United States v. Agustin Garcia-Nunez, United States of America v. Charles Ray Benson

709 F.2d 559 UNITED STATES of America, Plaintiff-Appellee, v. Agustin GARCIA-NUNEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Ray BENSON, Defendant-Appellant. Nos. DC 82-1302, DC 82-1404. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1983. Decided June 28, 1983. Pamela J. Naughton, Asst. U.S. Atty., San Diego, Cal., for defendant-appellant. Scott Russell Barnett, Kenneth McMullan, San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before HUG and CANBY, Circuit Judges, ORRICK, District Judge. * CANBY, Circuit Judge: 1 Appellant Garcia-Nunez was convicted of conspiracy to conceal and transport undocumented aliens, and of transporting an undocumented alien. He appeals, arguing that police officers violated his fourth amendment rights when they stopped the car he was driving. We affirm. 2 Appellant Benson was convicted of conspiracy to conceal and transport undocumented aliens, and of aiding and abetting Garcia-Nunez in the transportation of an undocumented alien. He argues that the evidence will not support the aiding and abetting conviction.…

Appellant Garcia-Nunez was convicted of conspiracy to conceal and transport undocumented aliens, and of transporting an undocumented alien. He appeals, arguing that police officers violated his fourth amendment rights when they stopped the car he was driving. We affirm.

Appellant Benson was convicted of conspiracy to conceal and transport undocumented aliens, and of aiding and abetting Garcia-Nunez in the transportation of an undocumented alien. He argues that the evidence will not support the aiding and abetting conviction. We agree and reverse that conviction.

Appellant Garcia-Nunez

Police Officers of National City, California, alerted by a citizen’s report, staked out a house which they suspected was being used in smuggling. After a time some men left the house and drove away in a car also thought to be involved in the smuggling. An officer stopped the car, which was driven by defendant-appellant Garcia-Nunez. When the officer asked the passengers about their citizenship, they admitted that they were aliens illegally in this country. Garcia-Nunez was convicted of conspiracy to conceal and transport undocumented aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324 , and…

concurring:

I fully concur in Judge Canby’s opinion, and I write separately to add an additional clarifying thought concerning Benson’s appeal of his aiding and abetting conviction.

The issue is brought more clearly in focus to me if we assume, hypothetically, that Benson’s trial was severed from that of Garcia-Nunez, and that Benson was being tried on the same charges of conspiracy and aiding and abetting the transportation of *563 an illegal alien. The theory advanced by the prosecution on the aiding and abetting charge was that Benson was guilty of the substantive crime of transporting an illegal alien because he was vicariously liable for the substantive crime committed by his co-conspirator, Garcia-Nunez, in furtherance of the conspiracy, under Pinkerton v. United States, 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946).

If the prosecution sought to introduce the evidence held to have been obtained in violation of Benson’s constitutional rights solely to convict Benson on either charge, it is obvious that it would be disallowed. No different conclusion should result merely because Garcia-Nunez was joined as a defendant in this trial and the evidence was admissible…