United States v. De Lira-Villarreal

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-41024
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GAMALIEL DE LIRA-VILLAREAL,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(03-CR-60)
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant De Lira-Villareal was convicted of two
counts of transporting illegal aliens within the United States in
contravention of 8 U.S.C. § 1324(a)(1)(A)(ii). On appeal, De Lira-
Villareal’s sole argument is that there was insufficient evidence
supporting his convictions.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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BACKGROUND AND PROCEDURAL HISTORY
On the evening of February 21, 2003, Border Patrol Agent Jose
Jalomos, an 11-year veteran, was performing traffic observation
duties along State Highway 359 southwest of Benavides, Texas.
During his patrol, Agent Jalomos observed four vehicles approaching
his position on State Highway 359 and pulled his patrol vehicle
over to the side of the road to wait for the vehicles to pass by
his location. Only two of the vehicles eventually reached Agent
Jalomos, the first of which was a white Ford crew cab pickup truck.
As the pickup made its way past Agent Jalomos, he observed through
his night-vision goggles that there were two people in the front of
the cab and four others sitting in the back seat of the cab, with
an additional person lying across the laps of the four back seat
passengers. Agent Jalomos turned his vehicle around and pursued
the white pickup. The pickup passed through the town of Benavides
without stopping and continued northeast along State Highway 359.
After passing through Benavides, Agent Jalomos noticed that the
positions of the passengers in the back seat had changed — once
seated upright, all were now crouched down to the point where Agent
Jalomos “could barely see the heads over the rear back window.”
Agent Jalomos subsequently activated his vehicle’s overhead
emergency lights and pulled over the pickup. Upon approaching the
pickup, Agent Jalomos observed a total of nine people inside the
vehicle: the driver (De Lira-Villareal), a passenger in the front
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seat, a person lying on the front passenger floorboard, four people
seated in the back seat, one person lying across the laps of the
back seat passengers, and one person lying on the floorboard of the
back seat. Agent Jalomos performed an immigration inspection of
the pickup’s occupants and determined that, with the exception of
De Lira-Villareal, all were undocumented illegal aliens from
Mexico. De Lira-Villareal was found to be a resident alien who
lived in San Antonio. All nine individuals were arrested and
transported to the Border Patrol station located approximately 22
miles away in Freer, Texas.
After being arrested, De Lira-Villareal was interviewed by
Agent Jalomos at the Freer Border Patrol station where he indicated
that he had been visiting a friend in Laredo and was returning to
his home in San Antonio. De Lira-Villareal added that he was
initially traveling from Laredo to Mission, Texas, to visit his
mother, but, after realizing along the way that he did not have
enough gas to make the trip, changed his mind and headed to San
Antonio. When asked by Agent Jalomos about the passengers in the
pickup, De Lira-Villareal responded that he had stopped in the city
of Realitos, located 13 miles southwest of Benavides, to get some
diesel fuel when the passengers approached him about getting a
ride. When asked where De Lira-Villareal was taking the
passengers, he stated that “he was just giving them a ride up
ahead.”
Agent Jalomos also interviewed two of the aliens who were
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detained as material witnesses. The material witnesses, Juan
Bravo-Ramirez and Augustin Machuca-Rocha, both admitted to
authorities that they had entered the United States illegally.
While the detained aliens provided varying accounts as to how they
entered the United States, both stated that they were eventually
guided through the brush to a highway whereupon their guide
deserted the group.1 The aliens then attempted to flag down a
ride. Both deposed aliens said they had no conversation with De
Lira-Villareal other than to get a ride. Machuca-Rocha claimed
that De Lira-Villareal told the group he was taking them to a town
further down the road, while Bravo-Ramirez told authorities that De
Lira-Villareal “was taking [him] to a city north of the location
where [he was] stopped.”
