United States v. Jeffrey Otherson, United States of America v. Bruce Brown

637 F.2d 1276 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey OTHERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce BROWN, Defendant-Appellant. Nos. 80-1202, 80-1203. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 17, 1980. Decided Nov. 6, 1980. Rehearing Denied Feb. 20, 1981. Michael J. McCabe, San Diego, Cal., Joseph Milchen, Frank & Milchen, San Diego, Cal., for defendant-appellant. David C. Doyle, Asst. U. S. Atty., argued, M. James Lorenz, U. S. Atty., David C. Doyle, Asst. U. S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before PREGERSON, FERGUSON and NORRIS, Circuit Judges. PREGERSON, Circuit Judge. 1 Appellants Jeffrey Otherson and Bruce Brown, United States Border Patrol agents, were tried by the court on stipulated facts and convicted of violating 18 U.S.C. § 242 1 by depriving aliens of federal rights, and of conspiring to effect such a deprivation in violation of 18 U.S.C. §§ 371 and 242. 2 Otherson and Brown do not deny beating aliens who had illegally entered the United States…

Appellants Jeffrey Otherson and Bruce Brown, United States Border Patrol agents, were tried by the court on stipulated facts and convicted of violating 18 U.S.C. § 242 1 by depriving aliens of federal rights, and of conspiring to effect such a deprivation in violation of 18 U.S.C. §§ 371 and 242.

Otherson and Brown do not deny beating aliens who had illegally entered the United States from Mexico and who had been taken into custody by the Border Patrol near San Ysidro, California. Rather, they argue on appeal that such aliens are not “inhabitants of any State, Territory, or District” and hence are not protected by 18 U.S.C. § 242 . They further claim that section 242 does not apply to actions under color of federal, as opposed to state, law.

We reject both of appellants’ arguments. The convictions are affirmed.

BACKGROUND

The facts stipulated at trial reveal that on July 3, 1979, appellant Otherson was on transport duty with trainee Border Patrol agent Gino Freselli. This duty entailed picking up illegal aliens and alien smugglers apprehended by other agents and transporting the aliens in a van to a processing center.

On the morning of July 3, a Border Patrol surveillance…

concurring.

The question raised by this appeal is whether the appellants’ conduct constituted a violation of 18 U.S.C. § 242 . I concur in the result on the basis of the analysis in Judge Pregerson’s opinion that the statutory language, when viewed in light of the legislative history, leaves no doubt that Congress intended to make the conduct of the appellants a federal crime.