United States v. Angelica Lopez

SCHROEDER, Before MARY M. Chief Judge, Circuit HARRY PREGERSON, REINHARDT, STEPHEN ALEX KOZINSKI, HAWKINS, SIDNEY R. THOMAS, GRABER, SUSAN P. GOULD, RONALD M. MARSHA S. BERZON, TALLMAN, RICHARD C. RAWLINSON, B. JOHNNIE RICHARD CLIFTON, R. CONSUELO M. CALLAHAN, BEA, T. CARLOS SMITH, JR., MILAN D. Judges. Circuit REINHARDT, Judge. Circuit I The issue before us is whether a driver transports group who of illegal aliens from a drop-off point the United States country to another destination in this com- mits the offense of “within” the United States or whether guilty individual is also of the additional aiding abetting offense of crime “bringing” the aliens “to” the United 1324(a)(l)(A)(ii) §§ States. See 8 U.S.C. 1324(a)(2) (2000);1 § 2 18 U.S.C. (2000). case, depends the answer at which “bring- the crime ing although to” terminates. We hold that to” “bringing all of the elements of the offense are satisfied once the aliens cross 1. All citations to 8 U.S.C. are to the decision. We use the terms to” and 2000 edition of the United States Code. Sec- "bringing interchangeably referring when tion 1324 has been amended since 2000 but 1324(a)(2). by § proscribed to the offense none of the amendments is relevant to our border, not terminate II the crime does brings the initial who until the approximately p.m. At 6:00 on June trans- States ceases to aliens to agents United States Border Patrol words, the offense port them—in other stopped vehicle on Interstate 8 east- California, transporter Diego County, until the initial continues ern San driver, Angelica Lopez, contained and on the side of the drops off the aliens U.S. passengers. questioning passen- After ends, the offense point border. At that gers, agents Lopez arrested and judicial in which regardless of the district her, others, brought along with the to Because, here, occurs. the termination roughly Border Patrol 10 miles station undocumented transported defendant away. Lopez was later indicted on three and only within the United States an bringing counts of undocumented alien initial had only did after the so gain, to the United States for financial country, the aliens off inside dropped 1324(a)(2)(B)(ii), § violation of 8 U.S.C. insufficient evidence and because there is aiding abetting, and and violation of 18 to establish that the defendant otherwise 2,§ as well three U.S.C. counts transporta- the initial aided abetted transporting an undocumented alien within tion, we reverse the convictions on the States, in violation of 8 U.S.C. 1324(a)(2); “bringing to” offense. 1324(a)(l)(A)(ii), aiding and abet- § 2. ting, violation 8 U.S.C. 1324(a)(l)(A)(v)(II). The details of the by question No is raised the defendant disputed Lopez’s June 1 incident were regarding applicability of the “trans- However, four-day jury trial. pur- ports within the States” statute to poses opinion, of this because she was her act of undocumented counts, accept gov- convicted on all we from one location within the ernment’s facts version as correct. to another. Because we took this Eric Agent Border Patrol Huber testi- three-judge panel case en banc without a that, partner fied on June he and his bring consistency decision order to to vehicle, Lopez’s observed a white Ford respect scope our circuit law with Expedition, freeway Buck- enter from meaning pertinent provisions of the Springs According Huber, man Road. to 1324,2 we do questions not consider the Expedition in a bounced distinctive relating the defendant raises to the admis- suggested might fashion that it sibility depositions of certain and state- carrying unusually heavy load. The ments, those to but refer issues the three- agents pulled patrol alongside their van judge panel.3 panel reject Should the the Lopez’s peered vehicle and Huber inside. arguments points, defendant’s on those it He observed what he to believed be sever- “transports should affirm the within” con- persons lying al on the floor the back of event, victions. we here reverse that at the SUV. Huber testified on the “bringing Lopez drastically. the convictions to” counts. slowed her vehicle The Gonzalez-Torres, banc, 2. See United States v. 3. We take en an entire case and not (9th Cir.2002); merely single may issue. The en banc court F.3d 594 United States v. Ra choose, however, pre- mirez-Martinez, to resolve all the issues (9th Cir.2001); 273 F.3d 903 sented a case or instead to decide Angwin, United Stales v. 271 F.3d 786 precipitated convening issue or issues that Cir.2001). ques- en banc court and to refer other three-judge panel. tions back to the agents its plates ran license deter- uals from Barrios and Osorio’s group. mined registered “Angelica that was The remaining including the couple, Lopez.” agents then their activated stayed hidden in the hills. Around this emergency lights and stop. effected the time, began Barrios to menstruate and blood visible on became the outside of her testified at length

Huber state- about pants. following day the group, entire Lopez allegedly ments him made to at the health, concerned for Barrios’s moved Border Patrol According station. to Hu- from the ber, hills to the told him that road to seek Lopez day earlier that assis- tance. spoken by According Barrios, she had telephone with an indi- all 12 indi- “Jose,” vidual named and had ar- viduals were made visible from the road at this rangements with him pick up per- point. About an hour after moved sons found in Expedition. Lopez later the the roadside —and a total of one night and gave also Huber a vague physical descrip- day one guide after the had left them tion of Jose. Jose had Lopez, instructed the hills—Barrios and others were testified, Huber to drive to the area where picked up by Lopez. Osorio, who took the agents her, first observed she where Barrios, stand gave after testimony consis- road; would a find sweater tent with his wife’s. He added that Lopez sweater would mark meeting place told had the passengers “to tell the truth if Lopez where would meet her passengers. she was or if stopped, she was appre- She then to transport was them a gas to hended,” and that she had told them all “to Centro, station in El where she would be duck.” paid Huber Lopez testified that told $500. The third material witness named in the him she passengers that believed that her indictment, Miguel Lopez-Villagres, was were in the country illegally, and he present not Lopez’s trial. Over Lopez’s verified that none of passengers was in objection, the trial judge permitted the legally present fact in the United States. government deposition to offer his testimo- Huber, After called as ny. testimony That stated that Lopez- material witnesses passengers two of the Villagres is a Guatemalan citizen without Lopez’s indictment, named in Barri- Olga documentation to enter the United States. husband, os-De Leon and her Miguel An- His account of the events surrounding gel Osorio-Hernandez. Barrios testified June 1 incident was consistent with Barri- that she is a Guatemalan citizen did who os and Osorio’s and included similar de- permitting have documentation her to According tails. to Lopez-Villagres, when enter the United explained States. She Lopez’s individuals climbed into vehi- and Osorio Tijuana, she traveled to cle, them, she get told “Just in there and Mexico, where they made arrangements to yourselves make comfortable so that all of $1,500 be to Angeles taken Los for each. you can fit in.” Some time later she add- Mexico, The took a couple Tecate, bus to ed, “Don’t me if we’re blame stopped.” them, from guide walked Lopez’s district court denied motion along persons, through with 18 other acquittal at the govern- close of the hills and into the journey Lopez ment’s case. then took the days lasted two and stand nights. The her own guide behalf. She testified group left the that she the hills with in- to wait lived parents structions until someone Pomona her came to pick up. A three shortly paid them vehicle children and no rent. came At the thereafter, trial, said, but it stopped by time of immigra- jobs— she she had two officials, tion who eight also seized individ- designer one as a floral and one aas up alongside pulled vehicle Patrol Border explained Lopez a fabric store.

teacher she was her. Expedition acquired how she that some testified 1. She driving on June her Lopez took stopped agent who sporting vehicle she saw

