FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30150
Plaintiff-Appellee,
v. D.C. No.
CR-06-00038-RSM
HARMINDER SINGH,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
March 12, 2008—Seattle, Washington
Filed July 17, 2008
Before: Betty B. Fletcher, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge McKeown
8805
8808 UNITED STATES v. SINGH
COUNSEL
Robert M. Leen, Seattle, Washington, for the defendant-
appellant.
Lisca N. Borichewski, United States Attorney, Helen J. Brun-
ner, Assistant United States Attorney, & Ye-Ting Woo,
United States Attorney, Seattle, Washington, for the plaintiff-
appellee.
OPINION
McKEOWN, Circuit Judge:
Harminder Singh was convicted on several counts related
to his role in a human smuggling conspiracy. This appeal
raises two issues with regard to Singh’s conviction for bring-
ing an alien to the United States for the purposes of financial
gain. See 8 U.S.C. § 1324(a)(2)(B)(ii). Singh contends that
there was insufficient evidence to establish that he brought, or
UNITED STATES v. SINGH 8809
aided and abetted the bringing of, an alien into the United
States as alleged in Count 10. He also raises a challenge to his
sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000).
We affirm his conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, Immigration and Customs Enforcement
(“ICE”) received information from a confidential source
regarding a Canada-based organization that was smuggling
aliens into the United States from Canada. ICE launched an
investigation and also contacted members of the Royal Cana-
dian Mounted Police (“RCMP”). The RCMP began its own
investigation and learned from recorded telephone conversa-
tions that Kavel Multani, among others, was involved in
human trafficking. Singh, a taxi driver living in Washington,
was recorded as a participant in some of those conversations.
A grand jury returned a 23-count indictment against Mul-
tani, Singh and a number of co-defendants. Singh was
charged and convicted on five counts, but only Count 10—
Bringing an Illegal Alien into the United States, in violation
of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2—is at issue
here. Count 10 alleged:
During January 2006, and continuing through on or
about January 26, 2006, within the Western District
of Washington and elsewhere, KAVEL MULTANI
a/k/a YGURU, NIZAR SABAZ-ALI, HAR-
MINDER SINGH a/k/a NICK, and other persons, in
knowing and reckless disregard of the fact that
approximately one (1) alien had not received prior
official authorization to come to, enter and reside in
the United States, aided and abetted the bringing of,
and did knowingly bring, the alien to the United
States for the purpose of private financial gain.
8810 UNITED STATES v. SINGH
A. EVIDENCE AT TRIAL
Although Singh was in touch with others in the smuggling
operation over a longer period of time, the key events perti-
nent to Count 10 began in January 2006. Much of the govern-
ment’s evidence came from translated transcripts of recorded
telephone conversations. In a January 23, 2006 telephone con-
versation with Multani, Singh discussed his desire for work
and money owed to him for past work, and also stated that he
was grateful for work in the past, but had not received work
in months and needed to do something to put food on the
table.
Through monitoring of the calls, the RCMP learned that an
illegal alien would be taking a particular flight to Vancouver,
British Columbia from Toronto on January 24, 2006. On that
day, RCMP Constable Steven Glionna conducted surveillance
of the flight’s arrival and observed a woman, originally identi-
fied as Ms. Kahn, but later identified as Alpa Patel, get off the
flight with a man later identified as Nizar Sabaz-Ali. Consta-
ble Glionna followed Sabaz-Ali from the airport terminal to
a black Ford Expedition registered to Multani and then fol-
lowed the Expedition to a residence in Surrey, British Colum-
bia.
Following up on his earlier inquiry, Singh called Multani
on January 26, 2006, at 1:16 p.m., telling Multani that he was
calling to “find out if there is some work to do.” Multani and
Singh then had the following exchange:
Multani: I am looking. There was a person.
Singh: Huh.
...
Multani: It was the ticket-person. I am exploring
. . . if can get on in the morning.
UNITED STATES v. SINGH 8811
Singh: Ok.
Multani: He has a book.1
Singh: Ok.
Multani: Get the ticket and have to go along to drop
off.
Singh: Ok.
Multani: Have to go along to drop off, and bring the
book back.
Singh: Yes, babaji, I’ll drop off. Where do I have
to go?
Multani: Have to bring the book back and give it in
Vancouver. We have a 2000 contract, if it
pans out.
