United States v. Armando Hernandez-Garcia

Opinion by Judge RYMER; Dissent by Judge RAWLINSON

Armando Hernandez Garcia appeals his conviction by jury for two counts of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii). His appeal turns on whether “entry” — and thus presence in this country free of official restraint — is required to sustain the conviction of a transporter. We conclude that it is not. Otherwise we see no reversible error, and affirm.

I

On January 24, 2000 Agent Dennis Basse was flying a United States Border Patrol airplane over the United States-Mexico border in the desert east of El Centro, California. 1 Flying at 9,000 to 10,000 feet, he spotted several vehicles on the Mexico side in an area called the “Sand Pit” or “Gravel Pit.” It is an area where smuggling happens daily. About 9 a.m., three of the vehicles began driving north. *1137 Through his binoculars, Basse could discern a white van, light blue van, and a Ford Bronco. He radioed Agent Serna, who was patrolling on foot in the general area, with the vehicle descriptions; Serna then got in his car and drove east on Interstate 8 in the direction of the Sand Pit. All three vehicles crossed the border…

Dissenting.

I respectfully dissent.

The district court gave this instruction as to count three of the indictment:

The district court similarly instructed the jury on count four of the indictment which charged the same offense, but named alien Manuel Vargas-Amezcua as the alien transported.

The district court also instructed the jury on the elements of transporting illegal aliens in violation of section 1324(a)(1)(A)(ii) as follows, in pertinent part:

The third element of the charge requires the Government to prove either; one, that the Defendant knew that the specified alien was an alien who had not received prior official authorization to come to, enter, or reside in the United States; or that the Defendant acted in reckless disregard of the fact that the specified alien was an alien who had not received prior official authorization to come to, enter, or reside in the United States....

The court instructed on official restraint as follows:

Under normal circumstances, a conviction for violating section 1324(a)(1)(A)(ii) requires proof that: 1) an alien has come to, entered or remained in the United States in violation of the law; 2) the defendant *1142 either had personal…

284 F.3d 1135 UNITED STATES of America, Plaintiff-Appellee, v. Armando HERNANDEZ-GARCIA, Defendant-Appellant. No. 00-50634. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 2001. Filed March 26, 2002. As Amended on Denial of Rehearing and Rehearing En Banc May 9, 2002. * Angela M. Krueger, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-00-00262-BTM. Before RYMER and RAWLINSON, Circuit Judges, and POGUE, Judge. ** Opinion by Judge RYMER; Dissent by Judge RAWLINSON RYMER, Circuit Judge. 1 Armando Hernandez Garcia appeals his conviction by jury for two counts of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324 (a)(1)(A)(ii). His appeal turns on whether "entry" — and thus presence in this country free of official restraint — is required to sustain the conviction of a transporter. We conclude that it is not. Otherwise we see no reversible…