United States v. Angelica Lopez , 484 F.3d 1186 ( 2007 )

TALLMAN, Circuit Judge,

with whom Circuit Judges RAWLINSON, CLIFTON and CALLAHAN

join, dissenting.

The law should be the same whether smuggling aliens, drugs, or contraband goods. Today, the majority creates a circuit split by announcing a rule that contravenes established precedent and undermines congressional intent. Congress and every other circuit court to address the issue have all concluded that importation offenses continue until the imported objects or persons reach their final destination within the United States. See United States v. Haire, 371 F.3d 833, 838 (D.C.Cir.2004), vacated on other grounds, 543 U.S. 1109, 125 S.Ct. 1014, 160 L.Ed.2d 1038 (2005); United States v. Turner, 936 F.2d 221, 226 (6th Cir.1991); United States v. Leal, 831 F.2d 7, 9-10 (1st Cir.1987) (per curiam); United States v. Sandini 803 F.2d 123, 128 (3d Cir.1986); United States v. MacDougall, 790 F.2d 1135, 1150-51 (4th Cir.1986); United States v. Netz, 758 F.2d 1308, 1312 (8th Cir.1985) (per curiam); United States v. Corbin, 734 F.2d 643, 652 (11th Cir.1984); United States v. Godwin, 546 F.2d 145, 146-48 (5th Cir.1977); United States v. Jackson, 482 F.2d 1167, 1178-79 (10th Cir.1973); S. Rep. No. 98-225, at 400 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3538.

Rather than following this long line of authority, our court unnecessarily injects inconsistency into the law by concluding that alien importation ends once the “initial transporter who brings the aliens to the United States ceases to transport [the aliens].” Maj. op. 1188. In doing so, the majority fails to give sufficient credence to the long recognized doctrine of aider and abetter liability, which punishes the convicted defendant as a principal. See 18 U.S.C. § 2.1 respectfully dissent.

I

Even under the majority’s interpretation of the scope of the “brings to” offense, the convictions should be affirmed. There was sufficient evidence for the jury to find that Lopez agreed to participate in the alien smuggling venture prior to when the initial transporter ceased transporting the aliens. We review de novo a district court’s denial of a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. United States v. Bahena-Cardenas, 70 F.3d 1071, 1072(9th Cir.1995). “In assessing the sufficiency of the evidence, ‘we are required to view the evidence in the light most favorable to the government and determine whether there was sufficient evidence from which a jury could rationally conclude beyond a reasonable doubt that [the defendant] was guilty of each count charged.’ ” United States, v. Barajas-Montiel, 185 F.3d 947, 954 (9th Cir.1999) (quoting United States v. Esparza, 876 F.2d 1390, 1391 (9th Cir.1989)). “[C]ircumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury’s fact-finding function is concerned.” United States v. Stauffer, 922 F.2d 508, 514 (9th Cir.1990) (internal quotation marks omitted; alteration in original).

Border Patrol Agents apprehended Angelica Lopez (“Lopez”) on June 1, 2004, using a large white Ford Expedition to transport twelve illegal aliens east on Interstate 8. Agent Huber testified that Lopez admitted to making arrangements with a person named Jose earlier that day to transport the aliens to El Centro, California. Jose instructed her to drive to a location near where the agents apprehended her and advised her that there would be a sweater lying in the road to indicate where she could find the aliens. Initially, Jose promised to pay Lopez $100 for each individual she transported; however, he called her sometime later to change the arrangements to a flat fee of $500 for the entire group. Lopez gave a vague physical description of Jose, describing him as a bald, short, heavyset man.

