*2 RAWLINSON, Before RYMER POGUE, Judge.** Judges, and Circuit RYMER; by Dissent Opinion Judge by Judge RAWLINSON RYMER, Judge. Circuit appeals his Armando Hernandez Garcia of trans- jury for two counts conviction aliens within porting illegal 8 U.S.C. 1324(a)(l)(A)(ii). turns on appeal His presence in “entry” whether thus —and country free of restraint —is official of a to sustain the conviction conclude that it is not. transporter. We error, and see no Otherwise we reversible affirm.
I Agent Dennis January
On Border flying Basse was a United States States- airplane Patrol over El desert east of Mexico border Centro, 9,000 to Flying at California.1 feet, 10,000 spotted vehicles several in an area called the “Sand the Mexico side area where Pit.” It is an Pit” or “Gravel a.m., happens daily. About 9 smuggling driving north. began vehicles three of the ** airplane. The helicopter or Pogue, United States lance Honorable Donald C. Judge, sitting by Court of Trade does not affect specific International of the aircraft nature designation. in this case. our decision regarding conflict in the 1. There is a record in the surveil- aircraft involved whether the binoculars, Through his Basse could dis- adduced on account of use of spike van, van, mat, light denied; cern white blue and a which was and for a judg- Serna, Agent Ford Bronco. He radioed acquittal ment of footing on the that he patrolling general who was on foot in the was never from free official restraint. The *3 area, with descriptions; the vehicle Serna district court originally held that Hernan- got then in his car and drove east on restraint, dez-Garcia was not under official Interstate 8 in the direction of the Sand transportation and that the statute does Pit. All three vehicles crossed border be, require that he but later decided to (about quarter- and headed toward 1-8 a instruct the on theory. The away). cross, mile agent No saw them found guilty Hernandez-Garcia of two except for Basse who airplane. counts of transporting illegal aliens. The court denied Hernandez-Garcia’s renewed fence,
The vehicles drove a through al- acquittal, motion for and sentenced him to smashed-down, ready on the side of the two concurrent 20 month terms. freeway. The white van drove across the 1-8, eastbound lanes of and across the timely appeals. Hernandez-Garcia median, to the west-bound lanes. The blue van Up and Bronco went east. to this II point agents there were no the ground argues for re stop the vehicles. spotted Serna first versal there because was insufficient evi the white van it crossed the median. dence to establish he and the undocu confirming After with Basse that the white mented Mexican in the nationals white van van was van that had crossed the “entered” the United States. premise His border, got Serna into the westbound lanes is that always the van was under surveil and it at followed a distance of seven to lance, thus was never free of official re eight lengths. Meanwhile, car radi- Serna straint and country. so did not “enter” this oed for other agents up to set a tire defla- 1324(a)(1)(A)(ii) § He contends that re device, mat,” “spike tion or did. quires prove an “entry” The tire deflation device is a retractable First, for two reasons. do aliens not enter plastic hollow, strip plastic, with 100 cylin- border; country simply by crossing spikes drical tips with metal about inch% entry, “an legally, as defined deployed by wide. It is pulling rope a and person before is ‘found in’ it stretching across the road. mat States.” United States v. Pacheco-Medi was laid down four to five miles from the na, (9th Cir.2000) 212 F.3d border crossing. (construing the “found in” offense set forth mat, As approached the van Serna 1326). Second, § in 8 U.S.C. the statute pulled and flashing closer activated emer- transportation does not criminalize the gency lights. applied The van its brakes Mexico, “entry” alien therefore an mat, and tried to steer around the but the person must be established before can be caught left tire eventually deflated. convicted of up Serna went to the van after it had come United States. For this he relies on Unit stop, to a saw Hernandez Garcia behind (9th Aguilar, ed States v. 883 F.2d wheel, the steering and noticed that the Cir.1989), which noted that a “bring into” (fifteen, full people itas turned 1324(a)(1) § conviction under former re out). quires the alien to enter the United States. However, Hernandez-Garcia was arrested and in- disagree “entry” we is re suppress 1324(a)(1)(A)(ii); dicted. He moved to quired purposes evidence § 1324 subsection of transportation by- lawful can be violated rather, statute