IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-50022
_______________________________
UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
JUAN NOLASCO-ROSAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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March 20, 2002
Before JONES, WIENER, and PARKER, Circuit Judges.
PER CURIAM:
Defendant-Appellant Nolasco-Rosas (“Nolasco”) was indicted for
transporting undocumented aliens within the United States for the
purpose of commercial advantage and private financial gain, in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(I). He was tried by
a jury and convicted of aiding and abetting, and was sentenced to
thirty-three months of imprisonment. He challenges the sufficiency
of the evidence supporting his conviction. Finding no reversible
error in Nolasco’s conviction or his sentencing, we affirm.
I. FACTS AND PROCEEDINGS
Border Patrol Officer Jeff Sagemuehl was driving to work one
evening when he spotted some modified vans1 and other vehicles
driving slowly and in close proximity to each other. Traveling on
a farm-to-market road, the vehicles were in an area commonly used
as a pick-up point for illegal aliens. The officer notified the
border patrol office of his sighting and described one of the
vehicles traveling with the vans as a custom-painted, red and white
striped, Chevrolet pickup truck (the “pickup”). Although his
recollection was in dispute at trial, Sagemuehl testified that the
vans and pickup exhibited uncommon and suspicious driving behavior,
especially given the particular rural road (FM 481) on which they
were traveling. At trial, he identified a photograph of the pickup
as the one that he had seen on the night in question.
At about the time that Officer Sagejmuehl reported his
sighting, Border Patrol Officers Myers and Medica, patrolling in
separate cars, received a call from their dispatcher informing them
that five vans, a pickup truck, and a Ford Crown Victoria were
traveling together on FM 481. Myers and Medica each stationed his
patrol car on FM 481 and observed the traffic. Eventually, they
spotted a red and white pickup truck, two vans, and a Ford Crown
Victoria being driven closely together. In their respective patrol
1
The vans were “riding high in the back,” indicating that
they were modified to accommodate greater cargo (including
passengers) weight in the back.
2
cars, Myers and Medica attempted to stop the vehicles. Medica
pulled up behind one of the vans and was able to stop it. Inside
the van, Medica found approximately 20 occupants who told the
officer that they were illegally in the United States. The van
contained a CB radio tuned to Channel 35.
Myers pulled up behind another vehicle, at which point the
Crown Victoria rapidly drove away. Believing that illegal aliens
were likely to be found in the vans, Myers elected not to follow
the Crown Victoria, staying near the van instead. At this point,
Myers’s patrol car was behind the van but in front of the pickup.
He turned on his police lights in an effort to get the van to pull
over, but it continued on; and as the cars approached a curve, the
pickup passed Myers’s car and slammed on its brakes, cutting off
Myers. After braking to avoid an accident, Myers attempted to move
into the opposite lane, but was again cut off by the pickup. This
process of attempted passes by Myers thwarted by cut offs by the
pickup ended with Myers driving his patrol car into a road-side
ditch.
By the time that Myers pulled back on to the road, the pickup
had sped away. Myers notified the border patrol office of the
situation and proceeded along the road. A few moments later, Myers
spotted the van that he had attempted to apprehend stopped on the
road. The van was unoccupied, but Myers observed many sets of
footprints and several bags of clothes, food, and water, inside the
van. Like the one stopped earlier by Medica, this van also
3
contained a CB radio tuned to Channel 35.
Knowing that Myers’s patrol car had been run off the road,
Medica radioed Officer Blaylock, a local police officer, for help.
Medica described the pickup and the other vehicles to Blaylock who
stationed his car on FM 481 and soon saw a red and white pickup
truck pass with its lights off. Blaylock pursued the pickup, and
with the help of other officers and their cars, was able to bring
it to a halt by blocking its path. When Blaylock got out of his
vehicle and walked in front of the pickup, its driver (who turned
out to be Nolasco) began driving forward, toward Blaylock. The
officers drew their weapons and ordered Nolasco to put his hands
up. When Nolasco failed to comply and resisted arrest, he was
forcibly removed from the pickup, which was found to contain a
scanner and a CB radio tuned to Channel 35.