Lopez also testified that she had purchased her Ford Expedition a few days earlier on May 28, 2004. She had noticed the vehicle outside an Applebee’s restaurant in Montclaire, California. However, when she made arrangements to actually purchase the car, the owner had it in a tow yard located some two and a half hours from where she lived, near where the aliens where to be picked up. The vehicle was registered in Lopez’s name on May 28, 2004, but Lopez did not go to pick it up until June 1, 2004, the day Jose contacted her about transporting the aliens to El Centro.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could reasonably conclude that Lopez made arrangements with Jose prior to June 1, 2004, to aid in the completion of this smuggling venture. The jury could also reasonably infer that her decision to purchase this used Ford Expedition— which happened to be located near where the aliens were hiding — and to pick up the vehicle on the day Jose asked her to transport the aliens was more than a mere coincidence. It is not unheard of in our experience for smugglers to employ used or rented vehicles in aid of their schemes in case of interdiction, seizure, and subsequent forfeiture of the instrumentality of the crime; As the district court concluded:

[I]f you combine [Lopez’s] testimony as to when she was getting the car, that would be some evidence as to the fact that she was involved in this before the aliens crossed; or about the time. Because when she registered it to her, registered the vehicle to her, she indicated it was before the day she went down there.

And so, although Jose calls her, according to her statement, that day, that doesn’t mean that she had an agreement with Jose before, that she was going to do it; just Jose was going to call her and tell her when, get the car registered. I’ll let you know when to do it. I think that’s a reasonable inference that can be drawn.

Because there is sufficient evidence to conclude that Lopez aided and abetted the venture prior to when the initial transporter ceased transporting the aliens, the convictions should be affirmed even under the majority’s novel interpretation.

II

Our court glosses over Congress’s expressed purpose to treat importation schemes as continuing offenses in enacting the companion federal venue statute, 18 U.S.C. § 3237,¹ when it holds that the “brings to” offense under 8 U.S.C. § 1324(a)(2)² terminates once the initial transporter ceases transporting the alien. In light of § 3237’s plain language, the court acknowledges that importation crimes are continuing offenses for venue purposes. Maj. op. 1191-93. However, it surmises that this “in no way compels” a conclusion that the “brings to” offense continues until the alien reaches his or her final destination in the United States because the words “ultimate destination” do not appear anywhere in the federal venue statute. Maj. op. 1193-94.³ After scouring the text of the federal venue statute, its legislative history, and § 1324, one searches in vain to find the words “initial transporter,” a phrase our court now employs to define the scope of the “brings to” offense.

When a statute is ambiguous “we [must] determine its scope with reference to its legislative history.” Coeur D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 692-93(9th Cir.2004) (citing Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977)). The legisla-five history of § 3237 is clear: importation offenses continue until the imported person or object reaches its final destination within the United States. See S. Rep. No. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N. at 3538.

In 1984 Congress amended the federal venue statute, see Pub.L. No. 98-473, § 1204, 98 Stat. 1837, 2152 (1984), to abrogate judicial opinions in which courts had held that importation offenses end once the person or object arrives at the district of entry. See S. Rep. No. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N. at 3538. The legislative history reflects that through this amendment Congress intended to “add offenses involving the importation of a person or an object into the United States and thereby to classify such offenses as continuing offenses for which venue is appropriate in any district in which the imported object or person moves.” Id. In doing so, Congress sought to “overcome” restrictive decisions such as United States v. Lember, 319 F.Supp. 249 (E.D.Va.1970), in which the district court determined that the crime of smuggling terminates once the contraband arrived in the district of entry as opposed to the district of final destination. S. Rep. No. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N. at 3538.

Our court overlooks this integral piece of legislative history.⁴ It makes no mention of the fact that even though the district court in Lember based its reasoning on many of the same arguments the majority now cites in support of its narrower interpretation, Congress nevertheless favored the broader interpretation — that importation offenses continue until the person or object reaches its final destination. In Lember, a package mailed from Vietnam was addressed to the defendant’s wife in Virginia Beach, Virginia. 319 F.Supp. at 250. When the package arrived at the San Francisco International Airport, a United States customs agent opened the package during a routine check and found marijuana. Id. The agent resealed and delivered the package to the Virginia Beach address. Id. Eventually, the defendant was indicted and tried in the Eastern District of Virginia. Id. After the district court declared a mistrial, the defense filed a motion for judgment of acquittal, arguing that the prosecution could not proceed in Virginia, but rather that proper venue lay only in the Northern District of California. Id. The district court agreed. Id. at 251-52. Relying on an 1899 decision of the Supreme Court, Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505, it concluded that “the crime of smuggling was complete when the package arrived ashore and was opened at the San Francisco Airport.” Lember, 319 F.Supp. at 251.

