United States v. Hernandez-Orellana

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50584
v.  D.C. No.
NORMA HERNANDEZ-ORELLANA, CR-05-01282-NAJ
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-50620
Plaintiff-Appellee,
v.  D.C. No.
CR-05-01282-2-NAJ
MARITZA OLMEDA DREWRY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
June 3, 2008—Pasadena, California
Filed August 20, 2008
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and James K. Singleton,*
Senior District Judge.
Opinion by Judge Tallman
*The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
11143
11148 UNITED STATES v. HERNANDEZ-ORELLANA
COUNSEL
Steven S. Lubliner, Esquire, Criminal Justice Act Attorney,
Petaluma, California, for defendant-appellant Norma
Hernandez-Orellana.
UNITED STATES v. HERNANDEZ-ORELLANA 11149
David J. Zugman, Esquire, Criminal Justice Act Attorney, San
Diego, California, for defendant-appellant Maritza Olmeda
Drewry.
William M. Narus, Esquire, Assistant United States Attorney,
San Diego, California, for plaintiff-appellee United States of
America.
OPINION
TALLMAN, Circuit Judge:
Today, we address the question left open in United States
v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc), to explain
what actions render a co-conspirator criminally liable for an
alien smuggling conspiracy for profit even though there is no
evidence that the conspirator herself committed an actual
overt act of smuggling aliens across the border but other co-
conspirators did. We hold that a reasonable jury could have
determined that Maritza Olmeda Drewry (Drewry)1 and
Norma Hernandez-Orellana (Hernandez) participated in a
conspiracy to bring aliens from Mexico to the United States
for financial gain in violation of 18 U.S.C. § 371 and 8 U.S.C.
§ 1324. We conclude that our en banc decision in Lopez
decided during the pendency of this case compels the reversal
of Drewry’s and Hernandez’s convictions on the substantive
“bringing to” counts, 8 U.S.C. § 1324(a)(2)(B)(ii). We there-
fore affirm in part and reverse in part the judgment of the dis-
trict court. Because it is unclear whether the district court
would have imposed the same sentence in light of our deci-
sion to reverse the substantive bringing to counts, we also
remand for resentencing.
1
In the Presentence Report and Judgment, Drewry’s name is spelled
Drewry. In the Superceding Indictment and Reporter’s Transcripts, it is
spelled Drewery. We use the former spelling throughout this opinion.
11150 UNITED STATES v. HERNANDEZ-ORELLANA
I
The material facts of this case are not seriously in dispute.
On June 19, 2005, Hernandez was caught driving an SUV
with ten undocumented aliens through the Interstate 15
Temecula Border Patrol checkpoint located between San
Diego and Los Angeles, California. Agent Ryan Myers was
on duty as the primary immigration inspector. From his van-
tage point Myers was only able to view Hernandez and four
of the aliens inside the vehicle. Myers questioned Hernandez
about the immigration status of the aliens and learned they
had no documents. As a result, he directed Hernandez to sec-
ondary screening. At secondary, agent Erik Cansino discov-
ered another six aliens hiding in the SUV. Ultimately, the
aliens were permitted to voluntarily return to Mexico, and
Hernandez was identified, questioned, and released.
Approximately one month thereafter, authorities received a
tip concerning alien smuggling at a San Diego “load house”
just north of the United States-Mexico border. Border Patrol
agents Brian Desrosiers and Damian Caraway responded.
Once at the residence, Desrosiers observed Drewry heading
toward a white Toyota Tundra SUV, which she subsequently
entered. He also saw Hernandez accompanying two individu-
als to the vehicle who, as subsequent investigation confirmed,
turned out to be undocumented aliens. The aliens climbed in
the back of the Tundra, and Hernandez entered the front pas-
senger door.
The agents immediately stopped Drewry as she began to
drive everyone away from the house. Desrosiers confirmed
the identity of the driver as Drewry and that the aliens lacked
immigration documentation. He and Caraway then arrested
Drewry and Hernandez; and they called for more Border
Patrol officers.
When back up arrived at the scene, agents searched the res-
idence from which the aliens had emerged and nearby vehi-
UNITED STATES v. HERNANDEZ-ORELLANA 11151
cles. In a maroon Toyota Tundra, which agents later
determined was registered to Hernandez, Border Patrol agents
recovered an incriminating ledger. The ledger documented
smuggling activities from Mexico to California from approxi-
mately June 30, 2005, until July 15, 2005. The ledger con-
tained the names of various drivers, guides, and the going
rates for cross-border smuggling. In addition, the name
“Diana” (an alias Drewry used) appeared in the ledger along
with “x 10” and the date “07-7-2005,” which the jury could
find suggested that Drewry was responsible for transporting
or arranging transportation for ten undocumented aliens into
the United States on July 7, 2005. The names of the guides
and the smuggling price for each alien were all listed.
The ledger identified additional aliens for whom Drewry
had responsibility to transport or to make transportation
arrangements. Listed was one alien smuggled on June 30,
2005, twelve aliens on July 1, 2005, two aliens on July 4,
2005, and three aliens on July 11, 2005. Finally, the ledger
indicated that Drewry owed Hernandez $9,000 for driving
aliens.
Border Patrol agents also discovered a journal in the garage
of the residence. The journal, like the ledger, identified other
aliens apparently transported across the border, names of foot
guides, smugglers, and drivers. Agents also searched Dre-
wry’s purse in which they found an envelope with $1,600 in
cash — the market rate for smuggling an alien from Mexico
to the United States.
At trial, Hector Contreras-Garcia, one of the two aliens
found with Drewry, explained that he paid $3,300 to be smug-
gled across the border. He and his wife along with two others
made the crossing in the trunk of a car. Once across the bor-
der, Garcia and his wife were taken by another driver in Her-
nandez’s maroon SUV to the load house, where Hernandez
greeted them. The aliens stayed there for an unspecified
period of time. At some point, though, not more than a few
11152 UNITED STATES v. HERNANDEZ-ORELLANA
days after their arrival, Drewry appeared at the house to escort
them to the white Tundra. Garcia testified that prior to trial,
and as further evidence of her guilt, Drewry threatened him
not to testify.
