[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-12404 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 21, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-20589-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 21, 2006)
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Miguel Perez appeals his conviction, entered after a two-day bench trial, for
multiple counts of bringing aliens to the United States knowing, or in reckless
disregard of the fact that the aliens had not received prior authorization to enter the
country, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). The charges arose from law
enforcement’s discovery of six Cuban nationals on a boat from which Perez, along
with a co-defendant, the owner of the boat, had disembarked at Matheson
Hammock in southwestern Miami-Dade County. On appeal, Perez argues the
district court erred by: (1) denying his motion to suppress evidence seized from the
boat; (2) admitting evidence of his 2002 conviction for smuggling aliens, pursuant
to Fed. R. Evid. 404(b); and (3) denying his motion for judgment of acquittal,
pursuant to Fed. R. Crim. P. 29, in which he argued the government failed to show
that he knowingly committed the offense or acted with reckless disregard of his
passengers’ status as illegal aliens. After thorough review, we affirm.
I.
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).
We accept the district court’s factual findings as true unless the findings are shown
to be clearly erroneous. Id. at 1240-41. All facts are construed in the light most
favorable to the prevailing party below. United States v. Bervaldi, 226 F.3d 1256,
1262 (11th Cir. 2000). The district court’s application of the law to the facts is
reviewed de novo. Id. We review for abuse of discretion a district court’s ruling
on the admissibility of evidence of uncharged conduct under Rule 404(b). See
2
United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc). We
review de novo the district court’s denial of a motion for judgment of acquittal,
viewing the facts and drawing all inferences in the light most favorable to the
government. See United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002),
cert. denied, 537 U.S. 1132 (2003). To affirm the denial of a motion for judgment
of acquittal, filed pursuant to Fed. R. Crim. P. 29, we need determine only that a
reasonable factfinder could conclude that the evidence established the defendant’s
guilt beyond a reasonable doubt. Id.
The relevant facts are straightforward. On August 6, 2004, Perez and his co-
defendant, Juan Carlos Valdez, were indicted for one count of conspiring to bring
aliens into the United States illegally, in violation of 18 U.S.C. § 371 and 8 U.S.C.
§ 1324(a)(2)(B)(iii) (Count 1), and six counts of bringing aliens into the United
States illegally, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2
(Counts 2-7). Before trial, Perez filed a motion to suppress evidence discovered by
the government at the time of his arrest. In his motion, Perez stated that, on July
25, 2004, law enforcement agents from the Miami-Dade County Police Department
(“MDPD”) and the U.S. Border Patrol boarded a boat at the Matheson Hammock
Marina, without consent or a warrant, and discovered six illegal aliens whose entry
into the United States formed the basis of the charges against him. Perez argued
3
that: (1) the stop was not a valid border search since there was no evidence the boat
had crossed an international boundary; and (2) the encounter was not a valid Terry1
stop because the law enforcement officers did not have reasonable suspicion of
illegal activity. Also before trial, the government filed notice of its intent to
introduce evidence of Perez’s prior conviction for alien smuggling, pursuant to
Fed. R. Evid. 404(b).
At the suppression hearing, MDPD Lieutenant Arthur Gonzalez testified that
on the evening of July 25, 2004, while performing an off-duty residential patrol in
southwest Miami-Dade County, he entered Matheson Hammock Marina and
observed a boat docking with four men on it. This observation took place at about
1:00 A.M. and Lt. Gonzalez testified that, given the “rough” weather, he found it
unusual for a boat to be docking that late in the evening. Lt. Gonzalez turned off
the engine of his unmarked police cruiser and watched as the 28-foot Roberts
fishing boat entered its dock location. Lt. Gonzalez said that the men on the boat
watched him as he drove by and that they appeared to be “confused” and
“awkward” in their handling of the boat. He also observed no indication that the
men had been fishing, but rather, that they looked “very clean” and “neat,” which,
to Lt. Gonzalez, was not consistent with fishing.
