Calero-Drouet

concurring in part and dissenting in part.

Although I agree that financial gain is a core element of 8 U.S.C. *666 § 1324 (a) (2) (B) (ii), I cannot agree that the government satisfied its burden to produce independent evidence to corroborate Counts 1 and 2. A single incident of transporting an alien for financial gain some three years after the other alleged offenses is not alone sufficient to establish independent corroboration for the earlier incidents, especially when the later occurrences are of a substantively different nature. I also disagree that we may hold against the defendant his failure to volunteer an alternative explanation for his conduct. It is his constitutional privilege not to do so, and no adverse inferences are proper. Accordingly, I would reverse the conviction as to Counts 1 and 2.

*665 MEMORANDUM **

Andres Calero-Drouet (“Calero-Drouet”) appeals his conviction on three counts of bringing in illegal aliens for financial gain, 8 U.S.C. § 1324 (a)(2)(B)(ii), and one count of bringing in illegal aliens without presentation, 8 U.S.C. § 1324 (a)(2)(B)(iii). Two of the counts of bringing in aliens for financial gain (Counts 1 and 2) arose from events that occurred in 2001; the remaining counts (Counts 3 and 4) were based upon events that occurred in 2004. Calero-Drouet contends that the district court abused its discretion in declining to sever Counts 1 and 2 from Counts 3 and 4 for trial. He also argues that the district court erred in denying his motion for acquittal on Counts 1 and 2. We find no error, and we affirm.

The four counts were properly joined pursuant to Rule 8 because they alleged the same or similar conduct. The district court did not abuse its discretion in refusing to sever the counts for trial pursuant to Rule 14 because under Rule 404(b), the evidence as to the individual counts was cross-admissible to show knowledge. United States v. Herrera-Medina, 609 F.2d 376, 379-80 (9th Cir.1979). It is not necessary for purposes of joinder that the…