Teresa Camarena-Reyes, Garcia’s wife, testified to similar
witness intimidation. She stated that she too had been threat-
ened not to reveal anything by Hernandez — while Drewry
was present — shortly before a court hearing.
Erica Osuna-Millan, an alien living at the load house,
explained at trial that she had witnessed Drewry instructing
Hernandez to bring aliens to certain locations and that she saw
Drewry pay Hernandez for Hernandez’s efforts. Millan also
watched as new aliens arrived and stayed at the residence.
The arrival of the new aliens, Millan testified, seemed to coin-
cide with the comings and goings of Drewry to and from the
home. Millan echoed Reyes’s and Garcia’s statements that
she had been warned by Drewry as well not to say anything
during court proceedings that might be adverse to Drewry or
Hernandez. This warning occurred after a motions hearing
and was in violation of the district court’s order that Drewry
not have contact with witnesses.
Following her arrest, Hernandez gave a statement to agents.
Agents properly advised Hernandez of her Miranda rights,
and she agreed that her statement could be videotaped. Of
particular relevance was the following exchange, presented to
the jury in transcript form, in which Hernandez admitted she
previously had been arrested at the Temecula checkpoint on
June 19, 2005:
M1 [Interrogator]: You have been arrested before,
right?
F1 [Hernandez]: Yes. And I did . . .
M1: For crossing people?
UNITED STATES v. HERNANDEZ-ORELLANA 11153
F1: I . . . Yes, exactly. For the person I was telling
you about . . . .
M1: Who was that person?
F1: She . . . They caller her . . . “Letty.” Only by
“Letty.” But, uh, her name on the, on the cellu-
lar says, “Angelica.”
M1: Angelica what?
F1: I don’t know . . . .
M1: Letty . . . ? You don’t know Letty?
F1: No.
M1: Where does . . . Letty live?
F1: She lives at 1433 “Sakterback . . . , bait . . .”
M1: “Cedar Butte.”
F1: Yes. In, in “Isleik.”
M1: In Eastlake.
F1: All I know is that it’s on Palomar and . . .
Because I went to do the pick-up for that job
that day. I didn’t want . . .
M1: What day was that?
F1: The 19th of June.
M1: Of June?
F1: Uh-huh.
11154 UNITED STATES v. HERNANDEZ-ORELLANA
M1: And what did you do on that day?
F1: “I . . . She told me she was going to give me
50 per person, and I was going to . . . I was
taking 10. She was going to give me 500 dol-
lars[.]
M1: Five hundred dollars to take people from . . .
...
F1: . . . from San Diego all the way to there.
M1: To where?
F1: . . . All the way to Los Angeles.
...
M1: . . . [W]here were you going to arrive at?
Around where was your final destination?
F1: Well . . . she told me, “You call once you have
crossed.”
M1: “Crossed.” That she meant to say that . . .
F1: Cross. That I have already cross the . . .
...
M1: In Temecula? Or, where?
F1: Uh-huh, yes, in Temecula. I was going to call
her and I didn’t, I didn’t call her. I called her
once I was arrested and I came out of there. I
told her that, that how it was that, that, that the
people had been taken from me. She, she
UNITED STATES v. HERNANDEZ-ORELLANA 11155
learned it from the beginning because she sup-
posedly was going to be checking. Yes? You
understan[d]? She told me, “Oh, I’m going to
. . . I’m going to . . . I’ll be checking you. And
you, once . . .” And she said to me, “You can
cross.” At the moment when I’m crossing the
patrol cars stopped and I ended up as the fourth
car. I ended up on the, on the line . . .
M1: Okay.
F1: . . . that’s when we were arrested.
M1: And, and as to the other vehicles that are
under your name . . .
F1: Okay. That one, those cars, she has used my
name.
M1: Who? Who is she?
F1: Letty. Well, she, look, I’ll tell you how they
operate. They take your name, “Oh lend it to
me and I’ll take it out of your name.” I didn’t
even know that car was under my name. That
is all . . .
M1: There are several cars under your name.
F1: Yes, yes.
M1: That have [ ] been used in people smuggling.
F1: Exactly. Exactly. Exactly. But I didn’t know.
During the course of the interview, Hernandez also
explained her motivation for transporting aliens. Although she
made a living cleaning houses, she “suddenly” was overcome
11156 UNITED STATES v. HERNANDEZ-ORELLANA
with “greed” and “[a]mbition.” Hernandez also believed her
participation came about because “[t]hey brainwash you and
then you do it.”
Hernandez further told authorities that she derived addi-
tional income from allowing the smugglers to register load
vehicles in her name. She would receive $150 per car, and
admitted that smugglers would take the cars registered under
her name “and use them how they wanted[.]” Hernandez
claimed that she was duped into thinking that the smugglers
would soon change the registration of the vehicle to a differ-
ent name and was unaware of exactly how many vehicles
remained in her name.
Hernandez recalled that Letty’s alien smuggling operation
largely consisted of family members. Although Hernandez
could recall only one of the children’s names, Junior, Letty’s
husband was “the one that checks the jobs.”
