United States v. Miguel Alvarez-Valenzuela

Gracidas-Ulibarry, v. States him. questioned inspector when awake I concur adopt, Cir.1999), I which now S.Ct. Neder, 527 U.S. See harm- would not result. error (concluding that the omit- contested defendant if “the less sufficient raised

ted element finding”) (emphasis contrary contradicted

added). defense Gracidas’ his evidence, including overwhelming declined purposely admission own entry reapply for permission

to ask child in to see he wanted because impor- More delay. without States America, STATES UNITED awake when certainly Gracidas tantly, Plaintiff-Appellee, name misrepresented admittedly We inspectors. the INS citizenship v. fail- court’s conclude therefore ALVAREZ-VALENZUELA, intent specific Miguel as to to instruct ure Defendant-Appellant. doubt. was harmless No. 99-10374. CONCLUSION attempt conviction that a holdWe Appeals, Court United States without States the United to reenter Ninth Circuit. Attorney under General consent finding that requires § 1326 U.S.C. 2, 2000 May and Submitted Argued to reenter consciously desired defendant Thus, 8, 2000 consent. Filed Nov. without States the United court committed district conclude we in- it failed to error

constitutional specific intent.

struct was harmless

However, hold error we doubt

beyond a reasonable uncontested

overwhelming and did conscious- that Gracidas

demonstrated the United States to reenter

ly desire adopt Finally, consent.

without evi- conclusions

original panel’s support Gracidas’ was sufficient

dence court conviction, district

§ 1326 of- Gracidas’ failing to decrease

erred acceptance point by a third level

fense U.S.S.G. under responsibility 3El.l(b)(l) district

§ § 2L1.2 U.S.S.G. by applying err § 1326. sentence

to Gracidas’ PART, REVERSED IN

AFFIRMED for further REMANDED AND

IN PART opinion. consistent

proceedings

FERNANDEZ, Judge, Circuit

concurring: rea- persuasive with the agree

Because in United majority opinion

soning

IIQQ Simon, Michael P. Assistant Federal Defender, Public and Brian I. Rademach- er, Office Defender, Federal Public Tucson, Arizona, for the defendant-appel- lant.

Robert Miskell and Christina M. Caban- illas, Assistant U.S. Attorneys, Appellate regarding jury question ato sponse Arizona, the plaintiff- Tucson, Section, v. United on Pinkerton based instruction appellee. 1180, 90 S.Ct. States, 328 U.S. (1946). L.Ed. first chal- a review begin