time earlier passen- began speaking keys and lot parking in a restaurant sign “for sale” quiet,” was “told she because gers; pub- from a the owner called she and that him explain to chance to no Lopez had May up on followed she When phone. lic la- until much bleeding woman about the car that the her informed owner Border custody at the ter, she was when in San lot impound to an moved had been telling Hu- Lopez denied station.4 Patrol payment County. Lopez tendered Diego making story and denied the “Jose” ber the vehi- registered owner and she Osorio in the vehicle that the statements day. her name cle in her. attributed Lopez-Villagres friend 1, according Lopez, sister, June On her a witness called as Lopez also lot, two impound a ride to her gave had lent roadside Lopez who testified Pomona, to retrieve hours from a half past. in the strangers assistance fuel, Lopez so had no The vehicle the car. re- testimony, Lopez At the end heading before gas at a station stopped acquittal and for her motion newed became freeway. She toward back motion. again denied district court way to the however, lost, she had her all six counts. Lopez on jury convicted mistakenly Lopez lot as well. impound judg- for motions post-trial filed Lopez highway. side of the eastbound entered trial. The a new acquittal and ment of the side of men on There, saw two she after these motions court denied district desperate, they looked road, waving “like Lo- court sentenced The district hearing. drove clos- help.” As she they needed like term of five mandatory minimum pez to her blood on er, a woman with saw she by two to be followed prison, years had offered that she Lopez testified pants. release. See supervised years strangers assistance roadside 1324(a)(2)(B) (establishing penalties). do so on stopped that she past, alia, challenging, inter appeals, She now bleeding woman’s She said that June 1. support evidence to sufficiency of the help needed his wife told her that husband “brings to” three for the her convictions Lopez “hemorrhaging.” she because offenses. and wife the husband to take volunteered get help they can place so “to the nearest Ill her”; couple got Lopez’s into when the for from individuals car, however, the other A. testified Lopez followed. group created In 8 U.S.C. passen- with the not concerned she was offenses, in- immigration several discrete because she was immigration status gers’ (1) the Unit- an alien to bringing cluding: bleeding helping about concerned (2) moving an States; or ed it, “you don’t ask Lopez put woman—-as (3) States; within illegal alien you are when somebody for documents an concealing harboring for about 10 Lopez drove them.” helping (4) States; and encour- the United within pulled Border Patrol before the minutes enter illegal alien to inducing an aging braking when the She denied her over. help trying Barri- that she was rebuttal, mentioned that Lo- Agent Huber testified 4. On station, never, os. the Border Patrol pez even at the United States. We consider liable, here the held on that alone, evidence for scope and meaning of the first of aiding these and abetting that offense. Second, offenses, § 1324(a)(2), codified in government which the argues that, even if the creates liability criminal “[a]ny person “brings to” offense terminates at some who, knowing or in reckless disregard of earlier point, before the aliens reach their the fact that an alien has not received “intended destination” and before de- prior official to, authorization to come en- fendant commences her transportation of ter, or reside in them, brings aiding and abetting liability was es- ... the United States in any manner tablished its showing that prior to the whatsoever, such alien.” (Emphasis add- termination of the offense defendant ed.) acted in a fashion that enabled or encour- aged others to commit that offense. The

The government advocates two theories government contends Lopez’s convic- liability for holding that Lopez aided tions are sustainable on either theory. We a “brings abetted First, offense. conclude are sustainable on nei- because of elementary rule that a de- ther. reject We government’s first may fendant not be convicted of aiding and theory as a matter of law and the second abetting completed offense, see aas matter of fact. Nelson, 1104-05 (9th Cir.1998), government argues that The crux case determina a “brings to” commences out- tion of when the offense of bringing side the United States does not terminate alien to the United States terminates. We until the aliens reach their “immediate hold that it ends when person who destination” in the United States.5 In this transports the aliens to the country termi case, contends that the nates his act of transportation drops and immediate destination was Angeles. Los the off aliens in the United States.6 In so Under government’s the theory, any per- holding, we overrule any our prior deci son transports who the aliens before that adopt sions suggest or a different reach their destination, ultimate even if rule. In particular, we reject the “immedi that transportation solely occurs (or the within ate destination) destination” ultimate States, United has assisted the commis- test set forth in United States v. Ramirez-M sion of “brings to” offense may artinez.7 Although are a there number 5. points At various filings in its before this through ahead of immigration, her and met court, government employs the terms up thereafter), with her immediately supersed- destination,” destination,” “immediate “final by ed grounds statute on other as stated destination,” "ultimate and "intended desti- Gonzalez-Torres, 599; 309 F.3d see also interchangeably. nation” Accordingly, pp. (discussing 1199-1200 possible other infra throughout opinion, we use the terms in- conduct). forms of offense terchangeably as well. decision, 7.In that we adopted the cases, "immedi- In accompanying some escorting or (ultimate ate destination” or intended destina- an alien to the plane United States a or tion) foot, theory that currently arranging transporta alien’s urges. We "brings held that a driving tion—rather than to” offense alien—will be does not support finding sufficient terminate until a that the the aliens reach defen their 1324(a)(2). See, dant violated "immediate e.g., destination” within the United Aguilar, (9th States anyone v. transports that 683-84 who 1989) Cir. (upholding "brings a into” convic within United States before that has, tion in which the procured alone, defendant false on that based conduct aided alien, papers 13-year-old for the her "brings coached abetted the to” crime. See Ra- immigration authorities, to lie to mirez-Martinez, walked 273 F.3d at 912. as a 1986 amendment 1324(a)(2), views the ing, constructions plausible however, one, conflicts, with the today narrowing the one adopt is we construction discussed Gonza- text, history the statute’s we legislative consistent

most at 599. lez-Torres. See structure, purpose. F.3d There history, Congress passed out that pointed we B. to cover in order conduct 1986 amendment 1324(a)(2), the first is- not amend- construing previously covered-—-that law is whether overrule case must consider was we ment intended sue terminates as soon as legal “entry” to sus- “brings completed to” offense a requiring as the alien Id.9 It met—as soon is are its elements into” conviction. tain States —or “to” the United brought history is that the 1986 clear from this covers some the statute instead broadening whether amend- amendment entry. the act of engaged after not conduct cover conduct designed to sub- ment — ordinarily crime is “[a] have held We version—and not nar- ject to the earlier crime of the each element complete when history and Accordingly, the rowing one. Smith, has occurred.” support do purpose statute Cir.1984). In this offense conclusion that the terminates case, as soon as occurred each element has brought “to” Unit- soon as the is brought “to” alien is the undocumented ed States. reach- as the alien soon United States —as contrary, for four On the reasons It would be or crosses the border.8 es that the offense we conclude therefore, conclude reading, plausible entry and does not termi continues after terminates at “brings to” offense merely all of the elements nate because reasonably, might argue, point. One First, “brings to” met. are pre-1986 version of although the not a static or proscribes an act bringing an alien prohibited occurrence, geographically instantaneous appears the United States —which “into” temporally. within some conduct criminalize least re- Bringing aliens to the United States current version of States —the period them over a quires transporting “to” only bringing an alien bans

the statute not time and distance and thus does occur States, crimi- thus does not or location. We particular at one moment at which any conduct after nalize held, instance, of that the offense a read- have country. Such alien enters 8, Gonzalez-Torres, F.3d at 598. agents. 309 opinion, as- Throughout this our discussion 1324(a)(2), Thus, statutory wording, § prior sumes that the other elements under the including alienage lack of authoriza- transported physically person who person transported, as well as the tion of the prose could have avoided across the border rea, mens satisfied. defendant’s are "if the under the subsection immi cution entry grants transported not allowed he were response to a change was made 9. example, if those into the United States” —for decision that had Southern District of Florida government sur from aliens were never free "brings synonymous with into” as construed they crossed the bor veillance from the time Villanueva, "entering.” States v. See United they were arrested der until the history), time 193, (5th Cir.) (discussing 198 408 F.3d Villanueva, 408 F.3d denied, United States. 268, - U.S. -, 126 S.Ct. cert. Anaya, F.Supp. 198(citing v. 509 United States (2005). "Entering” requires 163 L.Ed.2d 241 banc), 289, (S.D.Fla.1980) (en 297 entry, re physical than however—it more aff'd v. Za restraint, grounds United States other sub nom. in quires from official freedom all 1982)). (11th Cir. yas-Morales, 685 F.2d 1272 by government cluding from surveillance

1193 transporting illegal 1324(a)(2) during continues § conclude that terminates as the duration of act of transportation. soon as the border is reached and the Covarrubias, v. See United States 179 statutory satisfied, elements are we would (9th 1219, Cir.1999), 1225 abrogated on sap part § 3237 of all meaning. Cobb, grounds other by Texas v. 532 U.S. always Venue would lie in the district 162, 1, 1335, 121 168 & n. S.Ct. 149 which the alien first entered country. (2001); L.Ed.2d 321 see also United States There would be no involving offenses Dinkane, (9th 1192, 17 F.3d 1199 Cir. importation person of a into the United 1994) (holding robbery bank continues States that were continuing for venue pur- throughout period pursuit). hot poses, contrary § to what clearly 3237 con- This result is also consistent with the “con templates. Such a construction tinuing offense” doctrine the Supreme 1324(a)(2) § would run contrary to Con- Court announced in Toussie v. United gress’ expressed § intent as States, 397 U.S. 90 S.Ct. 25 Third, our conclusion that an offense (1970). 115, 120, L.Ed.2d 156 See id. at 90 under does end simply not S.Ct. 858 (holding that an offense is “con because all the tinuing” statutory for statute of elements are sat- purposes limitations when “the nature of isfied is the crime involved” consistent with the ordinary mean- requires much, such as when of ing of the phrase “brings to.” See United fense “clearly contemplates a prolonged (9th States v. Cabaccang, 332 F.3d 626 conduct”). course Cir.2003) (en banc) (“When Congress has provided not special definitions, we must

