United States Court of Appeals
For the First Circuit
Nos. 02-1906
02-1930
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE GUERRA-GARCIA; ARTURO CAVAZOS,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lipez, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Howard, Circuit Judge.
Darla J. Mondou, with whom John M. Claffey was on the brief
for appellant.
Demetra Lambros, Attorney, United States Department of
Justice, with whom Margaret E. Curran, United States Attorney, and
James H. Leavey, Assistant United States Attorney General were on
the brief, for the United States.
July 16, 2003
*
Of the Tenth Circuit, sitting by designation.
PORFILIO, Senior Circuit Judge. In this consolidated
appeal, Defendant Jorge Guerra-Garcia and Arturo Cavazos challenge
their convictions for conspiring to transport an illegal alien
within the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), and of transporting an illegal alien within
the United States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii)
and (v)(II). Trial was held in the United States District Court
for the District of Rhode Island. After the verdict, Defendants
moved for a judgment of acquittal under Fed. R. Crim. P. 29, which
the district court denied. Both Defendants were sentenced to
concurrent 13-month terms of imprisonment.
On appeal, Defendants make two claims. First, they
assert the district court erred by denying their Rule 29 motions
because evidence was insufficient to support the convictions.
Second, they argue the court committed plain error in instructing
the jury. Concluding Defendants have not carried their appellate
burdens of demonstrating that no rational jury could have convicted
beyond a reasonable doubt and that the district court’s
instructions, taken as a whole, violated their substantial rights,
we affirm.
In February 2001, Francisco Rodriguez illegally entered
the United States from Mexico and attempted to join his son,
Carmen, also an illegal alien living in North Carolina. Initially,
Francisco was led across the Texas border by Mexican alien
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smugglers. Once in Texas, he was put into the hands of Defendants
for the journey to North Carolina. Ten days later, Defendants were
arrested in Providence, Rhode Island, by Immigration and
Naturalization Service (INS) agents. In exchange for their
truthful testimony at Defendants’ trial, Francisco and Carmen were
granted immunity from prosecution, given immigration papers, and
allowed to work in this country during the pendency of the trial.
After many difficulties on the Mexican side of the
border, including Carmen’s $600 payment to a smuggler who left
Francisco stranded in a hotel room in Mexico, Francisco entered the
United States. He hid for about 13 hours, along with 15-20 other
aliens, before he was taken to a safe house run by Luis Martinez.
Martinez asked Francisco for the name and number of the person
paying for his trip to North Carolina. Martinez then contacted
Carmen, who wired $200 for food and clothing for his father.
After two days, Francisco and the others were taken to an
apartment in Houston, where he provided his contact information to
another smuggler, Uriel Cortes Gomez. Gomez requested a balance of
$1,000 from Carmen to take Francisco to North Carolina. Gomez also
stated the trip from Houston to North Carolina would cost an
additional $250 if paid up-front or $450 if paid upon delivery.
Not having the additional $250, Carmen wired Gomez $1,000 and
agreed to pay $450 upon his father’s arrival in North Carolina.
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Two days later, Gomez took Francisco to a “big house”
operated by “Flash Van Tours” where “they ha[d] some vans” outside.
Gomez told Francisco he was “all set” and directed him to a room
inside the house, where he joined about 30 others. Francisco had
no money and only a small bag with a shirt and a pair of pants.
After about three hours, Defendant Guerra-Garcia called
out the names of 15-17 people, all from Mexico, Guatemala, or
Brazil, and ushered them into a van. He gave Francisco a ticket
which bore his name, but no price. Francisco paid nothing for the
ticket. Guerra-Garcia assigned the passengers to their seats, four
to a bench, directed them not to talk, and took his place in the
driver’s seat. Ten minutes later, they picked up Defendant
Cavazos, who shared driving duties for the rest of the trip.
At their first stop in Louisiana, Guerra-Garcia and
Cavazos allowed a woman and her children, but no one else, to exit
the van and use the bathroom. Guerra-Garcia explained to the group
that the men were not allowed to get out because Louisiana “was a
little bit dangerous” and “people are somewhat racist and they
could say something.” At later stops, passengers were allowed
bathroom breaks and given the opportunity to purchase food.
Throughout the trip, defendants utilized a procedure for
dropping passengers at their destinations. Guerra-Garcia or
Cavazos would call ahead to a “pick-up” person and only those
leaving permanently would exit the van at a specific drop-off
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location. To organize this process, Defendants carried a passenger
manifest, which listed each rider’s name, destination, contact
telephone numbers, and balance owed.
