Noriega-Perez

Knut S. Johnson, Esq., San Diego, CA, for the defendant-appellant.

Paul L. Starita, Assistant United States Attorney, United States Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Before: FERDINAND F. FERNANDEZ, KAREN NELSON MOORE, [**] and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge TALLMAN; Partial Concurrence and Partial Dissent by Judge MOORE.

TALLMAN, Circuit Judge:

Defendant-Appellant Alberto Noriega-Perez ("Noriega") appeals his conviction by jury verdict on one count of conspiracy to bring illegal aliens to the United States for financial gain ( 8 U.S.C. § 1324 (a)(2)(B)(ii); 18 U.S.C. § 371 ), one count of conspiracy to harbor illegal aliens ( 8 U.S.C. § 1324 (a)(1)(A)(iii), (v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United States for financial gain ( 8 U.S.C. § 1324 (a)(2)(B)(ii); 18 U.S.C. § 2 ), and eighteen counts of aiding and abetting harboring illegal aliens ( 8 U.S.C. § 1324 (a)(1)(A)(iii), (v)(II)). Noriega rented two properties he owned near the United States-Mexico border to an alien smuggling organization knowing that they would be used as load houses to conceal and later transfer recently arrived…

Defendant-Appellant Alberto Noriega-Perez (“Noriega”) appeals his conviction by jury verdict on one count of conspiracy to bring illegal aliens to the United States for financial gain ( 8 U.S.C. § 1324 (a)(2)(B)(ii); 18 U.S.C. § 371 ), one count of conspiracy to harbor illegal aliens ( 8 U.S.C. § 1324 (a)(1)(A)(iii), (v)(D), eighteen counts of aiding and abetting bringing illegal aliens to the United States for financial gain ( 8 U.S.C. § 1324 (a)(2)(B)(ii); 18 U.S.C. § 2 ), and eighteen counts of aiding and abetting harboring illegal aliens ( 8 U.S.C. § 1324 (a)(l)(A)(iii), (v)(II)). Noriega rented two properties he owned near the United States-Mexico border to an alien smuggling organization knowing that they would be used as load houses to conceal and later transfer recently arrived aliens.

United States Immigration and Customs Enforcement (“ICE”) officers raided both properties and apprehended numerous illegal aliens found there. Of those apprehended, ICE identified eighteen as material witnesses. All eighteen material witnesses were named in the substantive counts of the operative indictment as persons brought into the United States from Mexico by the smuggling…

concurring in part and dissenting in part:

I concur with the majority’s holding in Part II.A on the issue of alienage. I also concur with the Memorandum Disposition. I dissent from Part II.B because I do not agree that Noriega-Perez’s convictions for aiding and abetting a “brings to” offense should stand where the evidence clearly demonstrates that the cross-border transportation of a specific material witness terminated before any connection between Noriega-Perez and that alien occurred.

Noriega-Perez was charged with eighteen counts of aiding and abetting “brings to” 1 offenses under 8 U.S.C. § 1324 (a)(2)(B)(ii) and 18 U.S.C. § 2 . A different alien was named as the material witness in each count. To be guilty of aiding and abetting a “brings to” offense, the defendant must provide some assistance to the transporters of a named alien before the termination of the underlying offense. Otherwise, the requisite extraterritorial nexus is lacking. A “brings to” offense does not terminate upon the alien crossing the border into the United States, however, even though that is the point at which all of the statutory elements are satisfied. United States v. Lopez, 484 F.3d 1186, 1192…