United States v. Manuel Jesus Herrera-Medina

609 F.2d 376 5 Fed. R. Evid. Serv. 362 UNITED STATES of America, Plaintiff-Appellee, v. Manuel Jesus HERRERA-MEDINA, Defendant-Appellant. No. 79-1071. United States Court of Appeals, Ninth Circuit. Dec. 6, 1979. Gerald S. Frank, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Fredric F. Kay, Tucson, Ariz., argued for defendant-appellant; Frank R. Zapata, Asst. Federal Public Defender, Tucson, Ariz., on the brief. Appeal from the United States District Court for the District of Arizona. Before DUNIWAY and ELY, Circuit Judges, and FITZGERALD, * District Judge. DUNIWAY, Circuit Judge: 1 Appellant Manuel Jesus Herrera-Medina (Herrera) was convicted of transporting four illegal aliens in violation of 8 U.S.C. § 1324 (a)(2) and he appeals. We affirm. 2 I. FACTS. 3 On the night of November 16, 1978, Herrera, a Mexican citizen in possession of a valid alien registration card, was stopped by border patrol agents. With him in his car were four aliens who had illegally crossed the border earlier that evening. We state the underlying facts in the light most favorable to the government, as we are required to do. 4 On the evening of November 16, at about 8:00 o'clock, two border…

Appellant Manuel Jesus Herrera-Medina (Herrera) was convicted of transporting four illegal aliens in violation of 8 U.S.C. § 1324 (a)(2) and he appeals. We affirm.

I. FACTS.

On the night of November 16, 1978, Herrera, a Mexican citizen in possession of a valid alien registration card, was stopped by border patrol agents. With him in his car were four aliens who had illegally crossed the border earlier that evening. We state the underlying facts in the light most favorable to the government, as we are required to do.

On the evening of November 16, at about 8:00 o’clock, two border patrol agents were on watch near a combination car wash and gas station located near Douglas, Arizona, and within about half a mile from the Mexican border. They saw two men walking in the shadows toward the car wash. The two men walked into the car wash, spoke briefly with the attendant, and then headed toward the restroom but did not enter, later disappearing into the unlit, brushy area behind the station. Shortly afterward, Her-, rera drove his car into the car wash. He got out, opened the hood and looked in, stared briefly in the direction of the restroom, and made a sweeping gesture with his arm,…

(concurring):

I reluctantly concur in the result reached by the majority. Under the compulsion of our decisions, 1 I have no choice save to agree that the trial judge did not abuse his discretion in admitting evidence of the September 1978 incident when appellant was apprehended by immigration agents after he stopped and called out to nine illegal aliens hiding inside a culvert that was apparently marked. I have greater difficulty, however, with the admission into evidence of the July 1977 incident when appellant was arrested, although never prosecuted, for having driven an automobile away from a tavern near the Mexican border with several riders picked up at the bar who turned out to be illegal aliens. This earlier incident, it seems to me, as readily supports an inference of innocent behavior as it does of culpable conduct. This being so, were it not for our court’s prior decision in United States v. Holley, 493 F.2d 581,584 (9th Cir.), cert. denied, 419 U.S. 861 , 95 S.Ct. 112 , 42 L.Ed.2d 96 (1974), I would conclude that the prosecution failed to demonstrate, “clearly and convincingly,” that appellant had knowingly transported illegal aliens on July 30, 1977.

I reiterate one…