United States v. Odilon Garcia

We must decide whether aiding and abetting under 18 U.S.C. § 2 is a separate offense from, or a different theory of liability for, the substantive offenses of alien smuggling and transportation of aliens in violation of 8 U.S.C. § 1324 .

Odilon Garcia appeals his conviction on four counts of alien smuggling and transportation that also charged him with aiding and abetting. He maintains that the indictment was duplicitous because the two have separate elements and thus are separate offenses, requiring the government to elect between them or the district court to give a specific unanimity instruction. Following Supreme Court and our own precedent, we conclude that aiding and abetting is not a separate offense from the underlying substantive crime, but rather a different theory of liability for the same offense. Accordingly, we affirm Garcia’s conviction on all counts.

I

In the early morning hours of January 15, 2003, four Border Patrol agents re sponded to a sensor alert that had been triggered on a little-used road not far from the Mexican border. The agents intercepted two vehicles, one following behind the other. When the agents ordered each vehicle to stop, numerous…