United States v. Lopez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50415
Plaintiff-Appellee,
v.  D.C. No.
CR-04-01648-BTM
ANGELICA LOPEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted En Banc
December 12, 2006—San Francisco, California
Filed May 7, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Harry Pregerson, Stephen Reinhardt, Alex Kozinski,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,
Ronald M. Gould, Marsha S. Berzon, Richard C. Tallman,
Johnnie B. Rawlinson, Richard R. Clifton,
Consuelo M. Callahan, Carlos T. Bea, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt;
Concurrence by Judge Bea;
Dissent by Judge Tallman
4989
UNITED STATES v. LOPEZ 4993
COUNSEL
Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
Jason A. Forge and Christopher P. Tenorio, Assistant United
States Attorneys, San Diego, California, for the plaintiff-
appellee.
OPINION
REINHARDT, Circuit Judge:
I
The issue before us is whether a driver who transports a
group of illegal aliens from a drop-off point in the United
States to another destination in this country commits only the
offense of transporting aliens “within” the United States or
4994 UNITED STATES v. LOPEZ
whether that individual is also guilty of the additional offense
of aiding and abetting the crime of “bringing” the aliens “to”
the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and
1324(a)(2) (2000);1 18 U.S.C. § 2 (2000). In this case, the
answer depends on the point at which the crime of “bringing
to” terminates. We hold that although all of the elements of
the “bringing to” offense are satisfied once the aliens cross the
border, the crime does not terminate until the initial trans-
porter who brings the aliens to the United States ceases to
transport them — in other words, the offense continues until
the initial transporter drops off the aliens on the U.S. side of
the border. At that point the offense ends, regardless of the
judicial district in which the termination occurs. Because,
here, the defendant transported undocumented aliens only
within the United States and did so only after the initial trans-
porter had dropped the aliens off inside the country, and
because there is insufficient evidence to establish that the
defendant otherwise aided and abetted the initial transporta-
tion, we reverse the convictions on the “bringing to” offense.
§ 1324(a)(2); 18 U.S.C. § 2.
No question is raised by the defendant regarding the appli-
cability of the “transports within the United States” statute to
her act of transporting undocumented aliens from one location
within the United States to another. Because we took this case
en banc without a three-judge panel decision in order to bring
consistency to our circuit law with respect to the scope and
meaning of the pertinent provisions of § 1324,2 we do not
consider the questions the defendant raises relating to the
admissibility of certain depositions and statements, but refer
1
All citations to 8 U.S.C. § 1324 are to the 2000 edition of the United
States Code. Section 1324 has been amended since 2000 but none of the
amendments is relevant to our decision. We use the terms “brings to” and
“bringing to” interchangeably when referring to the offense proscribed by
§ 1324(a)(2).
2
See United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002);
United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001); United
States v. Angwin, 271 F.3d 786 (9th Cir. 2001).
UNITED STATES v. LOPEZ 4995
those issues to the three-judge panel.3 Should the panel reject
the defendant’s arguments on those points, it should affirm
the “transports within” convictions. In any event, we here
reverse the convictions on the “bringing to” counts.
II
At approximately 6:00 p.m. on June 1, 2004, United States
Border Patrol agents stopped a vehicle on Interstate 8 in east-
ern San Diego County, California, that contained a driver,
Angelica Lopez, and 12 passengers. After questioning the
passengers, the agents arrested Lopez and brought her, along
with the others, to a Border Patrol station roughly 10 miles
away. Lopez was later indicted on three counts of bringing an
undocumented alien to the United States for financial gain, in
violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and abet-
ting, in violation of 18 U.S.C. § 2, as well as three counts of
transporting an undocumented alien within the United States,
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and aiding and
abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II). The
details of the June 1 incident were disputed at Lopez’s four-
day jury trial. However, for purposes of this opinion, because
she was convicted on all counts, we accept the government’s
version of the facts as correct.
Border Patrol Agent Eric Huber testified that, on June 1, he
and his partner observed Lopez’s vehicle, a white Ford Expe-
dition, enter the freeway from Buckman Springs Road.
According to Huber, the Expedition bounced in a distinctive
fashion that suggested that it might be carrying an unusually
heavy load. The agents pulled their patrol van alongside
Lopez’s vehicle and Huber peered inside. He observed what
3
We take an entire case en banc, and not merely a single issue. The en
banc court may choose, however, to resolve all the issues presented by a
case or instead to decide only the issue or issues that precipitated the con-
vening of the en banc court and to refer other questions back to the three-
judge panel.
4996 UNITED STATES v. LOPEZ
he believed to be several persons lying on the floor in the
back of the SUV. Huber testified that at that point Lopez
slowed her vehicle drastically. The agents ran its license
plates and determined that it was registered to “Angelica
Lopez.” The agents then activated their emergency lights and
effected the stop.
Huber testified at length about statements Lopez allegedly
made to him at the Border Patrol station. According to Huber,
Lopez told him that earlier that day she had spoken by tele-
phone with an individual named “Jose,” and had made
arrangements with him to pick up the persons later found in
the Expedition. Lopez also gave Huber a vague physical
description of Jose. Jose had instructed Lopez, Huber testi-
fied, to drive to the area where the agents first observed her,
where she would find a sweater in the road; the sweater would
mark the meeting place where Lopez would meet her passen-
gers. She was then to transport them to a gas station in El
Centro, where she would be paid $500. Huber testified that
Lopez told him that she believed that her passengers were in
the country illegally, and that he verified that none of the pas-
sengers was in fact legally present in the United States.
