U.S. v. Castillo-Felix, CASTILLO-FELI

• Decision Date: 09 July 1976
• Docket Number: CASTILLO-FELI,No. 75-2915,D,75-2915
• Citation: 539 F.2d 9
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bautistaefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 9

539 F.2d 9

UNITED STATES of America, Plaintiff-Appellee, v. Bautista CASTILLO-FELIX, Defendant-Appellant.

No. 75-2915.

United States Court of Appeals Ninth Circuit.

July 9, 1976.

Bill H. Enriquez (argued), Tucson, Ariz., for defendant-appellant.

James E. Mueller, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.

OPINION

Before ELY and HUFSTEDLER, Circuit Judges, and SMITH, ^* District Judge.

RUSSELL E. SMITH, District Judge.

Defendant was indicted in Counts II and IV for counterfeiting alien registration receipt cards (Form 1-151) for Mexican citizens Martin Reynosa-Gomez (Martin) and Juan Reynosa-Gomez (Juan) in violation of 18 U.S.C. § 1426(a), and in Counts III and V for encouraging and inducing the unlawful entry into the United States of the same Mexican citizens in violation of 8 U.S.C. § 1324(a)(4).

The evidence discloses that the defendant met Martin in Nogales, Mexico. Martin delivered to the defendant three passport photographs and $80.00. At a later date defendant, as he had promised, delivered to Martin in Mexico a forged alien registration receipt card which Martin used to enter the United States. The defendant told Martin to go to the Suprema Cafe in Tucson. He did so and found employment. Defendant visited Martin at the cafe and collected the balance of the price of the false card and talked to Martin about Juan's card.

Juan, Martin's brother, met defendant in Nogales, Mexico, delivered some passport photographs, and paid defendant $150.00 ¹ for a false alien registration receipt card which was to be delivered to Juan in Tucson. Defendant showed Juan a hole in the boundary fence through which Juan entered the United States. He, too, acting at defendant's advice, went to the Suprema Cafe, where he was employed. The false card was delivered to Juan in Tucson.

We believe the evidence abundantly sufficient to prove that defendant did encourage Martin and Juan to enter illegally as charged in Counts III and V of the indictment. We also believe that the evidence was more than sufficient to prove that defendant, either as principal or as an aider and abettor, caused the making of the false registration cards.

We have difficulty, however, as to Counts II and IV in determining the locus of the crimes, and as to Counts III and V, we believe, as hereinafter indicated, that the acts constituting the crime took place in Mexico. Problems in jurisdiction and venue appear.

First, as to the counterfeiting counts, we conclude that, as to Counts II and IV, the acts constituting the crime took place either in Arizona or Mexico, but that there is no evidence from which a jury could select one place over the other. ²

As to Counts III and V, we believe that the acts constituting the crime took place in Mexico. ³

The question arises, therefore, whether there was sufficient proof that crimes cognizable under the laws of the United States had been committed. The Supreme Court in United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), said at 98, 43 S.Ct. at 41:

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the government's jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.

In the case of Brulay v. United States, 383 F.2d 345 (9th Cir. 1967), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967), this court applied the rule of Bowman to a conspiracy to smuggle, even though the conspiracy had been formed in Mexico and all the overt acts had taken place in Mexico. The rule announced in Bowman is particularly applicable here. Acts of inducing aliens to enter the United States or of counterfeiting alien registration receipt cards have no purpose unless they are intended to facilitate the unlawful entry of an alien or his continued illegal residence in the United States. The effect of such crimes committed out of the United States takes place in the United States, and, in terms of the regulation of immigration, it is unimportant where acts constituting the crime occur.

Crimes punishable under the laws of the United States were committed, and the venue was properly in Arizona whether under 18 U.S.C. § 3238 or Fed.R.Crim.P. 18.

Counts II and IV of the indictment charge that the offenses were committed in Tucson, and the court charged the jury that it was required to find that the crimes took place in Tucson. The jury made that finding although, in our opinion, it was not justified by the evidence. Normally a judgment will not be reversed where a proper result is reached on the basis of a wrong reason, provided that the defendant suffered no prejudice. United States v. Catena, 500 F.2d 1319 (3d Cir. 1974); Egan v. Teets, 251 F.2d 571 (9th Cir. 1957). Here we cannot say that as a result of what was done the defendant suffered no prejudice.

An attorney viewing the Government's case on Counts II and IV at the close of the evidence, and knowing that the court would instruct the jury that the crimes charged in Counts II and IV had to occur in Arizona, might very well have chosen to rest on the weakness of the Government's proof rather than to risk improving the Government's case by calling witnesses in defense. That choice was made here. Had the case been made upon the theory which we have advanced, an entirely different problem would have been presented. The strength of the Government's case as to the happenings in Mexico might very well have persuaded defendant's counsel that the defendant's sole chance for acquittal lay in the calling of witnesses, including perhaps the defendant, to rebut some parts of the Government's evidence. Perhaps nothing different would have happened, but we are not in a position to say that the defendant did not suffer prejudice. ⁴

Defendant claims that he has twice been placed in jeopardy and that his rights have otherwise been violated because the United States dismissed a former indictment charging the same crimes. The United States did charge these crimes in a previous indictment. Pending trial on the first indictment, the aliens who testified in this case returned to Mexico, and the indictment was then dismissed on motion of the United States because it then appeared that there would be no evidence available to the United States to prove the charges. When the aliens returned, defendant was charged in the indictment underlying this prosecution. The previous case had...