In Keck, the Supreme Court determined that the offense of smuggling or clandestinely introducing contraband into the United States was completed once the goods arrived at the port of entry. 172 U.S. at 454-55, 19 S.Ct. 254; see also Lember, 319 F.Supp. at 251 (discussing Keck). The Court reasoned that the statute

was not intended to make smuggling embrace each or all of the acts theretofore prohibited which could precede or which might follow smuggling ... [;] that is, the statute was intended not to merge into one and the same offense all the many acts which had been previously classified and punished by different penalties, but to legislate against the overt act of smuggling itself.

172 U.S. at 454-55, 19 S.Ct. 254. Therefore, in the Court’s view, the smuggling statute “related not generally to acts which precede smuggling! ] or which might follow it, but to the concrete offense of smuggling!] alone.” Id. at 455, 19 S.Ct. 254. The majority reverts to the same rationale here by pointing to the different crimes of transporting, bringing to, and harboring or concealing.

In amending the statute, Congress rejected the rationale of Lember, and in turn, the rationale of Keck, at least to the extent Keck is read for the proposition that illegal importation ends at the port of entry. Therefore, although the majority correctly notes that § 1324 punishes four distinct acts related to smuggling, see maj. op. 1194-95, the legislative history indicates that Congress nevertheless intended to punish — under the “brings to” offense— any person who helped get the alien to his or her final destination within the United States. See S. Rep. No. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N. at 3538(stating that the amendment “[wa]s designed to overcome the decision in United States v. Lember, which limited venue in importation cases to the district of entry rather than of final destination” (footnote omitted; emphasis added)). Any other construction would be “unjustified” in that it “would create difficulties since the witnesses are usually located in the place of destination” and “the district of destination rather than first entry normally has the greater interest in vindicating the offense.” Id.

In disregarding legislative history our court also creates a circuit split, departing from how other circuits have defined the scope of importation offenses. In Sandini, the Third Circuit rejected the defendant’s argument, which would have “reinstated Lember’s irrational port of entry rule” and held that under the “plain meaning of [§ 3237], venue [wa]s proper in the Western District of Pennsylvania because the ‘imported object,’ i.e., the marijuana, ‘move[d]’ into the Western District of Pennsylvania.” 803 F.2d at 128, 129(final alteration in original); see also id. at 128 (“Although the Western District of Pennsylvania may not have been the final destination intended by the appellant, it was nevertheless the final destination of a considerable amount of the marijuana he conspired to import into this country.”). Moreover, every circuit that has addressed the issue has concluded that importation offenses continue until the imported object reaches its final destination within the United States. See supra, at 1202.

The majority employs a spurious structural argument in an attempt to justify its inconsistent treatment of alien and drug smuggling. See Maj. op. 1197. In doing so, it ignores 21 U.S.C. § 841(a)(1), which punishes the related drug-trafficking offenses of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance. Congress intended § 841(a)(1) to cover conduct intimately connected to the act of smuggling drugs, e.g., simultaneously punishing possession with intent to distribute, see United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir.1978) (“Congress clearly viewed importation and possession with intent to distribute as separate evils that could be punished cumulatively.”), whether the smuggler was interdicted inside or outside the territorial boundaries of the United States, see United States v. Larsen, 952 F.2d 1099, 1100-01 (9th Cir.1991) (holding that § 841(a)(1) has extraterritorial application).

Persons involved in drug smuggling schemes, like those involved in alien smuggling schemes, can be prosecuted under a variety of statutory means, not just under the misnamed “unitary” crime of § 952 as the majority reasons. The venue statute, 18 U.S.C. § 3237, should be harmoniously read to reach all such means of violating either alien or drug smuggling statutes. That is why drug importation crimes can be freely prosecuted in any federal district impacted by the activities of the drug smuggling enterprise. Logic compels the conclusion that Congress expected no different result when prosecuting enterprises involving alien smuggling. The split created today by the majority’s approach is real and substantial and cannot be dismissed in reliance on the narrow structural differentiation employed in our court’s decision.

