U.S. v. Loya

• Decision Date: 13 January 1987
• Docket Number: Nos. 85-3167 and 85-3168,s. 85-3167 and 85-3168
• Citation: 807 F.2d 1483
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose LOYA, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1483

807 F.2d 1483

UNITED STATES of America, Plaintiff-Appellee, v. Jose LOYA, et al., Defendants-Appellants.

Nos. 85-3167 and 85-3168.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 1, 1986.

Decided Jan. 13, 1987.

Jeffery Ring, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

James Annest, Burley, Idaho, Robert A. Wallace, Churchill & Wallace, Weiser, Idaho, for defendants-appellants.

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

Before ALARCON, BOOCHEVER, and REINHARDT, Circuit Judges.

ALARCON, Circuit Judge:

Vicente Celis, Guadalupe Celis, Mansimino Loya, Jose Loya, Sr., and Jose Loya, Jr. appeal from the judgments of conviction entered after a trial by jury. Each appellant was convicted of conspiracy to smuggle, transport, and harbor illegal aliens in violation of 18 U.S.C. Sec. 371 (1982) and 8 U.S.C. Sec. 1324 (1982). Vicente Celis, Guadalupe Celis, Jose Loya, Sr., and Mansimino Loya were also convicted of transporting illegal aliens pursuant to 8 U.S.C. Sec. 1324(a)(2). In addition, Jose Loya, Sr. suffered a conviction of one count of smuggling illegal aliens pursuant to 8 U.S.C. Sec. 1324(a)(1).

We discuss the issues raised by Vicente Celis and Guadalupe Celis in Part I of this opinion. The arguments advanced in support of the appeal by Mansimino Loya, Jose Loya, Sr., and Jose Loya, Jr. are addressed in Part II.

PART I

Vicente Celis and Guadalupe Celis have listed nine "issues presented for review" in their opening brief. The only contentions which they have supported with argument and points and authorities concern the failure of the court to instruct the jury that "they could be found guilty of a violation of 8 U.S.C. Sec. 1325 and 18 U.S.C. Sec. 2 as a lesser included offense of a violation of 8 U.S.C. Sec. 1324(a)(2)" and the sufficiency of the evidence to show their knowledge that the aliens last entry into the United States was illegal and occurred within three years.

A. Included Offense

Vicente Celis and Guadalupe Celis requested that the district court instruct the jury that aiding and abetting ¹ an alien to enter the United States illegally ² is an offense necessarily included in a charge of aiding and abetting the transportation of aliens within the United States pursuant to 18 U.S.C. Sec. 2 (1982) and 8 U.S.C. Sec. 1324(a)(2). ³ We rejected a similar contention in United States v. Pruitt, 719 F.2d 975 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 536, 78 L.Ed.2d 716 (1983). We stated in Pruitt: "[T]he elements of a violation of 8 U.S.C. Sec. 1325 are not contained within the elements of 8 U.S.C. Sec. 1324(a)(2)." 719 F.2d at 978. The district

court did not err in refusing to give the instruction on included offenses.

B. Sufficiency Of The Evidence

Vicente Celis and Guadalupe Celis assert there is insufficient evidence to show that they had knowledge that the aliens last entry was illegal and occurred less than three years prior to the present offense as required by 8 U.S.C. Sec. 1324(a)(2). Appellants concede, however, that "some circumstantial evidence indicated some of the eight aliens, whose transportation was charged in Counts 37 through 44 of the Indictment, entered under conditions that they recently entered the United States." When the sufficiency of the evidence is challenged, we must affirm "if 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1453 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).

Proof that the parties knew they were transporting aliens who had illegally entered the United States within the last three years may be based on circumstantial evidence. United States v. Fierros, 692 F.2d 1291, 1295 (9th Cir.), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983) (citing United States v. Herrera-Medina, 609 F.2d 376, 380 (9th Cir.1979). Indirect proof may also support an inference that the parties knew the passengers were illegal aliens. See Herrera-Medina, 609 F.2d at 380 (future behavior and "the place where crucial events occurred" is sufficient to support an inference of knowledge that the passengers were recently arrived aliens).

