U.S. v. Aguilar, WILLIS-CONGER

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation871 F.2d 1436
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Maria del Socorro Pardo Viuda De AGUILAR, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Anthony CLARK, a/k/a Antonio Clark, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sister Darlene NICGORSKI, School Sisters of Saint Francis, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Philip M., a/k/a Phillip M. Conger, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John M. FIFE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Margaret Jean HUTCHISON, a/k/a Peggy Hutchison, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wendy LeWIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ramon Dagoberto QUINONES, Defendant-Appellant. to 86-1215.
Docket NumberWILLIS-CONGER,Nos. 86-1208,s. 86-1208
Decision Date30 March 1989

Karen L. Snell, Dennis P. Riordan, Riordan & Rosenthal, San Francisco, Cal., Michael Tigar, University of Texas School of Law, Austin, Tex., Michael L. Altman, Silverglate, Gertner, Boston, Mass., Paul L. Hoffman, Mark D. Rosenbaum, Carol Sobel, Clara Pope, Los Angeles, Cal., Elaine Melnick, Glendale, Cal., for defendants-appellants.

Donald M. Reno, Jr., Sp. Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HALL, WIGGINS and THOMPSON, Circuit Judges.


Appellants were convicted of masterminding and running a modern-day underground railroad that smuggled Central American natives across the Mexican border with Arizona. 1 Beginning in Mexico, various appellants directed illegal aliens to several Arizona churches that operated as self-described sanctuaries. From Arizona, appellants sent many of these illegal aliens to Chicago, Illinois, where they were subsequently dispersed throughout the United States to so-called safehouses. Appellants were sentenced to varying terms of probation; none received jail terms.

Appellants contend that the aliens they smuggled, transported, and harbored are bona fide political refugees entitled to political asylum in the United States pursuant to the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (codified in scattered sections of 8 U.S.C. (1982)). Yet appellants counseled the aliens to avoid American immigration authorities at all costs and to lie to them if apprehended. Appellants' disdain for federal immigration law is perhaps best evidenced by an episode at the Sacred Heart Church in Nogales, Arizona. Appellant Anthony Clark had arranged for a government informant to transport to Phoenix several illegal aliens. Two of these aliens had been intercepted and released by American immigration officials. The authorities had issued documents to these aliens requiring them to appear before an immigration judge. Clark took these documents and tore them up, instructing the aliens that they had erred by truthfully identifying themselves as Salvadoran citizens.

Appellants offer two explanations to justify their avoidance of Immigration and Naturalization Service (INS) officials. First, appellants contend that the INS improperly failed to approve the meritorious political asylum applications of aliens who applied at official ports of entry. The INS's misfeasance, according to appellants, necessitated a course of deliberate avoidance of INS officials during and after an alien's entry into the United States. But appellants also seek to justify their policy of discouraging an alien from presenting himself to the INS on the basis that appellants were mistaken as to the necessity of such presentment. Appellants state that they believed the 1980 Refugee Act did not require either an alien's formal presentment to the INS or an application for political asylum in order for an alien to be legally entitled to reside here.

The tension between appellants' mistake of law explanation and their deliberate avoidance explanation is patent, and it permeates this entire case. On the one hand, appellants acknowledge a detailed understanding of and familiarity with the INS' procedures for the filing of applications for political asylum. But appellants also profess naivete and ignorance of the critical role of such presentment and application as a prerequisite to an alien's legal status.


Appellants sought and received extensive media coverage of their efforts on behalf of Central American aliens. Eventually, the INS accepted appellants' challenge to investigate their alien smuggling and harboring activities. The INS infiltrated the sanctuary movement with several undercover informers and agents who tape recorded some meetings. The record developed at trial is mountainous, and the following factual account seeks only to capture some of the more significant events relevant to this appeal.


