United States v. Israel Gonzalez-Vazquez ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50093
Plaintiff-Appellee, D.C. Nos.
3:19-cr-00244-AJB-1
v. 3:19-cr-00244-AJB
ISRAEL GONZALEZ-VAZQUEZ,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted February 7, 2022**
Pasadena, California
Before: LIPEZ,*** TALLMAN, and LEE, Circuit Judges.
Israel Gonzalez-Vazquez appeals his conviction on two counts of bringing an
alien into the United States for commercial advantage, 8 U.S.C. § 1324(a)(2)(B)(ii),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
and two counts of bringing an alien into the United States without presentation to an
immigration official, id. § 1324(a)(2)(B)(iii). Gonzalez-Vazquez challenges the
sufficiency of the evidence offered to prove the financial gain element of the counts
charged under 8 U.S.C § 1324(a)(2)(B)(ii), the exclusion of certain financial
evidence offered by Gonzalez-Vazquez, the admission of expert testimony, the
admission of "profile evidence," and the denial of his motion for a new trial. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The evidence in the record was sufficient to support the financial gain
element of the two counts charged under 8 U.S.C. § 1324(a)(2)(B)(ii). Because the
government proceeded with an aiding and abetting theory, it needed only to prove
that a principal actor had a pecuniary motive to engage in smuggling, not Gonzalez-
Vazquez himself. United States v. Tsai, 282 F.3d 690, 697 (9th Cir. 2002). The
individuals found in Gonzalez-Vazquez's trunk testified that they (or their family
members) expected to pay a fee to "Snakeheads" for smuggling them into the United
States. That testimony was sufficient to demonstrate that the Snakeheads, the
principals, had a pecuniary motive. See United States v. Mejia-Luna, 562 F.3d 1215,
1220 (9th Cir. 2009); Tsai, 282 F.3d at 697.
2. The evidence of Gonzalez-Vazquez's $80,000 pension was properly
excluded under Federal Rules of Evidence 401 and 403. First, the pension evidence
was irrelevant, per Rule 401. The government did not cross-examine Gonzalez-
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Vazquez about a pecuniary motive, nor did it adduce any evidence suggesting that
Gonzalez-Vazquez participated in the smuggling operation for his own financial
gain. As such, Gonzalez-Vazquez's financial motivation was not at issue. Cf. United
States v. Whitman, 771 F.2d 1348, 1351 (9th Cir. 1985) (noting that "[t]he district
court has broad discretion to determine whether evidence is relevant" and that "the
court has discretion to admit or deny motive evidence"). Moreover, even if we
assume the pension evidence carried some relevance, the introduction of that
evidence, as the district court noted, would have opened the door to an inquiry into
the nature of the pension, how or when Gonzalez-Vazquez could access it, and
potential withdrawal penalties. Accordingly, the district court correctly concluded
that the potential for undue delay outweighed any minimal relevance of the pension
evidence under Rule 403.
3. The district court did not err in admitting Officer Sergio Barron's expert
testimony concerning the typical organization and roles within a Chinese smuggling
operation. We have permitted modus operandi testimony in alien smuggling cases
to "assist[] the jury in understanding alien smuggling schemes, their operational
framework, and [a defendant's] particular role." Mejia-Luna, 562 F.3d at 1219.
Here, Gonzalez-Vazquez denied any connection to the smuggling operation and
claimed he had no knowledge of the individuals in his trunk. Hence, Officer Barron's
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testimony was relevant to explain how such smuggling organizations typically work
and the part Gonzalez-Vazquez played within this one. See id. at 1218-19.
4. Contrary to Gonzalez-Vazquez's suggestion, Officer Barron's testimony
did not constitute impermissible profile evidence. At no point did he describe
characteristics common to drivers in Chinese smuggling operations or link his
testimony to characteristics of Gonzalez-Vazquez. See, e.g., Reid v. Georgia, 448
U.S. 438, 440 (1980) (per curiam) (describing a "'drug courier profile'" as a
"somewhat informal compilation of characteristics believed to be typical of persons
unlawfully carrying narcotics").
5. As we find no error here, there is no basis for reversing the district court's
denial of Gonzalez-Vazquez's motion for a new trial.
AFFIRMED.
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