On May 31, 2005, a federal grand jury returned an eleven-
count superseding indictment charging Hernandez, Drewry,
and co-defendant Cesar Ramos-Vasquez with conspiracy to
bring illegal aliens into the United States for the purpose of
financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and
18 U.S.C. § 371 (count one); bringing Teresa Camarena-
Reyes, an illegal alien, into the United States on July 14,
2005, for financial gain in violation of 8 U.S.C. § 1324(a)(2)
(B)(ii) and 18 U.S.C. § 2 (count two); bringing Hector
Contreras-Garcia, an illegal alien, into the United States on
July 14, 2005, for financial gain in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 (count three); unlaw-
fully harboring Reyes in violation of 8 U.S.C. § 1324(a)(1)
(A)(iii) & (v)(II) (count four); unlawfully harboring Garcia in
violation of 8 U.S.C. § 1324(a)(1)(A)(iii) & (v)(II) (count
five); unlawfully transporting Reyes within the United States
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (v)(II) (count
six); unlawfully transporting Garcia within the United States
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (v)(II) (count
UNITED STATES v. HERNANDEZ-ORELLANA 11157
seven); Vasquez with using a falsely made border crossing
card bearing the name Manuel Odin Lopez Torres in violation
of 18 U.S.C. § 1546(a) (count eight); Hernandez with unlaw-
fully transporting Estanislao Cortez-Cruz, an illegal alien,
within the United States on June 19, 2005, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii) (count nine); Hernandez with
unlawfully transporting Isaias Tomas Mendez-Vasquez, an
illegal alien, within the United States on June 19, 2005, in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (count ten); and Her-
nandez with unlawfully transporting Eugenio Hernandez-
Rojas, an illegal alien, within the United States on June 19,
2005, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (count
eleven).
On June 9, 2006, after a two-day trial, the jury returned
guilty verdicts on all counts naming Drewry and Hernandez.
The district court subsequently sentenced Drewry to sixty
months incarceration along with three years of supervised
release. Hernandez received a prison term of thirty-six months
along with three years of supervised release. This timely
appeal followed.
II
Drewry initially complains that the district court should
have severed her trial from Hernandez’s. She makes two
related arguments that she believes warrant reversal of her
convictions. First, Drewry asserts that the district court’s
admission at trial of a transcript of Hernandez’s videotaped
interview with law enforcement officers deprived Drewry of
her Sixth Amendment right to confrontation. She also insists
that introduction of the transcript exacerbated the two defen-
dants’ mutually antagonistic defenses. We review constitu-
tional questions de novo and the district court’s determination
that severance was unnecessary for abuse of discretion.
United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008).
We conclude that Drewrey’s arguments lack merit.
11158 UNITED STATES v. HERNANDEZ-ORELLANA
A
[1] The question of Hernandez’s post-arrest statements ini-
tially was addressed at a May 25, 2006, hearing on motions
in limine. The district court agreed that to avoid problems
under Bruton v. United States, 391 U.S. 123 (1968), and
Crawford v. Washington, 541 U.S. 36 (2004), “[p]rudence
dictate[d]” that Hernandez’s statements be edited such that
Drewry was not named or implicated. Ultimately, the parties
agreed to the government’s proposal that it:
prepare a transcript and redact any reference to the
other defendant. When Ms. Hernandez makes state-
ments, any statements referring to the ones[,] in
compliance with Bruton, we would redact. We
would submit these to defense counsel, give them an
opportunity to look at it and see if the parties can
come to a stipulated transcript as to the two state-
ments by Ms. Hernandez.
The district court admonished the defense attorneys to “[l]ook
at the transcripts, counsel. If there are problems, bring them
to the court’s attention.” No objections were lodged to the
transcript submitted to the jury.
[2] Drewry’s severance argument, in the first instance, has
been waived. As a general rule, a party must renew her pre-
trial severance motion at the conclusion of the presentation of
evidence. See Sullivan, 522 F.3d at 981. The record does not
reflect that Drewry renewed her motion. Even on plain error
review, see United States v. Cope, 527 F.3d 944, 957 (9th Cir.
2008), the district court did not err in failing to sever the trial.
[3] It is well-established that in the federal system there is
a preference for joint trials where defendants have been
jointly indicted. Zafiro v. United States, 506 U.S. 534, 537
(1993). Under certain circumstances, none of which are pres-
ent here, Federal Rule of Criminal Procedure 14 provides
UNITED STATES v. HERNANDEZ-ORELLANA 11159
relief from prejudicial joinder. Fed. R. Cr. P. 14(a) (stating
“[i]f the joinder of . . . defendants in an indictment . . . appears
to prejudice a defendant . . . the court may . . . sever the
defendants’ trials”). We have developed a four-part test to aid
the district court’s determination, including: “(1) whether the
jury may reasonably be expected to collate and appraise the
individual evidence against each defendant; (2) the judge’s
diligence in instructing the jury on the limited purposes for
which certain evidence may be used; (3) whether the nature
of the evidence and the legal concepts involved are within the
competence of the ordinary juror; and (4) whether Appellants
could show, with some particularity, a risk that the joint trial
would compromise a specific trial right of one of the defen-
dants, or prevent the jury from making a reliable judgment
about guilt or innocence.” Sullivan, 522 F.3d at 982 n.9 (inter-
nal quotation marks and citation omitted).
Drewry’s argument focuses on the fourth prong, compro-
mise of her specific trial rights. She contends that Crawford
prevents Hernandez’s statements from being admitted against
her because Hernandez cannot be compelled to testify in Her-
nandez’s own trial and thus Drewry could not confront Her-
nandez on cross-examination.
[4] Drewry, however, ignores the very careful manner in
which the district court proceeded. Significantly, the govern-
ment was required to redact any damaging statements in the
transcripts with respect to her. And a review of the record
confirms that no statement introduced even mentioned Dre-
wry. As the government points out, under Bruton and its prog-
eny “the admission of a statement made by a non-testifying
codefendant violates the Confrontation Clause when that
statement facially, expressly, or powerfully implicates the
defendant.” United States v. Mitchell, 502 F.3d 931, 965 (9th
Cir. 2007) (internal quotation marks and citation omitted).
Nothing in the record can be read as implicating Drewry, let
alone in the manner of a Bruton violation. Thus, Drewry’s
contention that her specific right to confront the witnesses
11160 UNITED STATES v. HERNANDEZ-ORELLANA
against her was abridged is unavailing. See United States v.