Nolasco was charged with two counts of transporting illegal
aliens2 and one count of assaulting, resisting, or impeding a
federal officer.3 He was tried before a jury, and after each side
had rested, Nolasco moved for a judgment of acquittal, which was
denied by the district court. The jury convicted Nolasco on all
three counts. In addition, the jury answered a special
2
One count for each of the illegal aliens who were the
government’s material witnesses: Count One for Arnaldo Flores-Ochoa
(“Flores”); Count Two for Jesus Erubial Morales-Chavira
(“Morales”).
3
Nolasco does not appeal his conviction on this count.
4
interrogatory, finding that the government had proved beyond a
reasonable doubt that Nolasco had transported illegal aliens for
“commercial advantage or private financial gain.” The district
court sentenced Nolasco to three concurrent prison terms of 33-
months each, to be followed by two concurrent three-year supervised
release terms for the transportation counts and a concurrent one-
year supervised release term for the assault count. Nolasco timely
appealed.
II. ANALYSIS
A. Standard of Review
Nolasco challenges the sufficiency of the evidence used to
support his conviction for illegally transporting aliens and the
jury’s finding that he did so for commercial advantage and
financial gain. The standard for evaluating the sufficiency of
evidence is whether a rational jury, viewing the evidence in the
light most favorable to the government, could have found the
essential elements of the offense beyond a reasonable doubt.4 In
evaluating a sufficiency of the evidence claim, this court must
draw all reasonable inferences in support of the verdict.5 We do
not consider whether the jury correctly determined innocence or
4
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998).
5
Id.
5
guilt, but whether the jury made a rational decision.6
B. Transporting Illegal Aliens
The evidence is sufficient to affirm Nolasco’s transportation
convictions under § 1324(a)(1)(A)(ii). To convict Nolasco on this
count, the jury had to find beyond a reasonable doubt that (1) an
alien entered or remained in the United States in violation of the
law, (2) Nolasco transported the alien within the United States
with intent to further the alien’s unlawful presence, and (3)
Nolasco knew or recklessly disregarded the fact that the alien was
in the country in violation of the law.7
The testimony and evidence presented at trial are more than
adequate to support Nolasco’s conviction for aiding and abetting
the transportation of aliens by others. The government’s material
witnesses, Flores and Morales, admitted to entering the country
illegally and journeying to cities within the United States.
Although neither witness knew or saw Nolasco before they and others
were brought to the border patrol station on the night of their
apprehension, both testified that they saw the red and white pickup
before they entered the vans in which they were transported. All
border patrol agents involved in the apprehension described a red
6
United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.
1995).
7
8 U.S.C. § 1324(a)(1)(A)(ii); United States v. Diaz, 936,
F.2d 786, 788 (5th Cir. 1991).
6
and white Chevrolet pickup being driven in close proximity to some
of the modified vans. Officer Blaylock stopped Nolasco in a truck
matching the description of the pickup that Officers Sagemeuhl,
Medica, and Myers had seen and followed. The CB radio found in
Nolasco’s truck was tuned to the same frequency as the CB radios
found in the two vans stopped by Medica and Myers. Finally, when
Officer Blaylock crossed in front of Nolasco’s pickup on foot after
stopping it, Nolasco drove his vehicle toward the officer, then
resisted arrest by fighting with the officers as they removed him
from the pickup. From this evidence, a rational jury could
conclude beyond a reasonable doubt that Nolasco knowingly aided and
abetted the transportation of illegal aliens.
C. Financial Gain
Although Nolasco was indicted for transporting undocumented
aliens for financial gain, he was tried entirely for aiding and
abetting. Nevertheless, the government sought and obtained a
special jury interrogatory on financial gain. The jury found
Nolasco guilty only of aiding and abetting the illegal
transportation of aliens, but answered the interrogatory on
financial gain in the affirmative. This combination of trying and
convicting Nolasco for aiding and abetting and putting the
financial gain issue before the jury produced an aberration that we
are constrained to correct lest the same mistake be repeated in
future prosecutions of this nature.