A conclusion that the “brings to” offense continues until the alien reaches his or her final destination would not seriously erode the distinction between the importation offense and the transportation offense. The act of bringing aliens to the United States encompasses activities that occur at the earliest manifestations of an alien smuggling venture. As the majority notes, “[b]ringing aliens to the United States requires transporting them over a period of time and distance!,] and thus does not occur at one particular moment or location.” Maj. op. 1192-93. Large scale importation operations do not terminate once the “initial transporter” or “guide” ceases to transport the aliens. As is the case here, aliens often pay the smuggler to transport them to a particular place in the country, not a hillside just across the border. Recognizing that importation “is not a static or an instantaneous occurrence, geographically or temporally,” maj. op. 1192, the crime punishing the importation of aliens should include the transportation of those aliens to their final destination.

In comparison, the transportation and harboring or concealing of illegal aliens covers the continued presence and operation of the alien smugglers within the United States.⁵ Thus, separate crimes apply to later criminal conduct by those who knowingly transport, harbor, or conceal aliens even though they had nothing to do with smuggling them into the United States. Each case must turn on its own facts. But Congress was free to criminalize a broad range of activities, punishing those who assist others in flouting our immigration laws. Those who arrange, pay for, or otherwise aid or abet the smuggling venture are liable as principals under 18 U.S.C. § 2. See United States v. Carranza, 289 F.3d 634, 642(9th Cir.2002) (finding sufficient evidence to convict defendant of importing marijuana when he participated in a test run, riding as a passenger in the vehicle that brought drugs across the border); United States v. Flickinger, 573 F.2d 1349, 1359-60 (9th Cir.1978) (convicting defendants of illegally importing marijuana into the United States because they aided or abetted the crime), overruled on other grounds by United States v. McConney, 728 F.2d 1195, 1204-05 (9th Cir.1984) (en banc), abrogated on other grounds as recognized in Estate of Merchant v. Comm’r, 947 F.2d 1390 (9th Cir.1991).

As we stated in United States v. Sanchez-Vargas, 878 F.2d 1163 (9th Cir.1989), “congressional debate ... suggests that the transport offense was directed, in large part, at curbing the widespread practice of transporting illegal immigrants, already in the United States, to jobs and locations away from the border where immigration enforcement resources may have been more scarce.” Id. at 1169. In other words, Congress intended to punish those who encouraged the continued presence of the illegal aliens by transporting them to other locations within the United States.⁶

The legislative history also cites with approval the Fifth Circuit’s decision in Godwin, 546 F.2d 145, and the Tenth Circuit’s decision in Jackson, 482 F.2d 1167. S. Rep. No. 98-225, at 400 n. 945, as reprinted in 1984 U.S.C.C.A.N. at 3538. In Jackson, the defendant argued that the federal district court in Colorado was not the proper venue to try the case when the authorities first discovered the smuggling venture in California. 482 F.2d at 1178. The Tenth Circuit rejected that argument, reasoning:

[Title 21 U.S.C. § ] 952(a) prohibits importation of heroin into the United States from any place outside thereof. The statute does not necessarily pertain to any particular locality such as the place of entry, for it prohibits importation anywhere in the United States. Appellants charge, however, the offense was completed the moment the smuggling attempt was discovered in California and thus does not continue to the smuggling attempt’s destination point in Colorado. Admittedly a crime was committed the moment the heroin package entered the United States, but discovery of the crime in California did not exhaust it. The illicit scheme originated in Thailand and from there it extended to Lowry Air Force Base, Colorado. During the illicit venture the heroin was discovered in California but certainly the crime was not completed there. It was a continuous crime which received no finality until the package arrived at Lowry Air Force Base.