Hernandez, 608 F.2d 741, 749 (9th Cir. 1979) (explaining that
“[w]here a statement does not allude to the defendant, or
where all references have been deleted, his right of confronta-
tion is not abridged”) (internal quotation marks and citations
omitted).
B
Drewry maintains that combined with Hernandez’s state-
ments, Hernandez’s defense amounted to a blame game: Her-
nandez could point the finger at Drewry without any remedy
available to Drewry. Their defenses, Drewry concludes, were
mutually antagonistic.
[5] Drewry’s claim, in essence, amounts to a sort of catch-
all guilt-by-association argument. However, we have
described Drewry’s burden as a heavy one, and the district
court’s decision not to sever trials seldom will be disturbed.
See United States v. Ponce, 51 F.3d 820, 831 (9th Cir. 1995).
Indeed, in order to prevail on an antagonistic defense theory,
Drewry must demonstrate that “acquittal of [Hernandez]
would necessarily call for [her own] conviction.” See United
States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991); see
also United States v. Throckmorton, 87 F.3d 1069, 1072 (9th
Cir. 1996) (reasoning that the “defendant must show that the
core of the codefendant’s defense is so irreconcilable with the
core of his own defense that the acceptance of the codefen-
dant’s theory by the jury precludes acquittal of the defen-
dant”).
[6] Drewry cannot meet that heavy burden here. Impor-
tantly, her argument is belied by the fact that the jury con-
victed her and Hernandez of all counts with which they were
charged. In the end, the record does not compel the result that,
because Drewry and Hernandez had different interests in the
trial, severance was necessary.
UNITED STATES v. HERNANDEZ-ORELLANA 11161
III
Hernandez urges us to reverse her conviction as to count
nine of the superseding indictment because, she alleges, the
government failed to prove the alienage of the individuals in
her vehicle. We disagree.
Title 8, section 1324(a) of the United States Code provides
criminal sanctions for:
(1)(A) Any person who—
...
(ii) 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.
Hernandez claims that the government was unable to show
that she knew of, or acted in reckless disregard as to the ille-
gal status of Estanislao Cortez-Cruz. We review a claim of
insufficient evidence de novo and ask whether, viewing the
evidence in the light most favorable to the government, any
reasonable jury could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Shipsey,
363 F.3d 962, 971 n.8 (9th Cir. 2004)
Cruz was one of the aliens found inside Hernandez’s vehi-
cle when it was stopped at the Interstate 15 Temecula check-
point on June 19, 2005. Agent Myers specifically asked
Hernandez whether the aliens had immigration documents.
Hernandez admitted that “no, nobody does.” At that point, the
11162 UNITED STATES v. HERNANDEZ-ORELLANA
vehicle was sent to secondary inspection where the additional
aliens were discovered packed in the SUV.
[7] Hernandez made other damaging statements during her
taped interview about the events that took place on June 19,
2005. Hernandez explained that a woman named “Letty” had
paid her $500 to drive the aliens through the Temecula check-
point. This statement lends a reasonable inference that those
present in the vehicle were inside the United States unlaw-
fully: there would be no need to pay Hernandez fifty dollars
per alien to drive them through a border checkpoint if they
were legally in the United States. At a minimum, Hernandez
was in reckless disregard of the reason why she was being
paid to transport these individuals if they were not, as she
claims, illegal aliens.
[8] The conditions in which the aliens were found further
supports this conclusion. First, only four individuals were vis-
ible from outside the vehicle to Border Patrol agents. The
other six were found hidden inside upon closer inspection.
Second, the individuals were not wearing seatbelts suggesting
that there was not enough room to safely transport the aliens,
the aliens were attempting to pass unnoticed, and Hernandez
was attempting to maximize the space in her vehicle in order
to maximize what she was to be paid. Finally, after the June
19, 2005, incident, the individuals inside her SUV were per-
mitted to voluntarily return to Mexico.
[9] Taken together, a reasonable jury could have concluded
beyond a reasonable doubt that the aliens were unlawfully in
the United States and Hernandez either knew that fact or
turned a blind eye toward it. Sufficient evidence, therefore,
supports Hernandez’s conviction on count nine.
IV
[10] Whether sufficient evidence supports Drewry’s and
Hernandez’s convictions on count one, conspiracy to bring
UNITED STATES v. HERNANDEZ-ORELLANA 11163
illegal aliens into the United States, and counts two and three,
bringing illegal aliens into the United States for financial gain
presents, in our view, the closer question. We conclude that
Lopez compels us to reverse the substantive “bringing to”
convictions on counts two and three. However, the totality of
the evidence plainly is sufficient for a reasonable jury to
determine beyond a reasonable doubt that Drewry and Her-
nandez were active and knowing participants in the interna-
tional smuggling conspiracy.
The so-called “bringing to” offense imposes criminal pen-
alties on individuals who:
knowing or in reckless disregard of the fact that an
alien has not received prior official authorization to
come to, enter, or reside in the United States, brings
to or attempts to bring to the United States in any
manner whatsoever, such alien, regardless of any
official action which may later be taken with respect
to such alien shall, for each alien in respect to whom
a violation of this paragraph occurs—
...
(B) in the case of—
...
(ii) an offense done for the purpose of commercial
advantage or private financial gain, or
...
be fined under Title 18 and shall be imprisoned, . . .
in the case of a first or second violation of subpara-
graph . . . (B)(ii), not less than 3 nor more than 10
years, and for any other violation, not less than 5 nor
more than 15 years.
11164 UNITED STATES v. HERNANDEZ-ORELLANA
8 U.S.C. § 1324(a)(2).
[11] In Lopez, we concluded that a bringing to offense ter-
minated at the time aliens were transported across the border
and “drop[ped] off” in the United States. 484 F.3d at 1191. As
a result, we “overrule[d] any of our prior decisions that adopt
or suggest a different rule.” Id. Specifically, we rejected “the
‘immediate destination’ (or ultimate destination) test set forth
in United States v. Ramirez-Martinez.” Id. (citing United
States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001)).
