U.S. v. Singh

Decision Date17 July 2008
Docket NumberNo. 07-30150.,07-30150.
Citation532 F.3d 1053
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harminder SINGH, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Lisca N. Borichewski, United States Attorney, Helen J. Brunner, Assistant United States Attorney, & Ye-Ting Woo, United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Ricardo S. Martinez, District Judge, Presiding. D.C. No. CR-06-00038-RSM.

Before: BETTY B. FLETCHER, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.

McKEOWN, Circuit Judge:

Harminder Singh was convicted on several counts related to his role in a human smuggling conspiracy. This appeal raises two issues with regard to Singh's conviction for bringing an alien to the United States for the purposes of financial gain. See 8 U.S.C. § 1324(a)(2)(B)(ii). Singh contends that there was insufficient evidence to establish that he brought, or aided and abetted the bringing of, an alien into the United States as alleged in Count 10. He also raises a challenge to his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm his conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2005, Immigration and Customs Enforcement ("ICE") received information from a confidential source regarding a Canada-based organization that was smuggling aliens into the United States from Canada. ICE launched an investigation and also contacted members of the Royal Canadian Mounted Police ("RCMP"). The RCMP began its own investigation and learned from recorded telephone conversations that Kavel Multani, among others, was involved in human trafficking. Singh, a taxi driver living in Washington, was recorded as a participant in some of those conversations.

A grand jury returned a 23-count indictment against Multani, Singh and a number of co-defendants. Singh was charged and convicted on five counts, but only Count 10—Bringing an Illegal Alien into the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2—is at issue here. Count 10 alleged:

During January 2006, and continuing through on or about January 26, 2006, within the Western District of Washington and elsewhere, KAVEL MULTANI a/k/a YGURU, NIZAR SABAZ-ALI, HARMINDER SINGH a/k/a NICK, and other persons, in knowing and reckless disregard of the fact that approximately one (1) alien had not received prior official authorization to come to, enter and reside in the United States, aided and abetted the bringing of, and did knowingly bring, the alien to the United States for the purpose of private financial gain.

A. EVIDENCE AT TRIAL

Although Singh was in touch with others in the smuggling operation over a longer period of time, the key events pertinent to Count 10 began in January 2006. Much of the government's evidence came from translated transcripts of recorded telephone conversations. In a January 23, 2006 telephone conversation with Multani, Singh discussed his desire for work and money owed to him for past work, and also stated that he was grateful for work in the past, but had not received work in months and needed to do something to put food on the table.

Through monitoring of the calls, the RCMP learned that an illegal alien would be taking a particular flight to Vancouver, British Columbia from Toronto on January 24, 2006. On that day, RCMP Constable Steven Glionna conducted surveillance of the flight's arrival and observed a woman, originally identified as Ms. Kahn, but later identified as Alpa Patel, get off the flight with a man later identified as Nizar Sabaz-Ali. Constable Glionna followed Sabaz-Ali from the airport terminal to a black Ford Expedition registered to Multani and then followed the Expedition to a residence in Surrey, British Columbia.

Following up on his earlier inquiry, Singh called Multani on January 26, 2006, at 1:16 p.m., telling Multani that he was calling to "find out if there is some work to do." Multani and Singh then had the following exchange:

Multani: I am looking. There was a person.

Singh: Huh.

. . .

Multani: It was the ticket-person. I am exploring . . . if can get on in the morning.

Singh: Ok.

Multani: He has a book.1

Singh: Ok.

Multani: Get the ticket and have to go along to drop off.

Singh: Ok.

Multani: Have to go along to drop off, and bring the book back.

Singh: Yes, babaji, I'll drop off. Where do I have to go?

Multani: Have to bring the book back and give it in Vancouver. We have a 2000 contract, if it pans out.

Singh: All right.

Multani: It is a contract for 2000. I'll see what happens. It has not started yet. I talked this morning.

Singh: Baba.. something or the other will happen.

Multani: Yes, something will happen. If nothing else, will make four hundred, five hundred.

Singh: Yes, abaji.

Multani: Will make something.

Singh: You send abaji. I'll drop off the person.

Multani: I'll do it. I was going to call for the ticket . . .