As we our to resolve helpful it would be lenge, Al- disputed. review, is which of standard at the KLEINFELD, end to dismiss Jr.,1 a motion WOOD, made varez Before: case, the dis- GRABER, Judges. government’s Circuit and motion His denied. trict court Jr.; HARLINGTON, Judge by Opinion The motion of trial. end at the renewed KLEINFELD. by Jhdge Dissent judg- for as a motion identified Fed.R.Crim.P. acquittal of ment Judge: WOOD, Circuit it as have treated 29(a), parties but an jury returned grand 1999 In June non-renewal of situation In this one. defendant-appellant charging indictment has effec- Alvarez government (“Alvarez”) and Alvarez-Valenzuela Miguel relying on objection, his tively waived im- to conspiracy with co-defendants two 529, Kuball, 531 F.2d 976 v. States marijuana; of importation marijuana; port Cir.1992). relies on United (9th Alvarez in- marijuana possess 511, Garcia-Guizar, F.3d 160 v. States use, carrying, distribute; and tent Cir.1998), cases (9th and related 516-17 drug- to a in relation of a possession novo stan- a de argument co- and Alvarez trafficking crime.2 applies. review 29, dard of January arrested were defendants in the desert agents Patrol by Border pursuant made acquittal for Motions miles two about Arizona Douglas, near the rule 29(a), examine we shall so to Rule border. States-Mexico of the United north in this situa- help first, of little it is but arrest, the men of their time theAt a part in relevant provides It tion. marijuana. of pounds carrying eighty-three af- entered may be acquittal of judgment pistol caliber a .380 discovered also Agents if is closed side on either evidence ter the In the three men. near the ground a sustain insufficient is evidence Fran- co-defendant 1999, and Alvarez May mention rule does not conviction. (“Martines”) were Martines-Renteria cisco by a made motion that a requirement counts, but all jury on by a guilty found government’s of at the close defendant seriously charge firearms only of the close at must be renewed co-defendant, Rodol- The third contested. not, non- or, effect if what the evidence pled (“Bejarano”), Bejarano-Ponce fo of re- the standard have on may renewal plea pursuant to all five counts guilty view. government aas and agreement cited reviewing cases After and Martines. Alvarez against witness 29(a) to Rule interpret parties, both appeal.3 in this involved is Only Alvarez the motion to renew failure suggest raised. issue except issue No has that it mean trial does not of the end sufficiency of challenges the first higher stan waived, that a only but firearms support the This imposed. is to be review of re- dard second, court’s and, viction 23, 1999, Alva- court sentenced Wood, Jr., July 3.On Unit- Harlington 1. The Honorable year of terms to four concurrent Cir- rez Judge the Seventh for Circuit ed States trafficking counts and drug cuit, day for designation. sitting by imprisonment term 60-month consecutive count, super- of plus months firearms charged with vio- were each The defendants 2. special assessment release vised 963, 952(a), §§ U.S.C. of 21 lations 924(c). $500.00. 841(a)(1), § U.S.C. and 18 may review an unrenewed motion the actions district court rendered prevent but judgment acquittal, the renewal motions an ritu- empty miscarriage justice, or for manifest Pennington, al. See 20 F.3d at n. 2. plain v. Vizcar error. See United States present record in the case reveals ra-Martinez, Cir. that, at the government’s case, close Garcia-Guizar, 1995); also 160 F.3d at see actually no motion made for parties support 516. The cases of both acquittal insufficiency on the basis of interpretation, difficulty but the evidence, only a perfunctory “motion to its noted in application, as Vizcarra-Mar generally” dismiss made counsel for tinez, 66 F.3d at 1010. The court would be joined Martines. Counsel reluctant to if it sustain conviction motion of the other counsel. Neither clearly be seen that the record argument counsel any advanced on behalf id. evidence was insufficient. See at 1010. of the motion. However, even in in which the case has proper defendant made mo In view of the perfunctory motion and tions, this court will not in the reverse non-renewal, its the district court giv insufficiency. of a showing absence clear court, en little In help. the argu If any See id. rational trier of fact could extensive, ments have been but the dis sufficient, have found the evidence court, trict having benefit those must affirm. See id. The court Vizcar- arguments, leaves no record of its reason “in rar-Martinez could envision case ing denying the