271 F.3d 786 (9th Cir. 2001), 00-50276, United States v Angwin

Docket Nº:00-50276, 00-50411
Citation:271 F.3d 786
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TED STEVENSON ANGWIN and CHRISTINE KHAMIS, Defendants-Appellants.
Case Date:August 30, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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271 F.3d 786 (9th Cir. 2001)




Nos. 00-50276, 00-50411

United States Court of Appeals, Ninth Circuit

August 30, 2001

Argued and Sumbitted April 3, 2001

Amended November 21, 2001

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Joel Levine, Joel Levine, Esq., A Professional Corporation, Encino, California, for defendant-appellant Ted Stevenson Angwin; Jerry M. Leahy, Law Offices of Jerry M. Leahy, San Diego, California, for defendant-appellant Christine Khamis.

Gregory A. Vega, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, Mark R. Rehe, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California;

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Judith N. Keep, District Judge, Presiding. D.C. No. CR-99-3149-K.

Before: Ferguson and Silverman, Circuit Judges, and Breyer,[*] District Judge.

Opinion by District Judge BREYER; Partial Concurrence and Partial Dissent by Judge FERGUSON.


The opinion filed on August 30, 2001, and reported at 263 F.3d 979, is hereby amended. With the filing of the amended opinion, Appelle Angwin's petition for rehearing is denied. Judge Silverman has voted to deny Appellee Angwin's suggestion for rehearing en banc. Judge Ferguson and Judge Breyer so recommend. An amended opinion is filed herewith.


BREYER, District Judge:

The appellants Ted Stevenson Angwin and Christine Khamis ("the defendants") were stopped by United States Border Patrol ("USBP") agents at a checkpoint near Niland, California. The agents inspected the motorhome the defendants were driving and found fourteen illegal aliens hiding throughout the vehicle. The defendants were indicted and, after a joint jury trial, convicted. This is an appeal from the district court's orders: (1) declining to sever the trial; (2) excluding Angwin's proposed habit evidence; (3) denying Angwin's motion to dismiss the indictment on the grounds that a conviction for bringing in illegal aliens cannot be premised on aiding and abetting; (4) denying the defendants' motions for acquittal for insufficient evidence; and (5) upwardly adjusting Angwin's sentence for creating a substantial risk of death or serious bodily injury. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


A. Factual Background

On October 24, 1999, Angwin, Khamis, and their dog were traveling north on Highway 111 in a motorhome. USBP agents stopped them at the checkpoint near Niland, California, approximately forty miles north of the United States-Mexico border. Angwin was driving, and Khamis was the only visible passenger.

When the defendants arrived at the checkpoint, USBP Agent Michael Mikuski asked if they were citizens of the United States. Angwin replied that they were. Mikuski asked Khamis if she was an American citizen, to which she replied in the affirmative without looking at Mikuski. Mikuski then asked if they were the only occupants of the vehicle. Angwin responded that it was just the two of them and the dog. While speaking to Angwin, Mikuski "noticed that his hands had a slight tremble, which indicated nervousness, and he . . . kept breaking eye contact with me." Mikuski also noticed that Khamis "never looked my way, even when I was talkin' to her."

Mikuski then asked the defendants if he could inspect the motorhome, and Angwin consented. Mikuski directed Angwin to the secondary inspection area, where USBP Agent James Beresovoy asked Angwin and Khamis to exit the vehicle. The defendants waited near a checkpoint building while Beresovoy searched the vehicle. Upon entering the motorhome, Beresovoy

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discovered two Mexican citizens hiding under a table covered by a cloth. Agents Beresovoy and Mikuski eventually found a total of fourteen individuals hiding throughout the motorhome, including in the shower, in the bathroom, in a closet, and even lying in a small compartment under the bed. The agents learned that all fourteen of the individuals were Mexican citizens who were in the United States illegally.

Mikuski thereupon asked Angwin if there was anything he wanted to tell the agents about the inside of the motorhome. Angwin hesitated and stuttered, and then said that he had seen a van parked on the side of the road and that he had stopped to offer assistance. Angwin told Mikuski that when he stopped, several people climbed into the back of the motorhome. Angwin also indicated that he intended to take the people to the checkpoint and turn them over to the USBP.

