U.S. v. Cantu, 76-4039

Citation557 F.2d 1173
Decision Date22 August 1977
Docket NumberNo. 76-4039,76-4039
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mauro CANTU, Jr., a/k/a Mario Cantu, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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 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 charged attempts to "shield from detection" Hernandez and Bustamante pursuant to the charged conspiracy.

The cause was tried on September 7 and 8, 1976, and on September 9 the jury returned verdicts of guilty against Cantu on the conspiracy count and on both substantive counts. The district judge sentenced Cantu to a total of four years' imprisonment, suspended, five years' supervised probation, and a fine of $3,000, on all counts. Cantu then appealed.

On appeal Cantu contends that the indictment under which he was prosecuted was faulty; that the trial judge erred in denying various pretrial motions and in quashing certain subpoena; that there was insufficient evidence presented at trial to sustain a conviction under the indictment; and that the trial judge charged the jury incorrectly. We have examined each of Cantu's points on appeal and find them to be without merit.

Adequacy of the indictment. Cantu contends that the evidence required to prove the conspiracy count in this case is the same as that required to prove the substantive counts, and that the fifth amendment forbids trial on separate counts for the same acts. The test to determine whether two alleged offenses are in fact one is whether each provision requires proof of a fact which the other does not. It is enough if there is one element required to prove the offense charged in one count which is not required to prove the other. United States v. Bruce, 5 Cir., 1973, 488 F.2d 1224, 1229-30. A conviction for conspiracy under the first count of the indictment in this case requires an agreement to conspire, 18 U.S.C. § 371. "The essence of the crime of conspiracy is the agreement rather than the commission of the objective substantive crime. Conspiring to commit a crime is an offense separate and distinct from the crime which may be the object of the conspiracy." United States v. Nims, 5 Cir., 1975, 524 F.2d 123, 126, cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385. The required proof of agreement is an element not required to be proved for the substantive counts under 8 U.S.C. § 1324(a)(3). The conspiracy does not merge, therefore, with the substantive counts as argued by Cantu.

Denial of motion to dismiss the indictment. Cantu contends that the district judge erred in refusing to grant Cantu's motion to dismiss the indictment. Cantu asserts that the word "shield" in the indictment is overbroad, that the grand jury which returned the indictment was illegally composed, and that the indictment against Cantu resulted from discriminatory enforcement of the immigration laws.

Cantu asserts that "men of common knowledge would naturally have to guess at the meaning of (shield) and would differ as to its application as did counsel for both sides and the trial judge in the instant case." We have held, however, that indictments are valid where they track the language of the appropriate statute unless "the statute omits an essential element of the offense." United States v. Thevis, 5 Cir., 1973, 484 F.2d 1149, 1152, cert. denied, 419 U.S. 886, 95 S.Ct. 158, 42 L.Ed.2d 129 (1974). In this case, the word complained of, "shield," is taken directly from the statute and it does not appear that the statute omits any essential element of the offense. Therefore, the choice of language in the indictment does not render the indictment invalid.

Cantu asserts that the grand jury which indicted him did not constitute a fair and representative cross section of the community. Cantu concedes in his brief on appeal that he did not carry his burden to make a prima facie case of illegal jury composition but asserts that although he "sought through discovery to obtain the factual materials necessary for proof and specifically asked that he be permitted to inspect and copy the jury questionnaire forms" his discovery request was denied by the district judge. Cantu asserts that this denial was error. The record shows that in denying Cantu's motion for discovery of the jury questionnaire forms the district judge informed Cantu in his order of August 16 that Cantu was "free without further order of this Court to examine the records which the United States District Clerk keeps in the regular course of business concerning the identity of those persons making up both the present and past Grand and Petit Juries." Thus this point of error is clearly without merit.

Cantu asserts that he has been the target of discriminatory enforcement of the laws in contravention of the fourteenth amendment and that the district judge erred both in overruling a motion to dismiss without taking evidence on this issue, and in granting the...

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