The second supporting reason our con- construe words in a ‘according clusion statute offense contin- entry ordinary, ues after their contemporary, is that the federal venue common ” statute, (2000), meaning[s].’ states (quoting United States v. that “[a]ny involving transpor- Hackett, offense ... Cir.2002)) tation in commerce, interstate or foreign (alteration in original)). The common un- or the object of an or person to,” derstanding phrase such into the continuing United States is a of- “bring particular as to to” a large place, is fense ... may inquired of and bring to some location that large within from, prosecuted any district through, place simply and not boundary. its outer or into which such ... im- commerce An alien brought who is to the United object or ported person Lopez moves.” usually brought by States is transport- argues 3237 does not apply er to a place particular country in the 1324(a)(2), which bringing criminalizes off, where he dropped just an alien to the United not into the border. A construction of the statute Gonzalez-Torres, United States. Cf. terminates as soon as at (discussing F.3d 599 the be- distinction the alien reaches the border conflicts with “into”). that, tween “to” and It is true our common sense understanding of the Gonzalez-Torres, under one can violate language employs. the statute 1324(a)(2) § “entering” without the United Fourth, our determination that the in legal States a supra sense. See note “brings continuing to” offense is a one is means, however, §What 3237 is that when most way consistent with the we view the a import defendant does a person into the physical that commonly acts constitute the States, United by such as that driving 1324(a)(2) offense in conduct cases. If person from Mexico across the to border Vegas, the Las he has committed a ended as soon an alien continuing crime as purposes. offense for venue brought Were we to “to” the United a trans- 1194 statute, any one prosecuted be Tijuana, venue from an alien drove who

porter Thus, § tells 3237 more districts. north of two or one mile Mexico, house to a safe continuing one and a the crime is punished us border, example, could that for the op- the bringing government the the may provide crimes: separate two for than one and “trans- more prosecute portunity the United “to” the mile within the on whether venue, light for another no but sheds porting” them to think more sense the makes when country. It terminates to” offense “brings as consti- drive short, uninterrupted initially the location at dropped off alien is offense, a con- “brings to” single a tuting conduct transporter’s the initial at which by a con- possible made is ception that thereafter it continues whether ends or the that treats the statute struction in- acts of commit individuals while other continuing.10 offense as by a that are covered transportation ternal statutory provision. that different course, our conclusion Of past continues a hold that we previously, As stated inquiry, of our not the end entry is point of 1324(a)(2) ter under to” offense complet- are continuing offenses “even for drops transporter the initial when minates Her- States v. point.” at ed some at a location in aliens off Cir.1999). 791(9th nandez, F.3d 189 district in the first may occur that States: when task is determine critical Our may not occur or it transporter enters 1824(a)(2). §of violations for point occurs has driven transporter after until fact emphasize We interpret In so through several districts. for continuing offense is a statute, a view of adopted have ing the we 18 U.S.C. 3237 under purposes venue text, with its consistent § 1324 that is most the conclusion us to way compels reach no and with structure, purpose, history, suggests —that provision. venue continuing offense until offense continues “brings to” 642, 650, 417 Belford, Kokoszka v. U.S. See If destination. their ultimate aliens reach (1974) 374 41 L.Ed.2d 94 S.Ct. language statute contained the venue statute, (“When the court a ‘interpreting destinations, we would con- about ultimate clause merely particular not look will quite that is question, but a different front used, may be but words general in which that a The fact obviously not case. whole with it the take connection will purposes venue continuing is crime policy objects ... and statute termi- that crime about when says nothing provi various law, indicated its as lies merely that venue nates. It means sions, give it such construction before by the crime touched any district will of carry into will execution Hernandez, completed. See the crime Du Brown v. (quoting ....’” Legislature 791; Bar- States v. F.3d How.) (19 183, 194, 15 chesne, 60 U.S. Cir.1973). nard, (1856))). L.Ed. who drives example, For offense, we “brings to” construing the across the bor- illegal immigrants group language initially “[t]he observe drops or Arizona der California in- itself indicates may, statute Vegas under off in Las them offense; continuing [re immigrants 1324(a)(2) [is] a § is also 10. Our construction long defendants as previously progress stat as mains] what we have consistent In “transports within” offense. transporting” the aliens. ed about the [are] Covarrubias, we held United States 1225. transporting crime federal "[t]he apply Cir.1989), tended it to to extraterritorial con- F.2d 1264 charged Villanueva, duct.” 408 F.3d at That with, alia, 198. assisting inter an escape from is, 1324(a)(2) language § to” custody, federal in violation of 18 U.S.C. clearly connotes the act of bringing the (1988), § 752 harboring an escapee, in alien “from outside” the country. The (1988). § violation of 18 U.S.C. We “transports within” of held that assisting offense continues 1324(a)(1)(A)(ii), contrast, by not does through any immediate pursuit, active but its implicate text extraterritorial behavior. Vowiell, no further. See 869 F.2d at Indeed, language provi- the latter 1268-69. In deciding when the assisting sion limits the offense to acts “within the terminates, crime we wrote that in- “[a]n plain reading States.” On a terpretation that assisting an escape un- statutory then, language, person who 752(a) der included harboring or con- moves aliens from one location in the Unit- cealing an escapee would be inconsistent ed brought States to another has not those with statutory the clear distinction” be- aliens “to” the United has not acted provisions. tween the two Id. at 1268. extraterritorially, and has not committed a rejected We government’s argument “brings to” offense. He entirely has acted that United v. Bailey, 444 U.S. on domestic soil and has committed (1980), S.Ct. 62 L.Ed.2d 575 “transports within” offense. An interpre- Supreme which the Court held escape tation of as persisting beyond itself continues as long as the escapee at which the extraterritorial large, remains at required that assisting terminates his conduct and escape an also be deemed to so continue. drops the aliens off at some location in the Vowiell, See 869 F.2d at 1268-69. “Assist- United States would thus undermine the ing escapees after the escape complete extraterritorial foundation of the crime as separate constitutes a harboring crime— well as the distinction estab- or concealing escapees,” we wrote. Id. at lished between bringing an alien “to” the explained: We further States and one al- This separation reflects the different ready country. inside the See N. William dangers which the pose.... two crimes Philip Legisla- Jr & P. EsKRIdge, Friokey, contrast, separate no crime exists for Op tion: Statutes And The Creation Pub- turning escaping. one’s self after Policy (1988) (“[P]rovisions must liC As the Supreme pointed Court out in interpreted so as not to derogate from Bailey, escapee can be held liable for provisions force of other and features not returning custody, but that con- statute.”). of the whole duct is included within the crime of es- us, persuasive Even more as we have cape. Not turning one’s self involves noted, already § 1324 sepa- creates four essentially the danger escap- same offenses, including rate ing supposed someone who is —that offense at issue here as well as the “trans- fulfill legal custody be in will not 1324(a)(1)(A)(ii). ports within” offense of purpose of that custody. attributes, Among its other reading (citation omitted). Id. Following the rea- § 1324 sepa- best harmonizes the various Vowiell, soning of we held in United States rate but often parts interrelated of (9th Cir.1989), v. Gray, 876 F.2d 1411 prior decisions, statute. In our we have appear, failure to in violation of 18 U.S.C. found it useful to statutory reason from (1988), § 3146 continuing is a offense: be- determining structure the existence and continuing separate contours of cause “no crime offenses. The de- exists failure Vowiell, fendant in United States v. sentencing having 869 to return for after ini- we Prior statutes. sentencing,” predecessor and appear for failed to tially law criminalized the same federal pose explained, actions two “[t]he because of undocu- legal system,” in landing and the society bringing the danger to and part are Id. the States. “[b]oth into United we concluded mented aliens continuing offense.” of parcel Congress one addressed year, That at 1168. at 1419. F.2d immigration law gap in apparent an ef- Vowiell, enforcement interpreta- extending immigration case, in In this 1324(a)(2) har- the through proscribing to” under forts inland tion which, under “transports concealing of undocumented includes and boring within”— destination” “immediate fur- government’s Then, Congress the aliens. Id. inconsis- would—“would theory, it often of its earlier coverage the ther broadened statutory distinction” the clear tent with of- the additional creating legislation by crimes, and even with two between the aliens within transporting fenses of other with the two statutory distinction encourag- inducing or and United Transporting §by 1324. covered offenses aliens into entry of ing the solely within an undocumented de- Congressional Id. at 1169. States. separate “constitutes United States amendments that the 1952 suggests bate “to” the United bringing one from crime” widespread curbing “at were directed distinction between Congress’ States. immi- transporting practice punishments and the offenses those two already in the United grants, the different each “reflects that attach to away the border from jobs and locations pose.” Un- the two crimes dangers resources immigration enforcement where does exist Gray, separate crime like in Id. We de- scarce.” may have been more conduct wholly for the domestic this case the stat- evolution of the general scribed place one an alien from scope pro- “broadening the ute as other States to another —in conduct,” multiplying rather than scribed that such words, has decided Indeed, we Id. charges penalties. of the “part parcel” and is not conduct in add- Congress’ purpose concluded that Vowiell, then, As in “brings to” offense. transport ing the internal offense continue not “brings to” offense does offenses other enumerated “transports at which the beyond point a ‘new was “to ensure begins.11 [wholly] within” transport- wrongdoers’ persons group — termination hinges A rule States— ing within on the “brings to” offense of the simply be- punishment escape would not conduct, as transporter’s the initial end of brought those not also cause had ours, aliens’ ulti- than on the rather does Id. into United States.” destination, as reaching their final mately was, thus, Congress’ intent 1170. accurately more government’s, would the provi- to” of the extend the reach history purposes reflects the charges for which multiply sion or up that make statutory provisions various eligible. might be an initial v. Sanchez- In United States 1324. history we discussed One lesson Cir.1989), we Vargas, 878 “wrongdoers” Sanchez-Vargas and its § the evolution of traced external during period between the adopting government’s con- Similarly, aid- transportation constitute would internal between erode the distinction struction would "brings abetting ing the extra-territorial harboring "brings offenses. See 1324(a)(l)(A)(iii). concealing to” offense. Harboring or aliens within the United peara transport who § nowhere in 1324 or the venue subject States were not punishment his- statute, and there is no reason for us to torically under the “brings to” provision of graft Indeed, onto 1324 here. § 1324. The purpose of the “brings to” government’s varying descriptions of its provision was instead to criminalize the proposed destination,” rule—“immediate conduct of those who acted extraterritori- destination,” “final destination,” “ultimate ally to move from foreign a country “intended highlight destination” — Indeed, to the United States. the fact that sheer arbitrariness of adding to the statute wrongdoers who wholly acted domestically language that has no basis in statutory escaped punishment under the 1917 stat- text.12 was, ute explained, as we the motivating The dissent’s analogy between alien force behind the enactment of the “trans- smuggling and drug see smuggling, op. dis. ports within” provision in 1952. The con- at is inapt. statutory schemes struction of 1324 most consistent with that regulate the types two importation of history structure, statute’s there- are structured in entirely different ways. fore, is one that recognizes that the differ- weAs have explained length, enact- provisions ent §of 1324 cover different ing the current version §of Con- groups of wrongdoers. By designating the gress decided punish separate under point termination of the “brings to” offense provisions the wrongdoers who bring ille- as the end of the initial wrongdoer’s physi- gal aliens across the border and those who involvement, cal permitting prose- transport wholly them within the United cution of secondary wrongdoers —those Both States. the offenses and the sen- who act entirely within the United tences are different. employed only under the “transports within” States — completely opposite and unitary ap- provision, our construction accomplishes proach the transportation drugs. precisely what Congress intended. Under There is no counterpart government’s drug stat- proposed construction, by contrast, utes to the “transports a “brings provision within” offense does not 1324(a)(l)(A)(ii). terminate until the alien Unlike in reaches his ulti- the case of destination, mate regardless importation, many of how “importation” of- (or “wrongdoers” groups of “wrongdoers”) fense in drug context covers both the transport or him during assist journey. his transportation extraterritorial and the en- Such rule disregard would Congress’ in- suing internal transportation. In the case provide tention to for prosecution drugs, the government prosecute must different groups of wrongdoers under dif- persons all involved in their transportation provisions ferent of the statute. under 21 provision not, forbids moreover, This is the “importation of controlled sub- problem Thus, government’s with the stances.” the unitary statutory “immediate destina- tion” test. that, Another compels concern structure is a broader reading of the bottom, the test has little basis in transportation the law. element The “immediate destination” language ap- drugs statute than permissible 12. The “immediate destination” gues test is also had reached their imme- difficult to administer because it invites de- diate when dropped destination were off particular bate over stop along whether at the prearranged in the United path alien’s into the United States constitutes while argues that their imme- that alien’s "immediate destination” or was destination, diate destination was their final merely resting place instead meeting Angeles. Los case, point. In this example, Lopez ar- single by virtue of this inclined are not of the We “brings provision the

