U.S. v. Aguilar

• Decision Date: 08 April 1985
• Docket Number: No. 84-5084,84-5084
• Citation: 756 F.2d 1418
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pablo AGUILAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1418

756 F.2d 1418

UNITED STATES of America, Plaintiff-Appellee, v. Pablo AGUILAR, Defendant-Appellant.

No. 84-5084.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1984.

Decided April 2, 1985.

As Amended April 8, 1985.

Pamela J. Naughton, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

A. Carl Yaeckel, Jr., San Diego, Cal., for defendant-appellant.

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

Before NELSON, BOOCHEVER and REINHARDT, Circuit Judges.

NELSON, Circuit Judge:

Pablo Aguilar was convicted of three counts of violations of 18 U.S.C. Sec. 912 for falsely acting as an officer of the United States Immigration and Naturalization Service (the INS) and for obtaining money in such character. Section 912 states two separate and distinct offenses. ¹ Each count of the indictment charged both of the offenses in section 912, "acting as" an officer and "obtaining money in such character," and thus the indictment suffered from duplicity. ² Aguilar challenges his conviction on three grounds: first, that the government's action taken to cure the duplicitous indictment, an election to proceed only under one of the two offenses charged in each count, constituted an improper amendment of the indictment; second, that the trial judge committed reversible error in finding Aguilar guilty under both of the offenses charged in each of two counts despite the government's election to proceed under only one offense in each count; and last, that the trial court lacked jurisdiction over the violations of the statute which occurred in Mexico.

We agree with his second contention, and remand for the court below to amend the judgment and re-sentence Aguilar on counts I and II based on conviction of only the first offense charged in each count.

FACTS AND PROCEDURAL BACKGROUND

Mexican citizen Juana Puentes de Sandoval was standing in line to obtain a visa for her son Raul, at the San Ysidro, California, Port of Entry. Aguilar, dressed in clothes similar to those worn by United States government employees, walked from the United States Immigration Service offices to Sandoval's place in line on the United States side of the border. Aguilar told Mrs. Sandoval to leave because visas were not being issued that day. Aguilar said he was a United States Immigration officer. Mrs. Sandoval told Aguilar she wanted a visa for her son. Aguilar took her address and, later that day, came to her store in Aguilar also offered to sell an INS car to Oscar Rodriguez, an American citizen. Aguilar gave Rodriguez details of his employment with the INS and showed him an identification card allegedly issued by the INS. In Tijuana, Rodriguez paid Aguilar $900 for a car, and asked Aguilar to show him the car. Aguilar drove Rodriguez into the United States and pointed out a car in the INS lot. Aguilar then asked to be dropped off at the INS dormitory where he said he lived. He later told Rodriguez he could sell him another car for an additional $600-$900. Aguilar's arrest was precipitated by the suspicions of Rodriguez, who asked INS officials about Aguilar. After INS officials disavowed Aguilar's employment, Rodriguez located him at the San Ysidro Port of Entry and identified him to United States authorities, who arrested him.

Tijuana and again said he was an INS officer. Mrs. Sandoval paid him 30,000 pesos to obtain visas for three of her children, and gave him the children's official documents. In addition, Aguilar promised to get Mrs. Sandoval's son Raul a job with the INS. Aguilar also told Mrs. Sandoval that he could sell INS-confiscated vehicles to her children. In Tijuana, she gave him a down payment of gold jewelry for two cars and a truck. Aguilar offered to sell an INS-confiscated truck to Antonio Sandoval-Puentes, and, in Tijuana, Antonio's mother paid Aguilar $650 for it. Aguilar told Antonio that he was an INS officer and gave details of his employment.

The grand jury issued a three-count indictment of Aguilar. Count I alleged that Aguilar falsely acted as a United States official before Mrs. Sandoval and that he obtained money from her in such capacity, in violation of 18 U.S.C. Sec. 912. Count II used the same language concerning Oscar Rodriguez, as did Count III concerning Antonio Sandoval.

The offenses which occurred in the United States include the "false personation" before Mrs. Sandoval and Oscar Rodriguez, as charged in Clause One of Count I and Clause One of Count II of the indictment. The offenses which occurred only in Mexico are the "false personation" before Antonio Sandoval, as charged in Clause One of Count III, and the "obtaining money" charges as set forth in Clause Two of each of the three counts. Before trial, Aguilar's attorney questioned the trial court's jurisdiction over the violations of 18 U.S.C. Sec. 912 which occurred in Mexico, and challenged the indictment for alleging two offenses in each count. He moved for dismissal of the indictment. The government disagreed on the jurisdictional point and then treated the memorandum as a pre-trial motion for dismissal of the indictment for duplicity. See Fed.R.Crim.P. 12(b)(2). To cure the duplicity, the government made an election at the start of the trial to proceed only under "Clause One" of section 912 (acting as a United States officer) and treated the "Clause Two" charge (obtaining money in that capacity) as surplusage in the indictment.

