United States v. Jorge Thum
749 F.3d 1143
9th Cir.2014Background
- Thum is a U.S. citizen with prior convictions for smuggling illegal aliens; 2008 judgment sentenced him to 33 months and two years’ supervised release for transporting an illegal alien and aiding and abetting; 2011 additional supervised release term issued for failing to contact his probation officer; 2012 federal agents arrested Thum near the San Ysidro Port of Entry; a petition alleged violation of §1324(a)(1)(A)(iv); evidentiary hearing held in 2013; government presented agent testimony about Thum escorting Varguez-Rodriguez from a fast-food restaurant toward a van for transport to Northern California; the district court revoked supervised release, concluding Thum violated §1324(a)(1)(A)(iv) and imposed additional supervision; Thum appealed the revocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thum encouraged or induced an alien to reside in the United States under §1324(a)(1)(A)(iv) | Thum: no conduct showing encouragement or inducement to reside; escorting a person to a vehicle for transport does not prove residence encouragement | Government: broad reading of 'encourages or induces' to reside; escorting alien toward transportation increases likelihood of residence | Insufficient evidence to prove encouragement or inducing to reside |
| Whether Thum aided and abetted Chapalin in encouraging or inducing an alien to reside in the United States | Thum: no evidence he aided Chapalin in encouraging residence; only involvement was transport assistance | Government: Thum knew Chapalin’s smuggling plan and assisted in transportation within the U.S. | Insufficient evidence to prove aiding and abetting in encouraging residence |
Key Cases Cited
- Lopez v. United States, 484 F.3d 1186 (9th Cir. 2007) (discrete offenses under §1324; narrowing between transport and residence offenses)
- United States v. Yoshida, 303 F.3d 1145 (9th Cir. 2002) (concurrence of offenses under §1324; separate provisions given independent effect)
- United States v. Ndiaye, 434 F.3d 1270 (11th Cir. 2006) (defendant can encourage residence by facilitating status/identity for alien)
- United States v. Oloyede, 982 F.2d 133 (4th Cir. 1993) (encouragement to reside can be shown by providing false documents or similar facilitation)
- United States v. Lin, 738 F.3d 1082 (9th Cir. 2013) (statutory provisions must be given independent effect; broad readings rejected)
- Corley v. United States, 556 U.S. 303 (2009) (textual harmony; avoid superfluous readings among related offenses)
- United States v. Shorty, 741 F.3d 961 (9th Cir. 2013) (aiding and abetting requires underlying offense; no proof here that Chapalin committed it)
- United States v. Sanchez-Vargas, 878 F.2d 1163 (9th Cir. 1989) (transport offenses aimed at curbing illicit transportation near border)
- United States v. King, 608 F.3d 1122 (9th Cir. 2010) (standard for evaluating sufficiency of evidence: preponderance, view in light of government)