United States v. Soto-Mendoza, 022516 FED9, 14-10219

Docket Nº:14-10219, 14-10220
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCOS SOTO-MENDOZA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCOS SOTO-MENDOZA, AKA Marco Soto-Mendoza, AKA Vicente Soto-Mendoza, Defendant-Appellant.
Judge Panel:Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges. SILVERMAN, Circuit Judge, dissenting in part:
Case Date:February 25, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARCOS SOTO-MENDOZA, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MARCOS SOTO-MENDOZA, AKA Marco Soto-Mendoza, AKA Vicente Soto-Mendoza, Defendant-Appellant.

Nos. 14-10219, 14-10220

United States Court of Appeals, Ninth Circuit

February 25, 2016

NOT FOR PUBLICATION

Argued and Submitted October 20, 2015 San Francisco, California

Appeal from the United States District Court No. 4:11-cr-02628-CKJ-BPV-1, 2:10-cr-01277-CKJ-BPV-1 for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.

MEMORANDUM [*]

After a jury trial, the district court entered judgment and sentenced Marcos Soto-Mendoza on five counts of bringing illegal aliens into the United States for profit. Soto-Mendoza appeals from his judgment of conviction, raising several different claims. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court did not err in refusing to order a new trial. On Count I, the jury responded to a special interrogatory by finding the government had not proven beyond a reasonable doubt that Soto-Mendoza acted for financial gain or commercial advantage. Even assuming there was an inconsistency between this finding on Count I and the jury's convictions on Counts II-VI, a defendant cannot attack a conviction based on an inconsistent acquittal on another count. See, e.g., United States v. Powell, 469 U.S. 57, 60 (1984).

As to Counts II-VI, the trial evidence was sufficient to establish that Soto-Mendoza acted for financial gain or commercial advantage. The evidence showed the aliens arranged to pay a third-party for their passage, this third-party supplied Soto-Mendoza as their guide, and Soto-Mendoza referred to guiding the aliens as "his job." We have repeatedly upheld convictions for the same offense on similar evidence. See, e.g., United States v. Schemenauer, 394 F.3d 746, 751 (9th Cir. 2005); United States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002).

The district court did not err in admitting videotaped witness depositions because the witnesses were unavailable to testify. Where an illegal alien is detained for the purposes of providing material testimony, upon the alien's motion, the government must depose and release the alien unless a "failure of justice" would ensue. See Torres-Ruiz v. U.S. Dist. Court for the S. Dist. of California, 120 F.3d 933, 935 (9th Cir. 1997) (citing Aguilar-Ayala v....

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