Singh: All right.
Multani: It is a contract for 2000. I’ll see what hap-
pens. It has not started yet. I talked this
morning.
Singh: Baba . . something or the other will hap-
pen.
Multani: Yes, something will happen. If nothing
else, will make four hundred, five hun-
dred.
Singh: Yes, abaji.
1
“Book” refers to a passport.
8812 UNITED STATES v. SINGH
Multani: Will make something.
Singh: You send abaji. I’ll drop off the person.
Multani: I’ll do it. I was going to call for the ticket
...
At approximately 3:00 p.m. on January 26, Constable
Glionna observed Multani, Sabaz-Ali, Patel, and Raman
Pathania meet in a parking lot. Patel got into a silver Chrysler
Sebring driven by Pathania, joining Pathania’s cousin and
another alien who was going to be smuggled into the United
States.
The RCMP surveillance team followed the Sebring to the
border crossing near Blaine, Washington, where the smug-
glers instructed Patel on how to cross the border. The surveil-
lance team saw Patel and the other alien walk across the
border unaccompanied and get into a white Mazda driven by
Matthew Dehagi. Dehagi then drove Patel to the Sea-Tac Inn,
near the Seattle-Tacoma International Airport, some 120
miles south of the border. ICE agent Hernandez saw the white
Mazda arrive at the Sea-Tac Inn, watched Patel exit the
Mazda and go into the Sea-Tac Inn, and saw the Mazda leave.
At 6:38 p.m., the RCMP intercepted a telephone call from
Pathania to Multani stating that “she” would be in the lobby
at the Sea-Tac. A few minutes later, Multani called Singh,
telling him “I have sent the person,” and “I have fixed it for
2000,” and instructing Singh to pick up the woman from the
Sea-Tac lobby. Multani also told Singh that “[s]he has to go
to New York” and “they’ll hand you 2,000 there, you hand
over the girl and for sure take the book.” Agent Hernandez
saw Singh arrive at the Sea-Tac Inn shortly thereafter and
drive away with Patel in his taxi. At 9:13 p.m., Singh called
Multani to tell him that he had picked up Patel and that the
trip to New York would happen in the morning.
UNITED STATES v. SINGH 8813
The next day, at the Seattle-Tacoma airport, Singh used a
credit card to buy two tickets for a flight to New York. When
Singh and Patel arrived in New York, Patel’s husband met
them and, according to the Patels, they paid Singh $2,000.
Singh claims they only paid him $150 in taxi fare, though he
admitted that he was supposed to receive $2,000. It is undis-
puted that Singh retained the passport Patel used for travel,
presumably to return to the principals in Vancouver, as per
the agreement between Singh, Patel and the principals. The
jury convicted Singh on five separate counts related to alien
smuggling, including Count 10.
B. SENTENCING
During the sentencing proceedings, Singh objected to the
court’s reliance on the jury’s special verdict finding of finan-
cial motive because the special verdict form did not specify
that the jury must find the financial motive beyond a reason-
able doubt. In a memorandum regarding penalties, Singh
explicitly relied on Apprendi to argue that enhanced penalties
should not apply to Count 10. The court rejected this argu-
ment, calculated a mandatory minimum sentence of three
years and an advisory Guidelines range of 37-46 months, and
imposed a sentence of 37 months.
II. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE AFTER LOPEZ
1. THE SCOPE OF THE “BRINGS TO” OFFENSE AFTER LOPEZ
Singh contends that there was insufficient evidence to
establish that he brought, or aided and abetted the bringing of,
one alien into the United States for the purpose of commercial
advantage or private financial gain, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii).2 There is no dispute that Singh did not
2
8 U.S.C. § 1324(a)(2) penalizes
Any person who, knowing or in reckless disregard of the fact that
8814 UNITED STATES v. SINGH
“bring” Patel to the United States. The dispute centers on the
aiding and abetting portion of the charge. Specifically, Singh
argues that his telephone conversations with people in Can-
ada, ultimately resulting in an agreement for Singh to provide
state-side transport and the return of the passport to Canada,
were insufficient to sustain a conviction for aiding and abet-
ting the crime of bringing an alien to the United States.
The starting point for our analysis is our recent en banc
decision in United States v. Lopez, 484 F.3d 1186 (9th Cir.
