USA. v. Martinez
| Decision Date | 05 December 2001 |
| Docket Number | RAMIREZ-MARTINE,No. 00-50681,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-50681 |
| Citation | 273 F.3d 903 |
| Parties | (9th Cir. 2001) UNITED STATES OF AMERICA,, v. VICTOR |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carla V. Gomez (briefed), Federal Defenders of San Diego, San Diego, California, for the appellant.
Todd W. Burns (briefed and argued), Federal Defenders of San Diego, San Diego, California, for the appellant.
Audra S. Ibarra (briefed), Assistant U.S. Attorney, U.S. Attorney's Office, San Diego, California, for the appellee.
Brian M. Pearce (argued), Assistant U.S. Attorney, U.S. Attorney's Office, San Diego, California, for the appellee.
Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding D.C. No. CR-00-0972-BTM
Before: Hall and Trott, Circuit Judges, and Winmill, District Judge.*
Due to some creative lawyering, this seemingly run-of-the-mill alien smuggling case requires us to confront a melange of novel legal issues.
A jury convicted Defendant-Appellant Victor Ramirez-Martinez ("Ramirez") of two counts of attempting to transport and transporting undocumented aliens, in violation of 8 U.S.C §§ 1324(a)(1)(A)(ii) (2000), and one count of aiding and abetting bringing to the United States an undocumented alien for financial gain, in violation of 8 U.S.C. §§ 1324(a)(2)(B)(ii) and 18 U.S.C. §§ 2 (2000). The district court, District Judge Barry T. Moskowitz, sentenced Ramirez to forty-four months in prison followed by three years of supervised release.
Launching numerous challenges, Ramirez appeals his three convictions and his sentence. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 (2000) and 18 U.S.C. §§ 3742 (2000). For the reasons expressed below, we affirm in part and reverse in part, and remand for further proceedings consistent with this opinion.
On March 21, 2000, agents from the Immigration and Naturalization Service ("INS"), responding to a call, discovered Ramirez and twenty-three others in and around an apparently stranded van located in a remote desert area of Ocotillo, California, approximately five miles north of the United States-Mexico border. Upon seeing the approaching agents, the twenty-four people ran, but the agents were able to apprehend all the fleeing suspects.
Ramirez, the only person who ran north, agreed, after having been advised of his Miranda rights, to provide a statement to authorities. Ramirez explained that on the day in question he had traveled from Fontana, California to El Centro, California, where he picked up the van from "some guy." Ramirez then followed the "guy" from El Centro to Ocotillo, where he was instructed to wait in the van for several undocumented aliens who were trekking across the Mexican desert into the United States and who wanted to travel north. Ramirez admitted that he was supposed to be paid for his efforts, and when asked how much, he told the agents, "They told me about $50 per person."
Jesus Gomez-Flores ("Gomez") and Pedro Santiago-Sariyana ("Santiago") were two of the undocumented aliens near the van when the agents approached. Both men testified at Ramirez's trial about their respective journeys from Mexico to the United States.
Gomez testified that about two days before he was apprehended, he traveled by bus from his hometown of Guanajuato, Mexico to Mexicali, Mexico. In downtown Mexicali, Gomez told a man (not Ramirez) that he wanted to cross the border and head to Los Angeles. The unidentified man told Gomez that he would have to pay for being smuggled to Los Angeles from Mexico. Gomez and the man rode a local bus heading closer to the border, and at a particular stop, the man instructed Gomez to become part of a group of people that had already congregated there. The group of about twenty traveled together on foot through the Mexican desert, across the border, and into the United States. Gomez was unsure whether a guide led the group. However, Gomez told the jury that after crossing into the United States, a driver with a van was waiting for them, and each member of his group got into the van. Gomez stated that he had never seen Ramirez before.
