557 F.2d 1173 (5th Cir. 1977), 76-4039, United States v. Cantu

Docket Nº:76-4039.
Citation:557 F.2d 1173
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mauro CANTU, Jr., a/k/a Mario Cantu, Defendant-Appellant.
Case Date:August 22, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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557 F.2d 1173 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mauro CANTU, Jr., a/k/a Mario Cantu, Defendant-Appellant.

No. 76-4039.

United States Court of Appeals, Fifth Circuit

August 22, 1977

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[Copyrighted Material Omitted]

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Peter Torres, Jr., San Antonio, Tex., for defendant-appellant.

John E. Clark, U. S. Atty., LeRoy Morgan Jahn, W. Ray Jahn, John M. Pinckney, III, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

Mauro Cantu, also known as Mario Cantu, was convicted by a jury of conspiracy and of two substantive counts of shielding illegal aliens from detection, violations of 18 U.S.C. § 371 and 8 U.S.C. § 1324. He was sentenced to a suspended prison term and a fine. Cantu appeals alleging numerous errors prior to and during trial. We have considered Cantu's points on appeal and find them to be without merit, and accordingly affirm the judgment of the district court.

In June of 1976 Cantu was proprietor of Mario's Restuarant in San Antonio, Texas. On information that Cantu employed aliens illegally in the United States at his restaurant, agents of the Immigration and Naturalization Service visited the restaurant on the morning of June 18, 1976 to question the employees about their residence status. Cantu refused to admit the agents without a search warrant. The agents remained outside the restaurant to await the arrival of a warrant.

One of the illegal aliens employed by Cantu on June 18 was Lucio Hernandez. Hernandez had worked for Cantu during a previous illegal visit to the United States. When the INS agents arrived on the morning of the 18th, Hernandez took a seat in the dining room of the restaurant. Cantu approached a patron, Billy Morton, and asked him to give a ride to one of the employees. Morton agreed, and Cantu then pointed Morton out to Hernandez. Morton joined Hernandez, but the two could not converse due to the language barrier. A witness testified that Cantu made the arrangements with Morton. As Morton prepared to leave he indicated to Hernandez to join Morton's sons in a group. They left by the front door in single file. The agents approached Hernandez in the restaurant parking lot, ascertained his illegal status, and arrested him.

Another illegal alien employed by Cantu on June 18 was Armando Bustamante-Hernandez (referred to herein as Bustamante). Bustamante also had been employed by Cantu during a previous illegal visit to the United States. When the agents arrived on the 18th Bustamante changed from his waiter's costume into street clothing, and attempted to hide within the restaurant. Bustamante testified that Cantu told him not to hide, but to take a seat in the restaurant dining room. Bustamante further testified that Cantu then approached a patron, Ignacio Perez, and asked Perez to give Bustamante a ride into town. Perez testified that he was aware of the presence of the INS agents, aware that Bustamante was Cantu's employee, that he was aware that Cantu was reputed to employ illegals, and that it occurred to him that Bustamante might be illegal. Perez joined Bustamante

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and indicated that Bustamante was to leave with him. Bustamante testified that this was confirmed by a gesture from Cantu. As Bustamante and Perez passed the cashier's booth Perez obtained a toothpick which he gave to Bustamante, and Bustamante put the toothpick in his mouth. The two then left the restaurant together. In the restaurant parking lot agents approached Bustamante, ascertained his illegal status, and arrested him.

A third illegal alien employed by Cantu successfully evaded the agents at the restaurant by leaving with patrons. A fourth was arrested while taking garbage out a back door. A fifth was arrested within the restaurant after the search warrant arrived.

Cantu was indicted by a federal grand jury for conspiracy to "wilfully and knowingly attempt to shield" Bustamante and Hernandez, illegal aliens, in contravention of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(3). Section 1324 provides in pertinent part:

(a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who

(3) willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation;

any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony . . .: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.

Billy Morton and John Doe (Ignacio Perez) were named in the indictment as unindicted coconspirators, and were granted immunity from prosecution. The indictment charged as a conspiracy that Cantu held conversations with Morton and Doe/Perez to plan to enable "certain illegal aliens" to depart the restaurant under the guise of customers. The two substantive counts of the indictment...

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