*1 Counsel, of Homeland Securi- Department the First to follow recently declined We Francisco, CA, Respondent. for case, ty, San however. See a similar Circuit Urena, (declining adopt at 910 the sentence in Godin where approach proce- substantively reasonable ORDER Urena, correct). the sen- Like durally substantively neither in this case is
tence KOZINSKI, Judge: Chief unreasonable, and Su- procedurally nor majority of a of nonre- Upon the vote it is. Our decision not contend cinte does it is ordered that this judges, active cused to affirm Suchite’s requires us in Urena to Cir- pursuant reheard en banc case be sentence. Rule cuit 35-3. AFFIRMED. America,
UNITED STATES Plaintiff-Appellee, v. HENRIQUEZ-
Rocio Brenda NORIEGA-PEREZ, Alberto Petitioner, RIVAS, Defendant-Appellant. No. 10-50501. Appeals, Court of United States Jr., Attorney HOLDER, Eric H. Circuit. Ninth General, Respondent. 7, 2011.* Submitted Nov.
No. 09-71571. Filed Feb. Appeals, Court Ninth Circuit. 31, 2012.
Jan. CA, Ahmad, Fremont, Petition-
Saad
er. Evans, Jeffrey Esquire, Manning
Walter OIL, Menkin, De- DOJ-U.S.
Lawrence DC, Justice, Washington,
partment Ice, of the Chief Office Counsel
Chief * 34(a)(2). R.App. P. See Fed. unanimously this case is panel concludes argument. without oral for decision suitable *2 —also, -, Fed.Appx. See 2012 WL Johnson, CA,
Knut Esq., S. Diego, San defendant-appellant. for the Immigration and Cus- Starita, States Assistant United L. Paul (“ICE”) Enforcement officers raided Office, toms Attorney’s States Attorney, United numer- apprehended both CA, plaintiff-appellee. for the. Diego, San *3 found there. Of those illegal ous aliens eighteen identified as apprehended, ICE All material eighteen witnesses. named in the substantive were witnesses per- indictment as operative counts of the from brought into the United States sons smuggling ring, only but by Mexico Noriega’s trial. eight testified F. FERDINAND Before: FERNANDEZ, KAREN NELSON challenges the suffi appeal, Noriega On MOORE,** C. and RICHARD ciency grounds.1 the evidence on two TALLMAN, Judges. Circuit First, argues that there was insufficient he alienage respect with TALLMAN; Partial by Judge
Opinion named in the indict ten material witnesses by Judge Partial Dissent Concurrence Second, testify not at trial. ment who did MOORE. for as to his conviction illegal aliens to the bringing United gain, financial he contends that States for
OPINION
linking him
there was insufficient evidence
TALLMAN,
Judge:
Circuit
transportation of the
to the cross-border
they
named material witnesses before
Noriega-
Alberto
Defendant-Appellant
States,
in
as
dropped
the United
his conviction
(“Noriega”) appeals
Perez
required under our decision
United
conspiracy
count of
jury verdict on one
Lopez,
teen counts of Agent Donald Special ICE for fi to the United States illegal aliens (8 1324(a)(2)(B)(ii); investigating proper- two began § Webster gain U.S.C. nancial by Noriega “McCabe” ties owned 2), eighteen § counts of 18 U.S.C. —the property and the “Alamo” illegal property aliens abetting harboring aiding and —locat- (v)(II)). California, Holtville, about ten miles (8 1324(a)(l)(A)(iii), ed in No § U.S.C. States-Mexico border. near from the properties he owned United riega rented two properties to an Noriega rented these to an States-Mexico border the United organization for use as smuggling alien organization knowing (i.e., premises used har- “load houses” used as load houses they would be shortly after recently arrived bor and shield aliens transfer conceal and later smuggled across the bor- they have been aliens. ** claims, Moore, Noriega's as well We address other Karen Nelson The Honorable Court, to this Circuit, pro se submissions as his Judge for the Sixth States Circuit disposi- unpublished separate memorandum sitting by designation. opinion. simultaneously this tion filed urged der while await Government to believe destination). their final The smuggling was done to obstruct plain from view the operation Noriega spec- was extensive. taking activities place there.2 cooperating wearing ulated to a informant 11, 2005, On October agents federal exe- body organization recorder that the rent- cuted a search warrant