U.S. v. Villanueva

• Decision Date: 27 April 2005
• Docket Number: No. 03-20812.,03-20812.
• Citation: 408 F.3d 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cesar Augusto VILLANUEVA; Dimas Alexander Cortez-Lumas, also known as Carlos Lopez-Perez, also known as Mario, also known as Carlos Lopez-Hernandez; Jose Encarnacion Reyes, also known as Chicho, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.3d 193

UNITED STATES of America, Plaintiff-Appellee, v. Cesar Augusto VILLANUEVA; Dimas Alexander Cortez-Lumas, also known as Carlos Lopez-Perez, also known as Mario, also known as Carlos Lopez-Hernandez; Jose Encarnacion Reyes, also known as Chicho, Defendants-Appellants.

No. 03-20812.

United States Court of Appeals, Fifth Circuit.

April 27, 2005.

COPYRIGHT MATERIAL OMITTED

John Richard Berry, Asst. U.S. Atty. (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiffs-Appellees.

John Riley Friesell (argued), Bellaire, TX, for Cesar Augusto Villanueva.

Andrew J. Williams (argued), Law Office of Andrew J. Williams, Humble, TX, for Dimas Alexander Cortez-Lumas.

Charles W. Medlin, Law Office of Charles W. Medlin, Houston, TX, for Jose Encarnacion Reyes.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

We are presented with a case of conspiracy to smuggle undocumented aliens for commercial gain and attempts to aid and abet the smuggling of undocumented aliens to the United States for commercial gain. This appeal requires us to determine for the first time in this circuit whether 8 U.S.C. § 1324(a)(2)(B)(ii) can support a conviction for conduct occurring outside the United States. We hold that it can and rejecting other arguments raised by appellants we Affirm.

I.

Defendants-Appellants Cesar Augusto Villanueva ("Villanueva"), Dimas Alexander Cortez-Lumas ("Cortez-Lumas"), and Jose Encarnacion Reyes ("Reyes") were found guilty, after a jury trial, of conspiracy to bring undocumented aliens to the United States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2)(B)(ii) ("count one"), and of two counts of aiding and abetting an attempt to bring two individual undocumented aliens to the United States in violation of 18 U.S.C. § 2 and 8 U.S.C. § 1324(a)(2)(B)(ii). Two co-conspirators, Jose Jairo Enriquez-Amaya ("Enriquez-Amaya") and Wilfredo Gonzalez-Rodriguez ("Gonzalez-Rodriguez"), pled guilty to count one.

Defendants-appellants appeal their convictions and their sentences. For the reasons set forth below, we affirm the judgment of the district court in all respects.

II.

At trial, the government presented the testimony of five primary witnesses: Ana Hernandez-Alvarado ("Hernandez-Alvarado") and Doris Elizabeth Cedillo ("Cedillo"), who were two of the approximately 140 immigrants attempting to enter the United States; Lieutenant Romeo Margarin ("Margarin"), who is a police officer in El Salvador and who searched Reyes' house in El Salvador; Enriquez-Amaya, who pled guilty as a co-conspirator; and Carlos Archuleta ("Archuleta"), a senior special agent with the U.S. Department of Homeland Security.

Hernandez-Alvarado and Cedillo described the circumstances surrounding their attempt to immigrate to the U.S. from El Salvador. The process began when they each paid $1,500 to Reyes' wife, Judith Bonilla, as a smuggler's fee. Reyes then led Hernandez-Alvarado and a group of about 20 immigrants to the El Salvador-Guatemala border. Villanueva and Cortez-Lumas were guides who met the group at the El Salvador-Guatemala border and the Guatemala-Mexico border, respectively. As the group moved through Guatemala and Mexico, Hernandez-Alvarado witnessed Villanueva, Cortez-Lumas, and two other guides giving orders to groups of immigrants, obtaining and distributing food to the immigrants, and otherwise leading the then-150-person party.

In Mexico, the guides loaded the immigrants into a large "Thermal King" trailer pulled by a tractor. Villanueva, Cortez-Lumas, Enriquez-Amaya, and Wilfredo Gonzalez-Rodriguez also traveled inside of the trailer. The trailer lacked adequate ventilation, and at one point Enriquez-Amaya and Gonzalez-Rodriguez used an ax to cut a hole in the top of the trailer. Mexican police stopped the tractor-trailer on the outskirts of Monterrey on January 25, 2002 and placed everyone under arrest. The northbound journey of the would be illegal immigrants was thus concluded before they reached the United States border.