2007). We begin by noting one critical difference between our
case and Lopez. We reviewed de novo Lopez’s sufficiency of
the evidence claim because he had preserved his claim by
moving for acquittal at the close of the evidence under Fed-
eral Rule of Criminal Procedure 29. See United States v.
Bahena-Cardenas, 70 F.3d 1071, 1072 (9th Cir. 1995).
Because Singh did not preserve this claim of sufficiency of
the evidence by moving for acquittal at the close of the evi-
dence, our review is more deferential, requiring reversal “only
upon plain error or to prevent a manifest injustice.” United
States v. Delgado, 357 F.3d 1061, 1068 (9th Cir. 2004). In
any case, a challenge to the sufficiency of the evidence
requires us to determine whether, “after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id.
We began in Lopez by observing that in 8 U.S.C.
§ 1324(a)(1), Congress created four distinct immigration
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 an alien . . . .
Id. Under § 1324(a)(2)(B), if such an offense is “done for the purpose of
commercial advantage or private financial gain,” id. at § 1324(a)(2)(B)(ii),
then the person shall “be fined under Title 18 and shall be imprisoned . . .
not less than 3 nor more than 10 years.” Id. at (a)(2)(B)(iii).
UNITED STATES v. SINGH 8815
offenses: “1) bringing an alien to the United States; 2) trans-
porting or moving an illegal alien within the United States; 3)
harboring or concealing an illegal alien within the United
States; and 4) encouraging or inducing an illegal alien to enter
the United States.” Id. at 1190-91.
Specifically, in Lopez we addressed the issue of
whether a driver who transports a group of illegal
aliens from a drop-off point in the United States to
another destination in this country commits only the
offense of transporting aliens “within” the United
States or whether that individual is also guilty of the
additional offense of aiding and abetting the crime of
‘bringing’ the aliens “to” the United States.
Id. at 1187. Lopez clarified the temporal aspect of “bringing
to”3 the United States and held that:
although all of the elements of the “bringing to”
offense are satisfied once the aliens cross the border,
the crime does not terminate until the initial trans-
porter who brings the aliens to the United States
ceases to transport them—in other words, the offense
continues until the initial transporter drops off the
aliens on the U.S. side of the border. At that point
the offense ends, regardless of the judicial district in
which the termination occurs.
Id. at 1187-88.
Because Lopez encountered the aliens and transported them
only after they had been dropped off in the United States by
someone else, her act of transporting the aliens occurred only
3
Following Lopez, “we use the terms ‘brings to’ and ‘bringing to’ inter-
changeably when referring to the offense proscribed by § 1324(a)(2). id.
at 1188 n.1.
8816 UNITED STATES v. SINGH
after the “brings to” offense was complete and her transporta-
tion of the aliens could not, standing alone, support her con-
viction for bringing an undocumented alien to the United
States or her conviction for aiding and abetting such an
offense. Id. at 1198. We concluded that the convictions must
“be reversed unless the government can prevail on its second
theory, that Lopez acted before the drop-off to aid and abet
the extraterritorial offense.” Id. at 1198-99. This case begins
where we left off in Lopez.
2. “AIDING AND ABETTING” A “BRINGS TO” OFFENSE
AFTER LOPEZ
Under the aiding and abetting statute, 18 U.S.C. § 2, a per-
son who “aids, abets, counsels, commands, induces or pro-
cures” the commission of an offense against the United States
is “punishable as a principal.” In this circuit,
the elements necessary to convict an individual
under an aiding and abetting theory are (1) that the
accused had the specific intent to facilitate the com-
mission of a crime by another, (2) that the accused
had the requisite intent of the underlying substantive
offense, (3) that the accused assisted or participated
in the commission of the underlying substantive
offense, and (4) that someone committed the under-
lying substantive offense.
United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988).
We elaborated on the meaning of aiding and abetting in
Lopez:
In United States v. Zemek, 634 F.2d 1159 (9th Cir.
1980), we wrote that “[c]onviction as an aider and
abettor requires proof the defendant willingly associ-
ated himself with the venture and participated
therein as something he wished to bring about.” Id.
at 1174. Elsewhere, we have stated that “[a]n abettor
UNITED STATES v. SINGH 8817
is one ‘who, with mens rea . . . commands, counsels
or otherwise encourages the perpetrator to commit
the crime.’ ” United States v. Barnett, 667 F.2d 835,
841 (9th Cir. 1982) (quoting ROLLIN M. PERKINS,
CRIMINAL LAW 645 (2d ed. 1969)); see also Ninth
Circuit Model Criminal Jury Instructions § 5.1
(2005) (instructing that, to obtain a conviction for
aiding and abetting, the government must prove
beyond a reasonable doubt that, inter alia, the defen-
dant “knowingly and intentionally aided, counseled,
commanded, induced or procured [the principal] to
commit each element” of the crime charged).