As the van approached North Carolina, Guerra-Garcia
called Carmen, stating that if he had Francisco’s fare, they would
drop him off on Route 85 next to a McDonald’s. Carmen, however,
told Guerra-Garcia he only had $200, but asked to have his father
dropped off anyway and promised to get the remaining $250 by the
weekend. Guerra-Garcia refused, claiming “many people had failed
to pay them.” Carmen said he would try to get the extra money
within a half hour and took down Guerra-Garcia’s cell phone number.
Carmen was not able to obtain the money and again
promised to raise money over the weekend. Guerra-Garcia refused,
stating they would keep Francisco for the trip to Boston; if Carmen
had the money by the time they returned to North Carolina, they
would drop Francisco off then. If not, they would return him to
Houston.
The trip continued. In Virginia, Guerra-Garcia and
Cavazos left the van and brought back hamburgers for the
passengers. When they reached Boston and dropped off a group of
Brazilians at a private home, everyone was invited in for dinner.
Meanwhile, in Providence, INS agents received a tip that a group of
illegal aliens was headed their way.
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After the meal, Francisco, two remaining passengers, and
Defendants headed toward Rhode Island. Upon their arrival in
Providence on February 20, 2001, Defendants were arrested. INS
agents seized $5,461 in cash from the Defendants’ personal
possession and a cell phone from Guerra-Garcia. In the van, agents
discovered the passenger manifest, an envelope with receipts for
fuel, tolls, and food, and a Rand McNally atlas opened to a map of
Massachusetts.
I. Denial of the Motion for Judgment of Acquittal
- Sufficiency of the Evidence
We review a district court’s denial of a judgment of
acquittal de novo. United States v. Collazo-Aponte, 216 F.3d 163,
193 (1st Cir. 2000). In appealing the denial of a Rule 29 motion,
a defendant who challenges the sufficiency of the evidence must
show no rational jury could have found him guilty beyond a
reasonable doubt. United States v. Rodriguez, 162 F.3d 135, 141
(1st Cir. 1998); see United States v. Hernandez, 218 F.3d 58, 64
n.4 (challenges to denial of Rule 29 motion and to sufficiency of
evidence raise same question). We view the evidence in the light
most favorable to the prosecution, drawing all inferences in its
favor, and resolve all credibility determinations in line with the
verdict. United States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002);
United States v. Medina-Garcia, 918 F.2d 4, 7 (1st Cir. 1990) (Rule
29).
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Count III charged a violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), which makes it a crime to “engage[] in any
conspiracy to commit” the substantive act of knowingly or
recklessly transporting an illegal alien. The statutory basis
for Count IV, 8 U.S.C. § 1324(a)(1)(A)(ii), provides that anyone
who:
Knowingly 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.
As the district court instructed the jury, to convict on Count IV,
the Government had to prove: (1) the alien named in the indictment
(here, Francisco Rodriguez) was not lawfully in the United States;
(2) defendants knew or recklessly disregarded that fact; (3)
defendants transported the alien into the United States; and (4)
defendants acted willfully in furtherance of the alien’s illegal
presence in the United States. See United States v. Angwin, 271
F.3d 786, 805 (9th Cir. 2001), cert. denied, 535 U.S. 966 (2002);
Federal Jury Practice & Instructions, § 51B.06 (1999 Supplement).
Defendants take issue with the proof of the conspiracy
element of Count III, the touchstone of which is an agreement to do
an unlawful act. United States v. Martinez-Medina, 279 F.3d 105,
113 (1st Cir. 2002). The Government must prove a defendant’s
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intent to agree and intent to commit the substantive offense with
the named co-conspirators or unnamed others. United States v.
Gomez-Pabon, 911 F.2d 847, 853 (1st Cir. 1990). A defendant need
not have knowledge of all the details of the conspiracy, the
participants in the conspiracy, or their acts. United States v.
Williams, 809 F.2d 75, 86 (1st Cir. 1986). “The jury may infer an
agreement circumstantially by evidence of, inter alia, a common
purpose (such as a purpose to sell illicit drugs), overlap of
participants, and interdependence of elements in the overall plan.”
Martinez-Medina, 279 F.3d at 113-14.
Claiming they made no attempt to hide their activities,
Defendants maintain they did not act in a manner consistent with a
conspiracy to transport an illegal alien.1 The van used to
transport Francisco had windows, the doors were not bolted shut,
and Francisco was not handcuffed or restrained in any manner.2
Passengers were allowed to use the bathroom and purchase food at
stores during the trip. Flash Van Tours operated openly in
Houston; people were allowed to enter and exit the building freely.
1
The Ninth Circuit has held there is no ipso facto exemption
from 8 U.S.C. § 1324(a) for those who transport illegal aliens
during the course of employment. United States v. Hernandez-
Guardado, 228 F.3d 1017, 1023 (9th Cir. 2000). The First Circuit
has not ruled on this precise issue. Because other circumstantial
evidence supports Defendants’ conviction on both the transport and
conspiracy counts, we need not resolve the issue in this case.