At trial, Angwin testified that he acted under duress. Angwin asserted that he had pulled over so that the dog could walk around and relieve itself. Angwin stated that while Khamis walked the dog, he walked around the motorhome to inspect the tires. According to Angwin, two Latino men who were standing by a parked van on a nearby dirt road approached him and spoke to him in Spanish. One of the men turned toward the van and yelled, and the group of fourteen aliens, who had been hiding in the underbrush, ran toward the motorhome. Angwin testified that he tried unsuccessfully to stop the aliens from entering the vehicle. He claimed that one of the men who had approached him pushed him in a threatening manner and had a knife sheath on his belt. Angwin claimed that he believed that the wisest course of action was to drive to the upcoming USBP checkpoint. When the prosecutor asked Angwin why he did not reveal his version of the events to the USBP agents before they inspected the motorhome, Angwin stated, "I tried to answer, but I was a nervous wreck at that point and my mouth was dry and I'll never forget this; my tongue stuck to the top of my mouth and even the sides of it were sticking. And I couldn't get any words out."

While Khamis did not testify at trial, she did give a statement on October 24 to USBP Agent John Searle. According to Searle, Khamis indicated that the defendants had pulled off to the side of the road to let the dog walk around. After walking the dog briefly, Khamis allegedly told Searle that she saw Angwin off to one side of the motorhome speaking with an unidentified man. Angwin then asked her to get back into the motorhome, to sit in the passenger seat, and not to say anything. Khamis told Searle that she got back into the motorhome and heard and felt others entering the home as well. Khamis refused to sign a summation of her statement that Searle had prepared based on his notes from the interview, however.

Two aliens who were found in the motorhome, Hilario and Juan Vincente-Morales, were detained as material witnesses. Hilario Vincente-Morales testified at trial that he and his brother Juan had traveled from Mexico City to Tijuana to be smuggled to Los Angeles, where he understood that he would work to pay for his travel.1 He indicated that a guide led them to the area by the side of the road where they hid to await the motorhome. Vincente-Morales stated that approximately fifteen minutes after they arrived, the motorhome pulled up and he saw a person who was

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not a member of their group wave towards the group as if to signal them. While he could not tell whether the person waving was a man or a woman, he said that the person was located toward the front of the vehicle on the passenger side.

B. Procedural History

On November 3, 1999, a federal grand jury returned a four-count indictment against the defendants. Counts One and Three charged both defendants with aiding and abetting the bringing in of illegal aliens for financial gain in violation of 8 U.S.C. section 1324(a)(2)(B)(ii) and 18 U.S.C. section 2. Counts Two and Four charged both defendants with transportation of illegal aliens in violation of 8 U.S.C. section 1324(a)(1)(A)(ii).

Before trial, the defendants each moved to sever the trial on the grounds that the defendants had antagonistic defenses and that the admission of Khamis's statement to USBP agents would violate Angwin's Sixth Amendment Confrontation Clause rights under Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968), if Khamis did not testify. The district court denied the motions. Angwin also moved before trial to dismiss Counts One and Three of the indictment, charging him for bringing in illegal aliens under 8 U.S.C. section 1324(a)(2)(B)(ii) and 18 U.S.C. section 2, on the basis that liability for bringing in illegal aliens cannot be premised on aiding and abetting. The district court took the motion under submission pending the verdict.

On February 8, 2000, the district court commenced a jury trial. At trial, Angwin attempted to introduce evidence to show that his reactions both when the aliens entered the motorhome and at the checkpoint were consistent with his training and experience with rescuing distressed ships while serving in the Coast Guard Auxiliary. The United States objected that the evidence was not relevant, and the district court sustained the Government's objection, finding that the evidence lacked probative value since Angwin's rescue of people on the high seas was not parallel to the situation at issue in the trial.

On February 14, 2000, the jury found Angwin guilty on all four Counts but found Khamis guilty only on Counts Two and Four. Angwin renewed his motion to dismiss Counts One and Three and also filed a motion to set aside the verdict as to Counts One and Three for insufficient evidence. The court denied Angwin's...

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