United States v. Antonio Hernandez-Gonzalez

608 F.2d 1240 UNITED STATES of America, Plaintiff-Appellee, v. Antonio HERNANDEZ-GONZALEZ, Defendant-Appellant. No. 77-1504. United States Court of Appeals, Ninth Circuit. Oct. 31, 1979. Joseph Milchen, San Diego, Cal., for defendant-appellant. Sandra J. Wittman, Asst. U.S. Atty., (on the brief), Terry J. Knoepp, U.S. Atty., Sandra J. Wittman, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before TRASK, WALLACE and ANDERSON, Circuit Judges. TRASK, Circuit Judge: 1 Antonio Hernandez-Gonzalez appeals his conviction of a violation of 8 U.S.C. § 1324 (a)(2), transporting aliens illegally within the United States. We affirm. 2 Appellant was apprehended on December 29, 1976, by Agents Hemley and Gilford of the United States Border Patrol. On that day, Agent Hemley was observing northbound traffic on De Luz Canyon Road near Murietta, California. The area is about 60 miles north of the Mexican border and the road under observation is one that bypasses the Temecula Border Patrol checkpoint on Interstate 15. 3 Sensors placed along the road leading from Mexico with monitoring…

Antonio Hernandez-Gonzalez appeals his conviction of a violation of 8 U.S.C. § 1324 (a)(2), transporting aliens illegally within the United States. We affirm.

Appellant was apprehended on December 29, 1976, by Agents Hemley and Gilford of the United States Border Patrol. On that day, Agent Hemley was observing northbound traffic on De Luz Canyon Road near Murietta, California. The area is about 60 miles north of the Mexican border and the road under observation is one that bypasses the Temecula Border Patrol checkpoint on Interstate 15.

Sensors placed along the road leading from Mexico with monitoring equipment in Hemley’s car signaled the approach of two cars, traveling close together. Two cars exited the canyon about three car lengths apart and passed within 10 to 12 feet of Hemley’s marked vehicle. Each car had two visible occupants, and, according to Hemley, all four were of Latin descent. Appellant was driving the lead car, and Hemley described that car as riding “heavy.”

Appellant looked straight ahead as his automobile passed Hemley, and his passenger straightened up and looked straight ahead. The passenger in the second vehicle turned and said something to the driver;…

concurring:

I join in the majority opinion except for the issue as to whether Hernandez-Gonzalez was prejudiced due to the absence of the fifth alien. While the law was properly stated by the majority, I would not reach the issue. The unavailability of the alien was not due to the unilateral action of the government and on that basis alone, Hernandez-Gonzalez’s Mendez-Rodriguez claim is flawed.