provided: “come to” alien who has transporting an owner, opera- Any person, including unlawfully. the United States officer, tor, master, commanding pilot, 1324(a)(l)(A)(ii)provides: Section any means of consignee of agent or (1)(A) who— Any person (2) knowing transportation who — ... in the viola- that he is law, having rea- knowing or tion of (ii) disregard of in reckless knowing or that his last grounds to believe sonable to, en- has come that an the fact into the States occurred tered, the United States remains in *4 thereto, prior years than less three law, transports, or moves or violation of moves, attempts to or or transports, alien transport or move such attempts to move, transport or within United by means of the United States within transportation of or by means States otherwise, in further- or transportation otherwise, in of such viola- furtherance law; violation of ance of such law; alien, including any tion of ... an crewman, duly admitted alien an or not enti- immigration officer punished.... be shall tled to enter or reside within United trans- prohibits its face the statute On States.... of an portation within the United States 1986). 1324(a)(2) (Supp. § 8 U.S.C. to, entered, or re- has “come alien who portions of this version These are in the United States.” mains Pruitt, v. States United proof “entry,” of The crime is the disjunctive concepts. (9th Cir.1983), 975, were re- F.2d 977 719 transportation of an illegal alien within during the 1986 revisions moved reentry. alien’s So country, this not the “that language requiring with an replaced come to the United long as an alien has to, entered, in has come or remains alien transporter unlawfully and States in of law.” 8 States United (or this recklessly disregards knows this 1324(a)(l)(A)(ii). § U.S.C. fact), transported within and the alien is legislative history is silent Although the States, it is immaterial whether the United particular change, the discussion on this the technically has “entered” the § 1324 smuggling and related offenses differently, what mat- country or not. Put sepa- that intended to Congress indicates the white van ters is that aliens coming to concept bringing rate the States, and that Her- came to the United “entry.” For ex- the United States from (or have should nandez-Garcia knew Report disagree- reflects ample, the House known) to here right that no be had judicial interpretation of the ment with the transported he them on an interstate
when
1324(a)(1)
§
that
former version of
this side of
border.
highway
equated “bring into” with
entry.
H.R.
(1986),
re-
99-682(1), at 65-66
Rep.
No.
The revisions
to Title 8 of
U.S.
made
legis- printed in 1986
5669-
corresponding
and the
U.S.C.C.A.N.
Code
1986
overruling States
support
(legislatively
§
70
history for 8
lative
U.S.C.
(S.D.Fla.1980)).2
Anaya,
the un- F.Supp. 289
Prior
interpretation.
this
1324(a)(1)required
§
“en-
illegal
that
aliens under
2.
of the statute
It was this
version
Aguilar, 883
we were concerned
F.2d
try.”
with
transportation
at
we
when
held
son,
Accordingly,
this section was amended
it
suffices for the
to show
“bring
“bring
into”
transporter
from
to.”
that the
drove
alien within
1324(a)(2)
1324(a)(1)(A)(i),
§§
(recodifying
country
who had come to the United
1324(a)(1) (1986))
added).
§
(emphasis
Here,
unlawfully.
States
there is no dis-
“bring
Whether or not
into”
properly
pute
Hernandez-Garcia knew that the
synonymous
with “entry,”
construed
the white
who
had come to
bring to—and come to—cannot be.
undocumented,
border were
and he
transported them on 1-8. A
rational
theme,
In a variation on the
Hernandez-
beyond
could find
a reasonable doubt that
argues
Garcia
that a defendant may only
he was guilty of the offense charged.
1324(a)(l)(A)(ii)
be convicted under
if he
transports
an alien
within
However, there is a further wrinkle
States, and
can’t
be
others
consider,
we must
because the district
within the
if
neither
he nor
court
instructed
proof
country.
“entered” the
But it seems
required.
to us that
clear
Hernandez-Garcia was maintains that even if we were to conclude
driving the white van on an interstate
(contrary
position)
to his
that “entry” is
north of
highway
border
Mexican
*5
required,
not
we cannot affirm because the
border,
is,
south of the Canadian
that
jury was not instructed on a “come to”
(whether
within the United
States
not
theory.
correct,
While literally
the in
the aliens who
passengers
were his
were
beyond
structions went
what was required
the
purposes
“in”
United States for
of the
error,
the
if any,
so
was harmless. The
laws).
immigration
Hernandez-Garcia
(in
correctly
was
instructed
accor
contends that United
v.