at the McCabe $1,000,000 ing made over property. agents apprehended ap- smuggling illegal aliens. The confidential proximately seventy-four aliens, suspected informant that approximately estimated most of whom were found crowded in a month per were harbored warm, unlit room in a trailer located on the at the property, McCabe with each alien *4 property. Nine were retained as material $1,500 $2,000. paying a fee of about to 7, 2005, witnesses. On agents November Surveillance videos taken of the Alamo executed a second search warrant at the property pickup show numerous ar- trucks property Alamo and discovered another riving and departing, people as well as thirty-eight suspected ga- aliens inside the being loaded onto the back of trucks and rage. Nine were retained as material wit- occasion, then tarps. covered with On one nesses. agents attempted stop ICE to one of the leaving property; trucks the Alamo after a Noriega 18, was indicted on October high-speed chase and abandonment of the 2006. The Government ultimately pursued driver, by vehicle twelve or thirteen one count conspiracy to bring illegal alleged aliens were found lying top of aliens to the United States for financial each other in the bed of the truck. gain, one conspiracy count of to harbor Noriega was well aware that he was aliens, illegal eighteen counts of aiding and renting his properties so that could abetting bringing illegal alien to be used as load houses. He lived at the the United States for gain, financial property McCabe with his mother while it eighteen counts of house, was being used as a load and often harboring of an opera- alien. In the ate his being meals with held indictment, tive each of the substantive In negotiating there. the rental of the counts eighteen named one of the material (the Alamo property conversation that was apprehended during witnesses the raids at by cooperating informant), recorded the Alamo properties. and McCabe All Noriega estimated that the garage on the charged substantive counts were as overt property big was enough fifty to hold to acts in furtherance of the alien smuggling sixty “illegals.” In another recorded con- conspiracy.
versation, Noriega in- recounted detailed trial, At Noriega’s Special Agent Web- formation about the smuggling organiza- ster tion, explained process identify used to including the activities of various material members witnesses and then and certain records that listed the had re- cently eighteen names of the been lost. A surveillance video tak- witnesses en in April operative 2005 shows named in the Noriega erecting Only indictment. aluminum siding along the chain-link eight eighteen fence of the material witnesses surrounding property, the Alamo which testified. In part, relevant each testified argued reply 2. The defense light the alumi- sonable inferences in the most favorable siding during daylight num was erected hours jury’s to verdict. United States v. enough and was completely not tall to block Alvarez-Valenzuela, 1201-02 property. reviewing the view onto the (9th Cir.2000) (citation omitted). evidence, sufficiency of the we draw all rea- Noriega was convicted on all counts and permission not have she did that he or sixty imprisonment months sentenced to States, arranged to but enter the count, concurrently. run each rang- fees smugglers by paying do so $2,500. $1,500 Each alien was ing from II then the border and across guided property, Alamo McCabe or Noriega’s sufficiency either the review de novo We claims, ICE. apprehended he each of the evidence which raised where only whether, for below, “viewing at the load house ask the evi- had been Most (between hours most favorable to the light time a few dence period brief trier of fact could tes- rational although prosecution, one witness days), three have found the essential elements property at the McCabe that he was tified beyond a reasonable doubt.” Unit- crime recog- days. None eleven to twelve F.3d 971 n. 8 Shipsey, ed States v. any of the non- or identified Noriega nized (9th Cir.2004) Virgi- (quoting Jackson material witnesses. testifying nia, 307, 319, 2781, 61 443 U.S. 99 S.Ct. Bench testified re- Frances Officer ICE *5 (1979)). argues that Noriega