United States v. Rodriguez-Hernandez, 73-2750.

• Decision Date: 15 May 1974
• Docket Number: No. 73-2750.,73-2750.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose RODRIGUEZ-HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 168 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Jose RODRIGUEZ-HERNANDEZ, Defendant-Appellant.

No. 73-2750.

United States Court of Appeals, Fifth Circuit.

April 24, 1974.

Rehearing Denied May 15, 1974.

Robert L. Stone, Pensacola, Fla. (Court-appointed), for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Nick P. Geeker, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.

Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.

PER CURIAM:

Defendant appeals from his conviction for transporting unlawfully admitted aliens within the United States in violation of 8 U.S.C. § 1324(a) (2). He seeks reversal on three grounds: (1) that all information gained as a result of his initial stop by border patrol agents ought to have been suppressed; (2) that the evidence was insufficient to support a conviction; and (3) that the trial court erred in permitting cross examination of the accused concerning a prior felony conviction. We affirm.

Defendant, while driving a camper truck east on Interstate Highway 10 just outside Pensacola, Florida, was stopped by immigration officers on roving patrol. After halting the vehicle the agents, without need for a search, observed a number of men, apparently of Mexican descent, bedded down in the cabin. Defendant explained that the men were hitchhikers picked up on a highway in Mississippi. His twelve passengers admitted to the officers that they were aliens illegally in the United States. Defendant contends that no testimony concerning this highway encounter should have been permitted at trial because the initial stop violated his constitutional guarantee of freedom from unreasonable seizure.

The border patrol agents acted pursuant to the authority conferred by 8 U.S. C. § 1357(a), which provides in part that "any officer or employee of the Immigration Service authorized under regulations prescribed by the Attorney General shall have power without warrant . . . (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any . . . vehicle . . . ." The term "reasonable distance" has been defined by regulation as within 100 air miles of any external boundary of the United States¹. In this case the stop occurred some 10 miles from an external boundary, the coastline of the Gulf of Mexico.

Defendant's argument for the constitutional invalidity of this official action authorized by federal statute and regulation derives from the recent decision of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. In that case the Supreme Court held that, notwithstanding the attempted congressional dispensation in Section 1357, searches and seizures by border officials are subject to the same Fourth Amendment restrictions as any other police action, unless they are conducted at the physical border or its functional equivalent.

Were we to apply the teaching of Almeida-Sanchez to the facts of this case, serious doubt would exist as to whether the contested stop, made on less than probable cause and in the absence of even the "reasonable suspicion" recognized in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, could survive. This Court has recently determined, however, that the constitutional enlightenment provided by Almeida-Sanchez should not be applied to the analysis of official action occurring prior to the date of that opinion. United States v. Miller, 1974, 492 F.2d 37. The stop involved here occurred some two months before the decision in Almeida-Sanchez was issued; and under the Fourth Amendment precepts announced in Miller for pre-Almeida-Sanchez cases, no constitutional infirmity exists in this stop for identification of defendant's truck within the geographic boundaries established by regulation and on a highway known by immigration officials as a primary route for the smuggling of aliens into Florida for work during the picking season.²

Defendant's argument of insufficient evidence rests largely on the fact that the testimony of a key Government witness was impeached by the introduction of his prior inconsistent statements. While proof of previous contradictory assertions would weaken the effectiveness of any witness, this Court cannot substitute its own assessment of the truthfulness of the witness for the final determination reached by the jury.

"It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it."

Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680.

The trial court charged the jury that in order to obtain a conviction for violation of 8 U.S.C. § 1324(a) (2) the Government must prove beyond a reasonable doubt that:

". . . the defendant transported or moved the aliens described in the information, or any one of them, within the United States; that the aliens, or any one of them so transported or moved, had not been duly admitted to the United States by an immigration officer or was not lawfully entitled to enter within the United States; and that such was known

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