1
Terry v. Ohio, 392 U.S. 1 (1968).
4
After the men had loaded the boat onto a trailer, Lt. Gonzalez approached
them as they were standing next to the truck. He was alone and in uniform, did not
draw his gun, and did not block the truck’s exit from the area with his patrol car.
After he briefly flashed his blue lights, he left his patrol car’s high-beams on in
order to illuminate the scene. He approached the men and asked: “You guys okay?
What are you doing here so late?” to which Valdez responded that they had been
fishing. When Lt. Gonzalez asked the men if they had identification, each
produced a Florida driver’s license. Lt. Gonzalez then asked who owned the truck
and boat, and Valdez responded that they were his and produced registration for
the truck. Valdez said that the boat registration was on the boat and asked if Lt.
Gonzalez wanted to see it. At that point, Perez volunteered to retrieve the
registration from the boat and asked if Lt. Gonzalez wanted to come with him.
After boarding the boat, Perez began looking for the registration documents.
Unable to find them, he asked for Valdez’s help, who, in turn informed Perez that
the papers were in the cabin. Perez then began speaking in a loud voice as he
approached the boat’s cabin and appeared “nervous” and “jittery” when he opened
the cabin door. Lt. Gonzalez found four people inside who, he later learned, were
Cuban nationals illegally entering the country from Cuba. The two other men, who
Lt. Gonzalez had observed helping Perez and Valdez load the boat, were also
5
illegal aliens from Cuba. At the time he discovered the Cuban nationals, Lt.
Gonzalez estimated that about five or six minutes had passed since the time he
initially approached the men. At no point had Perez or any other person asked to
leave and Lt. Gonzalez never told the men that they were not free to leave.
The district court denied Perez’s motion to suppress, finding that Lt.
Gonzalez’s initial encounter with Perez and the others was consensual, despite the
fact that he flashed his blue lights and was in uniform. The court reasoned that Lt.
Gonzalez did not tell the men that they were being detained and did not remove his
weapon or “perform any acts that would indicate the Defendants were detained.”
Thus, the court found that the encounter was consensual and there was no Fourth
Amendment violation.
After denial of his suppression motion, Perez filed a pre-trial motion to
“strike” the government’s introduction at trial of his 2002 conviction for alien
smuggling as Fed. R. Evid. 404(b) evidence. Perez argued that there was no
similarity between the extrinsic act and the current offense and therefore, the
evidence did not tend to show it was more probable that he engaged in alien
smuggling in the instant case. He also urged that the evidence was not offered for
a legitimate evidentiary purpose, but rather to show simply that he had a propensity
to commit this sort of crime. Finally, he claimed that any probative value
6
attributable to the fact of the prior conviction was undercut by the “long temporal
gap between the extrinsic and charged offenses” and was outweighed by the danger
of unfair prejudice. The district court did not rule on the motion before the start of
trial.
At the subsequent bench trial, Lt. Gonzalez testified consistently with his
testimony at the suppression hearing. The government also presented the
testimony of Yamisleidy Estevez-Galindo, one of the Cuban nationals discovered
on Perez’s boat, hidden inside the cabin. In July 2004, she and her uncle, who was
also a Cuban national, flew from Cuba to the Bahamas, where they stayed for two
days before learning that a boat was coming in from, and returning to, the United
States. Estevez-Galindo discovered that she and her uncle might be able to gain
passage on the boat to the United States if they went and stood on a certain beach,
waited for the boat, and obtained permission from the captain when the boat
arrived. Estevez-Galindo went to the designated beach on the day the boat was
supposed to arrive. After the boat failed to come on that day, Estevez-Galindo and
her uncle spent the night on the beach and continued to wait. The boat appeared
the next day and Estevez-Galindo secured two places on it for her and her uncle.
She had with her her mother’s Florida driver’s license, which she had obtained in
Cuba.