respect analy- careful our own to set aside law, separate decision in which smuggling alien conflict would adopt ruling that sis and the different cover provisions exist § and the of language the with ven- both the criminal stages of transportation creating of congressional purpose patent ture.13 trafficking of- felony alien separate two of a specter the also raises The dissent fenses.14 string with a beginning split by circuit case, it is the facts of this Turning to every one of cases to out-of-circuit citation encountered the Lopez that undisputed stat drug importation interprets the which transporta- provided them aliens and mentions which even none of ute and dropped off after had been tion See op. at smuggling. alien dis. § 1324 or initial trans- by the States in the United crucial differences of the 1202. Because the bor- them across brought statutes, porter who any “circuit two between Thus, trans- her act of Mexico. der from completely by these cases is created split” only after aliens occurred porting adopting illusory. The lone decision had terminated and to” offense of construction dissent’s alone, (2d cannot, as a basis for standing serve Aslam, Cir. 936 F.2d 751 aiding sustaining her conviction 1991), to consider structural failed “brings to” Lopez’s that offense. abetting opinion which arguments on historical un- therefore be reversed must convictions Significantly, at 755. is based. See id. prevail on can its less the a misde considering court Aslam was before Lopez that acted theory, felony second than a conviction. meanor rather "which limited venue decision statute, aiding abetting and Under 18 It is clear that certain under circum- 2, “aids, abets, a person who a stances defendant who does not physical- counsels, commands, procures” induces or ly transport aliens across the may border of an against commission offense criminally be held liable for aiding and “punishable princi United States is as a abetting “brings a to” A offense. financier pal.” interpreted have this statute on We who organizes and funds a smuggling op- a number of occasions. In United States eration, for example, whether located or Zemek, (9th Cir.1980), v. 634 F.2d 1159 we States, outside of the may be said “[cjonviction wrote that as an aider and to have himself with “associate[d] the ven- requires abettor proof the defendant will ture, ... participate^] in it inas some- ingly associated himself with the venture thing about, he to bring wishe[d] [and participated and therein something he sought] by his action to make it succeed.” wished bring to about.” Id. at 1174. States, Nye & Nissen v. United 336 U.S. Elsewhere, we have stated that abet “[a]n 613, 619, 766, (1949) 69 S.Ct. 93 L.Ed. 919 ‘who, tor is one with mens rea ... com Peoni, (quoting United States v. 100 F.2d mands, counsels or encourages otherwise (2d 401, Cir.1938)); v. Barnes cf. ” the perpetrator to commit the crime.’ States, 215 F.2d Cir. Barnett, United States 841 1954) (upholding “brings into” conviction of (9th Cir.1982) (quoting Perkins, Rollin M. a “negotiated planned defendant who and (2d ed.1969)); Law see also CRiminal aliens,” entry for ... drove the a aliens to Jury Ninth Circuit Model CRIMINAL In border, city Mexican near the up and met (2005) that, 5.1 (instructing to structions again with them on the United States obtain a for aiding abetting, conviction and side). today, need not determine We how government prove beyond must a rea ever, precisely may may what actions and that, alia, sonable doubt inter the defen not render a guilty aiding defendant and aided, “knowingly intentionally dant and abetting.16 Lopez’s do qualify actions counseled, commanded, pro induced or under definition. principal] [the cured to commit each ele ment” charged). picking up of the crime We The mere act of have aiding abetting held that at a location near has four the border and trans here, including, porting elements as most relevant them within the United States is clarification, 15. a holding Any complete specification category As today require does not us to overrule United of aiders and abettors would have to take into account, attempt redundancy States v. Under to avoid Gonzalez-Torres. Gonzalez- Torres, with, "brings separate elements of the to” offense offense created may be satisfied as "encourages soon as the aliens are for one who induces States, to, enter, brought regardless to the United to come in the United or reside decision, entry; today's knowing formal under disregard the of- or in reckless to, transporter coming entry, fense until the continues initial the fact that such or resi- brings drops who the aliens them off at a dence is or will be in violation of law.” 1324(a)(l)(A)(iv). location United States. day of the offense on the twice ‘Jose’ a conviction support not sufficient arrange- transportation offense.17 “brings regarding to” abetting aiding and comple- ob- government following point,” At no the fact ments. does Nor twice Lopez “brings say, to” nor did the serves, Agent Huber tion of “did been the may have who person discus- spoke argue, Lopez’s Government equation. anything add transporter her were on June sions Jose with more, cannot, estab- without evidence Such him.” first contact aiding necessary prove the intent lish notes, Lopez was able “the fact then that the de- show cannot abetting physical Huber with provide Agent —it com- intentionally knowingly fendant contact with implies description of Jose the ini- counseled, encouraged manded, conversa- telephone him that predated to” to commit tial day.”18 him had with tions she Moreover, convic- offense. sufficient court found evidence district in inappropriate particularly be tion would doubt that a reasonable beyond prove which, court the district case, in as in the involved Lopez was obviously the found, “wasn’t the defendant the States before aliens to the United supposed else was first choice”—“someone country, although it the entered Lopez was up,” aliens] pick [the “it’s some- that with the defense agreed transported them day she on the contacted [Lopez] wasn’t because questionable, what in already were only after the some- choice. Because obviously the first person to for the first country plan and the up.” pick them supposed was one else by his frustrated up had been pick them that, viewing the evidence holdWe designated at the appeared arrest when he govern- light most favorable location. had at ment, juror would have any rational squeeze attempts to government The whether doubt as to the least a reasonable evidence to additional from the record aided, intentionally “knowingly and Lopez Lopez aided and abetted show that commanded, or counseled, pro- induced were the aliens before smuggling scheme ele- to commit each principal] cured [the gov- The United States. brought to the “brings to” offense. ment” of the evidence pieces of points to two ernment merely speculated government First, if, Even as government the suggests, Lo- is a continuing offense pez’s ability to give physical description that terminates when initial transport- the of Jose to tends that show she had met who brings er the alien the United prior 1, Jose to June that is all it shows. drops States off the alien a location in leap required inferential to conclude country. Viewing the statute in that that Lopez and prior Jose’s communica- light, we Lopez’s reverse convictions for tions involved part efforts the Lopez on 1324(a)(2). violations of Lopez trans- to induce or encourage Jose to smuggle ported the only within this country aliens on June 1 is completely without and after had dropped been off foundation, and juror no rational could here “brings and the to” offense had ter- draw an such inference conclude that minated. The evidence her involvement the prior fact aof acquaintanceship consti- prior to the termination of the proof beyond tutes a reasonable doubt of offense, to the extent any any such on exists the Lopez’s part. effort record, wholly is insufficient to establish Nor is all of the government’s evidence aiding and abetting liability on her part. together taken sufficient to allow a rational express opinion We no Lopez’s on Mi- factfinder Lopez to find guilty. prove To randa and Confrontation Clause claims aiding abetting, and the can- respect with to the “transports not merely show that Lopez within” was associat- ed with counts and Jose or with refer those transportation counts to the origi- within three-judge the United nal panel States —it for resolution of must more. show See Ninth CirCüit Mod- those and other issues.