A grand jury indicted De Lira-Villareal on March 12, 2003,
charging him with two counts of transporting illegal aliens within
the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).2
De Lira-Villareal pleaded not guilty to both counts. On May 7,
2003, after a one-day trial, a jury convicted De Lira-Villareal on
both counts of the indictment. On July 18, 2003, the district
court sentenced De Lira-Villareal to two concurrent terms of twelve
1
Both aliens indicated that they had made arrangements to
pay their smugglers once they arrived at their respective
destinations, but that neither had yet paid.
2
The two counts in the indictment were for the transportation
of two separate illegal aliens: the alien in Count 1 was Bravo-
Ramirez, and the alien in Count 2 was Machuca-Rocha.
4
months and one day for each violation of § 1324(a)(1)(A)(ii),
concurrent two-year terms of supervised release, and a $100 special
assessment. De Lira-Villareal timely filed the instant appeal.
STANDARD OF REVIEW
The standard for reviewing the sufficiency of the evidence is
whether the evidence, when reviewed in the light most favorable to
the government with all reasonable inferences and credibility
choices made in support of a conviction, allows a rational trier of
fact to find the essential elements of the offense beyond a
reasonable doubt. United States v. Harris, 293 F.3d 863, 869 (5th
Cir. 2002). We review direct and circumstantial evidence adduced
at trial in the light most favorable to the verdict. United States
v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992). This court will
not substitute its own credibility determination for that of the
jury, but instead will look to whether the trier of fact made a
rational decision. United States v. Jaramillo, 42 F.3d 920, 923
(5th Cir. 1995).
DISCUSSION
On appeal, De Lira-Villareal contends the government did not
present sufficient evidence, direct or circumstantial, that he:
(1) was aware of the illegal status of the aliens transported or
(2) wilfully intended to further their illegal presence in the
United States. De Lira-Villareal maintains that because the
evidence gives equal or nearly equal circumstantial support to both
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a theory of guilt and a theory of innocence, his convictions must
be reversed.
Section 1324(a)(1)(A)(ii) establishes criminal liability for
any person who:
knowing or in reckless disregard of the fact that an
alien has come to, entered, or remains in the United
States in violation of law, transports, or moves or
attempts to transport or move such alien within the
United States by means of transportation or otherwise, in
furtherance of such violation of law[.]
8 U.S.C. § 1324(a)(1)(A)(ii)(2004). To establish a violation of
§ 1324(a), the government must prove that: (1) the defendant
transported or moved an alien within the United States; (2) the
alien was present in violation of the law; (3) the defendant was
aware of the alien’s status; and (4) the defendant acted wilfully
in furtherance of the alien’s violation of the law. United States
v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998) (citing United
States v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991)). The
defendant’s knowledge of the alien’s illegal status is an essential
element of the offense. Id.In reviewing the elements for establishing a violation of
§ 1324(a), we first observe that there is no dispute as to the
first two prongs of the inquiry, i.e., that De Lira-Villareal
transported aliens within the United States or that the aliens
transported were present in this country in violation of the law.
Instead, we are faced with determining whether De Lira-Villareal
was aware of the aliens’ illegal status and whether he acted
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wilfully in furthering their violation of the law.
Awareness of the aliens’ illegal status
De Lira-Villareal contends the record is devoid of evidence
establishing that he knew the aliens were illegally present in the
United States. In support of this contention, De Lira-Villareal
argues he was never told by the aliens that they were in the United
States in violation of the law. Additionally, De Lira-Villareal
maintains that while Agent Jalomos, an 11-year veteran of the
Border Patrol, was able to determine that the passengers were
illegal aliens based on their odor and appearances, there was
nothing in the record to indicate that De Lira-Villareal enjoyed
the same power of perception. We find De Lira-Villareal’s
arguments unpersuasive.
