UNITED STATES оf America, Plaintiff-Appellee, v. Jorge Humberto THUM, Defendant-Appellant.
No. 13-50176.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 7, 2014. Filed April 25, 2014.
749 F.3d 1143
AFFIRMED.
Devin Burstein (argued), Warren & Burstein, San Diego, CA, for Defendant-Appellant.
Ryan A. Sausedo (argued) and Bruce R. Castetter, Assistant United States Attorneys, San Diego, CA, for Plaintiff-Appellee.
Before: SIDNEY R. THOMAS, MILAN D. SMITH, JR., and MORGAN CHRISTEN, Circuit Judges.
M. SMITH, Circuit Judge:
In this appeal, we consider whether Jorge Humberto Thum encouraged or induced an illegal alien to reside in the United States, in violation of
FACTUAL AND PROCEDURAL BACKGROUND
Thum is a United States citizen with a history of convictions for smuggling illegal aliens. In 2008, the district court sentenced Thum to 33 months of incarceration and two years of supervised release after he pleaded guilty to transporting an illegal alien, in violation of
On November 19, 2012, federal agents arrested Thum near the San Ysidro Port of Entry in Southern California. On November 30, 2012, a probation officer in the Southern District of California filed a petition alleging that Thum violated
At the evidentiary hearing, Special Agent Prescillа Gonzalez of the Department of Homeland Security testified that, on November 19, 2012, federal agents followed a man named Aldo Varguez-Rodriguez from the San Ysidro Port of Entry to a Jack in the Box fast food restaurant near the border. The agents decided to follow Varguez-Rodriguez because they suspected that he had presented a false identification card to the primary inspection officer at the border, and that he lacked permission to enter the United States.
Agent Gonzalez testified that, upon entering the Jack in the Box restaurant, Varguez-Rodriguez sat alone at a table for а few minutes. Shortly thereafter, Thum joined him, and the two men conversed briefly.1 Next, Thum and Varguez-Rodriguez left the restaurant together and crossed the street to a “transportation van area” where vans waited to take passengers to Los Angeles. Thum then spoke with a ticket salesperson. Immediately thereafter, Thum and Varguez-Rodriguez were arrested when they attempted to enter one of the vans.
After arresting Thum, the agents brought him to the Port of Entry and questioned him. Thum told the agents that an acquaintance of his named Chapalin was an alien smuggler. Chapalin had spoken with Thum earlier that day and told Thum that he planned to transport two illegal aliens from the border to Northern California. Chapalin offered to transport Thum to Carlsbad, California if Thum agreed to escort an illegal alien—Varguez-Rodriguez—from the Jack in the Box restaurant to a nearby vehicle. Agent Gonzalez further testified that agents later confirmed that Varguez-Rodriguez was an illegal alien.
The government also called Probation Officer Edward Nover II, who testified that, in his opinion, Thum had violated the conditions of his supervised release. No other evidence was taken. Based on the testimony at the evidentiary hearing, the district court sustained the government‘s allegation, revoked Thum‘s supervised release, sentenced him to time served, and imposed an additional two-year term of supervised release. In so doing, the district court concluded that Agent Gonzalez‘s testimony showed that Thum had committed the crime of “encouraging or inducing [an illegal alien] to reside in the United States,” in violation of
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under
DISCUSSION
Thum argues that the evidence before the district court was insufficient to establish that he encouraged or induced an illegal alien (i.e., Varguez-Rodriguez) to reside in the United States. Thum further contends that the evidence was insufficient to prove that he aided or abetted Chapalin in encouraging or inducing an illegal alien to reside in this country. We address these arguments in turn.
I. Encourages or Induces
Thum first argues that the evidence was insufficient to prove that he encouraged or induced Varguez-Rodriguez to reside in the United States, in violation
Even viewing the evidence in the light most favorable to the government, see King, 608 F.3d at 1129, Thum‘s argument is persuasive. In Lopez, we explained that each of the immigration offenses codified in
The government counters that its broad reading of “encourages or induces” to “reside” is compelled by the plain language of the statute, and that Thum encouraged Varguez-Rodriguez to rеmain in this country by assisting in his attempt to travel north. This argument is unpersuasive. At the outset, we agree with the government, and the Seventh Circuit, that “to encourage” means “to inspire with courage, spirit, or hope ... to spur on ... to give help or patronage to.” United States v. He, 245 F.3d 954, 960 (7th Cir.2001) (quoting Merriam Webster‘s Collegiate Dictionary 381 (10th ed.1996)). Indeed, we have previously equated “encouraged” with “helped.” United States v. Yoshida, 303 F.3d 1145, 1150 (9th Cir.2002).