L.Ed.2d 560 of an operation and the structure garding (1) of there was insufficient evidence alien- Officer smuggling organization. alien age support to his conviction on the sub- jury the that a recruit- explained to Bench naming non-testifying counts ma- stantive customers, i.e., willing aliens er identifies (2) witnesses, terial and an extraterritorial the smuggled into United pay to to be connection to his conviction of aid- aliens illegal escorts guide A States. aliens to ing abetting bringing and the entry of into the ports between through or reject States. We address and United takes guide the Sometimes United States. Noriega’s sufficiency arguments of each house; a load directly aliens illegal the turn. times, guide at a meets the a driver other location in the immediate pick-up specific A area, transports in turn the who counts, thirty-six substantive the On the Be- nearby load house. aliens to a illegal proving of had the burden Government are there illegal aliens cause of the material witnesses named that each States shortly entering after United an alien. 8 in the indictment was to their they await while 1324(a)(1)(A) (B)(ii). (ii) (iii), § U.S.C. — destination, needs to the load house final dispute no that the Government There is proximity in close to both located be the sixteen counts met this burden on major transportation cor- border area naming eight one of the material witnesses ridors, and interstate highways as such Noriega challenges who testified at trial. freeways. alienage sufficiency of the evidence non-testify- twenty naming counts on the at the generally remain Illegal aliens ing material witness. couple of a few hours to a house for load that, delay pay- trial, argued in the unless there is the Government days, At They testimony by eight are then fee. based on the ment of Of- entered the their final destination. material witnesses transported jury permission, is a without explained Branch ficer non-testify- endeavor, reasonably infer that smuggling fees could for-profit permission lacked material witnesses ing organization’s all of the pay are used to There was country as well. to enter the they provide. for the services members 1038 guished making such from testimonial evidence insofar
nothing improper
previously
jury’s fact-finding
ap-
an inference. We have
as
function is con
(internal
inferring
non-testify-
facts about
cerned.”
proved
quotation marks and ci
omitted)).
testimony
fact,
of simi-
ing
previ
aliens based on the
tation
we have
In United
larly-situated
ously
aliens.
States v.
held that circumstantial evidence
(9th Cir.2002),
Tsai,
the de- may
282 F.3d
suffice.
States v. Hernandez
on three counts of
-Orellana,
994,
fendant was convicted
1002-03
Cir.
abetting bringing
illegal 2008)
evidence
(finding sufficient
of alien-
gain
for financial
the United States
age
alleged
even though the
aliens did not
on
that he made
based
evidence
travel
testify). Certainly in some cases the Gov
arrangements
and escorted
aliens
may
ernment
itself without
find
sufficient
separate
into the United States
three
(direct
alienage
evidence of
or circumstan
occasions.
at
One of the
Id.
aliens
tial) following
deportation of
the al
family
paid
testified
trial that a
member
so,
leged
a wrongly-convicted
alien.
If
transport
her
escort
the defen-
defendant would have a meritorious suffi
trips.
Id. at
dant
one of the
697. In
ciency of the evidence claim.
finding
pecuniary
sufficient
require testimony by every
To
al
counts,
explained
motive on all
we
three
leged alien
run afoul of
political
would
fact
three trips
“the
that all
followed
authority
regulate
branches’
immigra
pattern
exactly
gives
almost
the same
rise
tion. See United States v. ValenzuelaB
to an inference that” the non-testifying
ernal,
3440,
U.S.
S.Ct.
smuggled by
the defendant into the
*6
(1982).
basis
Consequently,
deportation
S.Ct. 3440.
the
crime,
alienage
time
is an
of a
element
the
of an alien does
violate a
not
defendant’s
alleged
subject
the
alien who was
of the
constitutional
absent a
rights
showing of
That
testify.
offense must
would be akin
prejudice and bad faith. Id.3
holding
only
to
direct evidence of the
may
prove
crime
be
to
Seemingly underlying Noriega’s
admitted
case.
