
tially outweighed by the danger of unfair prejudice.” United
States v. Bibo-Rodriguez, 922 F.2d 1398, 1400-01 (9th Cir.
1991) (citations omitted).
UNITED STATES v. FLORES-BLANCO 16737
[5] The district court did not abuse its discretion in admit-
ting evidence of Flores-Blanco’s prior involvement in alien
smuggling.3 The evidence tended to prove the material issues
of Flores-Blanco’s knowledge, intent, and plan.4 See Fed. R.
Evid. 404(b). The prior acts, which took place approximately
two years before the present offenses, were not too remote in
time. See Johnson, 132 F.3d at 1283 (acts committed thirteen
years before the offense were not too remote); United States
v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989) (conviction that
was more than ten years old was not too remote in light of its
similarity to the offense at issue). The testimony of the border
patrol agents who apprehended Flores-Blanco on the prior
occasions was sufficient to support a jury finding that Flores-
Blanco committed the alleged prior acts. See Huddleston v.
United States, 485 U.S. 681, 689 (1988); see also United
States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002) (describ-
ing the third prong of the Rule 404(b) test as a “low thresh-
old” that may be satisfied by the testimony of a single
witness). Finally, the prior acts were sufficiently similar to the
present offense to show Flores-Blanco’s knowledge of the
present smuggling scheme and his intent and plan to partici-
pate in it. The current offense and the prior apprehensions all
involved the smuggling of unauthorized aliens over and
through the border fence in precisely the same area of Calex-
3
The district court’s decision to admit Rule 404(b) evidence is reviewed
for abuse of discretion, “but we consider de novo whether [that] evidence
is directly relevant to the crime charged or relevant only to ‘other
crimes.’ ” United States v. Jackson, 84 F.3d 1154, 1158-59 (9th Cir.
1996). We also review for abuse of discretion the district court’s determi-
nation that the prejudicial effect of the prior acts evidence did not substan-
tially outweigh its probative value. United States v. Plancarte-Alvarez,
366 F.3d 1058, 1062 (9th Cir. 2004).
4
Flores-Blanco argues that knowledge was not a material issue in this
case because he “never claimed that he did not know what was happen-
ing.” Knowledge, however, was a material issue in this case “simply
because the government had to prove [it].” Mayans, 17 F.3d at 1182.
“[T]he fact that [Flores-Blanco’s] defense was non-participation does not
render the issue of knowledge irrelevant.” Id.
16738 UNITED STATES v. FLORES-BLANCO
ico, California, and the jury could conclude that Flores-
Blanco’s role in each offense was the same: to guide aliens
through the neighborhood immediately after they had crossed
the border.
[6] Nor was the probative value of the prior acts evidence
substantially outweighed by any danger of unfair prejudice.
The evidence was probative of Flores-Blanco’s knowledge
and intent and not of the type that would provoke an unfairly
prejudicial emotional response. See United States v. Ramirez-
Jiminez, 967 F.2d 1321, 1327 (9th Cir. 1992). In addition, any
prejudice was minimized by the district court’s limiting
instruction to the jury. See, e.g., United States v. Dhingra, 371
F.3d 557, 567 (9th Cir. 2004).5 The district court accordingly
did not abuse its discretion in admitting the evidence of prior
acts.
III. Sufficiency of the Evidence
Finally, Flores-Blanco argues that there was insufficient
evidence to support his convictions for “bringing to” the
United States an unauthorized alien for financial gain, 8
U.S.C. § 1324(a)(2)(B)(ii), and conspiracy to commit the
“brings to” offense, 8 U.S.C. § 1324(a)(1)(A)(i) and (v)(I).6
A. Aiding and Abetting the “Brings To” Offense
Flores-Blanco was convicted of violating 8 U.S.C.
§ 1324(a)(2)(B)(ii), which punishes:
5
The district court instructed the jury as follows: “You have heard evi-
dence of other acts engaged in by the defendant. You may consider that
evidence only as it bears on a defendant’s intent, preparation, plan and
knowledge and for no other purpose.”
6
“We review a claim of insufficient evidence de novo and ask whether,
viewing the evidence in the light most favorable to the government, any
reasonable jury could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Hernandez-Orellana, 539
F.3d 994, 1002 (9th Cir. 2008).
UNITED STATES v. FLORES-BLANCO 16739
Any person who, knowing or in reckless disregard of
the fact that an alien has not received prior official
authorization to come to, enter, or reside in the
United States, brings to or attempts to bring to the
United States in any manner whatsoever, such alien,
regardless of any official action which may later be
taken with respect to such alien . . . .
It is undisputed that Flores-Blanco himself did not “bring”
Portillo-Mendoza to the United States, but Flores-Blanco also
was charged with aiding and abetting the “brings to” offense.