Even if De Lira-Villareal was not personally informed of the
aliens’ illegal status, there are other indicia of the aliens’
illegal presence establishing De Lira-Villareal’s knowledge. The
evidence presented to the jury relating to the position of the
eight aliens “crammed” into the pickup De Lira-Villareal was
driving — two aliens lying on the pickup’s floorboard while another
lay across the laps of the four aliens seated in the back seat —
and their subsequent crouching in the back seat after Agent Jalomos
began following the pickup, provides strong circumstantial evidence
that De Lira-Villareal had reason to know that the aliens’ presence
in the United States was unlawful. Also, the appearance of the
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aliens at the time of the incident lends additional support to the
jury’s finding regarding De Lira-Villareal’s knowledge. Evidence
presented at trial established that the aliens had not had an
opportunity to bathe at any time during the several days they had
been traveling through the brush, and as such appeared sweaty and
dirty and smelled of smoke from the campfires the group made to
stay warm at night.
Whether De Lira-Villareal had actual knowledge of the aliens’
illegal status, § 1324(a)(1)(A)(ii) also allows for a conviction if
the defendant recklessly disregards the fact that an alien has
illegally entered this country. Under the circumstances in this
case and for the reasons discussed above, we conclude that De Lira-
Villareal, at the very least, had a reckless disregard for the fact
that the passengers he was transporting were illegal aliens.
Acting wilfully in furtherance of the aliens’ violation of the
law
De Lira-Villareal maintains he did not intend to further the
unlawful presence of the aliens in the United States, but rather
was simply providing persons stranded on the side of the road with
vital assistance. This Circuit first examined the requirement that
the defendant act wilfully in furtherance of an alien’s violation
of the law in United States v. Merkt, 764 F.2d 266 (5th Cir. 1985).
In Merkt we announced that there must be a “‘direct and substantial
relationship between that transportation and its furtherance of the
alien’s presence in the United States.’ If the defendant’s act of
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transporting an illegal alien is ‘only incidentally connected to
the furtherance of the violation of law,’ it is ‘too attenuated to
come within the boundaries’” of § 1324(a). Id. at 271 (footnote and
citation omitted). “Determining a criminal defendant’s intent is
a question of fact that the jury must resolve under the totality of
the circumstances and after evaluating all of the evidence,”
including taking proper consideration of “the mode of
transportation used, the time of travel, the route chosen, . . .
and the distance from the border at the time of apprehension.” Id.
at 272.
The jury was presented with evidence that demonstrated a stark
contrast between the story De Lira-Villareal told investigating
officers as to how he first came upon the illegal aliens and the
story the two deposed aliens related to authorities. Specifically,
De Lira-Villareal stated that he had been approached by the group
at a gas station in Realitos where he had stopped to refuel his
pickup. However, it was revealed that the only gas station in
Realitos had closed years before. De Lira-Villareal now maintains
the evidence indicates that he actually stopped to refuel in
Hebbronville, located approximately 27 miles southwest of
Benavides, when he picked up the illegal aliens.3
3
De Lira-Villareal argues that because both detained aliens
stated they had been in his pickup for approximately one hour
before being pulled over by Agent Jalomos, this provides support
for finding that he actually stopped in Hebbronville rather than
Realitos, which, as previously stated, is located only thirteen
miles from Benavides.
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However, both aliens retained as material witnesses indicated
that De Lira-Villareal picked them up along the highway in the
countryside, not at a convenience store or a gas station. In fact,
Machuca-Rocha specifically stated that the group of aliens was
never at a store of any kind. Therefore, while De Lira-Villareal
may have actually picked up the aliens around Hebbronville (based
on the amount of time the aliens stated they were passengers), the
more probative evidence for purposes of our inquiry is the discord
concerning the fundamental issue of where De Lira-Villareal first
encountered the aliens.
De Lira-Villareal also claims there is no evidence he knew
that Highway 359 was notorious for alien smuggling, arguing that
he was unfamiliar with the area and thus did not have the requisite
knowledge, much less the wilfulness to violate § 1324(a). De Lira-
Villareal maintains he was simply trying to get to San Antonio
after realizing that he did not have enough gas to travel from his
starting point in Laredo to his mother’s home in Mission, Texas.
De Lira-Villareal suggests the fact he mistakenly told Agent
Jalomos he had stopped in Realitos rather than Hebbronville
provides further support for his contention that he was unfamiliar
with the area.