7
About three hours after leaving the Bahamas, the boat began to experience
engine problems and Estevez-Galindo and the other passengers signaled to passing
boats until the boat piloted by Perez and Valdez stopped. The Cuban nationals told
Perez and Valdez that they were from Miami and that they had been fishing.
Estevez-Galindo testified that the captain of the boat from the Bahamas had
instructed her that if questioned, she should say that she had been fishing. When
Perez or Valdez asked the aliens where they wanted to go, the aliens responded that
they wanted to get to shore -- just “to leave [them] on land.” In response to
questions from Perez and Valdez, Estevez-Galindo became very nervous and
began to cry. Although Perez or Valdez asked some of the other passengers if they
had identification, they did not ask Estevez-Galindo for her identification.
Estevez-Galindo estimated she was on the boat captained by Perez and Valdez for
less than two hours before they arrived in the United States.
Special Agent Pablo Milian of the United States Immigration and Customs
Enforcement testified that, in 2002, he participated in an earlier investigation
involving Perez. Special Agent Milian stated that, when he interviewed Perez in
2002, Perez claimed that he had been on a rescue mission, bringing fuel to a
stranded boat that had onboard a number of Cuban nationals, en route to the United
States. Perez and three co-defendants were subsequently charged in a multi-count
8
indictment with conspiracy and attempted alien smuggling, in violation of 8 U.S.C.
§ 1324(a)(2)(A). Perez pled guilty to one count of alien smuggling. Over Perez’s
objection, the government introduced a certified copy of Perez’s 2002 conviction
during the testimony of Special Agent John Ramos of the U.S. Border Patrol.
Special Agent Ramos also testified that Matheson Hammock was not a designated
port of entry into the country.
At the close of the government’s case, Perez moved for a judgment of
acquittal pursuant to Fed. R. Crim. P. 29(a), which the district court denied. The
defense then rested without presenting any evidence and renewed its Rule 29
motion. The district court, sitting as trier of fact, found Perez not guilty of Count
1, conspiracy to smuggle aliens, and guilty of Counts 2 through 7, specifically
finding that he acted with reckless disregard of the fact that the passengers were
aliens who were not authorized to enter the United States. The trial court,
however, acquitted co-defendant Valdez on all counts, observing that the
circumstantial evidence, as it related to Valdez, was insufficient to establish that he
acted in reckless disregard of the passengers’ status. The court noted that Perez’s
prior conviction put him on notice that “it’s not enough simply to take somebody
aboard and bring them over here, and the failure to do more, the failure to inquire
further . . . does lead me to conclude that he did act in reckless disregard.”
9
Perez moved for a judgment of acquittal, arguing that there was insufficient
evidence to support the finding that he acted with reckless disregard. The district
court denied the motion without further comment and sentenced Perez to a 60-
month term of imprisonment. This appeal followed.
II.
First, Perez argues the district court erred by denying his motion to suppress.
There are three broad categories of police-citizen encounters for purposes of our
Fourth Amendment analysis: (1) police-citizen exchanges involving no coercion or
detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests.
United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989). The district
court found that the instant case involved the first type, a consensual encounter.
We have explained that
the first category of consensual encounters does not implicate [F]ourth
[A]mendment scrutiny. The second category involves reasonably brief
encounters in which a reasonable person would have believed that he
or she was not free to leave. In order to justify such a [F]ourth
[A]mendment “seizure,” the government must show a reasonable,
articulable suspicion that the person has committed or is about to
commit a crime. Finally, when the totality of circumstances indicate
that an encounter has become too intrusive to be classified as a brief
seizure, the encounter is an arrest and probable cause is required.
United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th Cir. 1986) (internal
citations omitted).
10
The Supreme Court has held:
Law enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting
questions to them if they are willing to listen. Even when law
enforcement officers have no basis for suspecting a particular
individual, they may pose questions, ask for identification, and request
consent to search luggage–provided they do not induce cooperation by
coercive means. If a reasonable person would feel free to terminate
the encounter, then he or she has not been seized.