The evidence shows that Vicente Celis and Guadalupe Celis transported a number of individuals, including the eight aliens charged in Counts 37-44 of the Indictment, from Arizona to Idaho. The Indictment identified Candido Arteaga-Arteaga, Froilan Tellez-Juarez, Victorino Ruiz-Gil, Gilberto Ceja-Torres, Artemio Leon-Aguilar, Castulo Farfan-Ceja, Francisco Galvan-Hurtado and Joel Galvan-Lira as having been transported in violation of 8 U.S.C. Sec. 1324(a)(2). Four of these individuals, Artemio Leon-Aguilar, Castulo Farfan-Ceja, Francisco Galvan-Hurtado, and Joel Galvan-Lira testified at trial that they were transported by Vicente Celis and Guadalupe Celis. Artemio Leon-Aguilar also testified that Froilan Tellez-Juarez was transported in the same group. Candido Arteaga-Arteaga and Victorino Ruiz-Gil testified that they were transported to Idaho at the same time. Candido Arteaga-Arteaga also testified that Gilberto Ceja-Torres was in the same group.

The evidence shows that Vicente Celis and Guadalupe Celis met these individuals near the United States and Mexican border after nightfall. During the journey to Idaho, the aliens were hidden under cover in the bed of a truck. The evidence of the time and place of these events and the furtive behavior of the passengers is sufficient to support an inference that Vicente Celis and Guadalupe Celis knew that each of these persons was an alien who had entered the United States illegally within the last three years. A rational juror could conclude from the evidence presented that the defendants were guilty as charged.

C. Effect Of Failure To Present Argument In Support Of Contention On Appeal

Vicente Celis and Guadalupe Celis advise us in their opening brief that "[t]his court must review the decision of the District Court ... by deciding whether the trial court abused is [sic] discretion" based on the arguments set forth in the various motions they presented to the trial court. We have no such obligation. Under Rule 28(a)(4) of the Federal Rules of Appellate Procedure, the brief of the appellant must contain "the contentions of the appellant Issues raised in a brief which are not supported by argument are deemed abandoned. IOB v. Los Angeles Brewing Co., 183 F.2d 398, 401 (9th Cir.1950). Nevertheless, we will review an issue not properly presented if a failure to do so would result in manifest injustice. United States v. Anderson, 584 F.2d 849, 853 (6th Cir.1978). Vicente Celis and Guadalupe Celis do not claim that manifest injustice will occur if we decline to review the denial of these pretrial motions. We have examined the questions raised in the district court but not argued here. None of the district court's rulings appear to us to constitute manifest injustice.

with respect to the issues presented, and the reasons therefor...." ⁴

PART II

Jose Loya, Sr., Jose Loya, Jr., and Mansimino Loya seek reversal on the following grounds:

One. The evidence is insufficient to support a rational determination of guilt beyond a reasonable doubt.

a. The evidence is insufficient to connect Jose Loya, Jr. to the conspiracy.

b. The evidence is insufficient to show that Mansimino Loya illegally transported Juventino Paz-Ceja.

c. The evidence is insufficient to show that Jose Loya, Sr. illegally transported any aliens.

Two. The district court abused its discretion in admitting into evidence the statements of a co-conspirator because the existence of a conspiracy was not established by independent evidence.

Three. The district court erred by failing to instruct the jury on the issue of multiple conspiracies.

Four. The district court erred in refusing to instruct the jury concerning the defense of withdrawal from a conspiracy as requested by Mansimino Loya.

Five. The district court erred in instructing the jury, in a case in which an alibi defense has been presented, that it is not necessary for the proof to establish with certainty the exact date of the offense.

Six. The district court abused its discretion in denying the motion for a severance.

We conclude that none of these contentions is meritorious and affirm. We address each contention and the facts pertinent thereto under separate headings.

A. Sufficiency Of The Evidence

Jose Loya, Sr., Jose Loya, Jr., and Mansimino Loya each contend that the evidence is insufficient to support a conviction of any of the charged offenses. The evidence presented by the government establishes that an agreement was entered into between two or more persons to smuggle aliens into the United States and to transport them to Idaho. In March, April, and May of 1985, Mexican aliens were smuggled into the United States and transported to Idaho in furtherance of the conspiracy. In their joint opening brief, Jose Loya, Sr., Jose Loya, Jr., and Mansimino Loya concede that a conspiracy to smuggle and transport aliens is shown by the evidence. They state "there is sufficient evidence of the possibility of multiple conspiracies." ⁵ Their discussion of the sufficiency of the evidence is addressed to specific counts in the Indictment. We will limit our review to the issues argued and briefed. We address these contentions under separate headings.

1. Connection Of Jose Loya, Jr. To The Conspiracy

Jose Loya, Jr. argues that the evidence was insufficient to connect him to the conspiracy. We disagree.

Jose Loya, Jr. relying on United States v. Horton, 646 F.2d 181 (5th Cir. Unit A May), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 388 (19...