The district court asserted jurisdiction over the whole case, including the offenses which occurred in Mexico. It found that Aguilar had both acted as an official toward Mrs. Sandoval and Mr. Rodriguez, and obtained money from them, as alleged in Counts One and Two of the indictment. Thus despite the government's election to proceed only under the "acting as" portion of the indictment, the court also found Aguilar guilty of "obtaining money in that capacity". The court did not find that Aguilar had obtained money from Antonio Sandoval, apparently because it was Mrs. Sandoval who paid Aguilar for Antonio's promised car, but found him guilty of the "acting as" clause in Count III. The judgment pronounced Aguilar "guilty as charged" on all three counts.

STANDARD OF REVIEW

Each argument is a question of law based on undisputed facts which we review de novo. See Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970); United States v. Castillo-Felix, 539 F.2d 9 (9th Cir.1976).

DISCUSSION

Aguilar makes three arguments which pertain to the three different counts upon Aguilar's jurisdictional argument, in contrast, affects only Count III because acts which constituted violations of Clause One of Counts I and II occurred in the United States. The propriety of extraterritorial application of section 912 is thus at issue solely concerning Count III, for Aguilar's impersonation of an INS officer in the presence of Antonio Sandoval occurred in Mexico.

which he was convicted. His first two arguments attack the government's election to proceed under only one clause of each count of the indictment, and the trial court's disregard of the election in convicting him of the clause upon which the government chose not to proceed. These arguments concern only Counts I and II, however, since in Count III the trial court explicitly convicted Aguilar only on the "acting as" clause.

I. COUNTS I and II.

The issue of the propriety of the indictment requires review of the indictment itself to determine whether it notified Aguilar of the charges against him before the trial, and the effect of the election upon that notice-serving function of the indictment. Aguilar's second challenge, to the propriety of the judgment, raises the issue of prejudice to Aguilar by the evidence presented at trial and the final judgment itself. See United States v. Mastelotto, 717 F.2d 1238, 1244, 1246 (9th Cir.1983).

A. Whether the government's election to proceed under only the "acting as" portion of the indictment, treating the "obtaining money" portion as surplusage, was an improper amendment to the indictment.

Aguilar attacks the government's effort to cure a defect in the indictment. Cf. United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir.1983). This indictment was duplicitous since each count alleged the two separate and distinct offenses which 18 U.S.C. Sec. 912 states in its two clauses. See United States v. Leggett, 312 F.2d 566, 569 (4th Cir.1962), cert. denied, 377 U.S. 955, 84 S.Ct. 1633, 12 L.Ed.2d 499 (1964) (indictment stated violations of both clauses in one count and was duplicitous), on remand 326 F.2d 613 (4th Cir.1964) (after duplicity was cured by government's election to proceed on one clause only). Cf. United States v. Carr, 194 F.Supp. 144, 145 (N.D.Cal.1961) (since clause 1 of section 912 requires language "acted as such", indictment charged only violations of clause 2 of section 912 and was not duplicitous). Duplicity in an indictment would constitute reversible error only if Aguilar was misled "to his prejudice." Fed.R.Crim.P. 7(c)(3); Mastelotto, 717 F.2d at 1244 n. 4. See also United States v. Westover, 511 F.2d 1154, 1155 & n. 2 (9th Cir.1975) (duplicity objection waived absent pre-trial objection). It seems reasonable to apply the same standard to the indictment as amended by the election. We first determine, therefore, whether the election was proper; if it was proper, we will consider whether it prejudiced Aguilar.

We have not heretofore explicitly approved of the practice of election as an alternative to dismissal of a duplicitous indictment but, like the Supreme Court, neither have we disapproved of the practice. See Abney v. United States, 431 U.S. 651, 654-55, 664-65, 97 S.Ct. 2034, 2037-38, 2042-43, 52 L.Ed.2d 651 (1977) ³; United States v. UCO Oil Co., 546 F.2d 833, 835, 838 (9th Cir.1976) (vacating trial judge's An election to cure duplicity differs from a Rule 14 election, however, in that choosing one offense...