United States v. Robert Orlan Holley , 493 F.2d 581 ( 1974 )

OPINION

McNICHOLS, District Judge:

Appellant, Holley, was convicted after trial by jury, on all counts of a four-count indictment charging the illegal transportation of four aliens as proscribed by 8 U.S.C. § 1324(a) (2).

During the course of the trial, the central issues in controvery were knowledge and intent on the part of the defendant. It is not disputed that Holley was a taxicab driver operating in the South Bay area of San Diego County, California, who responded to a radio call from the company dispatcher; that as a result of the dispatcher’s instruction he proceeded to an area near a used car lot where he picked up four male passengers ; that the passengers were Mexican Nationals, illegally in the United States, who had illegally entered the United States within three years prior to entering the taxicab operated by the appellant; and that appellant transported the aliens in the cab. It was incumbent on the government to further prove knowledge and intent on the part of the defendant. Bland v. United States, 299 F.2d 105 (5th Cir. 1962).

As proof of knowledge on the part of the appellant that the passengers were aliens, illegally in the country, and to prove intent by him to transport them in violation of the law, the government offered evidence which tended to establish the following facts:

1. That the area where the passengers were picked up was a semi-isolated spot with brushy ground cover nearby.

2. That the passengers did not speak English.

3. That they appeared to be of Mexican descent.

4. That, they wore mud-stained clothes.

5. That they were not certain of their exact destination and did not have sufficient money to pay the potential fare.

6. That appellant had been, on a prior occasion, detained by police authorities for transporting illegal aliens in his private automobile.

7. That upon arrest in the instant case, appellant made a statement to the immigration authorities in which he indicated that he was aware of the illegal alien status of the four men.

It is clear that the government adequately met the requisite burden of proof and that a prima facie case was established. When we view the evidence, as we must, in the light most favorable to the government, (Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680) we hold, contrary to appellant’s contention, that the evidence was sufficient to sustain the convictions.

A vigorous defense was mounted, calculated to controvert the elements of knowledge and intent. Through appellant himself, other cab drivers, a labor union representative for the taxi drivers union, and taxi company executives and employees, a picture of the difficulties facing cab drivers in the South Bay area of San Diego County was illuminated,

This evidence tended to show that because of the close proximity to the Mexican-American border, a high percentage of cab passengers in the area are people of Spanish or Mexican lineage, many of whom do not speak English. It was shown that frequently illegally entered aliens used or attempted to use taxicabs for transportation. The authorities and the labor union representing the drivers had unsuccessfully tried to work out methods whereby drivers could report suspected aliens. It was contended that drivers, depending on tips for adequate earnings, could not, from a practical standpoint, demand identification from prospective passengers to determine legal right to be in the United States. It was further emphasized by evidence produced on behalf of the appellant that taxicab company policy and local ordinance each required that cab drivers avoid discrimination and accept fares seeking transportation.

Appellant contends that the. Court unduly and erroneously limited this defense evidence offered to depict the quandary in which cab drivers in the area in question found themselves. It is stressed that such evidence was vitally important to show the potential state of mind of the defendant as it bore on the essential issues of knowledge and intent, We have therefore carefully reviewed the evidentiary transcript and find that, notwithstanding the appellant’s assertions, the evidence was permitted to be rather fully developed. We entertain no doubt but that the jury was well apprised of the defense theory and the underlying problems facing the defendant as a ca^ driver in the area. In this respect, no error is demonstrated.

During the testimony of the appellant, defense counsel sought to introduce into evidence, as an exhibit, an extract from the San Diego County Regulatory Code, making it an offense for a licensed cab driver to refuse a prospective passenger.¹ The authenticity of the proffered exhibit was not challenged. Upon offer, the Court ruled that the exhibit would be admitted as being relevant to the defendant’s state of mind if a proper foundation were laid to show that the accused was in fact familiar with the contents. Unfortunately for the defense, Holley’s testimony in this regard was conflicting. While he initially testified that he knew that he was obliged to tender service to all prospective passengers, when pressed as to a specific knowledge of the sections of the ordinance contained in the exhibit, he admitted to being unsure that he had ever seen them. On this state of the evidence the trial court sustained an objection to the exhibit on the ground that the necessary foundation was lacking. Appellant and amicus ² strenuously urge that the exclusion of the exhibit constituted reversible error. We disagree. The Court below ruled favorably on the admissibility of the exhibit subject to adequate acquaintance with the contents by the witness, which acquaintance was not established.³ The appellant was permitted to testify that he knew of some law or regulation ⁴ which was a- part of his union contract and which required taxi drivers to pick up all prospective passengers. He and two other witnesses were likewise permitted to testify that the established policy of the employer taxicab company required the drivers furnish rides to all prospective passengers at the risk of loss of employment. Again it is evident that appellant was allowed to fully develop a theory of the defense and the rejection of the exhibit itself was not reversible error.

We are strengthening our view that appellant was able to adequately present in full the various defense theories by the fact that no contention is made that the jury argument was curtailed in anywise or that the jury was improperly instructed on the law.

Three other citations of error merit consideration.

Counsel for the appellant submitted to the Court in advance of the trial a list of forty-two proposed voir dire questions which he requested the Court to direct to the prospective jurors. We have examined these questions and have compared them with the voir dire conducted by the trial judge. The majority of areas of inquiry covered by the request of defense counsel were covered by the trial judge in his questioning. This Court is committed to the rule that the scope of the voir dire examination is a matter within the sound discretion oj: the trial judge. Haslam v. United States, 431 F.2d 362 (9th Cir. 1970). Our study of the record discloses no abuse of that discretion.

Appellant had been apprehended on a prior occasion while transporting illegal aliens (although no prosecution resulted). The trial judge allowed testimony to this effect over objection by appellant’s counsel. Generally, evidence of a prior criminal act is inadmissible, but as an exception to the rule, such prior act may be introduced to show state of mind or intent, design, knowledge or lack of innocent purpose. In the present case where appellant’s knowledge was a critical issue, there was no abuse of discretion in the admission of evidence of the prior similar conduct. United States v. Jiminez-Robles, 415 F. 2d 308 (9th Cir. 1969).

During the cross-examination of the defendant, government counsel was permitted, over objection, to elicit an admission of a prior felony conviction. The prior conviction occurred more than thirty years before the trial and was in no way related to the present activity. The admission of evidence of prior felony convictions, for the purpose of impeachment of the defendant-witness, has been consistently countenanced in this Circuit. United States v. Michaelson, 453 F.2d 1248 (9th Cir. 1972).

No reversible error being demonstrated in the record, we affirm.

1 . San Diego County Code of Regulatory Ordinance 21.320.

(m) It shall be unlawful for the driver or operator of any taxicab to refuse a prospective passenger or to take any action to actively discourage a prospective passenger unless the taxicab driver believes that the prospective passenger may constitute a hazard to such driver.

(n) Violation of any of the provisions of this section shall constitute grounds for the immediate suspension or revocation of the driver’s identification card.

2 . Pursuant to an Order of this Court, counsel for the Transportation and Allied Workers of California, Seafarers International Union of North America, A.F.L.-C.I.O. Cab Drivers Division, were permitted to file a brief in amicus curiae.

3 . On this state of the record we need not examine into the propriety of the practice of admitting extracts from local statutes or ordinances into evidence vis-a-vis the taking of judicial notice by the Court of such laws. Here no request was made of the trial judge that he take judicial notice of the regulation involved.

4 . The appellant was of the impression that the regulatory provision was a city ordinance of the City of San Diego.