motion. didAs which the result would be different be Vizcarra-Martinez, court 66 F.3d at the application cause of of one rather than 1010, day we will leave for any another other the standards of review.” Id. may difference that there be in the two That escaped having to determine standards of review. on ruling When may any whether there be practical differ motion, stated, judge “I’ll ence between the two standards it because motions, deny preserves which them standard, found that the usual which is anyway,” suggesting renewal would applied all appropriate motions are comment, unnecessary. Following made, had been satisfied. id. See evidence, presented the defense its is aspect There another non-re solely consisted of Alvarez’s brief testimo by newal of the motion for acquittal raised event, ny in his own In any defense. claims, Alvarez. He on relying because we conclude that is ade Palmer, (9th 300, States v. 3 F.3d quate Alvarez’s con Cir.1993), and v. Penning United States standard, viction under the usual our ton, Cir.1994), F.3d 597 n. analysis any practical unaffected dif suggests that if the record that at the time ference between the standards. original motion was denied would be again, futile to raise it it need not be In reviewing sufficiency of the renewed. The government points out that evidence, ground there are certain rules inapposite Palmer because concerned parties acknowledge. that both The evi a party’s failure to renew a pretrial motion dence is to be the light considered most an evidentiary rule. We turn then government favorable to the to determine to the Fifth in Penning Circuit’s decision - any whether rational trier of fact could ton, sufficiency-of-the-evidence case have found the essential of the elements which the defendants did not renew their crime doubt. See id. reasonable acquittal motions for at the close of all the (internal cita quotations at 1009-10 The Fifth evidence. Circuit held that the omitted). Further, all in tions reasonable adequately defendants had preserved then- ferences are to be drawn in favor of the objection despite the fact that their mo in the acquittal government, tions conflicts evi were not renewed at the evidence, conclusion defense are to dence be resolved favor me from elaborat- ground prevent v. rules Lay United States See jury’s verdict. (9th Cir.1989). law, 1534, 1539 you go so kin, ing charging no help, with that little to work back the ver agree that parties you the best can. help, and do on the firearms against dict added). (Emphasis theory Pinkerton on a charge is based Pinkerton, at 647- liability. 328 U.S. See adequate response to That was an (holding a defendant 66 S.Ct. possible question and avoided of substantive could be held liable trying found in to elabo- error sometimes co-conspirator fense committed jury given instruction. rate on within the offense occurred long as the again read and instructed to sent back within the conspiracy, was course of the is no reason instruction. There original agreement, and could reason scope of the jury again, read it that the did not believe necessary as a ably been foreseen it, returning follow its verdict. before agree consequence of unlawful natural argues that the district The defendant now ment). erroneous that an court should have informed liability put of Pinkerton before view sugges- “no.” That that the answer was during by the trial government tion, however, to was not made the district given by in instruction and the PinkeHon at the time. Defense counsel’s court, the erroneously turning tell the time was: “Just suggestion at a into rule of Pinkerton doctrine strict That the instructions.” them consider liability. part argument, Alvarez As of It late the court did. is too is what district during jury from the points question to a complain now. the defense deliberation as evidence of what he be the “total confusion and lieves to be the further the of misunderstanding of correct rule dis given as the Pinkerton instruction deliberation, jury a During the sent law.” of court contained an erroneous view trict judge asking, note the “If one member as given was the law. The instruction conspiracy knowingly possesses the of follows: conspiracy all of the gun, are members conspiracy re- Each member of a Pinkerton guilty, This refers the [sic] of the other sponsible for the actions Charge 5 on line 18.” beginning item during course performed members the all after a conference with judge, If conspiracy. of and in furtherance the counsel, jury the as follows: advised conspiracy member of the commits one Now, of great help I