2
To the extent Defendants regard such acts as required conduct
of illegal alien transporters, their hypothesis is unrealistic.
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Defendants concede the passenger manifest demonstrates
their purported involvement in an alleged conspiracy, but maintain
it is insufficient to satisfy proof beyond a reasonable doubt,
particularly because the list did not state the nationalities or
citizenship of passengers. Francisco’s presence in the van
resulted from the manager of Flash Van Tours’ “on-the-side deal”
with Martinez and Gomez, reached entirely without Defendants’
involvement. Further, Defendants point to the fact the INS
investigation of telephone records showed no calls between
Defendants to Gomez or Martinez or vice versa.3
In contrast, the Government urges there was sufficient
evidence to support the conspiracy convictions. We agree.
Together, Defendants transported Francisco within the United
States, knowing or recklessly disregarding his illegal alien status
in furtherance of his unlawful presence in this country. At least,
Defendants agreed with each other to illegally transport Francisco
– sufficient standing alone to satisfy a conspiracy charge. See
United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985)
(conspiratorial agreement “may consist of no more than a tacit
understanding”).
3
On appeal, Defendants do not address the inference of
conspiracy arising from the fact that Guerra-Garcia refused to drop
Francisco off in North Carolina because Carmen did not have the
fare he previously promised.
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Further, circumstantial proof indicates Defendants were
part of a larger conspiracy involving Gomez, Martinez, and unnamed
others. Gomez and Martinez facilitated Francisco’s border
crossing; Gomez negotiated Francisco’s fare to North Carolina with
Carmen; and Gomez delivered Francisco to the house where he was
later collected by Guerra-Garcia. Defendants were aware of the
terms of the deal Gomez had reached with Carmen, and, because “many
people had failed to pay them,” refused, without consulting
superiors at Flash Van Tours, to deliver Francisco unless full
payment was tendered. The jury could have inferred Defendants were
in league with Gomez, as bill collectors at minimum, or as agents
or partners. Once the existence of a conspiracy is established, a
defendant’s connection to it need only be slight, if knowing and
willing. United States v. Brandon, 17 F.3d 409, 428 (1st Cir.
1994) (once conspiracy and defendant’s intent to further it is
established, “any connection between the defendant and the
conspiracy, even a slight one, will be sufficient to establish
knowing participation”).
Defendants next contend the Government did not prove they
knowingly and recklessly disregarded the fact that Francisco was an
illegal alien. Although there is no direct evidence Defendants
knew Francisco was an illegal alien, that they had knowledge of
that fact or recklessly disregarded it may be based entirely on
circumstantial evidence, including inferences from the surrounding
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circumstances. See United States v. Olbres, 61 F.3d 967, 971 (1st
Cir. 1995).
Defendants maintain the surrounding circumstances
reasonably did not cause them to question Francisco’s alienage.
First, they claim Francisco’s inability to speak English bore no
correlation to his illegal alien status because many United States
citizens speak only Spanish. The fact he was carrying only a small
bag and had no money did not indicate his status because many
foreign-born travelers carry light luggage. Defendants suggest,
for example, a Puerto Rican Spanish-speaker traveling from Houston,
carrying only a small bag would not be an illegal alien. Second,
their refusal to drop off Francisco without full payment from
Carmen was not an indication Defendants knew or recklessly
disregarded Francisco’s illegal presence in this country.
Defendants claim they were merely following orders from superiors
at Flash Van Tours not to release any traveler without full
payment. While acknowledging the practice is unusual, Defendants
urge Flash Van Tours’ collection of the bus fare at the point of
destination does not support an inference that only illegal aliens
would agree to such terms. Moreover, the fact that Defendants
intended to return Francisco to Houston, in their view, is evidence
they did not know he was an illegal alien.
By contrast, the Government points to numerous factors
from which a jury could infer Defendants knew or recklessly
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disregarded Francisco’s alien status. When Guerra-Garcia first met
Francisco, they were in Houston, a border state city, in a room
full of foreigners from Guatemala, Mexico, and Brazil. Francisco
had no money, no luggage other than a small bag with a shirt and
pants, and no bus ticket. See United States v. Shaddix, 693 F.2d
1138 (5th Cir. 1982) (fact that individuals carried cloth sacks and
spoke no English, among other things, indicated they were in the
United States illegally). On the trip, Defendants acted as guards
and guardians of their charges, directing passengers to the van,
assigning seats, instructing them not to talk, and refusing to let
male riders off for a bathroom break in North Carolina because
people are “somewhat racist” and “could say something.” At another
stop, Defendants bought hamburgers for the passengers and accepted
on their behalf a dinner invitation at the Boston home of a
Brazilian rider’s sponsor.