Id. (citation omitted). In Godwin, the court expressly rejected the holding in Lember and adopted the reasoning of the Tenth Circuit in Jackson. 546 F.2d at 146-47.

The need for consistency in the interpretation of importation offenses — whether it involves the importation of illegal aliens or illegal contraband — did not go unnoticed by the Second Circuit. The “immediate destination” theory adopted by a three-judge panel of our court in United States v. Ramirez-Martinez, 273 F.3d 903, 912 (9th Cir.2001), originated in United States v. Aslam, 936 F.2d 751, 755 (2d Cir.1991). Aslam, a Pakistani citizen, met two illegal aliens just south of the Canadian border. Id. at 753. The evidence showed that a guide had driven the aliens to the Canadian side of the border, accompanied them across the border, and then walked back to the Canadian side. Id. Aslam waited for the aliens at a prearranged location south of the border to “complete their entry into the United States.” Id. In concluding that Aslam’s conduct violated the “bringing to” prong of the statute, the Second Circuit stated that

section 1324(a)(2) punishes those who participate in the process of bringing illegal aliens into the United States, and ... the offense does not end at the instant the alien sets foot across the border. The illegal importation of aliens, like the illegal importation of drugs, see United States v. Leal, 831 F.2d 7, 9(1st Cir.1987), United States v. MacDougall, 790 F.2d 1135, 1150-51, 1153 (4th Cir.1986), continues at least until the alien reaches his immediate destination in this country.

Id. at 755 (emphasis added).

The Aslam court compared illegal importation of aliens to the illegal importation of controlled substances. In doing so, it cited Leal, 831 F.2d 7, and MacDougall, 790 F.2d 1135, where the First Circuit and the Fourth Circuit stated, not that the illegal importation ended when the initial transporter ceases to transport the imported object or person, but rather when they reached their “final destination.” Leal, 831 F.2d at 9 (“[Ijmportation is a ‘ “continuous crime” that is not complete until the controlled substance reaches its final destination point.’ ” (quoting Corbin, 734 F.2d at 652)); MacDougall, 790 F.2d at 1151 (same); see also Sandini, 803 F.2d at 128(stating that for purposes of establishing venue under 18 U.S.C. § 3237(a), “the proper venue for the prosecution was the final destination of the contraband rather than the port at which the narcotics entered the country”).

No court has conclusively defined the temporal parameters of importation offenses. See Leal, 831 F.2d at 9(stating that “[w]hile the precise temporal parameters of importation have not yet been addressed,” it is clear that “importation is a continuous crime that is not complete until the controlled substance reaches its final destination point” (internal quotation marks omitted)). Nevertheless, as in other contexts, this is a matter that is best left for the jury to decide based on the facts presented in each case and the vagaries of smuggling schemes concocted by the criminal mind.⁷

Moreover, when Congress amended the alien smuggling statute in 1986, it did not seek to narrow its construction of general importation offenses. Instead, it sought to “expand the scope of activities proscribed” by “smuggling and related offenses.” See H.R. Rep. No. 99-682(1), 65 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5669. “[It] believefd] such modifications ... essential in light of recent judicial opinions which ha[d] interpreted [then] existing law as not applying to certain activities that clearly [we]re prejudicial to the interests of the United States.” Id. Today, rather than adhering to unambiguous congressional intent, our court unnecessarily restricts the scope of the “brings to” offense and creates inconsistency in the law by treating alien smuggling differently from drug smuggling.

Ill

We should reaffirm our prior decisions in United States v. Ramirez-Martinez, 273 F.3d 903, and United States v. Angwin, 271 F.3d 786 (9th Cir.2001). Pre-border involvement is not required for a “bringing to” conviction under 8 U.S.C. § 1324(a)(2). Cf. Flickinger, 573 F.2d at 1359-60 (affirming conviction because, although the defendants did not transport the marijuana across the border, they aided and abetted the importation venture). As the panel concluded in Ramirez-Martinez, if the defendant is involved in any “concerted action” to bring an illegal alien to the United States he is guilty of the “bringing to” crime. 273 F.3d at 912. This is consistent with notions of aider and abetter liability long recognized in federal criminal law. See 18 U.S.C. § 2; see also Ramirez-Martinez, 273 F.3d at 912(citing Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) (“[S]o long as the partnership in crime continues, the partners act for each other in carrying it forward.”); Smith v. United States, 24 F.2d 907, 907 (5th Cir.1928) (finding aider and abetter liability when defendant waited in the woods with an automobile for illegal aliens arriving from Cuba and then transported them to Tampa, Florida)).