States
Galindo-
dance with the Ninth Circuit Model Jury
(9th Cir.2001) (as
Gallegos,
In we believe that “come to” in “come to” the States unlawfully 1324(a)(l)(A)(ii) § just says, means what it to come to the United because States is States, come to the United step not come into subsumed court’s the definition of or enter Thus, For “entry.” States. this rea- official in- the restraint United, 24th, 2000, January That on or about superfluous. See
structions District of Califor- McCown, within Southern F.2d States nia, Defendant, Armando Hernan- Cir.1983) (9th found no substantial (having dez-Garcia, the intent to violate with on en entrapment, instruction of evidence States, of the United immigration laws merely superfluous). trapment was disregard of the knowing in reckless and is not our conclusion Given alien, Daniel Iba- namely that an fact under conviction to, entered, nez-Pizano, come 1324(a)(l)(A)(ii), not reach we need United States viola- remained whether, were, if it question further law, transport and move said did tion on what con- instructed properly jury was in fur- alien within the United restraint. official stitutes (Em- of such violation of law. therance Added). phasis Ill similarly court instructed The district submits indictment which jury on count four of the stop probable cause lacked agents offense, the same but named alien charged spike mat was him, of the and that use as the Vargas-Amezcua Manuel evidentiary Following an force. excessive transported. found that there court hearing, the district The district court also instructed cause, which there was. probable illegal jury on elements two the white had seen agents section in an area across the border come others 1324(a)(1)(A)(ii) follows, pertinent smugglers, at a by alien frequently used part: *6 entry, point as a place designated In for the Defendant to be order the interstate over cross traffic onto then charges in guilty found of the Counts median, entryway, pro and not at an 4, prove must Government and/or no basis for hurry. in a We see ceed west following beyond elements each of the arrest, suppressing evi or invalidating the reasonable doubt: dence, spike of the mat. on account of use knock- to the alludes First, specified in person that the rule, offers no reason but and-announce Count, particular Daniel Iba- Nor, stops. why apply it should vehicle to Vargas- nez-Pizano Manuel and/or Connor, 490 U.S. apart from Graham Amezcua, January an alien on was L.Ed.2d 443 109 S.Ct. 24th, 2000; (1989), the unreasonable concerns 24th, 2000, Second, January that lawsuit, of a civil purposes of force for use Daniel Ibanez-Pizano Manu- and/or suppress suggest any reason does Vargas-Amezcua was not el lawful- spike mat was ing evidence because States; inly the United used. Third, that the Defendant knew AFFIRMED. disregard in reckless of that fact that Daniel Ibanez-Pizano RAWLINSON, Judge, Circuit Vargas-Amezcua Manuel and/or Dissenting. who was not respectfully States; I dissent. the United Fourth, January on or about this instruction gave The district court 24, 2000, knowingly defendant to of the indictment: count three transported or moved Daniel Iba- “Official restraint” means nez-Pizano Manuel Vargas- effectively deprived of their and/or liberty prevented Amezcua within the Southern Dis- and going from at specific large trict of California with the within the United States.