Lopez, 484 F.3d at 1199 (emphasis added).
Against this backdrop, we considered the specific evidence
tying Lopez to the smuggling operation. After completion of
the “brings to” offense, Lopez twice spoke to a person who
might have been the transporter. This fact alone, however, did
not provide sufficient evidence of aiding and abetting because
it could not establish that the defendant “knowingly and inten-
tionally commanded, counseled, or encouraged the initial
transporter to commit the ‘brings to’ offense.” Id. at 1200.
Similarly, merely showing that Lopez was associated with
someone who was involved with a smuggling operation in
some unknown way or that she was associated with the trans-
portation of the aliens within the United States after the fact
of smuggling was insufficient to show that she had the spe-
cific intent to bring about the “brings to” offense or that she
knowingly and intentionally commanded, counseled, or
encouraged the initial transporter to commit the “brings to”
offense. Id. at 1201. We noted that a “brings to” conviction
would be “particularly inappropriate” in Lopez because the
district court found that “the defendant ‘wasn’t obviously the
first choice’—‘someone else was supposed to pick [the aliens]
up,’ ” and Lopez was contacted “only after the aliens were
already in the country and the plan for the first person to pick
them up had been frustrated.” Id. at 1200. These factors stand
8818 UNITED STATES v. SINGH
in stark contrast to Singh’s involvement in the smuggling ven-
ture.
[1] Although Lopez clarified that 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, Lopez did not call for us to elaborate what actions
may constitute aiding and abetting a “brings to” offense. We
did, however, signal the issue now before us in this case:
[W]e do not decide that if a smuggling operation “re-
lies on” a secondary, state-side transporter—in the
sense that the secondary transporter’s agreement to
participate induces or encourages the commission of
the initial, extraterritorial “brings to” offense and the
secondary transporter intended to so induce or
encourage the commission of the crime—aiding and
abetting liability will never lie. Those are not the
facts of this case and we do not consider that ques-
tion here.
Id. at 1201 n.19.
[2] Because Singh’s act of transporting an alien com-
menced only after the “brings to” offense was completed, as
in Lopez, his transportation of Patel, standing alone, cannot
sustain his conviction on Count 10. However, in this case,
there is much more. We conclude—on the basis of additional
evidence that Singh agreed ahead of time not only to assist
with secondary state-side transport, but also to return to Van-
couver after delivering Patel to New York—that the district
court did not plainly err in finding that sufficient evidence
supported the conclusion that Singh associated himself with
the venture and participated in it as in something he wished
to bring about. Zemek, 634 F.2d at 1174.
We are especially reluctant to find plain error when this
court has expressly left open the question of aiding and abet-
UNITED STATES v. SINGH 8819
ting liability for participating in secondary state-side trans-
port, without more. Lopez, 484 F.3d at 1201 n.19. Indeed,
because Singh’s involvement does encompass more, that
question remains unresolved. In concluding that the district
court did not plainly err by placing Singh into the category of
aiders and abettors that Lopez left undefined, we have in mind
Lopez’s guidance regarding the contours of the offense:
Any complete specification of the category of aiders
and abettors would have to take into account, and
attempt to avoid redundancy 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.”
Id. at 1199 n.16 (quoting 8 U.S.C. § 1324(a)(1)(A)(iv)).4
Our case law is sparse with respect to the “encourages or
induces” offense. In our one published decision on this point,
the defendant was charged under both § 1324(a)(1)(A)(iv)
(encourages and induces) and § 1324(a)(2)(B)(ii) (brings to),
and the court found the evidence was sufficient to sustain both
charges. See United States v. Yoshida, 303 F.3d 1145, 1149-
52 (9th Cir. 2002) (concluding that the evidence showing that
the Yoshida escorted aliens onto a plane to the United States
provided sufficient evidence not only of a “brings to” offense,
but also of an “encourages or induces” offense).5
The “encourages or induces” offense, § 1324(a)(1)(A)(iv),
4
None of the individuals charged in the twenty-three count indictment,
including Singh, were charged with violating § 1324(a)(1)(A)(iv).