The Government maintains Defendants’ method of dropping
off passengers was also far from that of a typical bus driver.
Each passenger was delivered to his own unique spot, where others
were not allowed to leave the van. Payment likewise was unusual.
A rider’s fare, which had to be paid in cash only, was prearranged
with his “contact person” and collected at the end of the trip.
As the Government correctly states, while any one factor
in evidence, standing alone, might not itself be proof of
knowledge, the combination of all the circumstances equals “more
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than the sum of its parts.” United States v. De La Cruz, 996 F.2d
1307, 1311 (1st Cir. 1993); see also United States v. Martin, 228
F.3d 1, 10 (1st Cir. 2000) (juries need not evaluate pieces of
evidence in isolation, but “may draw conclusions from the sum of an
evidentiary presentation”). Defendants’ arguments on the issue of
knowledge are not persuasive.
Finally, Defendants argue to be guilty of the “in
furtherance” element of 18 U.S.C. § 1324(a), one must have
knowledge of the alien’s illegal status in the United States.
Relying upon their theory that the prosecution did not prove their
knowledge of Francisco’s status, Defendants argue it follows the
prosecution likewise did not prove the “in furtherance” element.
The argument fails because it is based upon a faulty premise.
II. Jury Instructions
Defendants challenge the instruction defining the term
“reckless disregard” as an element of the offense of transporting
an illegal alien. See 8 U.S.C. § 1324(a)(1)(A)(ii). They claim
the instruction given diminished the Government’s burden of proving
guilty knowledge. No objection was made at trial; therefore, we
will review this issue for plain error. See United States v.
Geronimo, 330 F.3d 67, 74-75 (1st Cir. 2003); United States v.
Weems, 322 F.3d 18, 26 (1st Cir. 2003). In the course of this
review, we may correct only “particularly egregious” errors.
United States v. Richard, 234 F.3d 763, 770 (1st Cir. 2000)
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(internal quotation marks omitted); see also United States v.
Young, 470 U.S. 1, 15 (1985) (“[T]he plain-error exception to the
contemporaneous-objection rule is to be ‘used sparingly, solely in
those circumstances in which a miscarriage of justice would
otherwise result.’”) (citation omitted).
The district court gave a lengthy instruction on the
meaning of “recklessly disregard,” ultimately explaining precisely
how the Government could show the Defendants acted with reckless
disregard. The court stated:
A Defendant may be found to have recklessly
disregarded a fact if the Defendant had
knowledge of a fact or if you find that the
Defendant deliberately closed his eyes to a
fact that otherwise would have been obvious to
him. . . . [I]n order to infer that a
Defendant had knowledge of a fact, you have
got to be satisfied that the Government has
proven two things beyond a reasonable doubt .
. . first you have got to be satisfied that
the Government has shown that the Defendant
knew that it was very likely that the matter
to be inferred was a fact. And in this case,
the matter to be inferred, that the Government
is asking you to infer, that is that . . .
Francisco Rodriguez was here illegally. So
the first thing the Government has to show you
is that the Defendant knew that it was very
likely that Mr. Rodriguez was here illegally.
And the second thing that the Government has
to show is that the Defendant consciously and
deliberately avoided learning that fact; that
is to say, that the Defendant [may not] avoid
criminal responsibility by deliberately and
purposely avoiding learning a fact that he
knows is very likely to be so. That’s what it
basically comes down to.
* * *
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[T]he question isn’t whether the Defendant
should have been or could have been more alert
or more diligent in determining whether Mr.
Rodriguez knew that he . . . probably was and
deliberately took steps to avoid learning that
for certain. That’s what it comes down to.
(Emphasis added).
Defendants object to the use of the word “probably” in
the last paragraph, arguing it allowed them to be convicted upon a
finding they “probably” knew Francisco Rodriguez was an illegal
alien. We do not agree. We believe the court’s use of “probably”
in the instruction was a reference to Mr. Rodriguez’ status, and
not to the likelihood of the Defendants’ knowledge of that status.
Defendants’ argument simply fails to show a particularly
egregious error or to demonstrate a miscarriage of justice occurred
that would lead to a finding of plain error. Indeed, there was no
error at all. See United States v. Cunan, 152 F.3d 29, 40 (1st
Cir. 1998) (“The record demonstrates that the court instructed the
jury that the government must prove the knowledge element of the
offense beyond a reasonable doubt, before outlining the ways in
which the knowledge element could be satisfied, including willful
blindness.”).
Defendants also contend the district court failed to
instruct on aiding and abetting, asserting the failure affected
their substantial rights. This, if error at all, is harmless. See
United States v. Abozid, 257 F.3d 191, 199-200 (2d Cir. 2000).
Affirmed.
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