United States v. Drayton, 536 U.S. 194, 200-01 (2002) (emphasis added and
internal citations omitted). Indeed, “[t]he mere fact that a law enforcement officer
approaches an individual and so identifies himself, without more, does not result in
a seizure. See Baker, 290 F.3d at 1278 (citing Florida v. Royer, 460 U.S. 491, 497
(1983)). Moreover, under controlling case law, the simple act of police
questioning does not constitute a seizure. See Florida v. Bostick, 501 U.S. 429,
434 (1991). Factors relevant to this inquiry include, among other things: “whether
a citizen’s path is blocked or impeded; whether identification is retained; the
suspect’s age, education and intelligence; the length of the suspect’s detention and
questioning; the number of police officers present; the display of weapons; any
physical touching of the suspect, and the language and tone of voice of the police.”
United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991). A seizure occurs
for Fourth Amendment purposes, however, “‘only when, by means of physical
11
force or a show of authority, [a person’s] freedom of movement is restrained.’”
Craig v. Singletary, 127 F.3d 1030, 1041 (11th Cir. 1997) (quoting United States v.
Mendenhall, 446 U.S. 544, 555 (1980)).
Here, we readily conclude the circumstances indicate only a consensual
encounter and, accordingly, did not result in a Fourth Amendment violation. Lt.
Gonzalez’s uncontroverted testimony showed that he approached Perez’s group
and asked if they were okay, given the rough weather and late hour of the
encounter. When he inquired whether they had identification, but did not
specifically ask to see it, all of the men “automatically produced” Florida driver’s
licenses. He spoke with them in a “conversational” tone and, although he was in
uniform, his firearm remained holstered.2 Lt. Gonzalez briefly flashed his blue
lights, but only to identify himself as a police officer because he arrived at the
scene in an unmarked car. Notably, at no point did Lt. Gonzalez block Valdez’s
truck or otherwise obstruct Perez, Valdez, or the others’ exit from the area. It also
was undisputed that during the encounter Perez offered to get the registration from
the boat, invited Lt. Gonzalez aboard the boat, and then proceeded voluntarily to
2
We accord “little weight” to the unremarkable fact that Lt. Gonzalez was in uniform and
had a holstered firearm. Cf. Drayton, 536 U.S. at 204-05 (holding that officers’ display of their
badges, as well as the presence or lack of a uniform, and holstered firearm all should “have little
weight in the analysis,” as the public knows that most officers are armed and many are required to
wear uniforms).
12
open the cabin door, which led to the discovery of the Cuban nationals. Lt.
Gonzalez asked neither to board the boat nor to see the interior of the cabin.
On this record, viewing the totality of the circumstances, there was no “show
of authority that communicate[d] to the individual that his liberty [was] restrained,
meaning he [was] not free to leave.” United States v. Baker, 290 F.3d 1276, 1278
(11th Cir. 2002). There was no Fourth Amendment “seizure” because a reasonable
person would have felt free to leave. Accordingly, the district court did not err by
denying Perez’s motion to suppress evidence discovered in the course of this
“consensual encounter.”
Next, Perez claims that the district court impermissibly relied on the
evidence of his 2002 conviction for alien smuggling, pursuant to Federal Rule of
Evidence 404(b),3 to find that he had committed the instant offense in a knowing
fashion or with reckless disregard of the Cuban nationals’ illegal immigration
3
This rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, . . . of the general nature of any such evidence
it intends to introduce at trial.
Fed. R. Evid. 404(b).
13
status. He contends that the prior conviction served only to show his criminal
propensity. We disagree.
Rule 404(b) permits the admission of prior-bad-acts evidence to show
motive, preparation, knowledge, and intent, as well as an ongoing scheme or plan.
See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992);
United States v. Cross, 928 F.2d 1030, 1047-48 (11th Cir. 1991). In reviewing
404(b) decisions, we apply a three-part test for admissibility of such evidence:
(1) the evidence must be relevant to an issue other than the defendant’s character;
(2) there must be sufficient proof so that the factfinder could find that the
defendant committed the extrinsic act; and (3) the evidence must possess probative
value that is not substantially outweighed by undue prejudice. See United States v.
Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).
The evidence of Perez’s prior alien-smuggling conviction was relevant to
establish his state of mind with respect to the conspiracy offense, as well as to the
six substantive alien-smuggling counts. “One of the elements of conspiracy that
the prosecution must establish beyond a reasonable doubt is an intention to further
the purposes of the conspiracy.” United States v. Costa, 947 F.2d 919, 925 (11th
Cir. 1991). When a defendant charged with conspiracy enters a plea of not guilty,
as in this case, he makes intent a material issue in the case. See id.; United States
14
v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). Perez did not “affirmatively take
the issue of intent out of contention by stipulating that [he] possessed the requisite
intent.” Costa, 947 F.2d at 925; see also United States v. Matthews, 431 F.3d
1296, 1311 (11th Cir. 2005) (“Evidence of such extrinsic evidence as may be
probative of a defendant’s state of mind is admissible unless [the defendant]
affirmatively takes the issue of intent out of the case.” (internal quotations omitted)
(alteration in original)). In fact, by his theory of defense -- that he did not know
the aliens’ illegal status -- he expressly made his knowledge and intent a focal
point of the case, plainly making the evidence of his prior conviction admissible
for non-propensity purposes. 4 Moreover, the prior conviction was relevant to
Perez’s claim that the government did not carry its burden of establishing that he
brought the aliens to the United States “knowing or in reckless disregard of the
fact that [the aliens] ha[d] not received prior official authorization to come to,
enter, or reside in the United States.” See 8 U.S.C. § 1242(a)(2). Accordingly, the
first prong of Jernigan is satisfied here.
4
Perez has consistently and repeatedly argued, both in this Court and at trial, that he did not
know about the aliens’ illegal status. Thus, the instant case does not involve “a mere plea of not
guilty,” which, in any event, under our controlling precedent is enough to satisfy the second prong
of the 404(b) test. Cf. Matthews, 431 F.3d at 1314-15 (Tjoflat, J., concurring) (discussing first
prong of Circuit’s three-part test for admissibility of prior-crime evidence under 404(b) and
admissibility of such evidence based solely on plea of not guilty in conspiracy case).
15
The fact of the prior conviction fully satisfied the second prong of Jernigan.
See Delgado, 56 F.3d at 1365 (finding second prong of the Rule 404(b) analysis
satisfied where “[t]he extrinsic act introduced against [the defendant] involves a
conviction”). Finally, we are satisfied the district court did not abuse its discretion
when it determined the probative value of Perez’s prior conviction, which involved
another alien-smuggling offense and took place less than two years before the
instant offense, outweighed its prejudicial effect. Cf. United States v. Ramirez,
426 F.3d 1344, 1354 (11th Cir. 2005) (highlighting the “highly probative nature”
of 404(b) evidence to establish defendant’s intent where there exists “[a] similarity
between the other act and a charged offense”). This determination lies within the
discretion of the district court and “calls for a common sense assessment of all the
circumstances surrounding the extrinsic offense, including prosecutorial need,
overall similarity between the extrinsic act and the charged offense, as well as
temporal remoteness.” Jernigan, 341 F.3d at 1282 (internal quotation marks and
citation omitted). In short, the district court did not abuse its discretion in
admitting the prior conviction as 404(b) evidence.
Finally, Perez argues the evidence was insufficient to support his conviction
under 8 U.S.C. § 1324(a)(2)(B)(iii).5 As part of its case, the government must
5
The statute provides the following, inter alia:
16
prove the defendant conducted himself “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.” 8 U.S.C. § 1324(a)(2)(B)(iii). On appeal, Perez
contends that the government’s evidence was deficient and showed, not that he
acted with deliberate indifference to his passengers’ status, but rather that he acted
with “due diligence and caution” after the Cubans presented him with Florida
§ 1324. Bringing in and harboring certain aliens
(a) Criminal penalties
....
