United States v. Einer Ketola

455 F.2d 83 UNITED STATES of America, Plaintiff-Appellee, v. Einer KETOLA, Defendant-Appellant. No. 71-2285. United States Court of Appeals, Ninth Circuit. Jan. 25, 1972. Rehearing and Rehearing En Banc Denied March 28, 1972. John J. Cleary (argued) and Robert Boles, San Diego, Cal., for defendant-appellant. Catherine A. Chandler, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee. Before JERTBERG and WRIGHT, Circuit Judges, and WILLIAMS, * District Judge. PER CURIAM: 1 The grand jury for the Southern District of California returned a five-count indictment, charging the appellant, Einer Ketola, and co-defendants Eldon Stanley Morisch and Dale Herbert Knutson, in Count One with violation of Title 18 U.S.C. Sec. 371 , and Title 8 U.S.C. Sec. 1324 , conspiracy to unlawfully transport aliens. Counts Two through Five charged the same persons with the unlawful transportation of aliens in violation of Title 8 U.S.C. Sec. 1324 (a) (2). 2 Prior to appellant's trial, co-defendants Morisch and Knutson pleaded guilty to lesser offenses and this case was dismissed as to them. Both testified as witnesses for the Government at appellant's trial. 3…

(dissenting in part).

I concur in the opinion affirming the conviction of appellant on the conspiracy count for the reasons stated therein, However, I would reverse counts 2 through 5 charging appellant with the substantive counts of transportation of aliens [ 8 U.S.C. § 1324 (a) (2)] for the reason that I am not satisfied that the Government sustained its burden of proving that the men in the trunk were aliens. Proof of alienage in a transportation count is an element of the offense. United States v. Mack, 112 F.2d 290, 291 (2nd Cir., 1940). For some reason the Government did not follow its usual practice of detaining one or more of the suspected aliens to testify at the trial of the accused. Instead, it deported all of them prior to the trial and relied upon the testimony of the border patrol officers who made the arrest. They merely described the occupants of the trunk as looking like Mexicans and possessing no papers entitling them to be in the United States.

It is true that a fact may be proven by circumstantial evidence (United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969)) and I am mindful of the adverse inferences to be drawn from the concealment of the Mexicans in the…

The grand jury for the Southern District of California returned a five-count indictment, charging the appellant, Ei-ner Ketola, and co-defendants Eldon Stanley Moriseh and Dale Herbert Knut-son, in Count One with violation of Title 18 U.S.C. Sec. 371 , and Title 8 U.S.C. Sec. 1324 , conspiracy to unlawfully transport aliens. Counts Two through Five charged the same persons with the unlawful transportation of aliens in violation of Title 8 U.S.C. See. 1324(a) (2).

Prior to appellant’s trial, co-defendants Moriseh and Knutson pleaded guilty to lesser offenses and this case was dismissed as to them. Both testified as witnesses for the Government at appellant’s trial.

Following trial to a jury appellant was convicted of the offenses set forth in all five counts.

Following denial of appellant’s motions for judgment of acquittal and for a new trial, appellant was committed to the custody of the Attorney General for a period of three years on each count, subject to the provisions of 18 U.S.C. Sec. 4208 (a) (2), and all sentences were directed to run concurrently.

Oh this appeal, appellant contends:

(a) that the evidence was insufficient to support appellant’s conviction on Count One…