U.S. v. Lopez-Flores

• Decision Date: 08 March 1995
• Docket Number: LOPEZ-FLORES,Nos. 93-50206,93-50208,93-50211 and 93-50216,No. 93-50206,s. 93-50206,93-50206
• Citation: 63 F.3d 1468
• Parties: 95 Cal. Daily Op. Serv. 6319, 95 Daily Journal D.A.R. 10,779 UNITED STATES of America, Plaintiff-Appellee, v. Jose; Jose Eduardo Hernandez; Jose Perez-Garcia; and Jaime Ortiz-Mejia, Defendants-Appellants. . was
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1468

63 F.3d 1468

95 Cal. Daily Op. Serv. 6319, 95 Daily Journal

D.A.R. 10,779

UNITED STATES of America, Plaintiff-Appellee, v. Jose LOPEZ-FLORES; Jose Eduardo Hernandez; Jose Perez-Garcia; and Jaime Ortiz-Mejia, Defendants-Appellants.

Nos. 93-50206, 93-50208, 93-50211 and 93-50216.

United States Court of Appeals Ninth Circuit.

No. 93-50206 was Submitted on the Briefs on March 8, 1995

^*

.

Nos. 93-50208/50211/50216 were Argued and Submitted on March

8, 1995.

Decided Aug. 10, 1995.

David B. Shea, Ventura, CA, for defendant-appellant Lopez-Flores.

Joseph T. Vodnoy, Los Angeles, CA, for defendant-appellant Hernandez.

Errol H. Stambler, Los Angeles, CA, for defendant-appellant Perez-Garcia.

Victor B. Kenton, Santa Monica, CA, for defendant-appellant Ortiz-Mejia.

Samantha M. Phillips and Margo Thole, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: SCHROEDER and KLEINFELD, Circuit Judges, and KING, ^** District Judge.

SCHROEDER, Circuit Judge:

Defendants Jose Lopez-Flores, Jose Eduardo Hernandez, Jose Perez-Garcia and Jaime Ortiz-Mejia appeal their convictions after jury trial for hostage taking, in violation of 18 U.S.C. Sec. 1203(a), and use of a firearm in a crime of violence, in violation of 18 U.S.C. Sec. 924(c). The appellants held captive an alien who had been smuggled illegally into the United States. They demanded an amount of money for his release that was substantially higher than the smuggling fee the alien had agreed to pay.

Appellants raise two principal issues on appeal. First, they argue that the Hostage Taking Act, 18 U.S.C. Sec. 1203, which criminalizes, inter alia, conduct that involves either a non-national perpetrator or non-national victim, violates the Equal Protection Clause by impermissibly classifying offenders and victims on the basis of alienage. Second, appellants argue that the Hostage Taking Act is inapplicable to a case involving alien smuggling.

The challenge to the constitutionality of the statute on equal protection grounds raises an issue of first impression in the federal courts. We conclude that the statute is constitutional as an exercise of Congress' plenary powers over aliens and foreign relations. The question of the applicability of the Hostage Taking Act to the type of conduct at issue in this case has previously been addressed by the Fifth Circuit in United States v. Carrion-Caliz, 944 F.2d 220 (5th Cir.1991), cert. denied, 503 U.S. 965, 112 S.Ct. 1573, 118 L.Ed.2d 217 (1992), and we follow its holding that the Act may be applied to alien smuggling conduct.

Several appellants additionally challenge the Act as void for vagueness, and each of the appellants challenges the sufficiency of the evidence. We affirm the convictions.

I. BACKGROUND

In early June of 1992, an agent of the appellants and Amilcar Santos, a Mexican citizen, agreed Santos would be smuggled illegally into the United States at Tijuana in exchange for Santos' promised payment of approximately $250. Santos understood that the smugglers, known as "coyotes," would take him to his wife's residence in the United States, where she would pay the fee upon his delivery. After crossing the border, however, the coyotes reneged on several terms of the agreement. Instead of taking Santos to his wife's residence, the smugglers took him to a "drop house" in Los Angeles, California, where he was locked in a room with approximately 20 other smuggled persons. Additionally, the coyotes increased the smuggling fee from $250 to approximately $400.

Appellants were Santos' captors and guards. They fed him once a day and permitted him to leave the room only to use the bathroom. While Santos was detained at the drop house, he was subjected to beatings and threats at gunpoint. Appellant Perez-Garcia told Santos that he had attempted to contact Santos' wife. Santos was also told that he would not be released until his wife or friends paid the increased smuggling fee.