Ramirez’s immediate destination theory, we explained, stands
for the proposition that “a ‘brings to’ offense does not termi-
nate until the aliens reach their ‘immediate destination’ within
the United States, and that anyone who transports the aliens
within the United States before that point has, based on that
conduct alone, aided and abetted the ‘brings to’ crime.” Id. at
n.7 (citation omitted).
[12] We reasoned that our reading of the statute “best har-
monizes the various separate, but often interrelated parts of
the statute.” Id. at 1195. We observed:
[T]he “brings to” language of § 1324(a)(2) clearly
connotes the act of bringing the alien “from outside”
the country. The “transports within” offense of
§ 1324(a)(1)(A)(ii), by contrast, does not by its text
implicate extraterritorial behavior. Indeed, the lan-
guage of the latter provision limits the offense to acts
“within the United States.” On a plain reading of the
statutory language, then, a person who moves aliens
from one location in the United States to another has
not brought those aliens “to” the United States, has
not acted extraterritorially, and has not committed a
“brings to” offense. He has acted entirely on domes-
tic soil and has committed only a “transports within”
offense. An interpretation of § 1324(a)(2) as persist-
ing beyond the point at which the extraterritorial
transporter terminates his conduct and drops the
UNITED STATES v. HERNANDEZ-ORELLANA 11165
aliens off at some location in the United States
would thus undermine the extraterritorial foundation
of the crime as well as the distinction Congress
established between bringing an alien “to” the
United States and transporting one already inside the
country.
Id. at 1198 (internal citations omitted).
[13] Under the facts of Lopez, because it was undisputed
that the defendant “encountered the aliens and provided them
with transportation only after they had been dropped off in the
United States,” the defendant’s conduct “occurred only after
the ‘brings to’ offense had terminated.” Id. Consequently,
these actions, “standing alone, [could not] serve as a basis for
sustaining her conviction.”
[14] We made clear, however, that there were certain
instances in which a defendant could aid and abet a brings to
offense from within the United States alone.
It is clear that under certain circumstances a defen-
dant who does not physically transport aliens across
the border may be held criminally liable for aiding
and abetting a “brings to” offense. A financier who
organizes and funds a smuggling operation, for
example, whether located in or outside of the United
States, may be said to have “associate[d] himself
with the venture, . . . participate[d] in it as in some-
thing he wishe[d] to bring about, [and sought] by his
action to make it succeed.”
Id. at 1199.
[15] The defendant in Lopez, however, could not be held
criminally liable on such a theory because “[t]he mere act of
picking up aliens at a location near the border and transport-
ing them within the United States is not sufficient to support
11166 UNITED STATES v. HERNANDEZ-ORELLANA
a conviction for aiding and abetting a ‘brings to’ offense.” Id.
at 1199-1200. Similarly, we were unpersuaded by the fact that
the defendant had twice spoken to a person who might have
been the initial transporter after the aliens were dropped off,
the defendant put the vehicle in her name and traveled near
the border to pick the car up, and that the defendant could
provide agents with a description of the initial transporter —
presumably suggesting that the defendant had prior contact
with the transporter. This evidence, we concluded, amounted
to “mere suspicion or speculation [that] does not rise to the
level of sufficient evidence.” Id. at 1200.
In sum, “any rational juror would have had at the least a
reasonable doubt as to whether Lopez ‘knowingly and inten-
tionally aided, counseled, commanded, induced or procured
[the principal] to commit each element’ of the ‘brings to’
offense.” Id.
A
The substantive counts here, numbered two and three, read
as follows:
Count 2
On or about July 14, 2005 . . . defendants
NORMA HERNANDEZ-ORELLANA, MARITZA
OLMEDA DREWRY, and CESAR RAMOS-
VASQUEZ, with the intent to violate the immigra-
tion laws of the United States, knowing and in reck-
less disregard of the fact that an alien, namely,
Teresa Camarena-Reyes, had not received prior offi-
cial authorization to come to, enter and reside in the
United States, did bring to the United States said
alien for the purpose of commercial advantage and
private financial gain.
Count 3
UNITED STATES v. HERNANDEZ-ORELLANA 11167
On or about July 14, 2005 . . . defendants
NORMA HERNANDEZ-ORELLANA, MARITZA
OLMEDA DREWRY, and CESAR RAMOS-
VASQUEZ, with the intent to violate the immigra-
tion laws of the United States, knowing and in reck-
less disregard of the fact that an alien, namely,
Hector Contreras-Garcia, had not received prior offi-
cial authorization to come to, enter and reside in the
United States, did bring to the United States said
alien for the purpose of commercial advantage and
private financial gain.
We think it arguable that the government’s proofs at trial
linked Drewry and Hernandez only to post-termination con-
duct for purposes of these substantive “brings to” offenses
under the rationale of Lopez. But even Lopez left open the
door to liability for other criminal conduct, including potential
aider and abettor liability. It is not a long reach to impose con-
spiracy liability as charged on this record. The government
cites to evidence that clearly show that Drewry was involved
in some illegal activity. It first argues that the ledger and jour-
nal recovered during the search of the residence and vehicles
“prove that, as part of the alien smuggling conspiracy, Drewry
was responsible for numerous aliens being brought to the
United State before the aliens in Counts 2 and 3 crossed the
border.” Second, the government maintains that “Drewry kept
track of which guides led which aliens across the border, and
kept track of who was owed what, again before the aliens in
Counts 2 and 3 crossed the border.” Third, the government
contends that “Drewry instructed Hernandez where to drive
aliens, and paid Hernandez for her smuggling, also before the
aliens in Counts 2 and 3 crossed the border.”
[16] Problematically for the government here, however,
counts two and three specifically identify the aliens who were
allegedly “brought to” the United States. The evidence pres-
ented to the jury stops short of linking those aliens to Drewry
and Hernandez that would support their liability for conduct
11168 UNITED STATES v. HERNANDEZ-ORELLANA
that occurred before the bringing to offense terminated. Sig-
nificantly, the ledger and the journal make no reference to
aliens Garcia or Reyes at all.