But the government‘s argument that Thum encouraged Varguez-Rodriguez to reside in the United States merely by escorting him to a van that Thum knew was traveling north clashes with the statutory text. It is axiomatic that “a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks and alterations omitted); see also United States v. Lin, 738 F.3d 1082, 1084 (9th Cir.2013) (rejecting an interpretation of one statutory provision that “would leave no work to be done by” another). And here, reading “encourages” under
Our decision in Yoshida, on which the government relies, does not compel a contrary conclusion. In that case, the defendant escorted three aliens onto аn airplane and accompanied them from Japan to the United States. Yoshida, 303 F.3d at 1148. We affirmed the defendant‘s conviction for both encouraging or inducing the aliens to enter the United States, under
Rather, as Thum argues, the out-of-circuit decisions in United States v. Ndiaye, 434 F.3d 1270, 1298 (11th Cir. 2006), and United States v. Oloyede, 982 F.2d 133, 135-37 (4th Cir.1993) (per curiam), provide more useful guidance here. In Ndiaye, the Eleventh Circuit concluded that а defendant who enabled an illegal alien to work in the United States without fear of detection by supplying the alien with a Social Security number to which he was not entitled was properly convicted of encouraging the alien to reside here. Ndiaye, 434 F.3d at 1298. Similarly, in Oloyede, the Fourth Circuit concluded that the defendant encоuraged illegal aliens to reside in the United States by providing them with false documents for citizenship applications. Oloyede, 982 F.2d at 137. As these cases demonstrate, a defendant “encourages” an illegal alien to “reside” in the United States when the defendant takes some action “to convince the illegal аlien to ... stay in this country,” id., or to facilitate the alien‘s ability to live in this country indefinitely, see Ndiaye, 434 F.3d at 1298.
In this case, by contrast, the government proffered no evidence showing that Thum did anything to persuade, or even assist, an illegal alien to reside here. Rather, the evidence viewed in the light most favorable to the government merely shows that Thum attempted to help an illegal alien travel within the United States. As discussed above, if merely facilitating the transportation of an illegal alien within this country sufficed to show “encouragement,” then the separate statutory prohibition on “transportation” would be superfluous. As such, the evidence was insufficient to support the district court‘s conclusion that Thum violated his supervised release by encouraging an illegal alien to reside in the United States.
II. Aiding and Abetting
Just as the evidence was insufficient to find that Thum encouraged an illegal alien to reside in the United States, there was insufficient evidence to show that Thum aided and abetted the commission of this crime. In revoking Thum‘s supervised release, the district court concluded that Thum “was aiding and abetting Chapalin in [Varguez-Rodriguez] residing in the United States.” The government attempts to support this decision by observing that Thum knew that Varguez-Rodriguez was an illegal alien, that Chapalin was an alien smuggler, and that Chapalin intended to transport Varguez-Rodriguez from the border to Northern California. But while this evidence may have been sufficient to show that Thum aided and abetted Chapalin‘s attempted transportation of an illegal alien, there is no evidence to show that Thum aided and abetted Chapalin in encouraging an illegal alien to reside in the United States.4
“In this circuit, the elements necessary for an aiding and abetting conviction are: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the
Encouraging an illegal alien to reside in the United States must mean something more than merely transporting such an alien within this country. See United States v. Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir.1989) (“[T]he transport offense was directed, in large part, at curbing the widespread practice of transporting illegal immigrants, already in the United States, to jobs and locations away from the border where immigration enforcement resources may have been more scarce.“). And here, the evidence showed only that Chapalin sought to transport illegal aliens to Northern California. On this scant record, no rational trier of fact could conclude that Chapalin encouraged an illegal alien to reside in the United States. Accordingly, there was insufficient evidence to prove that Thum aided and abetted Chapalin in so doing. See Shorty, 741 F.3d at 970.
CONCLUSION
For the foregoing reasons, we vacate the district court‘s judgment revoking Thum‘s supervised release, and we remand with instructions to dismiss the petition.
VACATED AND REMANDED, with instructions.