See 18 U.S.C. § 2(a) (“Whoever commits an offense against
the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal.”).
Flores-Blanco contends that there was insufficient evidence to
convict him of aiding and abetting the “brings to” offense.
[7] In United States v. Lopez, 484 F.3d 1186 (9th Cir.
2007) (en banc), we explained that “under certain circum-
stances a defendant who does not physically transport aliens
across the border may be held criminally liable for aiding and
abetting a ‘brings to’ offense.” Id. at 1199. To convict under
an aiding and abetting theory, the government must prove that
the defendant “willingly associated himself with the venture
and participated therein as something he wished to bring
about,” id. (internal quotation marks omitted), in that the
defendant “knowingly and intentionally commanded, coun-
seled, or encouraged the initial transporter to commit the
‘brings to’ offense,” id. at 1200.
[8] The “brings to” offense in this case ended when the
guide in Mexico assisted Portillo-Mendoza over the border
fence. See id. at 1191 (holding that the “brings to” offense
“ends when the person who transports the aliens to the coun-
try terminates his act of transportation and drops off the aliens
in the United States”). The government accordingly was
required to provide evidence that “sufficiently demonstrate[d]
that [Flores-Blanco] was connected to conduct that occurred
16740 UNITED STATES v. FLORES-BLANCO
before the entry of [Portillo-Mendoza] to the United States.”
United States v. Reyes-Bosque, 596 F.3d 1017, 1036 (9th Cir.
2010) (emphasis added).7
[9] We conclude that, when the evidence is viewed in the
light most favorable to the government, a reasonable jury
could have found beyond a reasonable doubt the requisite
“extra-territorial connection” in Flores-Blanco’s case.
Hernandez-Orellana, 539 F.3d at 1006. Having heard evi-
dence of Flores-Blanco’s hours-long coordinated surveillance
of the border with Fernandez, his repositioning himself a short
distance from the border fence as Portillo-Mendoza
approached, and then his waving Portillo-Mendoza across, the
7
In Lopez, we further noted that
[a]ny complete specification of the category of aiders and abet-
tors would have to take into account, and attempt to avoid redun-
dancy with, the separate offense Congress created for one who
“encourages or induces an alien to come to, enter, or reside in the
United States, knowing or in reckless disregard of the fact that
such coming to, entry, or residence is or will be in violation of
law.”
484 F.3d at 1199 n.16 (quoting 8 U.S.C. § 1324(a)(1)(A)(iv)). This cau-
tion is particularly relevant here because Flores-Blanco was convicted of
the “encourages and induces” offense, in addition to the “brings to”
offense.
The two convictions were not redundant here. In United States v. Singh,
532 F.3d 1053 (9th Cir. 2008), we explained that “[t]he ‘encourages or
induces’ offense criminalizes the act of encouraging the alien herself to
illegally enter or reside in the United States, whereas aiding and abetting
the principal in a ‘bringing to’ offense criminalizes the act of aiding, coun-
seling, inducing or encouraging not the alien but the principal.” Id. at
1059 (internal citations omitted). We are satisfied that the evidence of
Flores-Blanco’s encouragement of Portillo-Mendoza (waiting for him on
the United States side and waving him across) is sufficiently distinguish-
able from the evidence of Flores-Blanco’s encouragement of the smuggler
on the Mexico side (circumstantially indicating that Flores-Blanco agreed
to transport Portillo-Mendoza to a safe hiding place upon the alien’s cross-
ing). Flores-Blanco has not challenged the evidence supporting his “en-
courages and induces” conviction.
UNITED STATES v. FLORES-BLANCO 16741
jury could infer that Flores-Blanco “willingly associated him-
self with the [smuggling] venture and participated therein as
something he wished to bring about.” Lopez, 484 F.3d at 1199
(quoting United States v. Zemek, 634 F.2d 1159, 1174 (9th
Cir. 1980)).8 The jury also heard evidence that, typically, the
guide on the United States side is assigned the task of hiding
the alien as quickly as possible and that none of the smugglers
get paid until the alien reaches his final destination. Here, not
long before the crossing, the smuggler on the Mexico side,
speaking into his phone, urged “[t]hat he not be let down,”
and soon thereafter he instructed Portillo-Mendoza to jump
over the fence and run toward the person waiting on the other
side. A reasonable jury could conclude from this evidence that
Flores-Blanco actively encouraged the guide to send Portillo-
Mendoza over the fence and that the Mexican smuggler
would not have done so without first securing Flores-Blanco’s
agreement to guide Portillo-Mendoza into hiding. See United
States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir.
2007) (“Circumstantial evidence may support a conviction as
an aider and abetter.”).
