U.S. v. Robles-Vertiz
| Decision Date | 16 September 1998 |
| Docket Number | ROBLES-VERTI,No. 97-50937,D,97-50937 |
| Citation | 155 F.3d 725 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Luisefendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr. U.S. Atty., Ellen A. Lockwood, San Antonio, TX, for Plaintiff-Appellee.
Henry Joseph Bemporad, Adrienne Urrutia Zuflacht, Asst. Fed. Pub. Defender, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before KING, SMITH and PARKER, Circuit Judges.
Jose Robles-Vertiz challenges his conviction of illegal transportation of aliens and for aiding and abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. We affirm.
Efrain Trejo-Mendieta sought to smuggle his wife and her friend into the United States from Mexico. He approached Robles-Vertiz for help in this venture and secured his agreement. The two men traveled to Mexico and hired a guide with expertise in border crossings. Trejo, his wife, her friend, and the guide waded across the Rio Grande River to Texas, where they were met by Robles-Vertiz. The wife's friend, an illegal alien named Anna Guerrero, accepted a ride in Robles-Vertiz's car. Trejo drove his wife in a separate car.
Robles-Vertiz and Trejo were pulled over and arrested by Border Patrol agents near Bracketville. Robles-Vertiz directed Guerrero to identify herself to investigators as "Monica Martinez-Salazar," which she did. As Guerrero had no identifying documents on her at the time of arrest, the initial criminal complaint against Robles-Vertiz named the smuggled alien as Monica Martinez-Salazar. The single-count indictment, however, charged the following:
That on or about November 28, 1996, in the Western District of Texas, Defendants, JOSE LUIS Robles-Vertiz-VERTIZ, AND EFRAIN TREJO-MENDIETA, aided and abetted by each other, did knowingly and in reckless disregard of the fact that the hereinafter named alien entered and remained in the United States in violation of law, willfully and unlawfully transported and moved, and attempted to transport and move, in furtherance of such violation of law, a certain alien, to-wit: MONICA RAMIREZ-SANCHEZ, in violation of Title 8, United States Code, Section 1324(a)(1)(A)(ii), and Title 18, United States Code, Section 2.
Trejo pleaded guilty and testified against Robles-Vertiz. No evidence was introduced concerning anyone named "Monica Ramirez-Sanchez"; the evidence showed that Robles-Vertiz had transported an alien named Anna Guerrero, also known as Monica Martinez-Salazar.
Robles-Vertiz points out that the indictment charged him with transporting an alien named Monica Ramirez-Sanchez, whereas the evidence at trial showed he had transported a woman named Anna Guerrero, also known as Monica Martinez-Salazar. He asserts that this discrepancy amounts to a constructive amendment of the indictment.
Only the grand jury can broaden an indictment through amendment. United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir.1997). A constructive amendment occurs when the government changes its theory during trial so as to urge the jury to convict on a basis broader than that charged in the indictment, or when the government is allowed to prove "an essential element of the crime on an alternative basis permitted by the statute but not charged in the indictment." Id. (quoting United States v. Slovacek, 867 F.2d 842, 847 (5th Cir.1989)). In United States v. Young, 730 F.2d 221, 223 (5th Cir.1984), we explained that "[t]he accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged."
If, however, the indictment "contained an accurate description of the crime, and that crime was prosecuted at trial, there is no constructive amendment." United States v. Mikolajczyk, 137 F.3d 237, 244 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 250, --- L.Ed.2d ---- (1998) No. 98-5534), cert. denied, --- U.S. ----, 119 S.Ct. 250, --- L.Ed.2d ---- (1998) (No. 98-5559), and cert. denied, --- U.S. ----, 119 S.Ct. 250, --- L.Ed.2d ---- (1998) (No. 98-5560). We still must determine whether the variance, if any, was harmless. See United States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir.1994). In this inquiry, "our concern is that the indictment notifies a defendant adequately to permit him to prepare his defense, and does not leave the defendant vulnerable to a later prosecution because of failure to define the offense with particularity." Id. (internal quotation omitted).
