U.S. v. Arredondo-Morales, ARREDONDO-MORALES and E

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before THORNBERRY, ANDERSON and THOMAS A. CLARK; THORNBERRY
• Citation: 624 F.2d 681
• Docket Number: No. 79-5317,ARREDONDO-MORALES and E
• Decision Date: 21 August 1980
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Imerlva Marin-Alarcon, Defendants-Appellants.

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624 F.2d 681 UNITED STATES of America, Plaintiff-Appellee,
v.
Imer ARREDONDO-MORALES and Elva Marin-Alarcon, Defendants-Appellants. No. 79-5317. United States Court of Appeals,
Fifth Circuit. Aug. 21, 1980.

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Russell M. Aboud, El Paso, Tex. (Court-appointed), for Arredondo-morales.

Daniel Anchondo, El Paso, Tex. (Court-appointed), for Marin-Alarcon.

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Elva Marin-Alarcon was convicted of encouraging and inducing the entry of two undocumented aliens into the United States and transporting the two aliens within the United States in violation of 8 U.S.C. § 1324(a)(2) and 8 U.S.C. § 1324(a)(4). Marin was also convicted along with Imer Arredondo-Morales and 23 others of conspiring to encourage and induce the entry of undocumented aliens into the United States and to transport the aliens within the United States and to shield them from detection and arrest in violation of 8 U.S.C. § 1324(a)(3) and 18 U.S.C. § 371. Appellant Arredondo contends that the district court erred in denying her motion for acquittal after the guilty verdict because the evidence was insufficient to sustain the conviction. Appellant Marin claims that her constitutional rights were violated by the deportation of several alien witnesses prior to the trial and that the use of an electronic "beeper" tracking device without a warrant constituted an illegal search and resulted in an illegal arrest. We affirm.

Over a period from December 15, 1975 to January 26, 1979, several individuals were engaged in an operation designed to transfer undocumented aliens from Juarez, Mexico, into New Mexico and Colorado. Aliens desiring passage to the United States gathered in Juarez to await the next crossing. When a sufficient number of aliens had accumulated, they would be told to meet at Marin's house either early in the morning or late in the evening for the purpose of crossing the river. Upon paying Marin $50.00, she would take the aliens from her house to the banks of the Rio Grande River. Marin would also often lead the aliens across the river and into El Paso at the Franklin headgates.

The coconspirators were usually waiting in cars on the Texas side of the river. These cars were ferried across the river and legally admitted into the United States at established ports of entry by drivers who were paid for delivering the cars. To assure a greater degree of safety, two cars were involved in each transport. The first car served as a scout car to check for the presence of Immigration and Naturalization Service (INS) agents. The second car was used to transport the aliens. The drivers would take the aliens to a site in Denver or Albuquerque. They were then transported to other cities in Colorado and New Mexico.

With respect to Marin, the evidence revealed that on December 26, 1978, two undocumented aliens met with Marin in Juarez and arranged to be taken to Denver for a fee of $330 each. The aliens met at Marin's house in the early morning on December 27, 1978. She then led the two

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aliens, accompanied by 12 other undocumented aliens, across the river and into Texas. Unknown to Marin, this activity was being observed by INS agents. The aliens walked to an apartment complex located one-quarter mile from the border. Ten minutes later, a Plymouth sedan and Ford station wagon appeared at the apartment complex. The Plymouth acted as the scout car and the station wagon carried Marin and the undocumented aliens. The INS agents followed the two cars at a distance.

Approximately two hours after the cars had left El Paso, an electronic tracking device carried on the person of a confidential informant posing as an undocumented alien was activated. The signal from the tracking device was intercepted by a pilot and airplane. The INS agents never acquired a warrant to use the tracking device. The station wagon was followed into Denver with the aid of the pilot. The INS agents from El Paso were then joined by Denver INS agents. A search warrant was secured and Marin and the other aliens were arrested.

Marin was advised of her rights twice. She then explained the operation to the INS agents, stating that she was responsible for making arrangements to transport the aliens to Denver for a fee of $330 per person. She also admitted that she had guided the aliens across the Rio Grande River.

Marin and Arredondo were indicted along with 23 others on February 15, 1979, in the United States District Court for the Western District of Texas, charging them with conspiring to encourage and induce the entry of undocumented aliens into the United States, guiding those aliens across the border, transporting the aliens within the United States, and shielding the aliens from detection and arrest. Marin was also charged with encouraging and inducing the entry of two aliens not entitled to admission in the United States and with transporting the aliens within the United States.

Marin was arraigned on March 21, 1979 where she pleaded not guilty and the trial was set for May 1, 1979. The district court severed the conspiracy count from the substantive counts. Marin was tried first on the substantive counts and she was convicted. She was then jointly tried with Arredondo and several coconspirators on the conspiracy charge. Both Marin and Arredondo were found guilty of conspiracy. Arredondo received a four-year sentence. Marin was sentenced to a five years for each of the four substantive counts, with the sentences to run concurrently, and five years for the conspiracy count to run consecutively with the substantive counts.

I. Sufficiency of Evidence.

Arredondo contends that the district court erred in failing to grant her motion for acquittal because the evidence was insufficient to sustain her conviction for conspiracy. This question is governed by our decision in United States v. Malatesta, 590 F.2d 1379 (5th Cir.) (en banc ), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979). In order to convict a defendant of conspiracy, the existence of a conspiracy must be established with substantial evidence showing the presence of an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement by one of the conspirators. United States v. White, 569 F.2d 263 (5th Cir. 1978), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 149 (1979), and with substantial evidence showing that each conspirator knew of, intended to join and participated in the...