In Ramirez-Martinez, we upheld a conviction for bringing an illegal alien to the United States when the evidence supporting Ramirez-Martinez’s conviction was that he knew an unidentified individual who took him to a prearranged location to meet the illegal aliens, after which Ramirez-Martinez planned to drive the aliens to Los Angeles for money. 273 F.3d at 907, 912-13. In support of our holding we said:

When a defendant does not physically accompany the undocumented alien across the United States border, for example, the government can still prove that the defendant acted before the offense was completed by showing, for instance, that the defendant was part of some “concerted action” to bring the aliens to the United States. As the Fifth Circuit put the matter: “If what the evidence showed [the defendant] did in concert with other accused encouraged the latter unlawfully to bring the aliens into and land them in the United States, he aided and abetted them in so doing.” Smith v. United States, 24 F.2d 907, 907 (5th Cir.1928).

Id. at 912 (alteration in original). Because there was a “concerted effort to bring the undocumented aliens” to the United States, and because Ramirez-Martinez was a part of that effort, there was sufficient evidence to convict him of the “bringing to” crime. Id.

We also upheld a similar conviction in Angwin, 271 F.3d 786, emphasizing Ang-win’s role in the overall operation as opposed to his connection to the “initial transporter.” See id. at 805. Rejecting Angwin’s argument of insufficient evidence, we said:

The aliens Angwin transported were traveling to Los Angeles, Angwin met them at a prearranged location shortly after some of them arrived at the United States, and he immediately helped transport them north. Under those circumstances a rational jury could easily conclude beyond a reasonable doubt that Angwin aided and abetted a smuggling operation to bring aliens to the United States. His role in meeting the aliens at a prearranged location just north of the border within minutes of their arrival [in] the United States was essential to the success of the entire operation. While there may be some circumstances where a defendant’s prearranged transportation of aliens is so remote in time and/or geography from the aliens’ entry into the United States that no rational jury could conclude that the defendant aided and abetted the bringing of the aliens to the United States, such circumstances are not present here.

Id. at 804-05.

Under the new interpretation announced today, the convictions in Ramirez-Martinez and Angwin could not stand. See Maj. op. 1199-1201 & n. 17. Although we concluded that Ramirez-Martinez took part in a “concerted action” to bring the aliens to the United States, the evidence tying Ramirez-Martinez to the smuggling operation before the “initial transporter” ceased transporting the aliens was minimal. Similarly, in Angwin, the defendant played an “essential role” in a smuggling operation by picking up aliens on this side of the border. As revealed by our analysis there, the importance of the defendant’s assistance in Angwin did not relate particularly to whether the defendant became involved before or after the “initial transporter” ceased transporting the aliens, 271 F.3d at 804-05, yet under the majority’s view that irrelevant fact will henceforth be determinative.

As these cases illustrate, the purpose of the more sophisticated smuggling operations is not to simply transport the alien across the border. The aliens often pay the smugglers to take them to a less-dangerous prearranged location well within the United States where interdiction resources are scarce or non-existent. For such a scheme to succeed, the operation often relies on accomplices beyond the “initial transporter.” In Flickinger, we stated that “[t]o prove aiding and abetting [of drug importation], the government was required to demonstrate that [the defendants] participated in the crime of importation and by their actions sought to bring about its success.” 573 F.2d at 1359. In this case, as well as in Ramirez-Martinez and Angwin, the defendants played an essential role in the success of the overall smuggling operation. In order to get the aliens to their final destinations as they had contracted, the principals of the smuggling operations relied on these defendants to transport the aliens from desolate areas just across the border to locations well within the United States where they faced a lower risk of apprehension.

