USA. v. Franco

• Decision Date: 05 August 1999
• Docket Number: HERNANDEZ-FRANC,D,No. 98-50477,98-50477
• Citation: 189 F.3d 1151
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDROefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1151

189 F.3d 1151 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO HERNANDEZ-FRANCO, Defendant-Appellant.

No. 98-50477

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 5, 1999--Pasadena, California

Decided September 3, 1999

[Copyrighted Material Omitted] Benjamin P. Lechman, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Jennifer A. Schuman and Patrick K. O'Toole, Assistant United States Attorneys, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Leland C. Nielsen, District Judge, Presiding. D.C. No. CR-98-00196-LCN.

Before: Cynthia Holcomb Hall and Thomas G. Nelson, Circuit Judges, and James Ware,¹ District Judge.

HALL, Circuit Judge:

Pedro Hernandez-Franco appeals his jury trial conviction and sentence for attempt to transport undocumented aliens in violation of 8 U.S.C. S 1324(a). We have jurisdiction to review appellant's conviction and sentence pursuant to 18 U.S.C. S 3742 and 28 U.S.C. S 1291, and we affirm.

I.

The events giving rise to the instant case began on the night of January 10, 1998, when Imperial County Sheriff deputies were dispatched to a residence at 223 East Evan Hewes Highway in El Centro, California, in response to reports that a semi tractor-trailer and a white sedan had been seen pulling into the property by a neighbor. Upon arriving at the residence, Deputy Charles Lucas and Reserve Deputy David Michaud discovered a white, eighteen-wheel truck with one of its back doors ajar. Reserve Deputy Michaud observed two to three individuals, and Deputy Lucas observed at least one person in a red shirt or jacket, jump down from the back of the truck and start running.

Reserve Deputy Michaud gave chase to these individuals, and, after losing eye contact with them, heard noise by a chain link fence that surrounded a cistern. Inside the cistern there were three men, one who was heavyset and wearing a beige jacket, and two thinner, younger individuals. Reserve Deputy Michaud could not identify any of these three individuals, but he did testify that everyone he had seen at the residence had been running away from him, no one had asked him for help, no one appeared scared, no shots were fired, and he saw no weapons in the vicinity. Later testimony at appellant's trial indicated that appellant had been wearing the beige jacket and a black t-shirt at the time of his arrest. Appellant admitted to deputies that he had driven the eighteen-wheel truck to the Evan Hewes residence.

Inside the truck's trailer, deputies found approximately twelve undocumented aliens hiding in produce crates. Nine more undocumented aliens were discovered inside a van that was parked nearby. Twenty-two additional undocumented aliens were inside the house that was on the property. In total, forty-seven undocumented aliens were detained on the grounds of the residence.

On January 21, 1998, appellant was indicted on five counts of transporting and attempting to transport undocumented aliens, in violation of 21 U.S.C. S 1324(a)(1)(A)(ii). At appellant's trial, an undocumented alien, Alejandro GarciaRodriguez, testified. He stated that he had paid $900 to smugglers to help him enter the United States illegally, and that he had been waiting in the van at the Evan Hewes residence with the understanding that he was to be taken further north. Hedid not know if he was to be taken further north in the van or appellant's truck.

Also at trial, the defense and prosecution entered a stipulation as to the testimony of four undocumented aliens. All of the aliens testified that they had paid individuals to smuggle them illegally across the U.S.-Mexico border, and that they had congregated at the house on Evan Hewes Highway to be transported to the Los Angeles area. After appellant's truck arrived at the house, all of the aliens were told to leave the house and enter the truck's trailer. One of the aliens, Claudio Solis-Rodriguez, would have testified that a tall, fat man wearing a black shirt was standing near the trailer door as he entered it. Although this description was similar to that of the appellant, none of the aliens could actually identify appellant.

Appellant also testified in his own defense. He stated that on the night of January 10, 1998, he had gone in his truck to Milan Street Cooling in Brawley, California, to pick up a load of lettuce. He did not pick up the lettuce, however, because some of the tires on his truck needed air. As a result, he went to a Texaco station to check his tires and to get some gas. A clerk at the station, Felipe Vargas, testified that he had seen appellant at the gas station at approximately 10:30 p.m. on January 10, 1998.