19. Contrary oblique sugges- dissent’s "brings to” offense and secondary trans- tion, 1208, op. see dis. we do decide not porter encourage intended to so induce or that if a operation “relies on” a aiding commission of the abetting crime— secondary, state-side transporter —in liability will never lie. Those are not the facts secondary sense transporter’s that the agree- of this case we not do consider that participate ment to encourages induces or question here. initial, commission of the extraterritorial

1202 Haire, 833, 838 371 F.3d v. RE- States PART AND IN

REVERSED (D.C.Cir.2004), grounds, other vacated on TO THE THREE- IN PART FERRED 1014, 1109, 160 L.Ed.2d 125 S.Ct. 543 U.S. PANEL. JUDGE Turner, 936 (2005); States v. United 1038 Judge, specially BEA, Circuit (6th Cir.1991); 221, States 226 United F.2d concurring. Cir.1987) (1st Leal, 7, (per 9-10 831 F.2d v. Lopez majority I 803 agree curiam); v. States United Sandini only within illegal aliens transported (3d Cir.1986); 123, States United F.2d there is insufficient States 1135, United 1150-51 F.2d MacDougall, 790 v. otherwise aided Lopez evidence Netz, (4th Cir.1986); v. States United I offense. do “brings to” abetted (8th Cir.1985) cu (per to” offense contin- agree that Corbin, 734 F.2d riam); v. States drops off initial ues until (11th v. Cir.1984); United States stat- text By the plain aliens. Godwin, Cir. 146-48 at the border. completed ute, is the offense Jackson, 482 F.2d 1977); United States may constitute transportation Any further Rep. (10th Cir.1973); S. No. 1178-79 illegal alien within (1983), 98-225, in 1984 reprinted at 400 8 U.S.C. under 3182, 3538. U.S.C.C.A.N. 1324(a)(1)(A)(ii), not constitute does but long line of following this Rather than alien. States such the United “bringing to” injects unnecessarily authority, our court an extended ex- majority opinion concluding law inconsistency into the interpretation, statutory ercise “ini- ends once do not which I using methods grounds and brings the aliens to transporter who tial com- is no But there endorse. transport [the States ceases exer- it is also an further because menting so, doing Maj. op. 1188. aliens].” 8 U.S.C. unnecessary to decision. cise give sufficient credence majority fails 1324(a)(2)(B)(ii) illegal to makes aider and doctrine of long recognized an ille- ... States” “bring[ to ] the con- liability, punishes abetter to” the United A person gal alien. See 18 principal. as a defendant victed transports when he illegal alien States an dissent. respectfully § 2.1 That is any border. across statute, and I can see meaning of plain I it. depart to from no reason majority’s interpretation under the Even offense, scope TALLMAN, with Judge, whom Circuit was be affirmed. There should convictions RAWLINSON, CLIFTON Judges Circuit jury find evidence for the to sufficient dissenting. join, and CALLAHAN in the alien participate to Lopez agreed same whether The law should be initial prior to when the smuggling venture aliens, or contraband drugs, aliens. transporting the transporter ceased a cir majority creates Today, the goods. court’s denial de district We review novo contra announcing a rule that split cuit un- judgment acquittal of a motion under precedent venes established Rule of Procedure Federal Criminal der intent. congressional mines Bahena-Cardenas, 29. United States to address the court every other circuit 1072(9th Cir.1995). “In as- 1071, 70 F.3d all concluded issue have evidence, ‘we sufficiency of the sessing the imported ob continue until offenses in the the evidence to view required are final their destina jects persons reach to most favorable light See United the United States. tion within and determine whether there suffi was registered in Lopez’s name May 28, on cient evidence from which a jury could but Lopez did go pick to it up rationally beyond conclude 1, 2004, reasonable until June day Jose contacted doubt that guilty [the defendant] was of her about transporting the aliens to El ” each charged.’ count v. Centro. Barajas-Montiel, 185 F.3d Viewing the evidence in the light most Cir.1999) (quoting United States v. Espar favorable prosecution, any rational za, (9th Cir.1989)). trier of fact reasonably could conclude “[C]ircumstantial evidence can be used to Lopez arrangements made prior Jose prove fact, including facts from which 1, 2004, to June aid the completion of inferred, another fact is to be is not to this smuggling venture. jury could be distinguished from testimonial evidence also reasonably infer that her decision to

insofar as the jury’s fact-finding function is purchase this used Expedition— Ford concerned.” United Stauffer, States v. 922 which happened to be located near where (9th Cir.1990) (internal quo the aliens hiding were pick up the —and omitted; tation marks alteration in origi vehicle on day Jose asked her to trans- nal). port the aliens was more than a mere Border Patrol Agents apprehended coincidence. It is not unheard of in our Angelica Lopez 1, 2004, (“Lopez”) June experience for smugglers to employ used using large white Ford Expedition to or rented vehicles aid of their schemes transport twelve east on In- in case interdiction, seizure, and subse- terstate Agent Huber testified that quent Lo- forfeiture of the instrumentality of crime; pez admitted to making arrangements with the theAs district court concluded: person named Jose earlier day you [I]f [Lopez’s] combine testimony as transport Centro, the aliens to El Califor- to when she was getting car, nia. Jose instructed her to drive to a would be some evidence as to the fact location near agents appre- where that she was involved in this before the hended her and advised her that there crossed; about time. Be- would abe sweater lying the road to cause registered when she her, it to indicate where she could find the aliens. registered her, the vehicle to she indi- Initially, promised Jose pay Lopez $100 cated it day was before the she went for each individual she transported; how- down there. ever, called he her sometime later so, And although her, Jose calls accord- change arrangements to a flat fee of ing to statement, her day, that for the $500 entire group. Lopez gave a doesn’t mean that she an agreement had

vague physical description Jose, of describ- before, with Jose that she was going to ing him bald, short, as a heavyset man. it; just do Jose was going to call her and when, tell her get registered. the car

Lopez also testified that she had pur- you I’ll let know when to do it. I think chased Expedition her Ford days few that’s a reasonable inference that can be 28, earlier May 2004. She had noticed drawn. the vehicle outside Applebee’s an restau- Montclaire,

rant in However, California. Because there is sufficient evidence to con- when made arrangements she actually that Lopez clude aided and abetted purchase car, the owner had in a tow prior venture to when initial transport- yard located some two and a half hours aliens, er ceased transporting the the con- lived, from where she near where the victions should even affirmed under the picked where to be up. The vehicle majority’s novel interpretation. 1204 importation § is clear: history of 3237 five