Testimony at trial revealed that the area around Realitos and
Benavides in Duval County is a common staging area or “lay-up area”
where illegal aliens are guided to certain points beyond Border
Patrol checkpoints to be picked up. The jury was entitled to
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consider that De Lira-Villareal was found to be transporting
illegal aliens northeastward, further into the United States and
away from Border Patrol checkpoints, in a locale known for its
alien smuggling. Moreover, De Lira-Villareal’s chosen route of
travel, a factor to be considered in determining a defendant’s
intent under § 1324(a), Merkt, 764 F.2d at 272, raises serious
doubts as to the veracity of his story. First, if De Lira-
Villareal was originally trying to get to Mission from Laredo, the
most direct route is clearly along U.S. Highway 83, a four-lane
divided highway for much of the way. Instead, De Lira-Villareal
chose to travel due east on State Highway 359, a two-lane undivided
highway. Moreover, by taking State Highway 359 instead of the U.S.
Highway 83, De Lira-Villareal added an extra 36 miles and an hour
and a half to his trip.4 Assuming that De Lira-Villareal was aware
of his limited resources prior to embarking on his travels to
Mission, his decision to take the route he did is highly suspicious
and inconsistent with the story he told Agent Jalomos.5
In addition, the evidence adduced at trial showed that De
Lira-Villareal, while transporting the illegal aliens, drove by a
4
These figures were calculated using travel planning
software, which takes into consideration the fact that the two-
lane, undivided highways De Lira-Villareal would have had to take
on his way to Mission go directly through several small towns and
other intermittent road crossings that often require drivers to
reduce their travel speeds.
5
It is unclear whether the limited resources were in the form
of money or actual gasoline in the gas tank.
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24-hour convenience store located in the town of Benavides without
stopping. De Lira-Villareal argues he did not stop in Benavides
because, by all accounts, it was a small town, and that he planned
on taking the aliens further down the road. This is wholly
inconsistent with De Lira-Villareal’s contention that he was
unfamiliar with the area. If De Lira-Villareal had truly not been
acquainted with this part of Texas, it does not follow that he
could at the same time be cognizant of the small town best equipped
to provide assistance to his passengers. Although De Lira-
Villareal insists that he only intended to help the aliens, the
jury was certainly entitled to find that he could have stopped and
obtained assistance for the aliens at the first opportunity, i.e.,
the convenience store in Benavides.
Finally, De Lira-Villareal argues there is no evidence that he
was ever paid for transporting the illegal aliens, specifically
noting that neither deposed alien reported making any type of
payment to De Lira-Villareal. We have previously held, however,
that financial gain is not an element of § 1324(a), United States
v. Romero-Cruz, 201 F.3d 374, 379 (5th Cir. 2000), and thus De
Lira-Villareal’s argument fails.
In sum, the direct and circumstantial evidence presented by
the government was sufficient for a rational jury to have rejected
De Lira-Villareal’s explanations as not credible and to have
concluded that he knowingly transported illegal aliens in
furtherance of their violation of the law. In Williams, this court
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stated that “[i]t is the jury’s responsibility to weigh the
credibility of witnesses. That the jury chose not to believe
[defendant]’s testimony is to [defendant]’s detriment. However,
this court will not assume the jury’s role on appeal.” 132 F.3d at
1059 (finding sufficient evidence supporting the jury’s finding
that the defendant violated § 1324(a)). While De Lira-Villareal
essentially argues that he was simply a Good Samaritan in the wrong
place at the wrong time, the strength of the evidence indicating
otherwise is considerable. Because we are bound to view all
evidence, as well as all inferences reasonably drawn from that
evidence, in the light most favorable to the government, we
conclude there was legally sufficient evidence to support De Lira-
Villareal’s convictions.
CONCLUSION
Having carefully reviewed the record of this case, the
parties' respective briefing and arguments, and for the reasons set
forth above, we conclude there was sufficient evidence to support
the jury’s finding that De Lira-Villareal transported illegal
aliens with the requisite knowledge of their illegal status and
with the wilful intent to further their violation of the law.
AFFIRMED.
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