After appellant got back into his truck, he testified that he started to pull out of the station when a man in the back of the truck's cabin suddenly appeared and put a gun to his head, directing him to follow a grey car that was in front of him. Appellant followed the car to the Evan Hewes house, where he was instructed to get out of the truck and lie face down on the ground. Appellant testified that he had no idea why he was at the house, and although he saw many people around, he did not know that they were illegal aliens. When sheriffs deputies arrived at the house, everyone began to run off, and the man holding appellant at gunpoint allegedly escaped after pushing appellant into the water of the cistern area.

Appellant testified that he told sheriffs deputies immediately after they detained him that he was the driver of the truck and that he had been forced at gunpoint to drive the truck to the house. This testimony was in apparent conflict with the testimony of Reserve Deputy Michaud, who testified that the three people he had arrested at the cistern were quiet and did not ask him for any help. According to Deputy Edward DeMorst, it was not until DeMorst asked the three individuals who had brought the truck that appellant responded that he had brought the truck, explaining after a brief pause that he had been forced to bring the truck to the Evan Hewes residence at gunpoint.

The jury rejected appellant's testimony, convicting him ofall five counts in the indictment on April 27, 1998. At sentencing, the district court adopted the Presentence Report ("PSR"), increased appellant's sentence by six levels because of the number of aliens involved in the offense, and declined to grant appellant an adjustment for having a minor role in the crime.

On appeal, appellant contends that the district court erred in denying his Fed. R. Crim. P. 29 motion for judgment of acquittal because (1) there was not sufficient evidence to establish that appellant had intended to transport undocumented aliens and (2) he had not taken a substantial step towards transporting the aliens, both of which must be shown in order to convict appellant for an attempt to transport aliens in violation of section 1324(a)(1)(A)(ii). Appellant also argues that the district court erred by instructing the jury that appellant must prove his duress defense by a preponderance of the evidence. Finally, appellant contends that the district court should have adjusted his sentence downward because his offense was an attempt crime, that his sentence should not have been increased because of the number of aliens involved, and that he should have received a downward adjustment for his minor role in the offense.

II.

Appellant first argues that the district court erred in denying his motion for acquittal brought pursuant to Rule 29 of the Federal Rules of Criminal Procedure. "The district court's denial of a motion for acquittal is reviewed de novo."United States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir. 1999). "There is sufficient evidence to support a conviction if, `viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

8 U.S.C. S 1324(a)(1)(A)(ii)"requires that the defendant knew that the alien was illegal and intended to further the alien's illegal presence in the United States." ² United States v. Barajas-Montiel, 185 F.3d 947, 954 (9th Cir. July 13, 1999). In general, "[a]n attempt conviction requires [1] evidence that the defendant intended to violate the statute, and [2] that he took a substantial step toward completing the violation." United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995). Here, appellant alleges that the government has failed to present sufficient evidence of both requirements.

A.

Appellant first contends that there is insufficient evidence that he intended to transport undocumented aliens in violation of section 1324. We disagree. "[C]ulpable intent . . . can be inferred from the defendant's conduct and from the surrounding circumstances." United States v. Smith , 962 F.2d 923, 931 (9th Cir. 1992).

Here, appellant does not contest that he has a commercial trucking license and that he drove his truck to the Evan Hewes residence at night. At that house were at least forty-seven undocumented aliens waiting to be transported north. At the time sheriffs deputies arrived, twelve undocumented aliens had already been loaded into the truck's trailer and were hiding in produce containers. Solis-Rodriguez's testimony, viewed in the light most favorable to the government, also indicated that a person matching appellant's description was seen at the door in the back of the truck, watching the aliens being loaded. Finally, testimony was introduced at trial that appellant had previously requested to have the night off from his employer.

Although appellant put forward a different version of events, the jury was not required to credit it. See Yossunthorn, 167 F.3d at 1270. The fact that no witnesses could identify ap...