U.S. v. Lopez

• Decision Date: 07 May 2007
• Docket Number: No. 05-50415.,05-50415.
• Citation: 484 F.3d 1186
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angelica LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

484 F.3d 1186

UNITED STATES of America, Plaintiff-Appellee, v. Angelica LOPEZ, Defendant-Appellant.

No. 05-50415.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc December 12, 2006.

Filed May 7, 2007.

Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Jason A. Forge and Christopher P. Tenorio, Assistant United States Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-04-01648-BTM.

Before MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, ALEX KOZINSKI, HAWKINS, SIDNEY R. THOMAS, SUSAN P. GRABER, RONALD M. GOULD, MARSHA S. BERZON, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and M. SMITH, Jr., Circuit Judges.

REINHARDT, Circuit Judge.

I

The issue before us is whether a driver who transports a group of illegal aliens from a drop-off point in the United States to another destination in this country commits only the offense of transporting aliens "within" the United States or whether that individual is also guilty of the additional offense of aiding and abetting the crime of "bringing" the aliens "to" the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(2) (2000);¹ 18 U.S.C. § 2 (2000). In this case, the answer depends on the point at which the crime of "bringing to" terminates. We hold that although all of the elements of the "bringing to" offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them — in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border. At that point the offense ends, regardless of the judicial district in which the termination occurs. Because, here, the defendant transported undocumented aliens only within the United States and did so only after the initial transporter had dropped the aliens off inside the country, and because there is insufficient evidence to establish that the defendant otherwise aided and abetted the initial transportation, we reverse the convictions on the "bringing to" offense. § 1324(a)(2); 18 U.S.C. § 2.

No question is raised by the defendant regarding the applicability of the "transports within the United States" statute to her act of transporting undocumented aliens from one location within the United States to another. Because we took this case en banc without a three-judge panel decision in order to bring consistency to our circuit law with respect to the scope and meaning of the pertinent provisions of § 1324,² we do not consider the questions the defendant raises relating to the admissibility of certain depositions and statements, but refer those issues to the three-judge panel.³ Should the panel reject the defendant's arguments on those points, it should affirm the "transports within" convictions. In any event, we here reverse the convictions on the "bringing to" counts.

II

At approximately 6:00 p.m. on June 1, 2004, United States Border Patrol agents stopped a vehicle on Interstate 8 in eastern San Diego County, California, that contained a driver, Angelica Lopez, and 12 passengers. After questioning the passengers, the agents arrested Lopez and brought her, along with the others, to a Border Patrol station roughly 10 miles away. Lopez was later indicted on three counts of bringing an undocumented alien to the United States for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and abetting, in violation of 18 U.S.C. § 2, as well as three counts of transporting an undocumented alien within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II). The details of the June 1 incident were disputed at Lopez's four-day jury trial. However, for purposes of this opinion, because she was convicted on all counts, we accept the government's version of the facts as correct.

Border Patrol Agent Eric Huber testified that, on June 1, he and his partner observed Lopez's vehicle, a white Ford Expedition, enter the freeway from Buckman Springs Road. According to Huber, the Expedition bounced in a distinctive fashion that suggested that it might be carrying an unusually heavy load. The agents pulled their patrol van alongside Lopez's vehicle and Huber peered inside. He observed what he believed to be several persons lying on the floor in the back of the SUV. Huber testified that at that point Lopez slowed her vehicle drastically. The agents ran its license plates and determined that it was registered to "Angelica Lopez." The agents then activated their emergency lights and effected the stop.

Huber testified at length about statements Lopez allegedly made to him at the Border Patrol station. According to Huber, Lopez told him that earlier that day she had spoken by telephone with an individual named "Jose," and had made arrangements with him to pick up the persons later found in the Expedition. Lopez also gave Huber a vague physical description of Jose. Jose had instructed Lopez, Huber testified, to drive to the area where the agents first observed her, where she would find a sweater in the road; the sweater would mark the meeting place where Lopez would meet her passengers. She was then to transport them to a gas station in El Centro, where she would be paid $500. Huber testified that Lopez told him that she believed that her passengers were in the country illegally, and that he verified that none of the passengers was in fact legally present in the United States.

After Huber, the government called as material witnesses two of the passengers named in Lopez's indictment, Olga Barrios-De Leon and her husband, Miguel Angel Osorio-Hernandez. Barrios testified that she is a Guatemalan citizen who did not have documentation permitting her to enter the United States. She explained that she and Osorio traveled to Tijuana, Mexico, where they made arrangements to be taken to Los Angeles for $1,500 each. The couple took a bus to Tecate, Mexico, from which point a guide walked them, along with 18 other persons, through the hills and into the United States, a journey that lasted two days and nights. The guide left the group in the hills with instructions to wait until someone came to pick them up. A vehicle came shortly thereafter, but it was stopped by immigration officials, who also seized eight individuals from Barrios and Osorio's group. The remaining 12, including the couple, stayed hidden in the hills. Around this time, Barrios began to menstruate and blood became visible on the outside of her pants. The following day the entire group, concerned for Barrios's health, moved from the hills to the road to seek assistance. According to Barrios, all 12 individuals were visible from the road at this point. About an hour after they moved to the roadside — and a total of one night and one day after the guide had left them in the hills — Barrios and the 11 others were picked up by Lopez. Osorio, who took the stand after Barrios, gave testimony consistent with his wife's. He added that Lopez had told the passengers "to tell the truth if she was stopped, or if she was apprehended," and that she had told them all "to duck."

The third material witness named in the indictment, Miguel Lopez-Villagres, was not present at Lopez's trial. Over Lopez's objection, the trial judge permitted the government to offer his deposition testimony. That testimony stated that Lopez-Villagres is a Guatemalan citizen without documentation to enter the United States. His account of the events surrounding the June 1 incident was consistent with Barrios and Osorio's and included similar details. According to Lopez-Villagres, when the individuals climbed into Lopez's vehicle, she told them, "Just get in there and make yourselves comfortable so that all of you can fit in." Some time later she added, "Don't blame me if we're stopped."

The district court denied Lopez's motion for acquittal at the close of the government's case. Lopez then took the stand on her own behalf. She testified that she lived in Pomona with her parents and three children and paid no rent. At the time of trial, she said, she had two jobs — one as a floral designer and one as a teacher at a fabric store. Lopez explained how she acquired the Expedition she was driving on June 1. She testified that some time earlier she saw the vehicle sporting a "for sale" sign in a restaurant parking lot and that she called the owner from a public phone. When she followed up on May 28, the owner informed her that the car had been moved to an impound lot in San Diego County. Lopez tendered payment and she and the owner registered the vehicle in her name that day.

On June 1, according to Lopez, a friend gave her a ride to the impound lot, two and a half hours from Pomona, to retrieve the car. The vehicle had no fuel, so Lopez stopped at a gas station before heading back toward the freeway. She became lost, however, as she had on her way to the impound lot as well. Lopez mistakenly entered the eastbound side of the highway. There, she saw two men on the side of road, waving "like they looked desperate, like they needed help." As she drove closer, she saw a woman with blood on her pants. Lopez testified that she had offered roadside assistance to strangers in the past, and that she stopped to do so on June 1. She said that the bleeding woman's husband told her that his wife needed help because she was "hemorrhaging." Lopez volunteered to take the husband and wife "to the nearest place so they can get help for her"; when the couple got into Lopez's car, however, the other 10 individuals from the group followed. Lopez testified that she was not concerned...