II per- imported until the continue offenses ex- Congress’s glosses over court Our destination reaches its object or son final importation to treat purpose pressed Rep. No. See S. States. within the United enacting continuing offenses as schemes 400, in 1984 98-225, reprinted as statute, 18 venue companion federal at 3538. U.S.C.C.A.N. 3237,1 it holds that § when U.S.C. the federal Congress amended In 1984 under 8 offense 98-473, statute, No. see Pub.L. venue 1324(a)(2)2 initial once the terminates (1984), 1837, to abro- 1204, 2152 98 Stat. the alien. ceases courts had opinions in which judicial gate language, plain §of 3237’s light end once offenses importation held that acknowledges importation court at the district object arrives person or venue continuing offenses for are crimes Rep. 400, 98-225, at No. entry. See S. However, it Maj. op. 1191-93. purposes. at 3538. in 1984 U.S.C.C.A.N. reprinted as way compels” “in no this surmises history reflects legislative con- “brings to” offense that the conclusion intend- Congress this amendment through or her alien reaches his until the tinues involving importa- offenses ed to “add be- in the States United final destination object into the or person tion an do “ultimate destination” the words cause classify thereby to such States venue in the federal appear anywhere continuing offenses for which as offenses Maj. 1193-94.3 After scour- op. statute. district appropriate venue is statute, federal venue the text of the ing object person imported which the 1324, history, and one legislative its so, sought doing Id. In moves.” “initial find the words in vain to searches such as restrictive decisions to “overcome” now em- phrase our court transporter,” Lember, F.Supp. 249 v. “brings to” scope of the to define the ploys (E.D.Va.1970), district court in which the offense. crime of determined arrived once the contraband terminates ambiguous [must] “we a statute When entry opposed as district to its scope with reference its determine Rep. final S. No. destination. district D’Alene Tribe history.” Coeur legislative 98-225, reprinted Hammond, 692- Idaho of 93(9th at 3538. U.S.C.C.A.N. Cir.2004) Sioux (citing Rosebud piece integral court overlooks 97 S.Ct. Our Kneip, 430 U.S. Tribe v. (1977)). It makes no men- history.4 legisla- legislative 1361, L.Ed.2d 660 gov- 3237(a) majority goes state that "the on to provides: 3. The pertinent part, 1. In proposed mails, varying descriptions of its ernment's involving Any the use of the destination,' 'final destina- foreign com- rule^—'immediate transportation in interstate or destination,' merce, tion,’ object 'intended destina- of 'ultimate or continu- of person highlight into United States arbitrariness the sheer tion' — and, except otherwise ex- ing language as that has no adding to the statute Congress, provided by of pressly enactment Maj. op. statutory 1197. text.” in basis prosecuted in may inquired of and from, through, such or into district which Although "[i]f 4. the court concedes commerce, matter, imported object or mail language about contained ulti- statute venue person moves. destinations, we confront differ- mate would 1194, maj. op. it dismisses such question,” ent the 2000 majority, I will cite to 2. As does the "snippet” legislative of language as a mere Maj. See States Code. edition of maj. history, op. at n. 14. 1198 Op. 1187 n. 1. 1205 tion of the fact that though even the dis- many acts which previous- had been trict court in Lember reasoning based its ly classified and punished by different many arguments of the same the ma- penalties, but legislate against jority now in support cites of its narrower overt act of smuggling itself. interpretation, Congress nevertheless fa- 454-55, 172 U.S. at 19 S.Ct. 254. There- vored the interpretation broader im- —that fore, view, in the Court’s the smuggling portation per- offenses continue until the statute “related not generally to acts which object son or reaches final its destination. precede smuggling! or] which might follow Lember, In a package mailed from Viet- it, but to the concrete offense smug- of nam was addressed to the defendant’s wife gling!] 455, alone.” Id. at 19 S.Ct. 254. Beach, in Virginia Virginia. F.Supp. majority reverts to the same rationale at 250. When the package arrived at the here by pointing to the different crimes of San Francisco Airport, International to, transporting, bringing and harboring or agent States customs opened the concealing. package during a check routine and found In marijuana. statute, amending Id. agent resealed and re- jected delivered the package Lember, the rationale Virginia turn, of and in Beach address. Eventually, Id. Keck, defen- the rationale of at least to the extent dant was indicted and in tried the Eastern Keck is read for the proposition District of Virginia. Id. After the district importation ends port at entry. court declared a mistrial, the defense filed Therefore, although majority correctly judgment motion for acquittal, arguing notes that 1324 punishes four distinct prosecution could not proceed in acts related smuggling, maj. see op. Virginia, rather but that proper lay venue 1194-95, legislative history indicates the Northern District of California. that Congress nevertheless intended to Id. The agreed. court district Id. at 251- punish to” offense— —under Relying on an 1899 decision of the any person who helped get the alien to his Court, Supreme Keck v. United or her final destination within the United U.S. 19 S.Ct. 43 L.Ed. Rep. States. 98-225, See S. No. concluded that “the crime reprinted 1984 U.S.C.C.A.N. was complete when the package arrived 3538(stating that the amendment “[wa]s ashore and was opened at the San Francis- designed to overcome decision in Unit- Airport.” Lember, co 319 F.Supp. at 251. Lember, ed which limited venue Keck, the Supreme Court determined cases to the district of entry that the offense of smuggling or clandes- (footnote rather than of destination” final tinely introducing contraband into the omitted; added)). emphasis Any other United States was completed once the “unjustified” construction would be in that goods arrived at the port entry. it “would create difficulties since wit- 454-55, U.S. at 254; 19 S.Ct. see also usually nesses are located place Lember, F.Supp. at 251 (discussing destination” and “the district of destination Keck). The Court reasoned that the stat- rather than entry normally first has the ute greater interest vindicating the offense.” was not intended to make smuggling Id. embrace each or all of the acts thereto- In disregarding legislative prohibited history

fore which precede could court might also creates a [;] split, follow ... circuit smuggling departing is, the statute from was intended to how other not circuits have defined the merge into one and same the all scope importation Sandini, of offenses. smuggling drug involved Persons the rejected defendant’s the Third Circuit smug- in alien schemes, those involved like have would which argument, “reinstated schemes, under prosecuted can be gling entry rule” and port of irrational Lember’s means, just under statutory not variety of meaning of “plain the held under § “unitary” crime of the in the West- misnamed 3237], proper [wa]s venue [§ statute, venue majority reasons. The Pennsylvania because of District ern 3237, harmoniously be should i.e., marijuana, 18 U.S.C. object,’ ‘imported violating reach all such means read District of to the Western into ‘move[d]’ 129(final smuggling statutes. drug alien or either F.2d Pennsylvania.” 803 crimes can drug importation why That id. at 128 see also original); alteration federal district freely prosecuted of Penn- District Western (“Although drug by the activities of the impacted desti- have been final sylvania may not Logic compels smuggling enterprise. it was appellant, nation intended no dif- Congress expected aof con- conclusion final destination nevertheless the enterprises prosecuting ferent result when marijuana he con- of the siderable amount split The creat- smuggling. country.”). involving alien into this import spired to real majority’s approach is today by the ed Moreover, every circuit that has addressed and cannot be dismissed and importation substantial concluded the issue has differen- the narrow structural object reliance on imported until the offenses continue court’s decision. employed within the tiation destination reaches its final at 1202. supra, See United States. to” offense A conclusion that his or her until the alien reaches spurious struc- continues majority employs seriously not erode final would attempt justify destination in an to argument tural of- importation the distinction between the treatment alien its inconsistent transportation offense. Maj. 1197. In fense op. smuggling. See drug 841(a)(1), States bringing aliens to the United act so, ignores 21 U.S.C. doing occur at activities that encompasses drug-traffick- the related punishes smug- manifestations of an earliest manufacturing, distribut- ing offenses of notes, majority As the gling intent venture. with possessing or ing, dispensing, re- distribute, aliens to the States manufacture, dispense, “[b]ringing United or to period over a quires transporting them Congress intended substance. controlled distance!,] 841(a)(1) thus does intimately time and cover conduct or loca- particular moment drugs, occur at one act of connected im- Large scale Maj. op. tion.” 1192-93. simultaneously possession punishing e.g., terminate once distribute, operations do not portation see United with intent “guide” ceases transporter” 213 the “initial Dubrofsky, 581 States v. is the case (9th Cir.1978) transport the aliens. As viewed to (“Congress clearly here, pay smuggler intent to often importation possession in the particular place them to a transport could be evils that separate distribute as just across the bor- not a hillside country, cumulatively.”), whether punished importation “is not Recognizing that or out- der. interdicted inside smuggler was occurrence, or an instantaneous static boundaries side territorial maj. op. temporally,” geographically v. Lar- States, see Cir.1991) punishing crime sen, 1100-01 transportation should include the of aliens has extraterrito- (holding to their final destination. those application). rial (9th Cir.1984) (en banc), transportation 1204-05 comparison, abrogated In grounds recognized on other harboring concealing illegal or aliens in Estate Comm’r, (9th Merchant v. 947 F.2d 1390 presence opera- covers the continued Cir.1991). smugglers tion of the alien within the Thus, ap- separate United States.5 crimes in As we stated United States v. San- by ply to later criminal conduct those who (9th Cir.1989), chez-Vargas, 878 F.2d 1163 harbor, knowingly transport, or conceal “congressional ... suggests debate though they nothing aliens even had to do directed, transport large offense was in them into the smuggling part, curbing widespread practice of States. Each case must turn on its own transporting illegal immigrants, already in Congress facts. But was free to criminal- jobs and locations activities, punishing a range ize broad away from the border immigration where flouting those who assist others in may enforcement resources have been immigration arrange, laws. Those who more scarce.” Id. at other for, words, pay smug- or otherwise aid or abet the punish intended to those encouraged who principals presence venture are liable as under continued gling illegal transporting § them to 18 U.S.C. 2. See United States v. Car 642(9th Cir.2002) other locations within the ranza, United States.6 634, 289 F.3d (finding sufficient evidence to convict de legislative history also cites with importing marijuana fendant of when he approval the Fifth Circuit’s decision run, participated riding pas in a test as a Godwin, 546 F.2d and the Tenth Cir- senger brought drugs the vehicle that Jackson, cuit’s decision 482 F.2d 1167. border); Rep. across the United States Flick 98-225, S. at 400 n. as re- No. inger, 573 F.2d 1359-60 Cir. printed in 1984 U.S.C.C.A.N. at 3538. In 1978) (convicting illegally defendants of Jackson, argued defendant marijuana importing into the United federal district court Colorado was not they States because aided or abetted the proper try venue to the case when the crime), grounds by overruled on other authorities first discovered the McConney, United States v. venture in California. 482 F.2d at 1178. inquiry heavily dependent judgment specific 5. The on the lative is more behavior Here, particular facts of case. the evi- culpable deserving or less of a harsher payment smugglers dence showed to deliv- penalty. bearing statutory It has no on the Angeles, er the aliens to Los where the aliens interpretation question we here decide. Nev- presumably intended to meet friends or fami- ertheless, I note that a conviction under 8 facts, ly. On these once reached Los bringing illegal § U.S.C. for Angeles "brings to” crime would have advan- to the United States for commercial Thus, completed. family been member who tage private gain financial will in a or result picked up Angeles an alien in thereafter Los years sentence of not less than 3 and not Portland, transported him or her to Ore- years than 10 for the first or second more gon, "brings could not be convicted of the 1324(a)(2)(B). any offense. Id. For such offense, offense, only transportation but violation, impose the district court other shall linking family the absence of evidence a sentence of not less than 5 but not more smugglers. Similarly, family member to the years. comparison, than 15 Id. In a convic- stay member who allowed an alien to at his or 1324(a)(l)(A)(ii) tion under 8 U.S.C. Angeles, knowing her home in Los the alien illegal aliens for commercial ad- illegally, was here could be convicted of har- vantage private gain result in financial will boring concealing alien. See 8 years. of not than 10 Id. sentence more 1324(a)(l)(A)(iii). 1324(a)(l)(B)(i). Congress provided differing punish- 6. That legis- ments for certain conduct reflects 1208 Id. Aslam waited for argument, the Canadian side. rejected