Flores-Blanco’s case is easily distinguished from Lopez and
Hernandez-Orellana, where the evidence of pre-offense con-
duct by the defendants was insufficient to support a “brings
to” conviction under an aiding and abetting theory. In Lopez,
the defendant “was contacted on the day she transported [sev-
eral unauthorized aliens] only after the aliens were already in
the country and the plan for the first person to pick them up
had been frustrated by his arrest when he appeared at the des-
ignated location.” 484 F.3d at 1200. We found irrelevant the
fact that, after picking up the aliens, the defendant twice
spoke to the person who might have been the initial trans-
porter, and we rejected as speculative the government’s other
attempts to link the defendant’s pre-offense conduct to the
8
Flores-Blanco’s use of a cell phone and hand signals also was consis-
tent with the expert testimony on the modus operandi of alien smugglers
in the relevant border fence area.
16742 UNITED STATES v. FLORES-BLANCO
smuggling venture. Id. at 1200-01. Similarly, in Hernandez-
Orellana, we reversed the “brings to” convictions of two
defendants because, although the evidence showed that the
defendants were involved in alien smuggling “as a general
matter,” there was no specific evidence indicating that the
defendants had encouraged and induced the smuggling of the
two illegal aliens named in the indictment. 539 F.3d at 1006.
[10] Here, in contrast, all of the relevant conduct by
Flores-Blanco took place before the offense was completed,
and, as described above, there was sufficient evidence for the
jury to conclude that this conduct induced the smuggler in
Mexico to deliver Portillo-Mendoza across the fence. Flores-
Blanco’s case is comparable to United States v. Singh, 532
F.3d 1053 (9th Cir. 2008), where, on plain error review, we
upheld a “brings to” conviction because, prior to the start of
the offense, the defendant agreed not only to transport a
smuggled alien within the United States, but also to “bring[ ]
the [alien’s] passport back to the principals in Canada,”
thereby “ensur[ing] the continued operation of the human
smuggling conspiracy.” Id. at 1061; see also Reyes-Bosque,
596 F.3d at 1036 (finding sufficient evidence of pre-offense
conduct where a group of aliens had been brought to the
house where the defendant operated an alien smuggling
scheme and a ledger of smuggling-related activities seized
from that house listed the name of one of the illegal aliens in
that group). We accordingly reject Flores-Blanco’s challenge
to the sufficiency of the evidence for his “brings to” convic-
tion.
B. Conspiracy to Commit the “Brings To” Offense
[11] Flores-Blanco also argues that the evidence was insuf-
ficient to support his conviction for conspiring to commit the
“brings to” offense. He relies primarily on Lopez, but, as we
explained in Hernandez-Orellana, “nothing in Lopez can be
read as transforming the traditional elements of a criminal
conspiracy.” Hernandez-Orellana, 539 F.3d at 1006. The evi-
UNITED STATES v. FLORES-BLANCO 16743
dence was sufficient to prove those “traditional elements” in
Flores-Blanco’s case. A reasonable jury could infer an agree-
ment to engage in criminal activity between Flores-Blanco,
Fernandez, and the smuggler in Mexico from their consider-
able coordination in positions and timing using cell phones
and hand signals. See United States v. Iriarte-Ortega, 113
F.3d 1022, 1024 (9th Cir. 1997) (“Coordination between con-
spirators is strong circumstantial proof of agreement; as the
degree of coordination rises, the likelihood that their actions
were driven by an agreement increases.”). The Mexican
smuggler’s assistance to Portillo-Mendoza in crossing the
fence was an overt act in furtherance of the conspiracy. See
Hernandez-Orellana, 539 F.3d at 1010; see also id. at 1007
(“[I]t matters only that a co-conspirator commit the overt act,
not necessarily that the accused herself does so.”). There also
was sufficient evidence that Flores-Blanco had the “requisite
intent to commit the substantive crime,” id. at 1107 (internal
quotation marks omitted), specifically, that he knew that
Portillo-Mendoza was an alien and acted with the intent to
violate United States immigration laws, see United States v.
Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005). The
prior acts evidence was probative of Flores-Blanco’s knowl-
edge and intent in the present case, as was Flores-Blanco’s
abrupt departure from the White Apartments when he saw
Agent Sedano. See, e.g., United States v. Baker, 256 F.3d 855,
863 (9th Cir. 2001) (inferring knowledge of a package’s illicit
contents in part from the defendant’s nervous behavior and
“flight when confronted by the detectives”). We therefore
reject Flores-Blanco’s challenge to the sufficiency of the evi-
dence for his conspiracy conviction.
CONCLUSION
For the foregoing reasons, Flores-Blanco’s convictions are
AFFIRMED.