5
In Yoshida, the defendant was the last in a series of escorts who accom-
panied several aliens on their journey from the Peoples Republic of China
to the United States in three stages, with Yoshida accompanying them on
the final leg of the trip from Japan to Los Angeles. Id. at 1148.
8820 UNITED STATES v. SINGH
criminalizes the act of encouraging the alien herself to ille-
gally enter or reside in the United States, whereas aiding and
abetting the principal in a “bringing to” offense,
§ 1324(a)(2)(B)(ii), criminalizes the act of aiding, counseling,
inducing or encouraging not the alien but the principal, the
person or venture who is illegally bringing the alien to the
United States. Here, Singh aided and abetted the principals in
the human smuggling conspiracy, not Patel herself, in com-
mitting the “brings to” offense that brought Patel into the
United States.
3. EVIDENCE SUPPORTING SINGH’S “AIDING AND
ABETTING”
[3] Much of the evidence relied upon by the government to
support its aiding and abetting theory is insufficient under
Lopez because it shows that Singh associated with others who
were transporting aliens, but falls short of providing details
that Singh made arrangements with other smugglers prior to
the completion of Patel’s transport, and that the principals
were induced by his aid to “bring” Patel “to” the country as
alleged in Count 10. Nevertheless, at least on plain error
review, we are satisfied that the evidence of the events of Jan-
uary 26, 2006 provides sufficient link and detail to allow a
rational trier of fact to find the elements of aiding and abetting
beyond a reasonable doubt under Lopez. In particular, the evi-
dence shows that in the hours before Patel entered the United
States, Singh sought smuggling work, sealed a deal on the
arrangements for the smuggling, including a return of the
false passport that could be used, and agreed to assist fulfill-
ing the smuggling contract for $2000 by traveling with Patel
to New York. These details, worked out in advance, were
arguably central to the principals’ decision to bring Patel to
the United States.
[4] Without a doubt, Singh was not a newcomer to the
smuggling business when he facilitated the arrangements for
Patel in January 2006. In addition to his recruitment of a fel-
UNITED STATES v. SINGH 8821
low taxi driver into the smuggling operation, Singh himself
earlier twice crossed the border into Canada to meet with
Raman Pathania, who was part of the Maltani smuggling
operation, to discuss developing alternate smuggling routes.
[5] There is also evidence that Singh engaged in prepara-
tory and planning activity in relation to a “bringing to”
offense. Harjeevan Parhar, another cooperating defendant,
described that during a meeting at a house in Canada, he dis-
cussed with Singh and Pathania how aliens would be trans-
ported and that “next time or any other time that we would do
this legal [sic] activity and smuggling aliens, that all the work
would go to Mr. Singh.” Singh said that “he wanted the work
to go through him, not through anyone else.” Parhar also testi-
fied that, in January 2006, he took part in a couple of tele-
phone conversations in which Singh asked if there were any
more aliens coming. He also heard another member of the
conspiracy tell Singh that people were coming and to be
ready, though he did not say when this conversation took
place. This evidence establishes that Singh sought work for
the smuggling operation, and took an active role in coordinat-
ing with others in the conspiracy.
[6] Even this background evidence is insufficient standing
on its own to show that Singh actually aided and abetted
bringing Patel to the United States. However, additional and
more specific evidence—a phone conversation in close prox-
imity to Patel’s arrival—provides a nexus between Singh’s
preparatory and collaborative work and the events related to
Patel. On January 26, 2006, at 1:16 p.m., prior to Patel’s
crossing, Singh called Multani, telling Multani that he was
calling to “find out if there is some work to do.” Multani then
informed Singh there was work, and that it “has not started
yet.” They then had an exchange in which Singh agreed to
“drop off” the person and bring back the passport for a fee of
$2,000.
Preparation to undertake the transporting of an illegal alien
within the United States, in violation of 8 U.S.C. §§ 1324(a)
8822 UNITED STATES v. SINGH
(1)(A)(ii), 1324(a)(1)(v)(ii), and 1324(a)(1)(B)(I), does not by
itself necessarily establish intent to aid a “brings to” offense.