In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Court found a constructive amendment when the indictment alleged that the defendant had unlawfully interfered with the importation of sand, but the court instructed the jury that it could base a conviction on interference with the exportation of steel. The Court explained that "when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened." Id. at 218, 80 S.Ct. 270. In deciding that this modification constituted a constructive amendment, the Court reasoned that the grand jury did not indict the defendant for the conduct that may have formed the basis for his conviction; it refused to permit him to be "convicted on a charge the grand jury never made against him." Id. at 219, 80 S.Ct. 270.
We have found constructive amendments in cases where the government alleges one theory of the case in the indictment, but argues another at trial. For example, in United States v. Salinas, 654 F.2d 319 (5th Cir.1981), overruled on other grounds by United States v. Adamson, 700 F.2d 953 (5th Cir.1983) (en banc), we held that an indictment was constructively amended when it alleged that the defendant had aided and abetted theft by a certain named bank officer, but the evidence showed that he aided and abetted theft by a different bank officer--a person not named in the indictment. We explained that
the mistake in the particular name of the officer involved is not like a variance in a date or place. The appellant was not formally charged with theft. The indictment said in effect that [the named officer] stole and that the appellant helped. Once it is shown that the named principal did not steal, it begins to look like the appellant was convicted of a crime different from that of which he was accused.
Id. at 324-25 (emphasis in original).
Similarly, in United States v. Adams, 778 F.2d 1117 (5th Cir.1985), we found a constructive amendment when the indictment charged the defendant with purchasing a handgun by using a driver's license with a false name, but the jury was permitted to convict on the basis of using a driver's license with a false residence. Salinas and Adams illustrate that the government may not obtain an indictment alleging certain material elements or facts of the crime, then seek a conviction on the basis of a different set of elements or facts.
The question is whether the alien's name was an "essential element" of Robles- Vertiz's offense. Robles-Vertiz says it was: He likens this case to Salinas, arguing that he too was convicted of a crime (transporting Anna Guerrero) different from that of which he was accused (transporting Monica Ramirez-Sanchez). He also claims that because the government must prove the smugglee's alien status under 8 U.S.C. § 1324(a)(1)(A)(ii), it follows that the amendment modified an essential element of the charged offense.
The government counters by arguing that the alien's name was surplusage: Because the indictment could have charged Robles-Vertiz with transporting an unnamed alien, the alien's name could not possibly be an essential element of the offense. 1
We agree that the indictment was not constructively amended. While this case is similar to Salinas in that both indictments misnamed a key party, here the error was merely one of transcription. Indeed, there is a common first name, and the surnames evince a certain phonetic congruity. The government was not, as in Salinas, arguing a theory different from what it had alleged in the indictment. The change in names did not reflect a change in the alleged conduct.
The error in the indictment was analogous to a spelling error: The government intended to name Anna Guerrero, also known as Monica Martinez-Salazar, but through a mistake that could have caused Robles-Vertiz no confusion, nor prejudiced him in any way, the government erroneously entered her name as Monica Ramirez-Sanchez. 2
Were "Monica Ramirez-Sanchez" a person involved in Robles-Vertiz's smuggling scheme, this would be a different case. That is because the indictment would have been broadened--the prosecution could have secured a conviction by proving the smuggling of either woman. In that circumstance, the government would be prosecuting a theory that it had not presented to the grand jury.
The key inquiry is whether the defendant was convicted of the same conduct for which he was indicted. See, e.g., Salinas, 654 F.2d at 324-25. This test is met here. There is no suggestion that the government's mistake resulted from anything but cacography or carelessness in transcription. Nor is there indication that the discrepancy enabled the government to obtain an indictment for conduct different from what it proved.
The error constituted nothing more than a harmless, immaterial variance that did nothing to prejudice Robles-Vertiz's substantial rights. As we explained in Robinson, 974 F.2d at 578, a variance is material when it prejudices substantial rights, either by surprising the defendant at trial or by exposing him to...
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