The Tenth Circuit prearranged at a location south reasoning: the aliens 952(a) entry into “complete the border to their of prohibits ] 21 U.S.C. [Title concluding Id. In heroin into the United States.” importation of outside thereof. any place “bringing to” States from Aslam’s conduct violated the necessarily pertain not does statute, statute of the the Second Circuit prong locality such as any particular stated that entry, prohibits importa- for it of place those who punishes section Ap- in the United States. anywhere tion process bringing in the participate however, the offense charge, pellants States, illegal aliens into smug- the moment the completed was at ... the offense does not end in attempt was discovered Califor- gling instant the alien sets foot across not continue to the nia and thus does illegal importation border. in smuggling attempt’s destination aliens, importation of illegal like the com- Admittedly a crime was Colorado. Leal, drugs, see United States v. 831 package mitted the moment the heroin 9(1st Cir.1987), F.2d United States v. discovery but entered the United 1135, 1150-51, F.2d MacDougall, 790 the crime in California did not ex- (4th Cir.1986), at 1153 continues least originated haust it. The illicit scheme until the alien reaches his immediate it Thailand and from there extended to country. destination Base, Dur- Lowry Air Force Colorado. added). (emphasis at 755 Id. illicit venture the heroin was ing the certainly the discovered in California but im- compared illegal The Aslam court It completed there. crime was illegal portation importa- of aliens to the received no a continuous crime which so, doing of controlled In tion substances. arrived at finality package until Leal, 7, MacDougall, cited it 831 Lowry Air Force Base. 790 F.2d where the First Circuit and (citation omitted). Godwin, Id. stated, the Fourth Circuit not that rejected holding expressly court illegal importation ended when the initial reasoning adopted Lember and transport import- ceases at 546 F.2d Tenth Circuit Jackson. object person, they but when ed rather 146-47. Leal, reached their “final destination.” ‘ consistency interpre- in the The need for (“[Ijmportation 831 F.2d at 9 is a “contin- importation tation of offenses—whether complete uous crime” that is not until the illegal aliens or importation involves the reaches its final desti- controlled substance ” illegal go contraband —did not unnoticed Corbin, point.’ (quoting nation 734 F.2d The “immediate by the Second Circuit. 652)); F.2d at 1151 MacDougall, 790 theory adopted a three- destination” Sandini, (same); see also 803 F.2d at judge panel of our court United States 128(stating purposes that for of establish- Ramirez-Martinez, v. 273 F.3d 3237(a), under “the ing venue 18 U.S.C. (9th Cir.2001), originated in United States prosecution was the proper venue for Cir.1991). (2d Aslam, final the contraband rather destination of Aslam, citizen, a Pakistani met two the narcotics en- port than the just border. south of Canadian country”). tered the Id. at 753. The evidence showed that conclusively No court has defined the guide had driven the aliens to the Canadi- parameters importation of- border, temporal them accompanied side of the Leal, border, 9(stating F.2d at across the and then walked back to fenses. See precise temporal parame- “[w]hile transport defendants did not marijua yet ters of have not ad- border, been na across the aided abet dressed,” it that “importation is clear is a venture). importation ted the pan As the complete continuous that is not until crime el Ramirez-Martinez, concluded in if the the controlled substance reaches final its defendant is in involved any “concerted (internal point” quotation destination action” bring illegal an alien to the omitted)). Nevertheless, marks as in oth- United States he is guilty of the “bringing contexts, er is a matter that is best to” crime. 273 F.3d at 912. This is con left for the to decide jury based on the sistent with notions of aider and abetter presented facts in each vaga- case and the liability long recognized in criminal federal smuggling ries of by schemes concocted 2; law. See 18 U.S.C. see also Ra the criminal mind.7 mirez-Martinez, 273 F.3d at 912(citing Moreover, when amended States, Pinkerton v. 640, United U.S. 328 1986, statute it did 646, 1180, (1946) 66 S.Ct. 90 L.Ed. 1489 seek to narrow its construction of general (“[S]o long as the partnership in crime Instead, sought offenses. continues, partners act each for other “expand the scope proscribed” of activities forward.”); in carrying it v. Smith United by “smuggling and related offenses.” See States, (5th 907, Cir.1928) F.2d 24 907 Rep. 99-682(1), (1986), reprint- H.R. No. (finding aider liability and abetter when ed in 1986 U.S.C.C.A.N. “[It] defendant waited the woods with an believefd] such modifications ... essential illegal automobile for arriving from light judicial opinions recent which Cuba and then transported them to Tam interpreted existing ha[d] law [then] as not Florida)). pa, applying to certain activities that clearly Ramirez-Martinez, In upheld we a con- prejudicial [we]re to the interests of the viction bringing for an illegal alien to the Today, United States.” Id. rather than United States when the support- evidence adhering unambiguous congressional in- ing Ramirez-Martinez’s conviction was tent, our court unnecessarily restricts the that he knew unidentified individual scope to” offense and cre- who took prearranged him to a location to ates inconsistency treating law aliens, meet after which Ra- differently alien smuggling drug from planned mirez-Martinez to drive the aliens smuggling. Angeles to Los for money. 273 F.3d at support