purpose helping him remain in In order for an alien to be deemed not and, illegally; yet to have entered the United States law, under this rule of the alien must be Fifth, that the Defendant acted with under the official restraint at all times immi- violating intention during subsequent to the alien’s gration laws of the United States. physical entry into [sic] However,
States [sic] soil. an alien who is able to exercise his free will subse- charge The third element of the re- quent physically crossing the border either; quires prove the Government to is not under official restraint. Constant one, that the Defendant knew that the observation and surveillance of the alien specified alien anwas alien who had not by an agent who is reasonably able to prior received official authorization to apprehend the alien after the alien has to, enter, come or reside in the United crossed the border constitutes official States; or that the Defendant acted restraint. The constant surveillance disregard reckless of the fact that the degree must be of such a that it would specified alien was an alien who had not prevent the alien from escaping into the received official authorization to general population of the United States. to, enter, come or reside fact, you, It is for as the finders of States.... determine whether the Government has The court instructed on official restraint as proved beyond a reasonable doubt follows: continuously the aliens were not under In order for the defendant to be found “official restraint” from the time that guilty charged of the offenses in Count 3 they crossed the international border prove the Government must be- apprehension. until their *7 yond a reasonable doubt the defen- determination, In making that you transported dant the aliens who were may consider whether the aliens were not in the United States. Each authorities, under by surveillance wheth- requires proof count the alien continuous, er that surveillance was the (Em- had entered the United States. distance the authorities were from the added). phasis aliens, the amount of time the aliens physically present were within the Unit-
An alien who is under “official re- prior apprehension, ed States to the dis- straint,” although physically present on tance the aliens traveled into the United soil, American has not entered the Unit- States, the characteristics of the area in Thus, in legal ed States the sense. if border, the aliens crossed the the aliens in the white were continu- any other factor that bears on the issue. ously under “official restraint” from the they circumstances, time that crossed the border until Under normal a conviction 1324(a)(1)(A)(ii) apprehended, were had not for violating section re- 1) to, quires proof entered the United States within the that: an alien has come meaning of the statutes under which the entered or remained in the United States 2) law; charged defendant is the indictment. in violation of the the defendant 1142 the instructions al- Equally important, knowledge of or acted personal
either had the jurors of the fact that to consider other factors disregard lowed the reckless to, unlawfully come entered or recognized, including: alien had we have not 3) States; the in the United remained were from “... the distance authorities or at- transported or moved defendant aliens, the amount of time the aliens the or move the alien tempted transport to present within the Unit- physically 4) States; and the de- the United within apprehension, the dis- ed of the alien’s acted in furtherance fendant into the United tance the aliens traveled of the law. States, the characteristics of the area However, concedes that the Government the border and which the aliens crossed instructed that Hernan- jury the was not any on the other factor that bears if the aliens could be convicted dez-Garcia added). (Emphasis issue.” merely “come Hernandez-Garcia with Instead, jury to” United States. with these nebulous and errone- Faced expressly instructed that order instructions, comfortably rely I ous cannot convict Hernandez-Garcia would any finding entry by of made undocumented have to find that the Mexi- Ruiz-Lopez, explained In we in this case. can nationals “entered States.” or be “found” an alien must that to “enter” majority holds that the official re- The free from present be the United States superfluous “be- straint instructions were at 448. Official official restraint. F.3d States is a cause to come to “broadly restraint is construed to include (Emphasis in step by ‘entry’.” subsumed government surveillance of constant However, reasoning original). alien, regardless of whether the alien was entry only can be found circuitous because of the surveillance or intended to aware if there is an absence of official restraint. omitted). (citation inspection.” Id. evade Ruiz-Lopez, 234 F.3d See United States v. an alien un- “If a official has (9th Cir.2000). 445, 448 surveillance from the moment he der majority’s holding ignores also passes port until the moment charged that the fact that the indictment arrest, the alien has not ‘entered’ the to, entered, and aliens “had come re if his arrest occurred United States —even (Emphasis mained in the United States.” port entry— point past at a well added). was constitu the alien was under official re- because tionally to have each element of entitled Notably, the whole time.” Id. we straint jury in presented the offense to the require surveillance the same did v. United instructions. See McCormick apprehends the alien. agent who 257, 269-70, States, 270 n. U.S. *8 (1991); presented see The evidence at trial indicated S.Ct. L.Ed.2d 307 Wiseman, 274 F.3d also United States v. aliens with Hernandez-Garcia Cir.2001). (9th 1235, 1241-42 either were under constant surveillance from the time Agent the Pilot or Serna official restraint instructions are The until the time of crossed the border problematic for an additional reason not therefore, aliens, could the arrest. by majority: were erro- discussed Be- not have entered the United States. They “by observation neous. the aliens had not entered the Unit- cause apprehend agent reasonably who is able to States, could not alien,” ed concept appears no- them jurisprudence. guilty been where in this circuit’s have within the United States. Accordingly, I
would REVERSE.
Miguel Lawayne TAYLOR,
Petitioner-Appellant, Kathleen Hawk SAWYER, Director,
Bureau Prisons; Cook, David Di-
rector, Oregon Department of Cor- rections; Frank Thompson, Superin- tendent, Oregon State Penitentiary,
Respondents-Appellees.
No. 01-35103. United States Court Appeals,
Ninth Circuit. Argued and Submitted Nov. 2001.
Filed March 2002.