Stauffer,
burden-shifting
See United States v.
is the fact
argument
(9th Cir.1990) (“[C]ircumstantial
508, 514
on
eight
Government relied
materi
prove any fact,
testimony
evidence can be
to
al
to
used
witnesses’
convict him on
including
naming
witnesses,
facts from which another fact
sixteen
those
is
counts
in
inferred,
twenty
not
to be
and is
distin-
addition to
counts naming
be
non-
reject Noriega’s separate
disposition
3. We
claim that the
lished memorandum
issued con-
witnesses,
itself,
release of
in
opinion.
material
and of
currently
supra.
with this
See n. 1
rights
unpub-
violated his
constitutional
But
States and awaited further trans-
witnesses.
testifying material
In
portation.
particular,
Norie-
the material wit-
prosecute
decision
Government’s
together
testifying and nesses were found crowded
with
naming both
ga on counts
quarters
of
in
on
squarely
cramped
falls
dozens
others
non-testifying witnesses
properties.
has
the Aamo and
It
discretion and
McCabe
prosecutorial
its
within
substantial,
today.4
repeating
The bears
that there was
our decision
impact
no
prop-
that the Gov- uncontroverted evidence that those
instructed
jury
properly
proving
being
burden of
erties were
used to harbor and con-
had the
ernment
steady
of the material witnesses
of
alienage of each
ceal
stream
nothing
indictment. There is
smuggling enterprise
named
that moved more
that if it
3,000
that the
believed
suggest
year
than
aliens a
across our border
naming
Noriega on the counts
convicted
Mexico.
witnesses,
it had no
testifying material
These circumstances stand in stark con
naming
on the counts
choice but to convict
trast
to the facts in
Ca
Thus,
non-testifying material witnesses.
macho-Davalos,
whether the same
agent
can border.
Id. at 1383. The
who
counts
to convict him on other
searched the truck testified that “all of the
people
appear
in the truck were ‘Mexican
conclude that
the evidence of
We
ing,’ spoke Spanish,
produce
and did not
All
sufficient.
alienage was
papers
request.”
at
immigration
at the same
Id.
apprehended
witnesses were
cramped quarters
finding
agent’s
that the
testimo
times and
the same
Eight
ny
alone was not sufficient evidence that
known load houses.
same
*7
in
truck
they
passengers
testified that
three of the
the
were
those material witnesses
aliens,
illegal
agent’s
we noted that
the
permission
lacked
to enter
reasonably
description
alleged
aliens “fits thou
juryA
could
infer that
States.
of American citizens.” Id.
the others did as well. This is no different
sands
in Tsai.
than the inference we endorsed
Few, if
The same cannot be said here.
Moreover,
any,
legal
American
or
there was additional circum-
citizens
alienage beyond the would ever be found with dozens of others
stantial evidence of
testimony.
dimly-lit garage
witnesses’
crowded inside a
or a
eight material
in
apprehended
being
witnesses were
un-
room a trailer
rented
vast
recently-
strongly suggested
trafficking enterprise
der circumstances that
to harbor
in
recently
smuggled
smuggled illegal
into the
aliens.5 Viewed
they had
been
Noriega
Ultimately,
decision to
5.
also relies on United States
4.
the Government’s
Ortiz-
1994),
Lopez,
we
B
in
already
the aliens were
the United
Noriega also contends
there
at
explained
States.
Id.
1200-01. We
insufficient evidence to
his convic-
evidence that the
had twice spo-
defendant
abetting “[a]ny
person
tion of
person
might
ken to a
who
have been the
who, knowing
disregard
inor
reckless
guide, put
initial
the vehicle used to trans-
fact
that an alien has not received
name,
port the aliens in her
traveled near
to,
prior official authorization to come
en-
vehicle,
the border
to pick up the
ter,
States, brings
or reside in the United
guide merely sug-
could describe the initial
attempts
bring
to or
to the United
gested
prior
that the defendant had
con-
whatsoever,
in
States
manner
such
guide
tact with the
and did not rise to the
1324(a)(2).
alien,”
§
8 U.S.C.
As noted
level of sufficient evidence.
at
Id.
