US v. Bienvenido de-la-Rosa Basilio, Crim. No. 87-0737CC.

• Decision Date: 11 March 1988
• Docket Number: Crim. No. 87-0737CC.
• Parties: UNITED STATES of America, Plaintiff, v. Hector BIENVENIDO de-la-ROSA BASILIO and Maritza de-la-Cruz-Marquez, Defendants.
• Court: U.S. District Court — District of Puerto Rico

682 F. Supp. 13

UNITED STATES of America, Plaintiff, v. Hector BIENVENIDO de-la-ROSA BASILIO and Maritza de-la-Cruz-Marquez, Defendants.

Crim. No. 87-0737CC.

United States District Court, D. Puerto Rico.

March 11, 1988.

Daniel F. Lopez-Roma, U.S. Atty., José A. Quiles, Asst. U.S. Atty., Chief, Crim. Div., and Carlos A. Perez, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff.

Raymond Rivera-Esteves, Lomas Verdes, Bayamón, P.R., for de-la-Rosa-Basilio.

Ramonita Dieppa-González, Caguas, P.R., for de-la-Cruz-Marquez.

OPINION AND ORDER

CEREZO, District Judge.

The Court has before it motions for judgment of acquittal made by both defendants at the close of the evidence offered by the government under Rule 29(a), Federal Rules of Criminal Procedure.

The two defendants are charged with violating 8 U.S.C. Section 1324(a)(1)(B) which provides that:

Any person who—

knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law, shall be fined in accordance with Title 18, or imprisoned not more than five years, or both.

Both counts of the indictment are identical, except for the time period. The indictment charges that the defendants, knowing or in reckless disregard of the fact that an alien had entered the United States in violation of law, willfully and unlawfully transported him in a taxi in furtherance of such violation.

The undisputed evidence presented by the government establishes that one Miguel López-Ovalle, a Dominican national, entered the United States illegally through Aguadilla, Puerto Rico on July 11, 1985 and that during the month of October 1987, he voluntarily contacted the Immigration and Naturalization Service to offer his services as an informant. At that time, his wife— also an illegal alien—worked as an informant for the Immigration and Naturalization Service. It was she who took him to that agency. Searching for cases to bring to the agency in his capacity of informer, he targeted his close friend and co-worker Héctor Bienvenido de-la Rosa-Basilio, also known as Radamés, as well as the latter's wife Maritza de-la-Cruz-Márquez who was also his friend. Both defendants knew he had been residing in Puerto Rico for an extended period of time.

Special Agent Humberto Rocafort, testified at trial that López-Ovalle is a registered informant for the Immigration and Naturalization Service. He also referred to López-Ovalle as a "cooperating private individual." Immigration officials were fully aware that he had entered the United States well over two years earlier. In the exercise of its discretion, the Immigration and Naturalization Service issued the first of several form letters granting López-Ovalle what Special Agent Rocafort referred to as thirty-day extensions of stay and employment authorizations.

This informant did not receive any compensation other than the sum of $100 which was given to him to pay his rent during December 1987 at which time he was unemployed. Special Agent Rocafort stated during cross-examination that:¹ "while he was processed as a detainee, he had the right to work and remain in this country" and that "we can give thirty-day extensions and six-month extensions if we want to, and while he stays, he does so in accordance with the law. He is not in violation of the law."

He further stated during cross-examination, referring to López-Ovalle that: "He has a right to stay, we gave him that right; as long as he gets cases and testifies in court, he will stay. Informants are hard to get."

Defendants base their Rule 29 motions on the contention that the first essential element of the offense charged was not proven by the government. They specifically claim that since López-Ovalle, the alien mentioned in the indictment, had been authorized by Immigration and Naturalization Service officials themselves to remain in the United States during specific time periods, and that authorization was in effect between December 2 and December 21, 1987, the dates charged in the indictment, he was not an "illegal alien" at such time.

The statute in question contemplates three modes of violation by the alien who is transported within the United States. That is, the defendants could be charged under 8 U.S.C. Section 1324(a)(1)(B) if the alien which they transported had: (1) come to the United States illegally, (2) entered the United States illegally, or (3) remained in the United States illegally.

These defendants are specifically charged with transporting an alien who...