can’t be a deal conspiracy, in the crime furtherance of you you except ... to tell to read the also, have the other members mind, as charge, keeping PinkeHon Therefore, law, committed that crime. says, government has to charge pos- may guilty find a defendant of you It of five elements. can’t prove each during in rela- of a firearm session one, two, three, four, or prove or or it’s crime, as drug trafficking tion to beyond a got prove all elements five charged in or in Count 3 of Count Each one reasonable doubt. five. Indictment, government prov- if the has you’ve five of the got So those elements be- following each of the elements en you If charge. gov- PinkeHon find doubt: yond reasonable proven ernment’s each of those elements First, con- involved person doubt, you then a reasonable knowingly 1 or spiracy Count Count find one guilt. you If find during in rela- a firearm possessed proven be- those elements has crime; drug trafficking to a tion doubt, yond you a reasonable don’t. Second, person was member say I to you. That’s about all can in Count conspiracy charged charge That’s what the PinkeHon is. 3; it, really can’t because the Count elaborate Third, possessed person government the fire- favorable to the and that all conspiracy; arm in furtherance of the reasonable inferences are be drawn in Fourth, the defendant was a member favor of the government. Alvarez would of the at the same time that turn the case on the fact that was no charged the offense either Count 1 personally evidence that he possessed the committed; Count 3 was gun. It is true that there is no evidence Fifth, the fell scope offense within the that he gun, ever held the but agreement of the unlawful and could conspiracy context that is not controlling. reasonably to be been foreseen government need not establish even necessary or natural consequence actual knowledge to sustain the agreement. unlawful conviction. See United States v. Castane- that, although in contends da, (9th Cir.1993) (“Pink- struction subsequently gov states that the require erton does not knowledge actual elements, prove ernment had to five weapons” to the (emphasis original)). opening part impermis- the “instruction presented, From the evidence sibly turned the burden of on its proof have found that Alvarez could head and told the the defendants reasonably have foreseen use of the guilty were firearm substantive of firearm. See id. solely if they part fense a conspir acy in which co-conspirator pos another There is clear of a conspiracy First, sessed a gun.” should be noted and evidence that illegal importation object the defense did not to the marijuana profit object was the of that given, instruction when it was although indeed, conspiracy; these facts Therefore, does in this court. our review issue, In regard ceded. gun the there is only plain for error. See Garcia-Guiz suggesting that Alvarez had actu- ar, 160 F.3d at 522-23. The instruction al knowledge that one of the three of them as given incorporates text the from Ninth why. have a gun, would and The duration Instructions, Circuit Jury Manual of Model only January was from Criminal, (1997), § 8.5.5 and stresses the 29, January 1999. Alvarez testified necessity all five finding elements be Prieta, that had all his life in Agua lived yond a reasonable doubt. The instruction a small Mexican town on the Arizona- contains an accurate statement of the ap Bejarano Mexieo border. He and law, had plicable and Alvarez fails to show Agua been plain played error. friends Prieta and together park basketball the local in the The bulk argument of Alvarez’s fo January afternoons. On Alvarez was cuses on sufficiency the of the evidence. passing by Bejarano’s Bejara- house when Here Alvarez that there was no go no invited him to foray help on this support finding evidence to that the carry marijuana into the United States. presence gun of a during group’s the transport marijuana Bejarano said paid the Alvarez would be for across the bor der reasonably was or foreseeable to him the agreed. service. Alvarez re- within scope agreement. the of his Alva to Bejarano’s day. turned house later that rez that claims the verdict could be or evening, At about 7:00 7:30 that the only speculation based not on and evi picked up men were taken and to where dence, and that speculation alone is not marijuana the ready go. bundles were conviction, sufficient to citing Alvarez knew their destination the was Andrews, United States v. States, marijuana United where would the (9th Cir.1996). dropped off next to fast restau- food rant. Alvarez estimated that the men