7
As the government prosecuted Nolasco under an aiding and
abetting theory only, the financial gain component of § 1324(a)(1)
is wholly inapplicable; and the government so conceded at oral
argument. United States v. Angwin,8 a Ninth Circuit case
addressing a related issue, supports the proposition that if the
defendant is prosecuted under § 1324(a)(1)(A) and is convicted of
no more than aiding and abetting the transportation of illegal
aliens, it makes absolutely no difference whether the
transportation was undertaken for financial gain:
Absent subsection (a)(1)(A)(v)(II), Title 18 would
operate to impose on an aider and abettor a ten-year
maximum term —— the same term a principal would receive
—— for aiding and abetting those offenses [described in
(A)(i)-(iv)]. Given the aiding and abetting provision in
subsection (a)(1)(A)(v)(II) and the penalty provisions in
subsection (a)(I)(B), however, a defendant who aids or
abets a violation of those provisions is only subject to
a five-year maximum term, even if the defendant aided and
abetted a violation for commercial gain.9
Angwin suggests that §§ 1324(a)(1)(A) and (B) are constructed to
carve out an exception for defendants convicted of aiding and
abetting the crimes delineated in 1324(a)(1)(A)(i)-(iv). The
effect of the exception is that, unlike the sentencing process for
a defendant convicted as a principal or as part of a conspiracy,
the sentencing of a defendant convicted of aiding and abetting in
the transportaion of illegal aliens is entirely unaffected by the
8
271 F.3d 786 (9th Cir. 2001).
9
Id. at 802 (emphasis added).
8
element of financial gain. The statutory maximum for aiding and
abetting the transportation of illegal aliens is 5 years,
regardless of whether or not the underlying crime was committed for
financial gain.10
It is obvious that (1) at trial, (2) during closing arguments,
(3) in conversations with the district court, and (4) in the jury
instructions, the government was not arguing that Nolasco was a
principal. Rather, the government consistently took the position
that Nolasco aided and abetted other individuals who were actually
transporting the illegal aliens. The evidence adduced at trial
shows that Nolasco was associated with the persons transporting the
aliens, that he escorted the vans containing illegal aliens, and
that he interfered with officers attempting to apprehend the
vehicles that were transporting the illegal aliens. The evidence
does not show that Nolasco actually transported aliens or that he
was paid or expected to be paid for his services.
Section 1324(a)(1)(A)(v)(II) expressly provides that aiding
and abetting the commission of § 1324(a)(1)(A)(ii) is a separate,
free-standing offense. The government, however, did not include
mention of 1324(a)(1)(A)(v)(II) in the verdict form or in its
10
Id. at 803 (“Instead, the addition of the aiding and
abetting provision in subsection (a)(1)(A)(v)(II) and the
corresponding adjustments to the penalty provisions in subsection
(a)(1)(B) operate to impose lesser penalties for aiders and
abettors of certain offenses than they would normally receive under
Title 18.”)
9
appellate brief. Had the government included 1324(a)(1)(A)(v)(II)
in its documentation, there would have been no doubt that, pursuant
to 1324(a)(1)(B)(i) and (ii), the statutory maximum for aiding and
abetting —— Nolasco’s crime of conviction —— was 5 years and that
under no circumstances could it be increased to ten years for
financial gain.11 But, despite the fact that the evidence adduced
at trial was sufficient to show only that Nolasco was an aider and
abettor, the government’s misguided request for a financial gain
interrogatory induced the court to give one.
The government’s error in pursuing the financial gain
component of the crime and the court’s error in submitting an
interrogatory on that irrelevant point, in Nolasco’s case, is
nevertheless harmless. With or without the financial gain
component, Nolasco’s maximum statutory sentence was five years.
Even if the jury concluded correctly that the crime that Nolasco
aided and abetted was committed for financial gain, thereby making
the actual perpetrators subject to a statutory maximum sentence of
ten years, it could not have caused Nolasco to receive more than
five years as an aider and abettor. Regardless, the district court
sentenced Nolasco to but 33 months of imprisonment, still less than
the correct maximum of five years, not to mention the incorrect
maximum of ten years. Therefore, Nolasco’s right to receive a
11
See id. at 800-03 and discussion supra.
10
prison term of no more than five years was not affected by any
error that may have occurred as a result of causing the jury to
consider financial gain.
Our belabored point, which by now should be obvious, is that
when a defendant is tried and convicted only for aiding and
abetting in the transportation of undocumented aliens, the question
of financial gain —— whether by the defendant or others —— is
immaterial and should not be introduced into the picture lest it
cause confusion.
III. CONCLUSION
For the foregoing reasons, Nolasco’s conviction and his
sentence are
AFFIRMED.12
12
Judge Jones concurs in the judgment only.
11