United States v. Cruz-Lozano , 130 F. App'x 254 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
APR 27 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 04-2138
CATARINO SANTA CRUZ- (D.C. No. CR 03-1713 JC)
LOZANO, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Catarino Santa Cruz-Lozano appeals his convictions on two counts of
transporting an illegal alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii),
(a)(1)(B)(i), and (a)(1)(A)(v)(II). He argues on appeal that the district court erred
in instructing the jury. We disagree and AFFIRM his convictions.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
At trial the government presented evidence that Immigration and Customs
Enforcement Agents found Cruz-Lozano, an undocumented alien, driving a truck
containing twelve other undocumented aliens near the Mexican border in New
Mexico. According to government witnesses, Cruz-Lozano guided the aliens on
foot in Mexico across the border into the United States, left them to get the truck,
and then drove the aliens in the truck within the United States. Cruz-Lozano
testified that another alien, named Alfredo, drove the truck until he spotted the
agents. At that point, according to the defendant, Alfredo claimed to be tired and
asked Cruz-Lozano to take over driving. The defendant agreed, and moments
later the agents pulled over the truck.
After the presentation of evidence, the district court instructed the jury in
relevant part as follows:
Title 8, United States Code, Section 1324(a)(1)(A)(ii), makes it a
crime for anyone to transport an alien within the United States, knowing or
in reckless disregard of the fact that the alien is here illegally, and in
furtherance of the alien’s violation of the law.
For you to find the defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
First: That an alien had entered or remained in the
United States in violation of the law;
Second: That the defendant transported the alien within the
United States with intent to further the alien’s
unlawful presence;
Third: That the defendant knew or recklessly disregarded
the fact that the alien was in the United States in
violation of the law. . . .
-2-
A defendant acts in furtherance of the alien’s unlawful status
regardless of profit motive or close relationship, with knowledge or with
reckless disregard of the fact that the person transported is an illegal alien
and that transportation or movement of the alien will help, advance, or
promote the alien’s illegal entry or continued illegal presence in the United
States. One indication of furthering an alien’s unlawful status is to assist
the aliens in evading immigration authorities by relocating them to a city
much farther from the United States Mexico border.
You may consider any and all relevant evidence bearing on the in
furtherance of element including time, place, distance, reason for trip,
overall impact of trip, and defendant’s role in organizing and/or carrying
out the trip.
Having preserved his objection to this instruction, Cruz-Lozano now
appeals. We review jury instructions “de novo to determine whether, as a whole,
the instructions correctly state the governing law and provide the jury with an
ample understanding of the issues and applicable standards.” United States v.
Wittgenstein, 163 F.3d 1164, 1168 (10th Cir. 1998). We review a district court’s
decision to give a particular instruction for an abuse of discretion, United States
v. McPhilomy, 270 F.3d 1302, 1310 (10th Cir. 2001), and will reverse only if we
have “substantial doubt that the jury was fairly guided.” United States v. Pappert,
112 F.3d 1073, 1076 (10th Cir. 1997) (citation omitted).
On appeal, Cruz-Lozano challenges the following portion of the instruction:
A defendant acts in furtherance of the alien’s unlawful status
regardless of profit motive or close relationship, with knowledge or
with reckless disregard of the fact that the person transported is an
illegal alien and that transportation or movement of the alien will
help, advance, or promote the alien’s illegal entry or continued
illegal presence in the United States.
-3-
He argues that profit motive was not at issue in this case, and therefore this
language “served to mislead the jury so as to associate Santa Cruz’ defense with
that of transporting not for profit or a close relationship. However, Santa Cruz’
defense was that he was induced by trickery.” (Appellant’s Br. at 15). First, this
instruction correctly states the governing law. In United States v.
Barajas-Chavez, 162 F.3d 1285 (10th Cir. 1999) (en banc) we held:
[T]he [in furtherance] element is sufficiently broad to encompass any
person who acts, regardless of profit motive or close relationship,
with knowledge or with reckless disregard of the fact that the person
transported is an illegal alien and that transportation or movement of
the alien will help, advance, or promote the alien’s illegal entry or
continued illegal presence in the United States.
Id. at 1288. Moreover, the inclusion of this language in the jury instruction did
not prevent the jury from considering Cruz-Lozano’s defense: that the reason he
was driving the truck is because he was deceived by the person truly responsible
for transporting the aliens into and within the United States. The court included
the following language in the instruction, which left ample room for the jury to
weigh the defense: “You may consider any and all relevant evidence bearing on
the in furtherance of element including time, place, distance, reason for trip,
overall impact of trip, and defendant’s role in organizing and/or carrying out the
trip.” This portion of the instruction also correctly states the governing law. See
Barajas-Chavez, 162 F.3d at 1289 (“a factfinder may consider any and all relevant
evidence bearing on the ‘in furtherance of’ element (time, place, distance, reason
-4-
for trip, overall impact of trip, defendant’s role in organizing and/or carrying out
the trip).”).
Cruz-Lozano objects that “by instructing the jury that ‘regardless of profit
motive,’ the jury was lead [sic] to believe that even if Santa Cruz was not driving
for profit, he was still acting ‘in furtherance.’” That is a correct statement of the
law. The jury “may consider any and all relevant evidence” and determine
whether a defendant was acting “in furtherance” of an alien’s unlawful status. Id.That is precisely what the jury did in this case. We do not have “substantial doubt
that the jury was fairly guided.” Pappert, 112 F.3d at 1076.
We AFFIRM Cruz-Lozano’s convictions.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-5-