U.S. v. Pierre, 81-5800

• Decision Date: 04 October 1982
• Docket Number: No. 81-5800,81-5800
• Citation: 688 F.2d 724
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jean PIERRE, Willie Auguste, Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 724

688 F.2d 724

UNITED STATES of America, Plaintiff-Appellee, v. Jean PIERRE, Willie Auguste, Defendants-Appellants.

No. 81-5800

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Oct. 4, 1982.

Federico A. Moreno, Moreno & Smith, P. A., Miami, Fla. (Court-appointed), for defendants-appellants.

Thomas G. Sherman (Court-appointed), Coral Gables, Fla., for Willie Auguste.

David Hammer, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, FAY and CLARK, Circuit Judges.

GODBOLD, Chief Judge:

Appellants were convicted for smuggling illegal aliens into the United States, 8 U.S.C. § 1324(a)(1) and 18 U.S.C. § 2. We affirm.

Motions for judgment of acquittal on the ground of insufficiency of the evidence were properly denied. Viewing the evidence in the light most favorable to the government, drawing all reasonable inferences therefrom, and making the credibility choices that support the jury's verdict, a reasonable jury could have found each appellant guilty beyond reasonable doubt. U. S. v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (Unit B en banc), which is binding on the Eleventh Circuit. See Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. Bell, supra. Pierre helped the passengers get on the boat in Bimini, and he and Auguste arranged the passengers after they boarded. In route to Miami each appellant operated the boat, taking turns at the wheel. When another boat approached, Pierre instructed the passengers to lie down in the boat, Auguste told everybody to lower their heads, and Pierre told persons on the other boat that he was fishing. When defendants landed on the Florida shore Auguste told one passenger to get off and run, and told another not to tell anyone who brought her to the United States if she were caught. Witnesses testified that they lacked proper documentation to enter the United States legally and stated that neither Auguste nor Pierre asked to see any documentation. Before trial one of the witnesses identified Auguste and Pierre as the two people who brought her to the United States, and three witnesses made the same identification at trial.

Requested instruction number 12 embodied a purported theory of defense. Terming a proposed jury instruction as a "theory of defense" does not automatically require that it be given. U. S. v. Goss, 650 F.2d 1336, 1344 (5th Cir. 1981). The first part of requested instruction number 12 was included in the jury charge. The remainder of number 12 was either not supported by the testimony or substantively covered in the instructions given, though not in the same precise language.

In requested instruction number 13 appellant sought to define "entry" as used in 8 U.S.C. § 1324(a)(1) so as not to include an alien's illegal entry followed by a grant of parole. As used in § 1324(a)(1), "entry" is defined in 8 U.S.C. § 1101(a)(13) as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession ...." Under 8 U.S.C. § 1182(d)(5), parole of an alien "shall not be regarded as an admission of the alien ...." In an almost identical case the former Fifth Circuit has held...