U.S. v. Tapia, 84-3419

• Citation: 761 F.2d 1488
• Decision Date: 30 May 1985
• Docket Number: No. 84-3419,84-3419
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damian TAPIA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1488

761 F.2d 1488

UNITED STATES of America, Plaintiff-Appellee, v. Damian TAPIA, Defendant-Appellant.

No. 84-3419.

United States Court of Appeals Eleventh Circuit.

May 30, 1985.

Bryan C. Hugo, Sarasota, Fla., for defendant-appellant.

Warren A. Zimmerman, Asst. U.S. Atty., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HILL and FAY, Circuit Judges, and HOFFMAN ^*, District Judge.

PER CURIAM:

The defendant, Damian Tapia, and his brother, Ruben Tapia, were brought to trial on a four count indictment charging them with conspiracy to transport illegal aliens in violation of 18 U.S.C. Sec. 371, two substantive counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(2) and 18 U.S.C. Sec. 2, and peonage in violation of 18 U.S.C. Sec. 1581. Both defendants were found guilty of conspiracy and two counts of transporting illegal aliens, and both were acquitted of the peonage charge. Appellant Damian Tapia was sentenced to concurrent terms of two years on each count, and appeals from these judgments of conviction.

The government's case-in-chief consisted primarily of the testimony of two El Salvadoran refugees, Guadalupe Nicolas Ortiz-Vaquerano (hereinafter Ortiz) and Miguel Angel Reyes-Martinez (hereinafter Reyes). These were the two illegal aliens allegedly transported by the defendants, and were the individuals who formed the basis for the two substantive counts of transporting illegal aliens. Both Reyes and Ortiz testified that they had illegally entered the country approximately one month prior to the activities that led to the indictment of the defendants. Both took up residence in a house in Houston. The defendants were also illegal aliens, Damian Tapia having entered the country illegally about eight years prior to the indictment, and Ruben Tapia having illegally entered the country about four years prior to the indictment.

In late October, 1983, Ruben mentioned to Ortiz and others that employment was available in Florida picking tomatoes for Ruben's brother, who was a contractor. Ortiz mentioned to Ruben Tapia that he was in the United States illegally; however, he did not tell Ruben how long he had been in Houston or the United States. Ruben replied that this would be no problem since he knew how to avoid Immigration officials during the trip from Houston. Ruben further told Ortiz that a fee of $300.00 would be charged for the transportation, but that this fee could be paid out of the wages earned by Ortiz working for Ruben's brother, Damian Tapia. This $300.00 fee was over and above a separate charge for gasoline, which Ortiz was unable to pay.

Ortiz testified that Ruben left Houston at night, carrying Ortiz, Reyes and twelve Mexicans, all of whom had lived next door to Ortiz in Houston. During the nighttime ride, Ruben on three occasions alerted his passengers to take cover on the floor of the vehicle to avoid detection by Immigration officials. The van arrived in Alabama the following morning, at which time Ruben introduced Ortiz and his other passengers to the appellant, Damian Tapia. The appellant discussed with Ortiz the prospect of Ortiz picking tomatoes for the appellant in Florida. Ortiz testified that at the end of the day a caravan of five vehicles began a nighttime journey from Alabama to Palmetto, Florida. Ortiz stated that before the departure from Alabama, and in the presence of Damian Tapia and others, it was decided that Ruben Tapia would drive the lead vehicle in order to look for Immigration officials. Damian Tapia drove his family in a yellow bus, while Ortiz and Reyes rode in a separate vehicle within the caravan.

The government's other witness, Reyes, described a similar meeting with Ruben Tapia in Houston during which Ruben promised the opportunity of employment in Florida with his brother who was a contractor. Reyes stated that both he and Ortiz were carrying a single suitcase on the rides from Houston to Florida via Alabama.

Reyes testified about the details of a conversation that occurred before the caravan left Alabama. He stated that Ruben and Damian were grouping particular passengers among the various vehicles. It was decided that the Cubans would ride in the yellow bus driven by Damian Tapia because Immigration officials would leave them alone. The Mexicans and El Salvadorans were directed to another van. In agreeing to go to that van, Reyes confirmed to Damian Tapia that he was an illegal. Upon arriving in Florida, Reyes was informed by the defendants that he would be charged $300.00 for the transportation.

The statute that the appellant was charged under, 8 U.S.C. Sec. 1324(a)(2), makes it a crime for an individual to transport or attempt to transport within the United States an alien, whom the individual knows or has reasonable grounds to believe last entered the United States within three years prior to the transport. Thus, the statute has two components, transporting or attempting to transport an alien, and doing so with actual knowledge or reasonable grounds to believe that such alien has entered the United States within the last three years. ¹ The government argues that the following three facts provided sufficient evidence for a conviction under section 1324(a)(2): (1) the extensive efforts of the defendants to avoid detection by immigration officials while transporting the aliens; (2) the exorbitant $300.00 fee charged to Ortiz for transportation from Houston to Florida; and (3) the fact that both Ortiz and Reyes carried only one suitcase for their journey from Houston to Florida. We agree that the evidence was sufficient as to the transportation component, however, we find that the government failed to make a sufficient showing that defendant either knew or had reasonable grounds to know that Ortiz and Reyes had entered the United States within the last three years. Our holding is based upon a review of the entire record with special scrutiny given to the testimony of the government's two key witnesses, Ortiz and Reyes.

First, there is no question that Ortiz and Reyes were illegal aliens and that Ruben and Damian Tapia were aware of their status as illegal aliens. However, it is not enough that the defendants knew that the aliens were illegally in the country; indeed, the defendants themselves were illegal aliens. The clear requirement under the statute is that the defendants knew or had reason to know that the aliens they were transporting had illegally entered the country within the last three years. 8 U.S.C. Sec. 1324(a)(2). In this regard, our focus is on conversations and activities between the aliens and defendants that could have possibly conveyed to the defendants that the aliens had entered within the last three years. We find no such evidence of any conversations or activities relevant to proving the defendants' knowledge. For instance, though Ortiz told Ruben Tapia in Houston that he was from El Salvador and illegally in the country, he specifically stated at trial that he had never told Ruben Tapia how long he had been in Houston or the United States. Reyes claims to have mentioned his illegality in Alabama when the defendants were segregating the aliens among the different vehicles to go to Florida. He stated that he specifically mentioned to the appellant, Damian Tapia, that he was an illegal alien and should go to the van carrying the Mexicans and Salvadorans. However, there is absolutely no evidence that he ever indicated to Damian the length of time that he had been in the United States.

The other activities engaged in by Ruben and Damian Tapia, such as driving in the caravan late at night to avoid detection by Immigration...