1200.
above,
Lopez
“brings
we
that a
held
to”
person
offense “ends when the
who trans-
Lopez,
explained
Since
we have
ports
country
the aliens to the
terminates
general
participation
smuggling activi
his act of transportation
drops
off the
alone
ties
is not sufficient to establish that
aliens” on the United States side of the
a defendant aided and abetted the cross-
Thus,
border.
named
residence,
there
[a]
States
ties. This evidence is sufficient to
linking
Drew-
specific
Noriega’s
“brings
no
conviction on those
[was]
intentionally aid-
ry
Hernandez to
aiding
abetting
counts under an
theory
commanding, inducing
ing, counseling,
liability.
of
transpor-
procuring
or
cross-border
True, at least some of the substantive
aliens],
prior
of
named
[the
tation
“brings to” offenses terminated before the
dropped
these aliens were
off
when
named alien
at Noriega’s proper-
arrived
the United States.
particular,
a
ties.
few the material
(internal quotation marks and citation
Id.
they
initially
witnesses testified that
were
omitted). But see United States v. Flores-
dropped somewhere in the United States
Blanco,
920-22
Cir.
being transported by
before
someone else
2010) (finding sufficient evidence of extra
And,
course,
to the load house.
we have
the defendant
territorial conduct where
way
no
of knowing whether the same was
border,
surveillance of the
had coordinated
non-testifying
true for the
material wit-
repositioned himself a short distance from
Nevertheless,
nesses.
there was sufficient
ap
the border fence as the
evidence for the
reasonably
con-
then
the alien
proached, and
waved
by
houses,
clude that
providing the load
across).
Noriega knowingly, actively, and intention-
Reyes-Bosque,
In United States v.
596 ally
large
aided this
smuggling enterprise’s
(9th Cir.2010),
we addressed the
F.3d
cross-border transportation and safe hous-
sufficiency
of the evidence of
and ing of these material witnesses as well.
“brings
to” offense where the
A
“successful”
organization
a load
provided
defendant
house and held
must have one or more established load
“sufficiently
the evidence
demon-
houses,
in part,
at least
to avoid detection.
was connect-
strate[d]
[the defendant]
operation
Such an
requires
place where
ed to conduct that occurred before the
large numbers of aliens can be concealed
entry
aliens to the United
shortly
they
after
cross the border in or-
explained
States.” Id. at 1036. We
der for there to be sufficient time to en-
“key
testimony by
evidence” was
sure that
all
fees have been
illegal alien that the initial cross-border
paid and to coordinate travel to the final
guide
him off at an
dropped
apartment
just any
destination. Not
property will
furnished
the defendant for use as a
suffice as a
Agent
load house.
Bench em-
load house. Id.
phasized
importance
geographic
in Reyes-Bos
Like
defendant
location of an ideal load house: it must be
que, Noriega provided the load houses
major
close
both the border area and
the named material
where
witnesses were
Noriega’s
corridors.
two
taken. Several of the named material wit
properties fit the bill.
testified that
nesses
*9
directly
way,
appeal
to either the Alamo or
In this
McCabe
this
differs
property by
prior
Lopez
their
initial cross-border
from our
cases like
and Her
nandez-Orellana,
guide. Noriega
paid
for use of his
which addressed intra-
houses,
fencing
load
erected
to shield the United States drivers. Unlike a load
house,
usage
discovery,
fungible
true nature of their
from
drivers themselves are
part
large smuggling
place
and knew he was
of a
need not be in
before an alien is
brought
average
smuggled
particu-
venture that
of
The
across
border.