(2) 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 shall, for each alien in respect to whom a violation of this paragraph occurs--
....
(B) in the case of--
....
(iii) an offense in which the alien is not upon arrival immediately brought and
presented to an appropriate immigration officer at a designated port of entry,
be fined under Title 18 and shall be imprisoned, in the case of a first or second
violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or
second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10
years, and for any other violation, not less than 5 nor more than 15 years.
18 U.S.C. § 1324.
17
drivers’ licenses and he questioned them about where they were from, to which
they replied Miami.
Again, in reviewing a district court’s denial of a motion for judgment of
acquittal, we must view the facts, and draw all reasonable inferences therefrom, in
the light most favorable to the government. See United States v. Hansen, 262 F.3d
1217, 1236 (11th Cir. 2001). Our Pattern Jury Instructions are instructive to the
instant analysis and provide the following definition in cases involving violations
of 8 U.S.C. § 1324(a)(1)(A)(ii), proscribing unlawfully transporting illegal aliens:
To act with “reckless disregard” means to be aware of, but
consciously and carelessly ignore, facts and circumstances clearly
indicating that the person transported was an alien who had entered or
remained in the United States in violation of law.
Eleventh Circuit Pattern Jury Instructions (Criminal) at 83.2 (2003) (emphasis
added); see also id. at 83.3 (utilizing same definition of “reckless disregard” for
violation of 8 U.S.C. § 1324(a)(1)(A)(iii)).
Moreover, we have approved the following definition of the “reckless
disregard” element of transporting illegal aliens, in violation of § 1324(a)(1)(A)(ii):
The phrase “reckless disregard of the fact,” as it has been used from
time to time in these instructions, means deliberate indifference to
facts which, if considered and weighed in a reasonable manner,
indicate the highest probability that the alleged aliens were in fact
aliens and were in the United States unlawfully.
18
United States v. Zlatogur, 271 F.3d 1025, 1029 (11th Cir. 2001) (quoting United
States v. Uresti-Hernandez, 968 F.2d 1042, 1046 (10th Cir. 1992)). We find our
interpretations of the same “reckless disregard” terminology in §§
1324(a)(1)(A)(ii) and (iii) -- both in our Pattern Jury Instructions and in Zlatogur -
- instructive to our instant analysis of § 1324(a)(2)(B)(iii). Indeed, it is a well-
established canon of statutory interpretation that identical words used in the same
statute are intended to have the same meaning. United States v. DBB, Inc., 180
F.3d 1279, 1285 (11th Cir. 1999). Accordingly, we interpret subsection
1324(a)(2)(B)(iii)’s “reckless disregard” terminology by reference to our
interpretation of the same words in subsection 1324(a)(1)(A)(ii) and (iii).
Here, the government presented ample evidence of “facts and
circumstances” from which a reasonable trier of fact could conclude beyond a
reasonable doubt that Perez acted knowingly or with reckless disregard of the fact
that his passengers were inadmissible aliens. Perez and Valdez allowed Estevez-
Galindo and the others to board their boat. While some of the aliens presented
identification to Perez and Valdez, Estevez-Galindo was not asked to do so and,
when asked where in Miami they wanted to go, the passengers simply indicated
they wanted to reach “land.”6 Perez apparently made no effort to assist the captain
6
In its response to Perez’s motion for a judgment of acquittal, the government argued that
“Estevez-Galindo’s testimony that the Cuban aliens told the defendants to take them ‘anywhere, for
19
of the first boat after the boat broke down or to report that it was still stranded,
although the captain of that boat stayed on the allegedly malfunctioning craft after
the others were transferred to Perez’s boat late at night.
Afterwards, at Matheson Hammock, during his late night encounter with Lt.