Alvarez ignores pertinent some evi dence, general well crossed the border around 9:00 10:00 as as the rules that the evidence is to be light p.m. viewed most approxi- men at apprehended they the area he knew that Bejarano testified firearm and seized midnight es- mately often traverse, as he had

they would carried weapon into particular aliens The Mexican question. undocumented corted Lorcin chrome-plated For route. along that aas described States was the United guide fully as loaded himself and described trip pistol automatic this .380 hadHe co-conspirators. agents. two other for discovered when by another mission this extremely dangerous, selected it agents considered Be- know. did not name he holster, whose person ain carried not particularly happened what then described jarano trigger and very sensitive it had a leaving Mexi- before assembled group not gun was This safety lock. poor were Present border. co to cross only but crossing, the border holstered other the two and Bejarano, stranger, pants, Martines’s in the waistband stuck referred was later stranger spirators. it. From carry way very dangerous his was not Chore,” although that “El to as reasonably evidence, this and gun had the El Chore name. real Alvarez. visible gun that it in Martines, placed who toit handed Martines difficult have been It would the ex- that testified Bejarano waistband. they did miles the several to travel nighttime, place gun took change ad- having to without crossing the border the United into crossed the men before it keep gun kind particular just took they explained Bejarano States. rubbing on of his belt falling out from purposes along for defense gun were arresting agents When body. theAt the border. side States pur- dropped in, Martines closing Patrol Border stopped they time of Alvarez and feet posely between the men testified Bejarano agents, either, only a few inches Bejarano, into Arizona miles three had traveled by tumbleweed. was hidden two-and-a-half where taken them had so. do hours to in his briefly own know that agent testified that he did defense, stating Service A Customs guns carrying but go together, drugs guns group anyone seeking with those found He generally appeared. agents federal until country. The entry into only illegal at the time age years twenty-one marijuana, the of high value reason experience no had had that he in pound a from ranges $50 price of cross-examination, he testi- On guns. with pound a to $150 in Mexico the fields of a lot that there was knew fied that pound a to $750 Prieta to Agua $450 trafficking a of and lot alien-smuggling Angeles $1,000 Los Tucson, pound a When border. along the all marijuana New York. Chicago and higher even a dan- sometimes border was asked if case present in the conspirators in fact “It is responded, place, gerous pounds eighty-three total of carrying a that, anif admitted Alvarez dangerous.” whether Although it unclear marijuana. the bor- property, had valuable individual marijuana was much knew how Alvarez espe- dangerous place, a would be area der agreed time he at the transported be risk that night, at cially the time clearly at Bejarano, accompany property take the try to might someone border, loading up cross they were the extent was That about from him. was a sub- tell could evidence case, further and no the defense marijuana involved. amount stantial parties. was offered marijuana and value of Both the that, Bejar- sup- given drug trade in the important violence note It is nature es- Alvarez’s inference that testimony together an port ano’s might be gun present. supports that a foreseen timing, evidence timates present men were three all finding that arrested agents who Patrol The Border Mar- gun to handed El Chore They stated also testified. the men tines before the journey towas A begin. They are making up, and we have a jury reasonably could infer that Alvarez stereotype based on what they have in was not oblivious this' gun arrangement vented. We held in United States v. Cas for what he considered would be a danger- taneda that Pinkerton2 liability could not ous journey. There is not the slightest necessarily support gun conviction in a hint in the the transfer of drug conspiracy, because “there is no pre gun secret, openly done, to sumption of foreseeability” of a gun.3 keep Alvarez from knowing what hap- So look let’s at the First, evidence. if pening. The three men were all in it there was evidence that the marijuana together. There was no need keep smugglers in that area routinely carry presence of a gun a secret Alvarez. guns, that would have persuasive some The fact that Alvarez handle the force for the proposition that Alvarez^-Va- gun is irrelevant. Given the evidence as a lenzuela should have foreseen that one of whole, reasonably could have con- his coconspirators would also be carrying cluded that Alvarez had actual knowledge But, one. surprisingly to experi- one not that there a gun along their mutu- enced in the drug smuggling business, the al protection or, least, that it was fore- evidence was otherwise. The pa- border seeable to Alvarez that gun would agent trol who found the gun testified that present during conspirators’ marijuana year and three months on the smug- mission. gler along beat border, Arizona “this We AFFIRM Alvarez’s conviction.4 was the first weapon found as a border patrol agent.” He went further KLEINFELD, Circuit Judge, and testified that the adrenaline produced dissenting: by this unusually dangerous occurrence of I agree with the majority’s well- finding gun was the reason he remem- analyzed opinion, except on the issue of bered particular arrest. That uncon- whether Alvarez-Valenzuela is responsible tradicted testimony require would gun. As is cases, common in gun to have a doubt reasonable about the infer- gun charge more, matters years five ence “of course there be a gun.” would If compared to year one prison time, than awas surprise to the border patrol the underlying crime. The question agent, a juror reasonable would infer that about the conspiracy instruction shows might be a surprise to Alvarez-Valen- jurors had serious concern about zuela. the extent of liability vicarious for a cocon- spirator’s gun. And the just El gave Chore to Martines- not enough to satisfy a juror, reasonable But, Renteria. the evidence would not beyond a doubt, reasonable that Alvarez- allow a jury to Valenzuela knew about gun the or could doubt that Alvarez-Valenzuela was there reasonably foresee it. at the time. government’s The cooperat- ing witness, coconspirator