may change
any leg
trip
directly
lar driver on
of a
is thus
linked to the cross-border
and,
Lopez,
as in
often at the last minute.
particular
of the
aliens
reason,
For that
the mere fact that an
named
indictment and was an inte-
is found in a car
the defendant
alien
gral part
organization’s
of the
“brings to”
after the termination of the
scheme.
not itself
to find that
offense is
sufficient
expresses
The dissent
concern that un-
the defendant aided and abetted the cross-
holding today,
der
our
load house owner
transportation of that alien. Her-
guilty
could
of
be
nandez-Orellana,
jury could reasonably infer that he would jury sufficed for the to find that all of the have importance understood the to a apprehended at Noriega’s properties smuggling organization establishing directly shortly there or af- maintaining an effective load In- house. crossing ter the border as part deed, Noriega took the step additional smuggling plan. erecting siding surrounding on the fence property, the Alamo provided great- which incriminating Based on his admissions er concealment of the activities oc- captured tape recordings, and his erec- curring behind it. fencing tion of the property, a rea- sonable Noriega could find was no We also note that there is a clear nexus course, innocent landlord. Of we in no Noriega’s general between involvement in way possibility foreclose the “brings activities and the that under facts, a Namely, offenses. each of the different defendant’s load house apprehended witnesses was would be too far attenuated from the initial one of No- riega’s properties. Noriega’s provision crossing of border aiding and *10 load houses to smuggling organization abetting liability.
1043
provide
must
some assis
sum,
reasonably find the defendant
jury
could
In
of a named
transporters
tance to the
alien
Alamo and
rented the
Noriega
underlying
the termination of the
knowing
well
McCabe
before
Otherwise,
requisite
extrater
offense.
long
houses
before
used as load
would be
lacking.
“brings
A
to”
ritorial nexus is
witnesses were
named material
upon
offense does not terminate
the alien
Noriega pro
across the border.
States,
crossing the
into the United
border
of the alien
component
vided an essential
however,
though
point
that is the
at
even
and,
doing,
in so
operation
statutory
which all of the
elements are
intentionally
bring
in
and
aided
knowingly
Lopez,
484 F.3d
satisfied. United States
smuggling of the named
ing
about
(9th Cir.2007) (en banc).
1186,
Ter
1192
into the
States.
material witnesses
United
“brings
mination of a
to” offense occurs
a
could find
Accordingly,
reasonable
transporter drops
“the
when
initial
linking Norie
“specific evidence”
sufficient
at a
aliens off
location
United
...
the cross-
“intentionally aiding
toga
added). A
(emphasis
Id. at 1194
States.”
named mate
transportation” of the
border
entirely
activities are
domes
person whose
they were
prior to when
rial witnesses
may
guilty
aiding
abetting
tic
be
and
a
off in the
States. See
dropped
United
if he
or
“brings to” offense
induces
com
Hernandez-Orellana,
539 F.3d
1006.
principal
bring
the alien
mands
AFFIRMED.
1199-1200,
border,
id. at
or if
across
provides any
principal
he
assistance
MOORE,
in
Judge, concurring
Circuit
of the alien
regarding
dissenting
part:
in
part and
terminates,
the offense
United
before
majority’s holding in
I concur with the
Reyes-Bosque,
States v.
F.3d
alienage.
I also
Part II.A on the issue of
Cir.2010)
(holding operator of
Disposition.
concur with the Memorandum
abetted an
load house aided and
alien’s
I do not
I
from Part II.B because
dissent
“bringing to” offense
crossing because the
convictions for
agree
Noriega-Perez’s
terminate until the alien arrived at
did not
—
“brings
to” offense
aiding
abetting
and
denied,
U.S. -,
building),
cert.
clearly
stand where the evidence
should
(2011).