On June 5, 1992, approximately four days after his arrival, Santos escaped from the drop house by breaking and jumping through a kitchen window. Appellants Perez-Garcia, Lopez-Flores, and Ortiz-Mejia attempted to prevent Santos from escaping after Santos broke the window. Perez-Garcia grabbed and bit Santos' leg. Lopez-Flores held a loaded gun to Santos' head and told him to get back in the house. Santos grabbed the gun with both hands, and the gun fired, missing Santos. Santos managed to wrestle the gun away from Lopez-Flores and escaped from the drop house by falling out the window. After Santos' escape, Perez-Garcia and Lopez-Flores followed Santos by car and tried to coax him back to the house and to give up the gun. A bus driver picked up the bleeding Santos and drove him to a policeman. Later that day, Santos led the police to the drop house where Perez-Garcia and Ortiz-Mejia were arrested. Lopez-Flores and Hernandez were arrested several months later, on August 6, 1992.

On August 21, 1992, the first superseding indictment was filed against the four appellants. It charged all four with conspiring to transport, harbor, and detain illegal aliens in violation of 18 U.S.C. Sec. 371 (Count 1); seizing and detaining illegal aliens in order to compel the payment of ransom in violation of 18 U.S.C. Sec. 1203(a) (Counts 2 and 4); using a firearm during and in relation to a crime of violence (hostage taking) in violation of 18 U.S.C. Sec. 924(c) & (d) (Count 3); and harboring illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(C) (Count 6). Perez-Garcia additionally was charged with transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B) (Count 5). In September of 1992, the defendants filed motions to dismiss Counts 2 and 4 which charged them with hostage taking in violation of 18 U.S.C. Sec. 1203(a). On October 20, 1992, the district court denied the motions to dismiss.

Jury trial commenced mid-November, 1992. On December 2, 1992, the defendants moved for a judgment of acquittal on Counts 2 and 4, the hostage taking counts, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court denied the motion. On December 10, 1992, the jury found all four defendants guilty of conspiracy, ¹ hostage taking, use of a firearm in a crime of violence, and illegal harboring, as charged in Counts 1, 2, 3 and 6 of the first superseding indictment. Perez-Garcia additionally was found guilty of illegal transportation as charged in Count 5 of the first superseding indictment. The jury found all four defendants not guilty of Count 4 of the indictment, which alleged a hostage taking of an illegal alien other than Santos.

Perez-Garcia and Ortiz-Mejia were each sentenced to 84 months in custody; Lopez-Flores and Hernandez received 111 and 130 months imprisonment, respectively. Each defendant's sentence reflects a mandatory 60 month sentence for the firearm conviction, 18 U.S.C. Sec. 924(c)(1), to be served consecutive to the concurrent sentences on the other counts of conviction. All four defendants filed timely notices of appeal from their judgments of conviction. They challenge only their hostage taking convictions and the firearms convictions, which the hostage taking convictions support.

II. EQUAL PROTECTION CHALLENGE

The Hostage Taking Act, 18 U.S.C. Sec. 1203, provides in relevant part:

(a) [W]hoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or governmental organization to do or abstain from any act ... shall be punished by imprisonment by any term of years or for life.

....

(b)(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. Sec. 1203 (emphasis added).

Section 1203 classifies offenders on the basis of the offender's and the victim's nationality. If either the alleged offender or the victim is a non-national, the Hostage Taking Act applies; however, if both the alleged offender and the victim(s) are nationals of the United States (and the offense occurred in the United States and each alleged offender is found in the United States) then the Act is inapplicable, unless the alleged offender sought to compel the government of the United States to do or abstain from any act. 18 U.S.C. Sec. 1203(a) & (b)(2). Appellants claim that the Hostage Taking Act, on its face, violates the Equal Protection Clause because, as modified by subsection (b)(2), it arbitrarily classifies offenders and victims on the basis of alienage.

The government argues as a threshold contention that the appellants lack standing to bring an equal protection challenge to the statute because, since the hostages were non-nationals, the appellants' alleged conduct would have violated the statute even if the appellants had been U.S. nationals. That the statute classifies victims on the basis of alienage is of no consequence, the government further contends, because the appellants cannot assert the equal protection rights of third-party victims. Appellants do not seek to assert the third-party rights of the hostage victims, nor do they challenge the Hostage Taking Act as it was applied to them; rather, their challenge is facial. They argue that the Act works an improper government classification that makes alienage a necessary element of almost every case prosecuted under the Act. Standing to bring a materially similar equal protection challenge was approved by the Supreme Court in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). In McCleskey, a black defendant sentenced to death as a...