At approximately 3:00 p.m. on January 26, Constable Glionna observed Multani, Sabaz-Ali, Patel, and Raman Pathania meet in a parking lot. Patel got into a silver Chrysler Sebring driven by Pathania, joining Pathania's cousin and another alien who was going to be smuggled into the United States.

The RCMP surveillance team followed the Sebring to the border crossing near Blaine, Washington, where the smugglers instructed Patel on how to cross the border. The surveillance team saw Patel and the other alien walk across the border unaccompanied and get into a white Mazda driven by Matthew Dehagi. Dehagi then drove Patel to the Sea-Tac Inn, near the Seattle-Tacoma International Airport, some 120 miles south of the border. ICE agent Hernandez saw the white Mazda arrive at the Sea-Tac Inn, watched Patel exit the Mazda and go into the Sea-Tac Inn, and saw the Mazda leave.

At 6:38 p.m., the RCMP intercepted a telephone call from Pathania to Multani stating that "she" would be in the lobby at the Sea-Tac. A few minutes later, Multani called Singh, telling him "I have sent the person," and "I have fixed it for 2000," and instructing Singh to pick up the woman from the Sea-Tac lobby. Multani also told Singh that "[s]he has to go to New York" and "they'll hand you 2,000 there, you hand over the girl and for sure take the book." Agent Hernandez saw Singh arrive at the Sea-Tac Inn shortly thereafter and drive away with Patel in his taxi. At 9:13 p.m., Singh called Multani to tell him that he had picked up Patel and that the trip to New York would happen in the morning.

The next day, at the Seattle-Tacoma airport, Singh used a credit card to buy two tickets for a flight to New York. When Singh and Patel arrived in New York, Patel's husband met them and, according to the Patels, they paid Singh $2,000. Singh claims they only paid him $150 in taxi fare, though he admitted that he was supposed to receive $2,000. It is undisputed that Singh retained the passport Patel used for travel, presumably to return to the principals in Vancouver, as per the agreement between Singh, Patel and the principals. The jury convicted Singh on five separate counts related to alien smuggling, including Count 10.

B. SENTENCING

During the sentencing proceedings, Singh objected to the court's reliance on the jury's special verdict finding of financial motive because the special verdict form did not specify that the jury must find the financial motive beyond a reasonable doubt. In a memorandum regarding penalties, Singh explicitly relied on Apprendi to argue that enhanced penalties should not apply to Count 10. The court rejected this argument, calculated a mandatory minimum sentence of three years and an advisory Guidelines range of 37-46 months, and imposed a sentence of 37 months.

II. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE AFTER LOPEZ
1. THE SCOPE OF THE "BRINGS TO" OFFENSE AFTER LOPEZ

Singh contends that there was insufficient evidence to establish that he brought, or aided and abetted the bringing of, one alien into the United States for the purpose of commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).2 There is no dispute that Singh did not "bring" Patel to the United States. The dispute centers on the aiding and abetting portion of the charge. Specifically, Singh argues that his telephone conversations with people in Canada, ultimately resulting in an agreement for Singh to provide state-side transport and the return of the passport to Canada, were insufficient to sustain a conviction for aiding and abetting the crime of bringing an alien to the United States.

The starting point for our analysis is our recent en banc decision in United States v. Lopez, 484 F.3d 1186 (9th Cir.2007). We begin by noting one critical difference between our case and Lopez. We reviewed de novo Lopez's sufficiency of the evidence claim because he had preserved his claim by moving for acquittal at the close of the evidence under Federal Rule of Criminal Procedure 29. See United States v. Bahena-Cardenas, 70 F.3d 1071, 1072 (9th Cir. 1995). Because Singh did not preserve this claim of sufficiency of the evidence by moving for acquittal at the close of the evidence, our review is more deferential, requiring reversal "only upon plain error or to prevent a manifest injustice." United States v. Delgado, 357 F.3d 1061, 1068 (9th Cir.2004). In any case, a challenge to the sufficiency of the evidence requires us to determine whether, "after 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.

We began in Lopez by observing that in 8 U.S.C. § 1324(a)(1), Congress created four distinct immigration offenses: "1) bringing an alien to the United...

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