Ill holding 912-13. we said: We should our prior reaffirm decisions When defendant physically does not Ramirez-Martinez,

in United States v. accompany the undocumented alien States v. Angwin, border, (9th across Cir.2001). States for ex- 271 F.3d 786 Pre-border ample, prove still involvement is not can required “bringing for a 1324(a)(2). to” conviction defendant acted the of- under 8 U.S.C. before (af Flickinger, completed by showing, 573 F.2d at 1359-60 fense was Cf. because, firming instance, conviction although that the defendant part instance, majority 7. For pursuit" cites United active "immediate ends is no more Vowiell, (9th v. States 869 F.2d 1264 ascertaining Cir. difficult than the aliens’ "final 1989), Smithers, we held that the crime of See United destination.” aiding 1994) an escape ends once the (noting immediate Cir. pursuit escapee active determining ends. Id. at the end of an active "immediate However, determining 1268-69. pursuit” obviously inquiry). when the fact-intensive States, such circum- aliens to the United bring action” to “concerted some present are not here. stances States. As aliens to the matter: “If what put Fifth Circuit Id. 804-05. did [the defendant] showed the evidence interpretation new announced Under the accused encour- with other in concert in Ramirez-Mar- today, the convictions unlawfully bring latter aged the not stand. See Angwin could tinez them in the United and land aliens into Although n. 17. we Maj. op. 1199-1201 & States, them in so aided and abetted he took that Ramirez-Martinez concluded 24 F.2d v. United doing.” Smith bring to Cir.1928). in a “concerted action” part 907, 907 States, to the evidence (alteration in Because original). Id. at 912 smuggling to the tying Ramirez-Martinez bring effort to a “concerted there was transporter” “initial operation before the aliens” to the United undocumented aliens was mini- transporting ceased States, because Ramirez-Martinez in defendant Similarly, Angwin, mal. effort, there was suffi- part was a smuggling in a played an “essential role” “bring- to convict him of the cient evidence aliens on this side operation by picking up Id. ing to” crime. by analysis of the border. As revealed upheld a similar conviction We also there, defendant’s importance Ang- emphasizing Angwin, partic- relate Angwin assistance did not op- operation in the overall win’s role the defendant became ularly to whether to the “initial posed to his connection or after the “initial trans- involved before Rejecting id. at 805. transporter.” See aliens, porter” ceased evi- argument of insufficient Angwin’s 804-05, yet majority’s under the dence, we said: that irrelevant fact will henceforth be view Angwin transported were The aliens determinative. Angeles, Angwin Los met traveling to illustrate, shortly purpose location As these cases prearranged them at a sophisticated smuggling opera- more of them arrived at the United after some immediately helped simply transport tions is not to the alien and he trans- pay circum- across the border. The aliens often north. those port them Under to take to a less- jury easily smugglers could con- them stances a rational with- dangerous prearranged location well beyond clude a reasonable doubt in the where interdiction Angwin aided and abetted a United States For resources are scarce or non-existent. operation bring to United succeed, operation meeting the aliens at such scheme States. His role beyond accomplices just north of the often relies prearranged location transporter.” Flickinger, “initial In we border minutes of their arrival within prove aiding abetting to stated that “[t]o States was essential [in] government was operation. drug importation], the [of the success of the entire required to demonstrate that defen- may [the some circumstances While there impor- in the crime of prearranged participated dants] trans- where a defendant’s sought bring their actions portation of aliens is so remote time tation and In entry its success.” 573 F.2d geography from the aliens’ about and/or case, as well as Ramirez-Martinez into that no rational the United States Angwin, played the defendants es- jury that the defendant could conclude of the overall role in the success bringing of the sential aided and abetted smuggling operation. get order to contracted —her conviction should be up- held. they aliens to their final destinations as contracted, principals smug-

had I respectfully dissent. gling operations relied on these defendants transport the aliens from desolate areas just across the border locations well

within the States where faced apprehension.

a lower risk of

IV OPETA, Ioane John Plaintiff- erroneously adopts The court a truncat- Appellant, criminal culpability ed view of for those sophisticated smuggling opera- involved in this one. Not all smuggling tions like NORTHWEST AIRLINES PENSION operations end once the initial PLAN FOR CONTRACT EMPLOY ceases to have contact with smuggled EES, Defendant-Appellee. aliens. This decision constrains the latitu- scope of dinous to” statute and No. 04-56719. congressional punish undermines intent to United States Court of Appeals, any person who aids abets Ninth Circuit. bringing of illegal aliens to their final des- tination within the United States under 8 Argued and Submitted Sept. 2006. 1324(a)(2). We need to maintain 7,May Filed 2007. uniformity in our smuggling case law construing to” offense under 1324(a)(2) consistently with how courts illegal importation

construe the of con-

trolled substances under 21 U.S.C. case, group

In this arrangements “guides”

made in Mexi-

co. The agreed pay smugglers smuggle them across the border

$1500 bring safely Angeles, them to Los Defendant, Lopez, played

California. The

an essential role in the success of this

smuggling operation. part, Lopez For her pick up recruited to a car and drive

the aliens from a location somewhere near

the Mexican border gas station El

Centro, Lopez California. Because aided

and abetted the venture before the com-

pletion of the “brings to” offense—in other

words, smugglers finally before the deliv-

ered Angeles the aliens to Los had notes 13. The dissent entry than rather of to the district of "manufacturing, cases distrib- prohibits See, e.g., op. at 1205 dis. intent to destination.” uting, dispensing, possessing with final or 98-225, (1984), distribute, manufacture, at 400 as (quoting No. dispense, a con- Rep. S. 3182, 3538) op. reprinted in 1984 U.S.C.C.A.N. Dis. 1206. trolled substance.” omitted). however, (internal Accord- drug quotation do marks point, that the is statutes dissent, snippet legislative transporting a con- prohibit ing separately to the not extraterri- history compels "within” us to construe trolled substance continuing Cabaccang, whereas as until 332 F.3d to” offense see torial destination, explained in smuggling statute does. As no alien reaches his ultimate alien text, compels transport many persons it is this distinction different matter how transportation reading element of the States and no broader within the United the alien drug con- “importation” layovers in the many of the brief extended how matter of the appropriate in the case text than is may interim. Such a make in the the alien provi- "brings' to” specific history and limited legislative more quotation from the brief 1324(a)(2). however, statute, scarcely sion of would a venue analysis jettison us to our entire cause structure, text, purpose of history, and that both is of course correct 14. The dissent actually construing. we are smuggling statute drug consti- substantive states, event, pri- snippet any as the federal continuing under the tute offenses was statute, purpose amendment mary of the 1984 This does 18 U.S.C. venue limiting venue to the mean, supersede a decision two explained, as we have labeling "im- entry. This what same district "importation” terminate at the offenses "continuing” accom- portation" offenses as by the point. is determined substantive That pri- plishes. effectuates Our construction upon a Senate The dissent relies statutes. prosecution purpose by permitting mary report stating the 1984 amendment through statute, district gave "importation” the initial venue which first crimes, offense termi- passes before the continuing he offenses their status designed a district court nates. to overcome to aid and abet the extraterritorial “that drop-off the accused had the specific intent to offense.15 facilitate the commission of a crime another” and “that the accused assisted or C. participated in the commission of un- government’s theory derlying second substantive offense.” United Gaskins, liability, aiding abetting unlike its States v. Cir.1988). first, rejected cannot be as a matter of law.

Notes

notes government the record. seemed Lopez’s purchase vehicle timing put the “arrangements to that Lopez made found, court As the district suspicious. May and to in her name on vehicle however, on which she even after the date vehi- pick up border travel near the car, person not the Lopez was acquired Second, out government points cle.” to drive arrangements with contacted Jose made that she was “Lopez stated transporta- decisions, arrangements their made the prior 17. Two of our Ramirez-Mar- tion, group transportation of the suggest that may read to whether Angwin, tinez episode was isolated F.3d at in this case See 273 of aliens is sufficient. such evidence or, likely, 912-13, whether Jose extent seems more To the 271 F.3d at 804-05. smuggling busi- proposi- regularly engaged in the alien stand for that that these decisions tion, the rec- minimal today. Given the evidence them ness. we overrule identity well as to role as as to Jose’s ord Jose, difficult to it is Lopez’s connection contains no further information 18. The record what inferences understand played. what role he who Jose is or as to jury have drawn that could believes testimony he was as to whether There is no guilty States, Lopez was support a verdict that would or United located Mexico aiding and abet- doubt of beyond a reasonable brought physically he whether ting act. simply extraterritorial United States himself aliens to the illegal aliens to Los Angeles upon their EL CRIMINAL JURY INSTRUCTIONS 5.1 arrival in the United States —she was in- (2005); United States v. Burgess, 791 F.2d stead substitute who was called Cir.1986). 679-80 Specifically, it after already Thus, were here. the must show that the to” offense was government’s arguments about the infer- something Lopez had the specific in- juror ences rational might draw from the tent about, Gaskins, to bring 849 F.2d at timing purchase wholly are unper- 459; Zemek, 634 F.2d at suasive. As we have previously held, she knowingly and intentionally command- suspicion “mere speculation does not ed, counseled, or encouraged the initial rise to the level of sufficient evidence.” to commit the “brings to” of- Stauffer, States fense, Barnett, 667 F.2d at 841.19 514(9th Cir.1990). government’s oth- er argument regarding Jose no fares bet- There is no evidence whatsoever to this ter. Whatever the may relevance be of effect in the record. We therefore reverse prior communications to the time aliens Lopez’s “brings to” convictions. are brought from outside the country to communication Lo- IV pez had with Jose on June clearly irrelevant because occurred after the We hold that the offense of bringing an had been completed. alien to the United violation of 8

Case Details

Case Name: United States v. Angelica Lopez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 7, 2007

Citation: 484 F.3d 1186

Docket Number: 05-50415

Court Abbreviation: 9th Cir.