IV

The court erroneously adopts a truncated view of criminal culpability for those involved in sophisticated smuggling operations like this one. Not all smuggling operations end once the initial transporter ceases to have contact with the smuggled aliens. This decision constrains the latitu-dinous scope of the “brings to” statute and undermines congressional intent to punish any person who aids and abets in the bringing of illegal aliens to their final destination within the United States under 8 U.S.C. § 1324(a)(2). We need to maintain uniformity in our smuggling case law by construing the “brings to” offense under § 1324(a)(2) consistently with how courts construe the illegal importation of controlled substances under 21 U.S.C. § 952.

In this case, a group of illegal aliens made arrangements with “guides” in Mexico. The aliens agreed to pay smugglers $1500 to smuggle them across the border and bring them safely to Los Angeles, California. The Defendant, Lopez, played an essential role in the success of this smuggling operation. For her part, Lopez was recruited to pick up a car and drive the aliens from a location somewhere near the Mexican border to a gas station in El Centro, California. Because Lopez aided and abetted the venture before the completion of the “brings to” offense — in other words, before the smugglers finally delivered the aliens to Los Angeles as they had contracted — her conviction should be upheld.

I respectfully dissent.

1 . In pertinent part, § 3237(a) provides:

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

2 . As does the majority, I will cite to the 2000 edition of the United States Code. See Maj. Op. 1187 n. 1.

3 . The majority goes on to state that "the government's varying descriptions of its proposed rule^ — 'immediate destination,' 'final destination,’ 'ultimate destination,' 'intended destination' — highlight the sheer arbitrariness of adding to the statute language that has no basis in statutory text.” Maj. op. 1197.

4 . Although the court concedes that "[i]f the venue statute contained language about ultimate destinations, we would confront a different question,” maj. op. 1194, it dismisses such language as a mere "snippet” of legislative history, maj. op. at 1198 n. 14.

5 . The inquiry is heavily dependent on the facts of the particular case. Here, the evidence showed payment to smugglers to deliver the aliens to Los Angeles, where the aliens presumably intended to meet friends or family. On these facts, once they reached Los Angeles the "brings to” crime would have been completed. Thus, a family member who thereafter picked up an alien in Los Angeles and transported him or her to Portland, Oregon, could not be convicted of the "brings to” offense, but only the transportation offense, in the absence of any evidence linking the family member to the smugglers. Similarly, a family member who allowed an alien to stay at his or her home in Los Angeles, knowing the alien was here illegally, could be convicted of harboring or concealing an illegal alien. See 8 U.S.C. § 1324(a)(l)(A)(iii).

6 . That Congress provided differing punishments for certain conduct reflects only a legislative judgment that specific behavior is more or less culpable and deserving of a harsher penalty. It has no bearing on the statutory interpretation question we here decide. Nevertheless, I note that a conviction under 8 U.S.C. § 1324(a)(2) for bringing illegal aliens to the United States for commercial advantage or private financial gain will result in a sentence of not less than 3 years and not more than 10 years for the first or second offense. Id. § 1324(a)(2)(B). For any such other violation, the district court shall impose a sentence of not less than 5 but not more than 15 years. Id. In comparison, a conviction under 8 U.S.C. § 1324(a)(l)(A)(ii) for transporting illegal aliens for commercial advantage or private financial gain will result in a sentence of not more than 10 years. Id. § 1324(a)(l)(B)(i).

7 . For instance, the majority cites United States v. Vowiell, 869 F.2d 1264 (9th Cir.1989), in which we held that the crime of aiding an escape ends once the immediate active pursuit of the escapee ends. Id. at 1268-69. However, determining when the "immediate active pursuit" ends is no more difficult than ascertaining the aliens’ "final destination.” See United States v. Smithers, 27 F.3d 142, 145 (5th Cir.1994) (noting that determining the end of an "immediate active pursuit” is obviously a fact-intensive inquiry).