United States v. Salinas-Calderon

• Decision Date: 25 May 1984
• Docket Number: No. 82-10080-01.,82-10080-01.
• Citation: 585 F. Supp. 599
• Parties: UNITED STATES of America, Plaintiff, v. Domingo SALINAS-CALDERON, Defendant.
• Court: U.S. District Court — District of Kansas

585 F. Supp. 599

UNITED STATES of America, Plaintiff, v. Domingo SALINAS-CALDERON, Defendant.

No. 82-10080-01.

United States District Court, D. Kansas.

May 25, 1984.

Jack Williams, Asst. U.S. Atty., Wichita, Kan., for plaintiff.

Antonio Ortega, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

KELLY, District Judge.

This is a trial to the Court in which the defendant, Domingo Salinas-Calderon, is charged with the unlawful transportation of six illegal aliens from Manzanola, Colorado en route to Ruskin, Florida, in violation of 8 U.S.C. § 1324(a)(2). At the close of the government's case in chief, the Court sustained the defendant's motion for judgment of acquittal on the ground that the government failed to prove beyond a reasonable doubt that the defendant's act of transporting the aliens was a willful act in furtherance of their illegal presence in the United States. Consistent with the findings made by the Court at the trial on May 16, 1984, the Court makes the following factual findings and legal conclusions.

The defendant is a Mexican nationale who last entered the United States on May 16, 1978. The defendant was not lawfully admitted to the United States and was not lawfully present here. In 1980, the defendant married a United States citizen, and he has one daughter by that marriage. Since the defendant's arrest, he has applied for United States citizenship based on his marriage to a United States citizen.

In June of 1982, the defendant was working in the onion fields near Manzanola, Colorado. Around that time he met the six Mexican nationales who he was transporting at the time of his arrest. At the end of September 1982, farm work was becoming scarce around Manzanola. Each of the undocumented workers involved in this case intended to move on to Florida to work in the berry fields. The defendant planned to drive to Florida with his family in their pickup. The defendant agreed to give his six compatriots a ride to Florida. The undocumented aliens agreed to "chip in" for gas and food. The defendant did not receive any pay or consideration for driving them to Florida.

On October 31, 1982, the defendant and his passengers were en route to Florida when they were stopped by a Kansas Highway Patrol Trooper near Howell, Kansas. The defendant was driving a pickup owned by him and his wife. His wife and daughter were riding in the front seat, and the six passengers were in the back camper portion of the pickup. There was no attempt to conceal the passengers. The defendant and passengers cooperated fully and displayed no evasive behavior when they were stopped by the trooper. The Court of Appeals for the Tenth Circuit ruled that the stop was based on probable cause and that the statements of the defendant and the aliens were not in violation of their Fifth Amendment rights. United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir.1984).

The elements of the offense of unlawfully transporting illegal aliens under 8 U.S.C. § 1324(a)(2)¹ are: (1) the defendant transported an alien within the United States; (2) the alien was not lawfully admitted or was not lawfully entitled to enter the United States; (3) the defendant knew that the alien was not lawfully admitted or was not lawfully entitled to enter; (4) the defendant knew or had reasonable grounds to believe that the alien's last entry was within three years; and (5) the defendant acted willfully in furtherance of the alien's violation of the law. United States v. Shaddix, 693 F.2d 1135, 1138 (5th Cir. 1982); United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1976).

The Court finds that the government met its burden on the first four elements of the offense. The question before the Court in this case is whether the defendant's act of transporting the six illegal aliens from Manzanola, Colorado en route to Florida was a willful act in furtherance of the alien's violation of the law, that is, the alien's illegal presence in the United States.

The language of the statute makes clear that mere transportation of an illegal alien is not sufficient to support a violation under the statute. The act must be "in furtherance of such violation of law." United States v. Moreno, 561 F.2d 1321, 1322 (9th Cir.1977).

The Ninth Circuit established the standard for determining when the act of transporting is in furtherance of the alien's violation. "There must be a direct or substantial relationship between that transportation and its furtherance of the alien's presence in the United States." United States v. Moreno, 561 F.2d 1321, 1323 (9th Cir.1977). If a defendant's act of transporting an illegal alien is only "incidentally connected" to the furtherance of the violation of law, then it is too attenuated to come within the prohibition of Section 1324(a)(2). Id. at 1322. In Moreno, a foreman who drove undocumented aliens to job sites in the regular course of the foreman's employment was charged with violating Section 1324(a)(2). The Ninth Circuit reversed the trial court's conviction of the foreman under the Moreno test. The Court found that the foreman's act of transporting the aliens was only incidentally connected to their illegal presence and was too attenuated to come within the proscription of Section 1324(a)(2). Id.

The Tenth Circuit Court of Appeals referred to the furtherance element of the transportation violation in United States v. Perez-Gomez, 638 F.2d 215 (10th Cir.1981). The Tenth Circuit cited United States v. Moreno, supra, apparently endorsing the standard set forth by the Ninth Circuit. Id. at 219. The Court in Perez-Gomez affirmed the district court's conviction of the defendant. The facts of Perez-Gomez establish that the defendant was apprehended in Hays, Kansas, while transporting 19 non-English-speaking Mexican nationales from Los Angeles, California to Chicago, Illinois. The Mexicans had entered the country within days of their departure from Los Angeles; they withstood the 28-hour journey without permission to leave the van or...