United States v. Noriega-Perez , 467 F. App'x 698 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 01 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-50501
Plaintiff - Appellee, D.C. No. 3:06-cr-02268-JM-2
v.
MEMORANDUM *
ALBERTO NORIEGA-PEREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted November 7, 2011 **
Pasadena, California
Before: FERNANDEZ, MOORE,*** and TALLMAN, Circuit Judges.
Defendant-Appellant Alberto Noriega-Perez (“Noriega”) appeals his
conviction by jury verdict on one count of conspiracy to bring illegal aliens to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Karen Nelson Moore, United States Circuit Judge for
the Sixth Circuit, sitting by designation.
United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 371),
one count of conspiracy to harbor illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii),
(v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United
States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2), and eighteen
counts of aiding and abetting harboring illegal aliens (8 U.S.C. §
1324(a)(1)(A)(iii), (v)(II)). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.1
1. The Government adduced sufficient evidence of financial motive to
support Noriega’s conviction of bringing an alien into the United States for the
purpose of “private financial gain,” 8 U.S.C. § 1324(a)(2)(B)(ii), on both
conspiracy and aiding and abetting theories of liability. Noriega rented two
properties knowing they would be used as load houses by an alien smuggling
organization. The jury could reasonably infer that his willingness to rent his
properties for illegal use was motivated by financial gain given “‘the lack of any
1
A separate published opinion filed simultaneously with this
disposition addresses Noriega’s challenges to the sufficiency of the evidence of (1)
alienage to support his conviction on the substantive counts naming non-testifying
alleged aliens, and (2) an extraterritorial connection to support his conviction of
aiding and abetting bringing aliens to the United States for financial gain.
2
other possible explanation,’” United States v. Tsai, 282 F.3d 690, 697 (9th Cir.
2002) (citation omitted).2
2. Noriega’s recorded statements estimating the number of aliens that
would fit in his garage and revealing his intimate knowledge of the activities and
members of the smuggling organization, as well as surveillance video of Noriega
erecting aluminum siding on the chain-link fence around one of his properties,
sufficed to demonstrate that Noriega intended to join—and took overt acts to
further—the alien smuggling conspiracy. See United States v. Hernandez-
Orellana, 539 F.3d 994, 1007 (9th Cir. 2010) (The elements of a “classic” 18
U.S.C. § 371 conspiracy are: “(1) an agreement to engage in criminal activity, (2)
one or more overt acts taken to implement the agreement, and (3) the requisite
intent to commit the substantive crime.” (internal quotation marks and citation
omitted)).
3. The district court did not err by instructing the jury that the term
“private financial gain” means “any economic benefit.” Regardless of whether the
Government needed to prove that Noriega intended to gain financially himself, the
2
Though the parties dispute whether the substantive “brings to” counts
required proof of Noriega’s intent to gain financially himself, we need not reach
that issue and decline to do so. There is no question that he collected money for
the use of his two properties as load houses in aid of the smuggling venture.
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instructions on personal gain were not plainly erroneous. Given the evidence of
Noriega’s personal financial motive, any supposed error did not affect his
substantial rights.
4. The district court properly denied Noriega’s motion to dismiss the
indictment based on alleged violations of the Speedy Trial Act, 18 U.S.C. §§ 3161
et seq. (“STA”). Almost all of the two-and-a-half years between Noriega’s
arraignment on October 26, 2006, and the filing of his motion to dismiss the
indictment on May 13, 2009, was properly excluded based on pending motions, a
mental examination, an interlocutory appeal, and “ends of justice” continuances.
18 U.S.C. § 3161(h)(1)(A), (1)(C), (1)(D), (7)(A). The district court properly
excluded the entire period of time during which Noriega’s discovery motions were
pending because at each hearing the court explicitly continued the pending motions
to a date certain. United States v. Medina, 524 F.3d 974, 979 (9th Cir. 2008) (“If
such a discovery motion is not ‘continued until a date certain or the happening of
an event certain,’ then the motion is deemed to be ‘under advisement . . . as of the
date of the last hearing or filing of supporting papers, whichever is later.’”
(emphasis added) (citation omitted)). The continuances granted by the district
court were also properly excluded. The record in this case supports the court’s
determination that “the ends of justice” served by the continuances were not
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outweighed by “the best interest of the public and the defendant in a speedy trial.”
18 U.S.C. § 3161(h)(8)(A).
5. The district court also correctly rejected Noriega’s Sixth Amendment
speedy trial claim. Although the three-year delay to trial in this case was
presumptively prejudicial, Noriega was responsible for nearly all of the delay.
United States v. Sutcliffe, 505 F.3d 944, 957 (9th Cir. 2007). He requested and was
granted new counsel four times, and filed numerous other pro se motions while
represented by counsel, including motions to disqualify the court, to disqualify the
Government, and to represent himself.
6. Noriega’s right to due process of law under the Fifth Amendment and
compulsory process under the Sixth Amendment was not violated by the release of
seven material witnesses before Noriega (or his counsel) had an opportunity to
interview them. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982);
United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991).3 Noriega has failed to
show that he was prejudiced by the material witnesses’ release. There is nothing
3
Although Noriega makes several references to his rights under Brady
v. Maryland, 373 U.S. 83 (1963), “Dring—but not Brady . . .—applies to
access-to-evidence claims based on illegal witness deportation.” United States v.
Carreno, 363 F.3d 883, 890 (9th Cir. 2004) (citing United States v.
Velarde-Gavarrete, 975 F.2d 672 (9th Cir. 1992)), vacated and remanded on other
grounds, 543 U.S. 1099 (2005).
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suggesting that those witnesses’ testimony would have been material, non-
cumulative, and favorable to him. Dring, 930 F.2d at 693-94. Additionally,
Noriega has failed to show bad faith by the Government as there is no evidence in
the record that the Government departed from normal deportation procedures or
sought to gain an unfair tactical advantage over him. Id. at 695.
7. Noriega’s Sixth Amendment right to be confronted with the witnesses
against him was not violated by an Immigration and Customs Enforcement (“ICE”)
agent’s testimony explaining how ICE identifies material witnesses and then listing
the names of the non-testifying material witnesses in this case. The Confrontation
Clause was not implicated because the ICE agent did not convey the content of any
out-of-court statements made by the non-testifying witnesses. See Ocampo v. Vail,
649 F.3d 1098, 1111 (9th Cir. 2011). Noriega had the opportunity to cross-
examine the ICE agent regarding the determination that the alleged aliens were
material witnesses.
8. This Court has received two submissions from Noriega, dated August
30, 2011, and December 8, 2011. Because Noriega is represented by counsel, only
counsel may file motions, and we therefore decline to entertain these submissions.
28 U.S.C. § 1654.
AFFIRMED.
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