Of course any like Bejarano- ordinary reader, I Ponce, imagine that testified drug that some hours smugglers carry before guns they shoot crossed all, the the time. After border El Chore that is handed how gun the the movies to Martines-Renteria, and television portray and Mar- them. But imagined tines-Renteria script put it in cannot be the waistband of substituted for nor, pants. evidence. Neither prosecutor, The strikingly, did I guess, would scriptwriters, the have not any Bejarano-Ponce ask present who was personal experience with drug smuggling. when El Chore handed Martines-Renteria government’s 4. The motion portion to strike States, 2. Pinkerton v. United 328 U.S. appendix of the reply Alvarez's brief is (1946). 90 L.Ed. 1489 S.Ct. denied as moot. Castaneda, 3. 9 F.3d at 767. 1993). 1.9 F.3d Cir. no who had a mule it to have disclosed entirely was Bejarano-Ponce pistol. the Bejarano-Ponce Al- need to know. whether silence so the cooperative, arrange- the Chore, made he, that at not El present that was

varez-Valenzuela an inference anything, if with Alvarez-Valenzuela. ments meeting supports, there. not was Alvarez-Valenzuela that ap- about disagreements are mere These Alvarez-Valenzuela whether for As facts, disagree- not to the the law plying in Martines- gun the seen have would I agree law is. the about what ments spec- too waistband, seems that Renteria’s is. And law the on what majority beyond a to infer juror for to me ulative test our majority that agree with pros- The could. he doubt that reasonable infer- reasonable toward permissive highly what witness not ask did ecutor IBut Alvarez-Valenzuela. against ences could gun wore, or whether smugglers juror a reasonable how not see just do car- was Martines-Renteria seen be had Alvarez-Valenzuela infer that could January day, snowed it. It had rying aof presence foresaw knowledge or be would inference reasonable aso By analo- doubt. a reasonable beyond gun weather, cool dressed men these convictions reverse gy, we Lorcin, awas a .380 gun, The T-shirts. evidence, evidence when the insufficient long semi-au- six inch trashy, lightweight, Here, presence.4 than no more shows one’s pull not tend would tomatic that Alvarez-Valen- no question like, there pants, fall down one’s or down pants marijuana. smuggle conspired zuela Considering revolver. quality good say, year only one charge received weather, a reasonable For that gun year five consecutive The time. beyond prison juror could pos- have would for Martines-Renteria’s Alvarez-Valenzuela sentence doubt likely made it is attrib- pistol weather The pistol. gun. seen session wearing be would if was only it Martines-Renteria to Alvarez-Valenzuela utable (the weather shirt actually warm jacket saw him or foreseeable bear would which only elicited evidence whether great deal so matters gun, worn), gun and the what clothes that on find could jurors reasonable waist- in one’s easily be concealed they could not think I do had. they jacket. shirt or untucked by a band on a convict easy to it too Making could. from correctly that solid without points gun out count majority persuad- why juror the other reasonable no reason secret gun doubt reduces kept have would reasonable ed spirators was a But there are like- People process. Alvarez-Valenzuela. reliability from might they guns why Alvarez-Valenzuela trial for reason ly to be convicted meeting where And absent foresee. not know about really to Martines- gun handed El Chore risk on sentencing was val- If Alvarez-Valenzuela Renteria. likely plead counts, defendants back, strong for his the others ued commit did not they to crimes guilty him not as well just might be pos- counts exchange for dismissals tes- Bejarano-Ponce El Chore. recognize risk. sentencing greater much ing a just a Alvarez-Valenzuela tified that “anything.” Coun- and did know mule drawing out difficulty even had

sel Bejarano- “El Chore”

nickname nev- name real

Ponce, El Chore’s reasonably revealed, jurors so er identity not like that El Chore would not and that widely known 1992). (9th Cir. Vasquez-Chan, States v. See United

4.

Case Details

Case Name: United States v. Miguel Alvarez-Valenzuela

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 8, 2000

Citation: 231 F.3d 1198

Docket Number: 99-10374

Court Abbreviation: 9th Cir.