United States v. Ted Stevenson Angwin and Christine Khamis

Opinion by District Judge BREYER; Partial Concurrence and Partial Dissent by Judge FERGUSON.

ORDER

The opinion filed on August 30, 2001, and reported at 263 F.3d 979 , is hereby amended. With the filing, of the amended opinion, Appellee Angwin’s petition for rehearing is denied. Judge Silverman has voted to deny Appellee Angwin’s suggestion for rehearing en banc. Judge Ferguson and Judge Breyer so recommend. An amended opinion is filed herewith.

OPINION

The appellants Ted Stevenson Angwin and Christine Khamis (“the defendants”) were stopped by United States Border Patrol (“USBP”) agents at a checkpoint near Niland, California. The agents inspected the motorhome the defendants were driving and found fourteen illegal aliens hiding throughout the vehicle. The defendants were indicted and, after a joint jury trial, convicted. This is an appeal from the district court’s orders: (1) declining to sever the trial; (2) excluding Ang-win’s proposed habit evidence; (3) denying Angwin’s motion to dismiss the indictment on the grounds that a conviction for bringing in illegal aliens cannot be premised on aiding and abetting; (4) denying the defendants’ motions for acquittal for…

concurring and dissentihg:

I concur in the affirmance of the conviction of Ted Angwin. I dissent regarding Christine Khamis. I do not believe that there was sufficient evidence to convict her of transporting illegal aliens. To convict Khamis, the Government had to prove beyond a reasonable doubt that she is guilty. United States v. Barajas-Montiel, 185 F.3d 947, 954 (9th Cir.1999). However, even when the evidence is viewed in the light most favorable to the prosecution, United States v. Toomey, 764 F.2d 678, 680 (9th Cir.1985), the facts of this case do not support a guilty verdict. Khamis’ conviction is founded upon mere assumptions, and I cannot agree that she was guilty beyond a reasonable doubt.

“We have recognized that a conviction under this section requires more than just the defendant’s knowledge or reckless disregard of the fact that the alien transported was illegally present in the United States: the Government must also prove that the defendant ‘intended to further the alien’s illegal presence in the United States.’ ” United States v. Hernandez-Guardado, 228 F.3d 1017, 1022 (9th Cir.2000) (quoting United States v. Hernandez-Franco, 189 F.3d 1151, 1155 (9th Cir.1999)…

271 F.3d 786 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TED STEVENSON ANGWIN and CHRISTINE KHAMIS, Defendants-Appellants. Nos. 00-50276, 00-50411 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Sumbitted April 3, 2001 Filed August 30, 2001 Amended November 21, 2001 1 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] 2 Joel Levine, Joel Levine, Esq., A Professional Corporation, Encino, California, for defendant-appellant Ted Stevenson Angwin; Jerry M. Leahy, Law Offices of Jerry M. Leahy, San Diego, California, for defendant-appellant Christine Khamis. 3 Gregory A. Vega, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, Mark R. Rehe, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. 4 Appeal from the United States District Court for the Southern District of California;Judith N. Keep, District Judge, Presiding. D.C. No. CR-99-3149-K. 5 Before: Ferguson and Silverman, Circuit Judges, and Breyer, * District Judge. 6 Opinion by District Judge BREYER; Partial Concurrence…