USA v. Flores-blanco
| Decision Date | 04 October 2010 |
| Docket Number | No. 09-50040.,09-50040. |
| Citation | 623 F.3d 912 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ernesto FLORES-BLANCO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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David D. Leshner, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.
Sylvia Baiz, San Diego, CA, for the defendant-appellant.
Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding. D.C. No. 3:07-CR-03405-W-2.
Before: WILLIAM C. CANBY, JR., CYNTHIA HOLCOMB HALL and DIARMUID F. O'SCANNLAIN, Circuit Judges.
Ernesto Flores-Blanco was arrested after border patrol agents observed him coordinating the illegal crossing of a Mexican national into the United States. Following a jury trial, Flores-Blanco was convicted of bringing an unauthorized alien to the United States for financial gain; conspiracy to bring an unauthorized alien to the United States; and inducing and encouraging an unauthorized alien to enter the United States, all in violation of various subsections of 8 U.S.C. § 1324(a). Flores-Blanco now appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The district court did not err either in its handling of a co-defendant's invocation of the Fifth Amendment privilege against self-incrimination or in its admission of evidence of prior bad acts by Flores-Blanco. There also was sufficient evidence to uphold Flores-Blanco's conviction, as an aider and abettor, for bringing an unauthorized alien to the United States, as well as his conviction for conspiracy.
The underlying events took place in Calexico, California, which is located just north of the international boundary fence that separates the United States from Mexico. The city of Mexicali, Mexico, is located on the opposite side of the fence. It is possible to see through the fence.
The portion of the border fence in question is known for a high incidence of alien smuggling. According to expert testimony at Flores-Blanco's trial, guides operating on the Mexican side of the fence typically direct or lead small numbers of aliens to the fence, where a counterpart waits for the alien or aliens on the United States side. The guides on each side of the fence coordinate the crossing through the use of cell phones, hand signals, whistles, and eye contact through the fence. When an alien crosses over or through the fence, the guide in the United States is tasked with hiding the alien as quickly as possible and typically leads the alien to a predetermined location. These guides normally work for profit and usually are not paid until the alien reaches his or her final destination, which typically is beyond Calexico.
On December 9, 2007, border patrol agents Stephen Carter and Seth Sedano were conducting surveillance on the Calexico side of the fence from separate concealed locations. At approximately 8:00 p.m., the agents observed Flores-Blanco and co-defendant Mario Fernandez talking as they walked to the back yard of Flores-Blanco's residence on Second Street, located one block north of the border. For the next thirty to forty-five minutes, Flores-Blanco and Fernandez remained together in the back yard looking toward the border, which was clearly visible from their vantage point. Fernandez then left the back yard and walked to the yard of a residence on First Street located just north of the border fence, where he attempted to conceal himself. Over the next four to five hours, Fernandez went back and forth between the First Street residence and Flores-Blanco's back yard, talking on his cell phone each time. Flores-Blanco remained in his back yard, also talking on his cell phone and looking either south toward the border or toward Fernandez.
At about 12:40 a.m., Fernandez returned to the First Street residence one final time. Agent Carter observed two males standing on the Mexican side of the fence, directly south of Fernandez's position. One of these males was talking on a cell phone and looking north toward Fernandez, who also was talking on his phone. Fernandez then motioned with his hand for the men to move east. When the men on the Mexico side moved east, Fernandez left his First Street hiding place, while continuing to talk on his cell phone. Agent Carter heard him say in Spanish,
Agent Sedano then observed Flores-Blanco leave his back yard and proceed to an area known as the “White Apartments,” which is located just north of the border fence and east of Fernandez's former vantage point on First Street. Agent Sedano also observed two individuals moving east on the Mexican side of the fence. Flores-Blanco crouched down outside of the White Apartments facing the fence and talked on his cell phone. Agent Sedano then saw Flores-Blanco make a waving motion with his hand and heard him inquire in Spanish, “I'm here?” Flores-Blanco then suddenly looked in Agent Sedano's direction, became startled, and walked north, away from the White Apartments and the border fence.