[17] Similarly, Drewry’s instructions to Hernandez as to
where to drive the aliens had nothing to do with Garcia and
Reyes, and importantly, only included directives to take
unnamed aliens to locations after they had been dropped off
in the United States. Millan, the alien living at the load house
— and upon whose testimony the government relies — con-
firms only that (1) Millan overheard “Diana [ ] talking to
Norma how she was going to take some people”; (2) Her-
nandez and Drewry did not discuss exact addresses; only that
the transportation would occur “well, only here in the United
States”; and (3) that money changed hands between Drewry
and Hernandez at the residence. Ultimately, Millan testified
that “Diana . . . she used to bring people, and she would take
people, and she used to pay the people that helped her[.]”
Indeed, Millan characterized Drewry as “the one who deliv-
ered the people to their families[.]”
[18] The evidence, therefore, establishes no explicit extra-
territorial connection as Lopez requires. The undisputed facts
reveal that Hernandez allowed an individual to use a vehicle
registered in her name to pick up Reyes and Garcia after they
had crossed the border and had been dropped off in the United
States. Hernandez only met Reyes and Garcia once they
arrived at the load house. At best, then, Hernandez can only
be linked to the vehicle that transported Garcia and Reyes
within the United States. Drewry, for her part, is even farther
removed. After the aliens arrived at the residence and stayed
for a short while, Drewry attempted to drive them to an
unknown location. At that point, she was stopped by Border
Patrol agents.
[19] In the end, although money exchanged hands for some
unknown activities prior to Garcia’s and Reyes’s crossing, the
ledger and journal revealed that Drewry had some connection
UNITED STATES v. HERNANDEZ-ORELLANA 11169
to transporting aliens as a general matter, testimony revealed
that Drewry had discussed where to bring aliens within the
United States in general terms, Drewry would take and bring
aliens to different locations as a general proposition, and Her-
nandez’s vehicle was used to take Garcia and Reyes from
some point in the United States to the residence, there is no
specific evidence linking Drewry and Hernandez to “inten-
tionally aid[ing], counsel[ing], command[ing], induc[ing] or
procur[ing]” the cross-border transportation of Reyes and
Garcia, prior to when these aliens were dropped off in the
United States. See id.
[20] Because Drewry and Hernandez engaged in “the mere
act of picking up aliens at a location near the border and trans-
porting them within the United States,” we are compelled by
Lopez to find that they are not criminally liable under the the-
ories alleged in the substantive “bringing to” counts. Id. at
1999-1200. Therefore, we reverse Drewry’s and Hernandez’s
sentences and convictions on those two substantive counts.
B
[21] We cannot agree that Lopez mandates the same result
for their conviction for participating in the alien smuggling
conspiracy. Three considerations inform our conclusion.
1
[22] First, nothing in Lopez can be read as transforming the
traditional elements of a criminal conspiracy, which would
not under the circumstances presented here require either Dre-
wry or Hernandez to have physically smuggled the illegal
aliens across the border or to have specifically taken a sub-
stantial step to achieve that end. In other words, Lopez
addressed only the evidentiary requirements sufficient for a
conviction of a substantive “bringing to” crime and aiding
and abetting that offense for which there was marginal evi-
dence.
11170 UNITED STATES v. HERNANDEZ-ORELLANA
The difference between the classic common law elements
of aiding and abetting and a criminal conspiracy underscores
this material distinction, although at first blush the two appear
similar. Aiding and abetting the commission of a specific
crime, we have held, includes four elements: (1) that the
accused had the specific intent to facilitate the commission of
a crime by another, (2) that the accused had the requisite
intent to commit the underlying substantive offense, (3) that
the accused assisted or participated in the commission of the
underlying substantive offense, and (4) that the principal com-
mitted the underlying offense. United States v. Gaskins, 849
F.2d 454, 459 (9th Cir. 1988). As Lopez emphasized, the
accused generally must “associate[ ] himself with the venture
. . . participate[ ] in it as something he wish[es] to bring about,
and [sought by] his action to make it succeed.” 484 F.3d at
1199 (internal quotation marks omitted).
By contrast, a classic criminal conspiracy as charged in 18
U.S.C. § 371 is broader. The government need only prove
“(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.” Sullivan,
522 F.3d at 976 (internal quotation marks omitted). Indeed, a
drug conspiracy does not even require commission of an overt
act in furtherance of the conspiracy. 21 U.S.C. § 846; United
States v. Jackson, 167 F.3d 1280, 1285 (9th Cir. 1999).
Two distinctions become readily apparent after a more
careful comparison. First, the substantive offense which may
be the object in a § 371 conspiracy need not be completed.
Second, the emphasis in a § 371 conspiracy is on whether one
or more overt acts was undertaken. This language necessarily
is couched in passive voice for it matters only that a co-
conspirator commit the overt act, not necessarily that the
accused herself does so. In an aiding and abetting case, not
only must the underlying substantive offense actually be com-
pleted by someone, but the accused must take some action, a
substantial step, toward associating herself with the criminal
UNITED STATES v. HERNANDEZ-ORELLANA 11171
venture. See Lopez, 484 F.3d at 1199. These differences are
critical to the disposition of this case because neither Drewry
nor Hernandez undertook the critical pre-border crossing
step. They clearly committed overt acts domestically in fur-
therance of the alien smuggling enterprise; but they need not
have done so internationally to violate the general conspiracy
statute. See 18 U.S.C. § 371.
[23] The case law further distinguishes a § 371 conspiracy.
Significantly, we have held that “[t]he agreement need not be
explicit; it is sufficient if the conspirators knew or had reason
to know of the scope of the conspiracy and that their own ben-
efits depended on the success of the venture.” Sullivan, 522
F.3d at 976 (internal quotation marks and citation omitted).