Lieutenant Margarin, of the National Police Force of El Salvador, found a receipt for approximately $15,000 that Reyes had written out to a well-known immigrant trafficker in El Salvador. He also found several notebooks containing names and figures. Special Agent Archuleta testified that one of these notebooks had a "pollo"¹ list with several hundred names of aliens who had been smuggled or were to be smuggled. On a page dated January 15, 2002, Archuleta found entries for Hernandez-Alvarado and Cedillo. Archuleta was unable to locate the name Cesar Augusto Villanueva, Dimas Alexander Cortez-Lumas, or Jose Encarnacion Reyes listed anywhere in the notebooks.

Enriquez-Amaya identified Jose Narcisso Ramirez-Ventura as the overall leader of the smuggling organization and Cortez-Lumas as the person in charge of coordinating this particular trip. Enriquez-Amaya identified Villanueva as his immediate superior on the trip, and he testified that Villanueva led a group of 20-25 immigrants. Additionally, Enriquez-Amaya testified that Villanueva and another guide told him that they worked for Reyes.

Soon after intercepting the tractor trailer, Mexican authorities released and repatriated 144 of the aliens. Although U.S. funds paid for the repatriations, Archuleta was not involved in the decision and he was not aware of it until after it occurred. Mexican authorities tried and convicted the driver and co-driver of the trailer, and held Villanueva, Cortez-Lumas, Enriquez-Amaya, and Gonzalez-Rodriguez, who had been identified by many of the aliens as guides.

However, a court in Mexico later ordered the release of the four men charged as guides. It was at this point that Archuleta initiated a prosecution of the four men by U.S. authorities.

III.

We first consider defendants-appellants' challenges to their convictions.

A.

Appellants first argue that the district court erred by finding that Congress intended 8 U.S.C. § 1324(a) to apply to extraterritorial conduct.²

"It is a longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" Smith v. United States, 507 U.S. 197, 204, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)). Several recent Supreme Court decisions reinforce this presumption. See, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 176, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (there must be affirmative evidence that Congress intended extraterritorial application); F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 124 S.Ct. 2359, 2366, 159 L.Ed.2d 226 (2004) (the Supreme Court "ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations"). Thus, the crux of this issue is whether Congress intended 8 U.S.C. § 1324(a)(2)(B)(ii) to apply to extraterritorial conduct.

Such intent can be inferred when limiting the locus of a statute to U.S. territory would greatly curtail the scope and usefulness of the statute and leave open a large immunity for frauds that are as easily committed by citizens extraterritorially as at home. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922).

1. The language of the statute, the legislative history, and the nature of the law indicate that Congress intended § 1324(a) to apply to extraterritorial conduct.

The language of the statute itself indicates that Congress intended it to apply to extraterritorial conduct.³ First, the statute uses the phrase "brings to ... the United States," rather than "brings into ... the United States." In 1986, Congress enacted the Immigration Reform and Control Act, which completely overhauled § 1324(a), including a change from the phrase "brings into" to the phrase "brings to."⁴ The legislative history indicates that Congress made the change in response to the decision in United States v. Anaya, 509 F.Supp. 289 (S.D.Fla.1980)(en banc) (aff'd on other grounds, sub nom. United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir.1982)); H.R.Rep. No. 682(I), 99th Cong., 2d Sess. 65-66 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5669-70. In Anaya, the court held that "brings into" is synonymous with "entering," so that a transporter of illegal immigrants could not be guilty if the immigrants he transported were not allowed entry into the United States. 509 F.Supp. at 297. In response, Congress expanded the scope of § 1324(a) by, inter alia, changing the phrase "brings into" to "brings to" in order to "deter potential transporters from inundating U.S. ports of entry with undocumented aliens." H.R.Rep. No. 682(I) at 66, 1986 U.S.C.C.A.N. at 5670. Such an alteration strongly suggests that Congress intended extraterritorial application because it shows that Congress was concerned about activity taking place outside of the United States.

Second, the statute criminalizes attempts. While some failed attempts will include activity within the United States, many, if not most, will take place extraterritorially. This is especially true because of the 1986 amendment to § 1324(a), which expanded the scope of § 1324(a) to include attempts to "bring to" to the United States. A failed attempt to "enter" the United States could include an attempt that was foiled after the immigrant had entered U.S. territory.⁵ However, a failed attempt to "bring to" the United States, at least when by land, will ordinarily be stopped outside of U.S. territory.

Third, the context of immigration statutes make it natural to expect that Congress intends for them to reach extraterritorial conduct. See United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980) (Congressional intent for a statute to apply extraterritorially "may...