For example, in Lopez, we rejected the government’s similar
argument that Lopez’s decision to purchase a Ford Expedition
in the United States four days before it was used in the
offense, and pick up the vehicle on the day she was asked to
transport the aliens from a drop-off point in the United States
to another domestic destination, established intent to aid a
“brings to” offense. Lopez, 484 F.3d at 1200. Thus, to the
extent that Singh’s preparatory calls involved planning for the
transporting of an illegal alien within the United States, they
are not enough to establish intent to aid a “brings to” offense.
The calls are relevant, however, to Singh’s participation in an
overall “brings to” scheme. Likewise, even the commission of
the crime of transporting of an illegal alien within the United
States does not, by itself, establish intent to aid a “brings to”
offense. Thus, the fact that Patel crossed the border and was
delivered to the Sea-Tac Inn, Singh picked up Patel from the
hotel, drove her to the airport, bought her an airplane ticket
with a credit card, and escorted her to New York is still not
enough, without more, to establish sufficient evidence to sup-
port the conviction.
[7] However, there is more. The “work” that Singh agreed
to do prior to the start of the “brings to” offense included not
just work assisting with state-side transport, but also included
bringing the passport back to the principals in Canada. When
Multani described the “work,” he stated that Singh would
“have to go along to [with Patel to the] drop off, and bring the
book back.” Singh agreed, “Yes, babaji, I’ll drop off. Where
do I have to go?” and Multani again stressed that the work
was more than the drop-off, repeating with more clarity that
Singh would “[h]ave to bring the book back and give it in
Vancouver.” After hearing that the contract was valued at
$2000 “if it pans out,” Singh confirmed his participation: “All
right.” This additional agreement provides critical support for
the conviction because the jury could have concluded that the
principals would not have brought Patel into the United States
UNITED STATES v. SINGH 8823
without first securing Singh’s agreement to ensure the contin-
ued operation of the human smuggling conspiracy by return-
ing the passport to them.
[8] Thus, unlike the circumstances in Lopez, prior to the
completion of the “brings to” offense, Singh arguably induced
the principals to “bring” the alien “to” the United States,
despite the fact that Singh did not assist in the “bringing” of
the alien herself. Through his discussions with the principals,
he “willingly associated,” Lopez, 484 F.3d at 1199 (internal
quotation marks omitted), himself with the smuggling enter-
prise, encouraged Multani to bring Patel across the border so
that Singh could have work and get paid, and materially
assisted the conspiracy by agreeing to bring back the passport,
which was a valuable tool of the operation. Ultimately,
Singh’s conduct facilitated the final leg of the journey from
Canada into the United States, which is the relevant part of
the journey for criminal liability under Count 10. What mat-
ters as far as Singh’s liability is that a rational trier of fact
viewing the evidence could conclude that he induced, aided,
encouraged, or counseled Multani and others in committing
the “bringing to” offense with “specific intent to facilitate the
commission of [the] crime.” Gaskins, 849 F.2d at 459.
Accordingly, in light of the fact that we have expressly left
open the question of aiding and abetting liability for second-
ary state-side transporters and the fact that Singh’s actions
encompass much more than that, we conclude that the Singh’s
conviction under Count 10 does not rise to the level or plain
error or manifest injustice.
B. NO SENTENCING ERROR
Singh claims an Apprendi violation on the theory that the
private financial gain finding for Count 10 was not found
beyond a reasonable doubt by the jury. Apprendi, 530 U.S. at
490 (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury and proved beyond
8824 UNITED STATES v. SINGH
a reasonable doubt.” ). The Apprendi challenge, a question we
“generally review de novo,” United States v. Covian-
Sandoval, 462 F.3d 1090, 1093 (9th Cir. 2006), cert. denied,
___ U.S. ___, 127 S. Ct. 1866 (2007), actually focuses on the
sufficiency of the special verdict form regarding financial
gain and the related jury instruction on burden of proof. The
government argues that we should review for plain error,
because Singh only raised the issue of the defective special
verdict form during sentencing, not at trial. See United States
v. Delgado, 357 F.3d 1061, 1065 (9th Cir. 2004). This debate
is academic, however, because Singh cannot prevail under
either standard.