898,
Problematically
tionably terminated,
government
but
nonetheless
here, however, counts two
majority
and three
concludes that the evidence suffi-
*12
Noriega-Perez
crossings
Noriega-Perez
to their
nesses whose
linked
eiently
until
transportation
charged
assisting
before termi-
after
was
with
cross-border
dispute
majority does not
nation. The
were
to the United States.
link-
must be sufficient evidence
Noriega-Per
that there
For those
arrived at
who
to the
Noriega-Perez
cross-border
ing
load
after their initial trans
ez’s
house
the
each of
named mate-
transportation of
States terminat
portation
the United
the offense terminat-
rial witnesses before
fatal,
ed,
it
deficiency
this
is
as was in
but,
the
ed,
acknowledgment,
this
despite
majority
The
re
Hernandez-Orellana.
solely on
majority
Noriega-Perez’s
relies
heavily
fact that
this
a
lies
on the
was
ring
general participation
transporta
of
load house and not a form
the aliens
arrested
the fact that
were
and
from
distinguish
tion to
it somehow
Her
property
on
to hold that
Noriega-Perez’s
I
Lopez.
and
have
nandez-Orellana
sufficient for those wit-
the evidence was
no
this distinction.
support
found
for
As
crossings indisput-
nesses whose border
the
even
Reyes-Bosque,
op
case in
they arrived at his
ably terminated before
have
erators of load houses must
some
agree.
I
house.
cannot
of
pre-termination
guilty
nexus to be
aid
for
the
was true
defendants
As
ing
abetting
and
the cross-border trans
Hernandez-Orellana, Singh,
Reyes-
and
portation of an alien.
The alien could be to ten different States, using in the United ten drivers, long
different and so as he eventu
ally up ends at Noriega-Perez’s load
house, Noriega-Perez has aided and abet
ted, majority’s theory, under the the cross- of that alien. This
sweeping approach is not consistent with
Congress’s separate clear intent to create bringing
crimes for an alien to the United harboring
States and for an alien in the See States. U.S.C. The AMERICAN CIVIL LIBERTIES 1324(a)(1)(A)(iii) § (separately criminaliz NEVADA; 1-8, UNION OF Does ing harboring or concealing illegal alien A-S, Plaintiffs-Appellees, Does States); Lopez, within the United 484 F.3d v. at 1196 (emphasizing statutory “clear dis § tinction” between each of the MASTO, Esquire, Catherine Cortez At crimes). wisely Hernandez-Orellana dis torney Nevada; General of the State of tinguished the act of aiding abetting Hafen, Gerald Director of the Nevada an alien’s cross-border transportation from Department Safety; of Public Ber factually situations ap insufficient for the Curtis, Chief, nard W. Parole and Pro statute, plication of this I see no rea Depart bation Division of the Nevada depart son to from that well-drawn line Safety; Captain ment of Public P.K. today. O’Neill, Chief, Records and Technolo gy I would Noriega-Per- therefore affirm Department Division of the Nevada ez’s for aiding Safety, convictions Defendants-Appel of Public lants, cross-border
4. For the ten material witnesses who did non-testifying not because the witnesses were all testify, I would deem the evidence insufficient apprehended under similar circumstances as requisite reviewing establish nexus. In testified, those who who in turn were all in verdict, give government we must permission. the United States without How- all reasonable inferences that benefit.of ever, presented sup- there was no evidence can be drawn from the evidence and resolve port non-testifying an inference that the mate- government’s all conflicts in the Unit- favor. transported rial witnesses were in the same Nevils, ed States v. 598 F.3d 1163-64 testifying manner as certain of the witnesses (9th Cir.2010) (en banc). However, the evi- but not the others. Because such an infer- dence remains insufficient where is a there ence would not be reasonable on the evi- proof.” (quoting "total Id. at 1167 failure dence, Noriega-Perez's I would reverse con- Scribner, Briceno involving victions for those counts the non- Cir.2009)) (alteration original). An infer- testifying witnesses as well. alienage ence on the issue of was reasonable