Santiago's journey was a little different from Gomez's. Santiago testified that, like Gomez, he went to Mexicali in hopes of finding someone to help him enter into the United States. Unlike Gomez, however, Santiago was unable to set up arrangements. After spending the evening at a bus depot, Santiago came across a group of five or six men who also had failed to secure border crossing arrangements. They decided anyway to attempt the trek across the desert on foot. While walking, Santiago's group saw a larger group of about twenty people ahead of them at a distance. This was Gomez's group. Santiago testified that his small group was not part of the larger group, and that he actually tried to hide from the larger group. At some point after crossing into the United States, the larger group came upon a van that was parked off of a freeway. This was Ramirez's van. When members of the larger group began running to the van, Santiago's smaller group made a break for the vehicle as well. Santiago managed to finagle his way into the van through its rear door. Like Gomez, Santiago testified that he never saw Ramirez before.
The government charged Ramirez in a five count indictment. Counts 1 and 2 charged Ramirez with aiding and abetting bringing to the United States two undocumented aliens, Jesus Gomez and Pedro Santiago, for financial gain. See 8 U.S.C. §§ 1324(a)(2)(B)(ii) and 18 U.S.C. §§ 2. Counts 3 and 4 charged Ramirez with attempting to transport and transporting the same two undocumented aliens within the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii). Count 5 charged Ramirez with being an alien who illegally reentered the United States after having been deported. See 8 U.S.C.§§ 1326 (2000).
Ramirez pled guilty to Count 5 of the indictment, but not guilty to Counts 1 through 4. Prior to trial, Ramirez moved to dismiss the remaining four counts on assorted grounds. These arguments form the heart of the instant appeal, and we set forth each claim in detail below. The district court rejected each of Ramirez's arguments, and refused to dismiss the indictment.
During jury selection, Ramirez's attorney objected to three of the government's peremptory challenges, arguing that the prosecutor invoked them in a racially discriminatory manner. See Batson v. Kentucky, 476 U.S. 79 (1986). The district court stated on the record that he thought the issue was close, but sustained two of Ramirez's three objections. As a"remedy" for the Batson violation, Judge Moskowitz returned to the venire the two previously-struck jurors and returned to the government its two peremptory challenges. After eventually selecting a jury, the case went to trial.
At trial, the government called several witnesses to the stand, including Jesus Gomez, Pedro Santiago, and the investigating and arresting officers. The government also introduced into evidence Ramirez's inculpatory statement.
At the close of the government's case, Ramirez moved for a judgment of acquittal on Counts 1 and 2 under Federal Rule of Criminal Procedure 29. See FED. R. CRIM. P. 29. Ramirez claimed that government's evidence failed to prove that he had anything to do with "bringing to" the United States either Gomez or Santiago. The district court agreed, but only in part. In the court's words, "[Santiago] crashed the party so to speak" because he was not part of any pre-existing, organized group that crossed the border with arrangements to be picked up and driven north, nor was he an invited passenger in Ramirez's van. Judge Moskowitz continued: Accordingly, the district court granted Ramirez's motion for a judgment of acquittal on Count 2, which involved Santiago.
In contrast, the district court concluded that a reasonable juror could draw an inference from Gomez' testimony that he was part of a group brought into the United States by an organization of people of which Ramirez was a part. Therefore, the court refused to grant a judgment of acquittal on Count 1, pertaining to Gomez.
The jury convicted Ramirez on Counts 1, 3, and 4.
At sentencing, the Probation Office recommended a base offense level of twelve, see U.S.S.G. §§ 2L1.1(a)(2), and, among other adjustments, a two-level upward adjustment for intentionally or recklessly creating a substantial risk of death or serious bodily injury. See U.S.S.G. §§ 2L1.1(b)(5). Ramirez unsuccessfully objected to the two-point upward adjustment. After computing Ramirez's criminal history as category IV, the court sentenced Ramirez to forty-four months in prison on each count, set to run concurrently, followed by three years of supervised release. For Ramirez's conviction on Count 5, to which he had pled guilty, the court sentenced him to twenty-one months in prison to run concurrent to the forty-four month sentences for Counts 1, 3, and 4.
Ramirez challenges his convictions and sentence on several grounds. First, he argues that the district court erred when it "remedied" the government's Batson violation by returning to the government its two objectionable peremptory challenges. Second, Ramirez launches a two-pronged attack on his conviction under Count 1. He claims that the government cannot...
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