[9] Under 8 U.S.C. § 1324 (a)(2), the baseline statutory
maximum term of imprisonment for conviction of bringing an
alien to the United States is “not more than one year.” Id. at
§ 1324(a)(2)(A). But in the case of a first or second offense
under § 1324(a)(2)(B)(ii), if the offense is committed for the
purpose of commercial advantage or private financial gain,
the sentence must be not less than three nor more than ten
years. The financial gain factor increased Singh’s sentence
beyond one year. Under Apprendi, a sentencing factor that
raises the statutory maximum, such as the financial gain pur-
pose, must be found by the jury beyond a reasonable doubt.
The instructions included a standard “beyond a reasonable
doubt” jury instruction, and each instruction setting forth the
elements of an offense stated that, to prove the defendant
“guilty,” the government must prove the elements “beyond a
reasonable doubt.” The general verdict form listed each of the
counts and had a column for guilty and a column for not
guilty. For each count, the jury put an X in the box for guilty.
The jury convicted Sigh on all five counts. In addition, a final
jury instruction directed the jurors to the questions on the spe-
cial verdict form, which the jurors were instructed to answer
unanimously “after you have reached a unanimous agreement
on a general verdict.”
UNITED STATES v. SINGH 8825
The special verdict form stated:
Counts 1, 10, 11, 22 and 23 of the Fourth Supersed-
ing Indictment, charges [sic] the defendant with
Conspiracy to Smuggle and Transport Illegal Aliens,
Bringing an Illegal Alien to the United States, Trans-
porting an Illegal Alien within the United States, and
Harboring and Concealing an Illegal Alien. The gov-
ernment further alleges that each of these crimes was
committed for the purpose of private financial gain.
The form then stated: “WE, THE JURY, unanimously agree
as each of the following Counts that the defendant committed
the crime for the purpose of private financial gain.” The jury
put an X in the “yes” box for every count. The jury also
answered “yes” to the statement “WE, THE JURY, unani-
mously agree that one (1) alien was involved in Count 10.”
The Government bears the burden of proving the purpose
of financial gain beyond a reasonable doubt. See United States
v. Munoz, 412 F.3d 1043, 1047 (9th Cir. 2005). The question
is whether the jury did make such a finding beyond a reason-
able doubt.
[10] This case is very similar to the one faced by the Elev-
enth Circuit in United States v. O’Neal, 362 F.3d 1310 (11th
Cir. 2004), vacated sub nom., Sapp v. United States, 543 U.S.
1107 (2005), reinstated, 154 Fed. Appx. 161 (11th Cir. 2005).
There, the court concluded that there was no Apprendi viola-
tion where a special verdict regarding a sentencing factor did
not mention burden of proof, but the only standard of proof
in the instructions was “beyond a reasonable doubt.” O’Neal,
362 F.3d at 1314. Similarly here, the jury instructions refer-
enced only one burden of proof: “beyond a reasonable doubt.”6
6
During closing arguments, the attorneys never explicitly discussed the
burden of proof for the special verdict. The attorneys generally spoke
about reasonable doubt in the context of convicting or elements. At one
8826 UNITED STATES v. SINGH
While it would have been better for the jury instructions or
the special verdict form itself to have stated specifically that
the financial gain question required proof beyond a reasonable
doubt, in view of the overall instructions, the specificity of the
special verdict form, and the single burden-of-proof instruc-
tion, there is no reasonable likelihood that the jury applied
any other burden of proof that would constitute constitutional
error. Cf. Gibson v. Ortiz, 387 F.3d 812, 821-22 (9th Cir.
2004) (opining that if the trial court had not included the pre-
ponderance of the evidence instruction, it would have
assumed that the jury would have applied the only burden of
proof standard it had received, which was the standard of
beyond a reasonable doubt). Finally, it bears noting that there
can be no serious dispute about the financial gain component.
From the start, Singh was insistent that he needed and wanted
to make money and he was ultimately paid for his participa-
tion. Cf. Washington v. Recuenco, 548 U.S. 212, 220 (2006)
(holding that lack of jury finding beyond a reasonable doubt
as to sentencing factor, “like failure to submit an element to
the jury,” can be harmless error).
AFFIRMED.
point, however, the prosecutor said “Well, ladies and gentlemen, the
Defendant has admitted to you he did this activity thinking he was going
to be paid, so there is no reason to doubt that he committed this crime for
financial gain.” That is not explicitly a mention of “beyond a reasonable
doubt,” but it is the same kind of language the prosecutor used when dis-
cussing the evidence about the elements and offenses.