Similarly, Pinkerton v. United States, 328 U.S. 640, 647
(1946), renders all co-conspirators criminally liable for rea-
sonably foreseeable overt acts committed by others in further-
ance of the conspiracy they have joined, whether they were
aware of them or not. Thus, in our view, Lopez is not control-
ling where an alien smuggling conspiracy has been charged.
2
The problem the Lopez court confronted was bringing to
offenses that were bound temporally to isolated acts. In
United States v. Singh, 532 F.3d 1053, No. 07-30150 (9th Cir.
July 17, 2008), we concluded that there was sufficient evi-
dence of aiding and abetting on plain error review to sustain
convictions under 8 U.S.C. § 1324(a)(2)(B)(ii). In so doing,
we described the meager evidence of aiding and abetting the
Lopez court examined:
After completion of the “brings to” offense, Lopez
twice spoke to a person who might have been the
transporter. This fact alone, however, did not provide
sufficient evidence of aiding and abetting because it
could not establish that the defendant “knowingly
and intentionally commanded, counseled, or encour-
11172 UNITED STATES v. HERNANDEZ-ORELLANA
aged the initial transporter to commit the ‘brings to’
offense.” Similarly, merely showing that Lopez was
associated with someone who was involved with a
smuggling operation in some unknown way or that
she was associated with the transportation of the
aliens within the United States after the fact of
smuggling was insufficient to show that she had the
specific intent to bring about the “brings to” offense
or that she knowingly and intentionally commanded,
counseled, or encouraged the initial transporter to
commit the “brings to” offense. We noted that a
“brings to” conviction would be “particularly inap-
propriate” in Lopez because the district court found
that “the defendant ‘wasn’t obviously the first
choice’—‘someone else was supposed to pick [the
aliens] up,’ ” and Lopez was contacted “only after
the aliens were already in the country and the plan
for the first person to pick them up had been frustrat-
ed.”
Slip Op. at 8817 (internal citations omitted).
Singh’s involvement in the smuggling operation, we noted,
“stood in stark contrast” to the evidence of participation
described above. Id. at 8817-18. We concluded the jury’s ver-
dict could stand “on the basis of the other evidence that Singh
agreed ahead of time not only to assist with secondary state-
side transportation, but also to return to Vancouver after
delivering [the illegal alien] to New York.” Id. at 8818
(emphasis added).
Singh emphasizes what we have found sufficient to consti-
tute aiding and abetting liability post-Lopez, and the infirmity
of the substantive counts here simply was a function of the
indictment and the dearth of evidence to support an aiding and
abetting theory of a § 1324 violation involving the two aliens
named in counts two and three. The law at the time of the
indictment permitted the government to charge a brings to
UNITED STATES v. HERNANDEZ-ORELLANA 11173
offense on the basis of the intermediate or final destination
theory, to which the language of counts two and three con-
form. See Lopez, 484 F.3d at 1191 n.7. Those counts were
premised on the notion that Drewry and Hernandez were a
critical part of the offenses because the aliens, under existing
law, had not yet been “dropped off.” They were still in the
process of being “brought to” the United States — their final
destination or some intermediate point had not been reached.
Lopez rejected the final destination theory for a place of
arrival theory.
[24] However, post-Lopez, because the superseding indict-
ment was specific as to the identity of the aliens and the pre-
cise date when they crossed the border, the mere fact that
Drewry and Hernandez had transported the aliens after they
were “dropped off” was no longer sufficient to sustain their
convictions. We are convinced that had the state of the law
been clear, the government would have had no problem meet-
ing its burden under an aiding and abetting theory as to differ-
ent aliens previously smuggled. We are also convinced that
the alien smuggling conspiracy as charged in the superseding
indictment is broad enough and written in a way that avoids
Lopez proof issues to support convicting both Drewry and
Hernandez.
3
The conspiracy count reads as follows:
Count 1
A. OBJECTS OF THE CONSPIRACY
Beginning on a date unknown to the grand jury and
continuing up to and including on or about July 14,
2005, in San Diego County . . . and elsewhere,
defendants NORMA HERNANDEZ-ORELLANA,
MARITZA OLMEDA DREWRY, and CESAR
11174 UNITED STATES v. HERNANDEZ-ORELLANA
RAMOS-VASQUEZ, and others known and
unknown to the Grand Jury, conspired and agreed
with each other to commit the following offense
against the United States:
To bring to the United States for the purpose of
obtaining private financial gain, aliens, knowing and
in reckless disregard of the fact that such aliens had
not received prior official authorization to come to,
enter, or reside in the United States, in violation of
Title 8, United States Code, Section 1324(a)(2)
(B)(ii).
B. MEANS BY WHICH THE OBJECTS OF THE
CONSPIRACY WERE TO BE ACCOMPLISHED
The objects of the conspiracy were to be accom-
plished, in substance, as follows:
1. Aliens who had not received prior official autho-
rization to come to, enter, or reside in the United
States, would meet with known and unknown co
conspirators in Mexico to be smuggled into the
United States in exchange for a payment of a fee.
2. Known and unknown co-conspirators would
smuggle the illegal aliens across the Mexican border
into the United States.
3. Defendant CESAR RAMOS-VASQUEZ and
known and unknown co-conspirators would pick up
the smuggled aliens after they crossed the border
into the United States and transport and move the
smuggled aliens to load houses, including a house
located at 1262 Riviera Summit, San Diego, . . .
where they would wait and be transported to their
ultimate destination within the United States.
UNITED STATES v. HERNANDEZ-ORELLANA 11175
4. Defendants NORMA HERNANDEZ-
ORELLANA, MARITZA OLMEDA DREWRY,
and CESAR RAMOS-VASQUEZ would harbor,
conceal, and shield from detection the smuggled
aliens at the Load House until the aliens were trans-
ported and moved to another location within the
United States en route to their ultimate destination.