Gonzalez, Perez acted nervously and failed to reveal that there was anyone in the
cabin of the 28-foot fishing boat before Lt. Gonzalez discovered them. Nor was
there the slightest indication anyone on the boat had been fishing. Finally, in 2002,
Perez was convicted of alien smuggling, an offense that also required that he act
knowingly or with reckless disregard of the status of aliens. In distinguishing
Valdez’s conduct from Perez’s conduct, the district court found:
Mr. Perez is in a different position from Mr. Valdez because of his
prior conviction and because at that point, upon his conviction and
upon his plea in a very similar case, he was put on notice that it’s not
enough simply to take somebody aboard and bring them over here,
and the failure to do more, the failure to inquire further, other than to
look at some driver’s licenses[,] in his position and under these facts
does lead me to conclude that he did act in reckless disregard . . . .
On this record, the district court, sitting as the finder of fact, reached a reasonable
conclusion. We are satisfied that a reasonable factfinder could find, beyond any
reasonable doubt, that Perez knew that his passengers were inadmissible aliens or
them only to leave us on land,’ [was] a clear reference to this country’s wet foot/dry foot
immigration policies with respect to Cuban aliens.” Government’s Response to Defendant’s Motion
for Judgment of Acquittal at 12.
20
recklessly ignored facts and circumstances indicating that they were. Accordingly,
the district court did not err by denying the motion for judgment of acquittal.
We are unpersuaded by Perez’s other challenge to the sufficiency of the
evidence. Perez suggests that he was entitled to a judgment of acquittal because
Lt. Gonzalez did not provide him with an “immediate opportunity” to present the
illegal aliens to an immigration official. His argument is premised on a faulty
reading of the statutory language, which contains no requirement that law
enforcement provide an “immediate opportunity” to present illegal aliens to
immigration officials after entry at an unauthorized location such as Matheson
Hammock. Rather, the plain language of the statute requires the defendant to
immediately bring and present an alien to immigration officials “at a designated
port of entry.” According to Special Agent Ramos’s testimony, and pursuant to 8
C.F.R. § 100.4, Matheson Hammock is not such a port.
Moreover, the legislative history of 8 U.S.C. § 1324 indicates that subsection
(a)(2) was added in 1986 to clarify that “a person who knowingly transports an
undocumented alien to any place in the United States will be subject to criminal
prosecution if that person knew the alien was undocumented or acted with wilful[ ]
blindness concerning the alien’s immigration status.” H.R. Rep. No. 99-682(I), at
66 (1986) as reprinted in 1986 U.S.C.C.A.N. 5649, 5670 (emphasis added). The
21
amendments specifically targeted a situation such as the present one by
“increas[ing] the penalties for . . . knowingly bringing aliens, whether documented
or not and whether an entry occurs or not, to any place in the United States other
than designated ports of entry.” Id. (emphasis added).
Under Perez’s reading of the statute, an alien smuggler could avoid
prosecution so long as he did not enter at a port of entry and, if caught, claimed
that he was on his way to a designated port. This interpretation not only leads to an
absurd result, which, when interpreting statutory language, we should avoid, if
possible, Dewsnup v. Timm, 502 U.S. 410, 427 (1992), but also is contrary to the
legislative history of § 1342, including the 1986 amendments which added
subsection (a)(2) and increased the penalties for an offense like the instant one.
Simply put, from our reading, the presentation requirement is grounded on entry at
“a designated port of entry.” 7
Upon careful review of the record on appeal and consideration of the parties’
briefs, we discern no reversible error and affirm Perez’s conviction and sentence.
AFFIRMED.
7
Moreover, even if the statute contained a provision allowing for presentation of an illegal
alien to immigration officials after entry at a non-designated port, no evidence at trial supports the
notion that Perez was on his way to immigration authorities when Lt. Gonzalez observed him at
Matheson Hammock. Indeed, Perez’s nervous behavior and failure to inform Lt. Gonzalez of the
aliens’ presence, along with the unusual hour of the landing and rough weather, suggest just the
opposite -- that Perez had no intention to present the six Cubans to immigration authorities and
instead was trying to conceal the aliens from Lt. Gonzalez.
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