On March 19, 1982, appellant John M. Fife, in an interview published by a Tucson, Arizona newspaper, announced that he and his church, the Southside Presbyterian Church, "can no longer cooperate with or defy the law covertly as we have done." He challenged the United States government to arrest him as a felon in violation of the immigration laws. Indeed, Fife wrote to the Attorney General of the United States on March 23, 1982, to protest "[t]he current administration of United States law [which] prohibits us from sheltering these refugees from Central America."

The following day, several hundred people rallied at the Federal Building in Tucson to protest the government's failure to grant political asylum to Central American aliens. The protesters then marched to Fife's church and, once there, Fife hosted a news conference at which he introduced a person he described as an undocumented Salvadoran alien who was staying at the church.

Defendant James A. Corbett, acquitted below, was featured in a six-page article in the August 9, 1982, issue of People magazine. He described the smuggling of a Salvadoran family across the Mexican border and their reception at Fife's church. In the September 13, 1982, issue of the magazine U.S. News & World Report, Fife was featured in an article describing his smuggling activities. The magazine quoted Fife as saying he was "willing to suffer the consequences" of his smuggling.

Appellants' smuggling operation received continuing publicity. On December 12, 1982, the CBS television program 60 Minutes broadcast a segment featuring Corbett. Before a national television audience, Corbett boasted of having smuggled 250 to 300 illegal aliens from Central America. Later that same month, Fife was featured in a Tucson newspaper article, and again in a February 7, 1983, article. Corbett was interviewed for an article appearing on August 1, 1983 in a Phoenix newspaper. Noting that stepped-up INS border enforcement efforts had proven more effective, Corbett stated that the sanctuary movement had advised aliens to cross the border at different points.


The government initiated an undercover investigation of appellants' smuggling activities on March 27, 1984, when undercover agent Jesus Cruz ("Cruz") contacted appellant Ramon Dagoberto Quinones at Quinones' church office in Nogales, Sonora, Mexico. Cruz told Quinones that he supported the sanctuary movement and that he wished to volunteer. Cruz next met Quinones on April 16, 1984, when he accompanied Quinones to the Mexican federal prison in Nogales, where Mexico detains Central Americans who have violated Mexican immigration laws. Quinones introduced Cruz to Maria del Socorro Pardo Viuda de Aguilar ("Aguilar"), and the three entered the prison to meet with Central Americans who Mexico was set to deport.

Quinones counseled the Nogales prisoners that if they planned to reattempt their journey to the United States, they should contact certain persons in Mexico who would instruct them on how to avoid Mexican immigration authorities. Quinones also told the prisoners that if they should reach the United States border they should avoid INS officials. He said that if they were apprehended by INS officials, they should lie and claim to be Mexican citizens, as this would avoid their formal deportation to Central America.

From this introduction to the sanctuary movement, Cruz quickly became appellants' trusted and valued colleague. Cruz met Philip M. Conger on May 3, 1984, in Nogales, Mexico. Cruz accompanied Conger as he drove the Rodriguez family to a hilltop overlooking the United States border. Once there, Conger identified a hole in the border fence and the steeples of the Sacred Heart Church, where he advised the family to go. Conger assured the family that the church would provide them sanctuary. Conger also asked Cruz to give the family a brief history of Mexico so that they could pretend to be Mexicans if apprehended. The family made their way to the church later that week.

Cruz also became involved in Aguilar's and Quinones's plan to smuggle Julio and Ana Benavidez, both Salvadoran citizens, into the United States. On Aguilar's orders, Cruz obtained an envelope from Quinones which contained an immigration document. Cruz gave Aguilar this document, and she instructed Ana to memorize the name, age, and address of the person identified on the document. Aguilar dressed Ana to look like the person portrayed on the document. Cruz, Aguilar, and Ana then went to the Nogales Port of Entry where Aguilar walked 13-year-old Ana through the checkpoint.

Quinones took Julio and Miguel Mejia, another Salvadoran, to the border fence to identify the hole they were to enter through. He told them that if they were caught by the INS they should lie and say they were from Mexico. Julio and Miguel crossed the border in this manner the morning before Aguilar brought Ana through the Nogales checkpoint. Cruz later met with both Julio and Ana at the...

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