5. Defendants NORMA HERNADEZ-
ORELLANA and MARITZA OLMEDA DREWRY
would transport and move the smuggled aliens from
the Load House to another location within the United
States en route to their ultimate destination.
C. OVERT ACTS
In furtherance of said conspiracy and to effect and
accomplish the objects thereof, the following overt
acts, among others, were committed within the
Southern District of California, and elsewhere:
1. On or about or before June 19, 2005, unknown
co-conspirators brought aliens [the “June Aliens”]
across the Mexican border into the United States.
2. On or about June 19, 2005, defendant NORMA
HERNANDEZ ORELLANA transported and moved
the June Aliens in a vehicle northbound on the Inter-
state 15 freeway.
3. On or about July 14, 2005, known and unknown
co-conspirators brought aliens, including Teresa
Camarena-Reyes and Hector Contreras-Garcia [the
“July Aliens”] across the Mexican border into the
United States.
4. On or about July 14, 2005, known and unknown
co-conspirators transported the July Aliens to the
Load House.
11176 UNITED STATES v. HERNANDEZ-ORELLANA
5. On or about July 14, 2005, defendants NORMA
HERNANDEZ-ORELLANA, MARITZA
OLMEDA DREWREY, and CESAR RAMOS-
VASQUEZ harbored concealed, and shielded from
detection the July Aliens at the Load House.
6. On or about July 14, 2005, defendants NORMA
HERNADEZ-ORELLANA and MARITZA
OLMEDA DREWREY instructed the July Aliens to
exit the Load House and enter a vehicle.
7. On or about July 14, 2005, defendants NORMA
HERNANDEZ-ORELLANA and MARITZA
OLMEDA DREWREY prepared to transport and
move the July Aliens to another location.
8. On or about July 14, 2005, defendant
MARITZA OLMEDA DREWREY began transport-
ing and moving the July Aliens in a vehicle from the
Load House to another location.
All in violation of 18 U.S.C. § 371.
[25] The record in this case is replete with evidence of a
widespread alien-smuggling conspiracy, which both defen-
dants knowingly agreed to join, and whose scope included the
on-going smuggling, harboring, and transporting of illegal
aliens. The ledger that law enforcement officers uncovered in
Hernandez’s maroon Toyota SUV documented smuggling
activities that spanned several days. The government intro-
duced testimony that the ledger contained the names of vari-
ous drivers, guides, as well as the market rate for smuggling
aliens across the border. An alias that Drewry often used,
“Diana,” similarly was found in the ledger along with “x 10”
and the date “7-07-2005.” Evidence at trial confirmed that
Drewry was responsible for arranging the transportation for
ten undocumented aliens from Mexico into the United States
on July 7, 2007.
UNITED STATES v. HERNANDEZ-ORELLANA 11177
The ledger identified additional illegal aliens for whom
Drewry had organized cross-border transportation and accom-
modation at the load house. Included among that information
was an undocumented alien who was smuggled on June 30,
2005, twelve aliens on July 1, 2005, two aliens on July 4,
2005, and three aliens on July 11, 2005. According to the led-
ger, Drewry also owed Hernandez approximately $9,000 for
her role in transporting aliens. Similarly, a search of the
garage at the load house revealed another journal, which doc-
umented the identity of numerous additional aliens trans-
ported across the border, foot guides, smugglers, and drivers.
Finally, Border Patrol agents searched Drewry’s purse and
recovered an envelope with $1,600 — the market rate for
smuggling an alien from Mexico into the United States.
From the testimony of witnesses, corroborated by informa-
tion in the ledger and the journal and the incriminating acts
and statements of the defendants, we are convinced that there
is sufficient evidence from which a jury could have found
beyond a reasonable doubt that Hernandez and Drewry
entered into a criminal conspiracy which intended to bring
aliens into the United States for financial gain and that all co-
conspirators agreed with each other to do so. Neither Drewry
nor Hernandez would have derived any monetary benefit had
the undocumented aliens not been crossed in this case.
Indeed, both Drewry and Hernandez largely furthered the
aims of the conspiracy: they possessed the contacts with
smugglers, guides, and drivers, arranged logistics, registered
load vehicles in their names, directed the harboring and move-
ment of aliens smuggled to the United States, and collected
money, among others things.
As noted, the government had to prove and the jury was
required to find that at least one overt act was taken in further-
ance of the conspiracy. At least one of the overt acts alleged
in the indictment encompassed extraterritorial conduct. Spe-
cifically, co-conspirators “brought aliens . . . across the Mexi-
can border into the United States.” Based on the evidence and
11178 UNITED STATES v. HERNANDEZ-ORELLANA
the language charged in the superseding indictment, the jury
easily could have concluded that co-conspirators brought
undocumented aliens across the border at which point either
Drewry or Hernandez picked them up, harbored them tempo-
rarily in a safe haven, arranged for their transportation, or
transported them on their way. The evidence presented at trial
was more than sufficient to permit the jury to infer that Dre-
wry’s and Hernandez’s compensation for their role in the
alien smuggling operation depended entirely on the crossing
of those illegal aliens.
V
Sufficient evidence supports the jury’s verdict that Drewry
and Hernandez engaged in a conspiracy to bring illegal aliens
from Mexico into the United States for financial gain and sup-
ports their convictions on the remaining counts save for the
substantive bringing to offenses, counts two and three. We
affirm their convictions on all counts but these two. We
remand the matter for re-sentencing in light of our disposition.
Because the advisory guidelines range was calculated taking
into consideration conviction on these two counts, the sen-
tence was procedurally erroneous. See United States v. Carty,
520 F.3d 984, 991 (9th Cir. 2008) (en banc). Because we can-
not conclude on this record that the district court would
impose the same sentence on remand (though it is not
restricted from doing so), we affirm in part as to all counts of
conviction except counts two and three; reverse in part as to
those two counts; vacate the sentences imposed; and remand
for re-sentencing. See id.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.