At about this time, Alejandro Portillo-Mendoza, a Mexican national lacking permission to enter the United States, jumped over the border fence near the White Apartments. Portillo-Mendoza had been led to the border fence by a Mexican guide who talked on his cell phone on the way to the fence. When they arrived at the fence, Portillo-Mendoza overheard the guide, who was talking on his phone, urge “[t]hat he not be let down.” The man then helped Portillo-Mendoza climb onto his shoulders, instructing him to jump over the fence when he saw a person waiting on the other side and then to run in that person's direction. When Portillo-Mendoza saw a person waiting on the other side wearing a dark-colored, hooded sweatshirt, he jumped over the fence and ran in that person's direction. But when Portillo-Mendoza arrived, the person was gone, so he tried to hide himself. Portillo-Mendoza soon was discovered in the vicinity of the White Apartments and arrested. Shortly thereafter, Flores-Blanco and Fernandez also were arrested. A video of Flores-Blanco taken after his arrest showed that he was wearing a dark-colored, hooded sweatshirt.
A federal grand jury subsequently returned an indictment against Flores-Blanco and Fernandez, charging them with: Count 1, conspiracy to bring in unauthorized aliens, 8 U.S.C. § 1324(a)(1)(A)(i) and (v)(I); Count 2, bringing in an unauthorized alien for financial gain and aiding and abetting, 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2; and Count 3, inducing and encouraging an unauthorized alien to enter the United States, 8 U.S.C. § 1324(a)(1)(A)(iv) and (v)(II). Fernandez pleaded guilty to Count 3, but Flores-Blanco proceeded to trial, where a jury convicted him on all counts.
We first consider two challenges relating to Fernandez's refusal to testify on Flores-Blanco's behalf.
After Fernandez pleaded guilty, Flores-Blanco subpoenaed Fernandez to testify. At a hearing held outside of the presence of the jury, counsel for Flores-Blanco informed the district court that Fernandez had exculpatory evidence to offer in her client's favor. In response to the district court's request for an offer of proof, counsel claimed that Fernandez would testify “[t]hat [it] was his job and [Flores-Blanco] had nothing to do with it.” Fernandez then interjected, “[Flores-Blanco] had nothing to do with it.”
Nonetheless, after conferring with counsel and being warned by the district court that he would be subject to cross-examination if he testified, Fernandez twice stated that, if called as a witness, he would assert his Fifth Amendment right against self-incrimination. Counsel for Flores-Blanco asked the government, and then the district court, to grant Fernandez use immunity, but both refused. At a later hearing convened to clarify that Fernandez's plea agreement did not prohibit him from testifying, Fernandez again stated his intention to invoke the Fifth Amendment if he were called to testify.
Flores-Blanco first challenges the district court's refusal to compel the government to grant Fernandez use immunity. We conclude that there was no error. 1 To require the district court, as a matter of due process, to compel use immunity for Fernandez, Flores-Blanco had to make two showings. First, he had to show that Fernandez's anticipated testimony was relevant. United States v. Straub, 538 F.3d 1147, 1157 (9th Cir.2008). Second, Flores-Blanco was required to show either that:
(a) the prosecution intentionally caused [Fernandez] to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony, but denied immunity to [Fernandez,] whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that [Flores-Blanco] was denied his due process right to a fundamentally fair trial.
Id. at 1162. Even if we assume that Fernandez's testimony would have been relevant to Flores-Blanco's defense, Flores-Blanco has not met either of the last two requirements. Nothing in the record indicates that the government deliberately caused Fernandez to invoke his Fifth Amendment rights. Counsel's contention at oral argument that the district court intimidated Fernandez into asserting his Fifth Amendment rights also has no support in the record. Nor does anything in the record indicate that the government denied use immunity to Fernandez while granting use immunity to a government witness: there were no immunized government witnesses.
There also was no plain error in the district court's failure to conduct additional inquiry into the propriety...
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