After Huber, the government called as material witnesses
two of the passengers named in Lopez’s indictment, Olga
Barrios-De Leon and her husband, Miguel Angel Osorio-
Hernandez. Barrios testified that she is a Guatemalan citizen
who did not have documentation permitting her to enter the
United States. She explained that she and Osorio traveled to
Tijuana, Mexico, where they made arrangements to be taken
to Los Angeles for $1,500 each. The couple took a bus to
Tecate, Mexico, from which point a guide walked them, along
with 18 other persons, through the hills and into the United
States, a journey that lasted two days and nights. The guide
left the group in the hills with instructions to wait until some-
one came to pick them up. A vehicle came shortly thereafter,
but it was stopped by immigration officials, who also seized
eight individuals from Barrios and Osorio’s group. The
UNITED STATES v. LOPEZ 4997
remaining 12, including the couple, stayed hidden in the hills.
Around this time, Barrios began to menstruate and blood
became visible on the outside of her pants. The following day
the entire group, concerned for Barrios’s health, moved from
the hills to the road to seek assistance. According to Barrios,
all 12 individuals were visible from the road at this point.
About an hour after they moved to the roadside — and a total
of one night and one day after the guide had left them in the
hills — Barrios and the 11 others were picked up by Lopez.
Osorio, who took the stand after Barrios, gave testimony con-
sistent with his wife’s. He added that Lopez had told the pas-
sengers “to tell the truth if she was stopped, or if she was
apprehended,” and that she had told them all “to duck.”
The third material witness named in the indictment, Miguel
Lopez-Villagres, was not present at Lopez’s trial. Over
Lopez’s objection, the trial judge permitted the government to
offer his deposition testimony. That testimony stated that
Lopez-Villagres is a Guatemalan citizen without documenta-
tion to enter the United States. His account of the events sur-
rounding the June 1 incident was consistent with Barrios and
Osorio’s and included similar details. According to Lopez-
Villagres, when the individuals climbed into Lopez’s vehicle,
she told them, “Just get in there and make yourselves com-
fortable so that all of you can fit in.” Some time later she
added, “Don’t blame me if we’re stopped.”
The district court denied Lopez’s motion for acquittal at the
close of the government’s case. Lopez then took the stand on
her own behalf. She testified that she lived in Pomona with
her parents and three children and paid no rent. At the time
of trial, she said, she had two jobs — one as a floral designer
and one as a teacher at a fabric store. Lopez explained how
she acquired the Expedition she was driving on June 1. She
testified that some time earlier she saw the vehicle sporting a
“for sale” sign in a restaurant parking lot and that she called
the owner from a public phone. When she followed up on
May 28, the owner informed her that the car had been moved
4998 UNITED STATES v. LOPEZ
to an impound lot in San Diego County. Lopez tendered pay-
ment and she and the owner registered the vehicle in her name
that day.
On June 1, according to Lopez, a friend gave her a ride to
the impound lot, two and a half hours from Pomona, to
retrieve the car. The vehicle had no fuel, so Lopez stopped at
a gas station before heading back toward the freeway. She
became lost, however, as she had on her way to the impound
lot as well. Lopez mistakenly entered the eastbound side of
the highway. There, she saw two men on the side of road,
waving “like they looked desperate, like they needed help.”
As she drove closer, she saw a woman with blood on her
pants. Lopez testified that she had offered roadside assistance
to strangers in the past, and that she stopped to do so on June
1. She said that the bleeding woman’s husband told her that
his wife needed help because she was “hemorrhaging.” Lopez
volunteered to take the husband and wife “to the nearest place
so they can get help for her”; when the couple got into
Lopez’s car, however, the other 10 individuals from the group
followed. Lopez testified that she was not concerned with the
passengers’ immigration status because she was concerned
about helping the bleeding woman — as Lopez put it, “you
don’t ask somebody for documents when you are helping
them.” Lopez drove for about 10 minutes before the Border
Patrol pulled her over. She denied braking when the Border
Patrol vehicle pulled up alongside her.
The agent who stopped Lopez took her keys and began
speaking to the passengers; because she was “told to be
quiet,” Lopez had no chance to explain to him about the
bleeding woman until much later, when she was in custody at
the Border Patrol station.4 Lopez denied telling Huber the
“Jose” story and denied making the statements in the vehicle
that Osorio and Lopez-Villagres attributed to her. Lopez also
4
On rebuttal, Agent Huber testified that Lopez never, even at the Border
Patrol station, mentioned that she was trying to help Barrios.
UNITED STATES v. LOPEZ 4999
called as a witness her sister, who testified that Lopez had lent
roadside assistance to strangers in the past.
At the end of the testimony, Lopez renewed her motion for
acquittal and the district court again denied the motion. The
jury convicted Lopez on all six counts. Lopez filed post-trial
motions for a judgment of acquittal and a new trial. The dis-
trict court denied these motions after a hearing. The district
court sentenced Lopez to a mandatory minimum term of five
years in prison, to be followed by two years of supervised
release. See § 1324(a)(2)(B) (establishing penalties). She now
appeals, challenging, inter alia, the sufficiency of the evi-
dence to support her convictions for the three “brings to”
offenses.
III
A.
[1] In 8 U.S.C. § 1324, Congress created several discrete
immigration offenses, including: (1) bringing an alien to the
United States; (2) transporting or moving an illegal alien
within the United States; (3) harboring or concealing an ille-
gal alien within the United States; and (4) encouraging or
inducing an illegal alien to enter the United States. We con-
sider here the scope and meaning of the first of these offenses,
codified in § 1324(a)(2), which creates criminal liability for
“[a]ny person 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 . . .
the United States in any manner whatsoever, such alien.”
(Emphasis added.)
The government advocates two theories of liability for
holding that Lopez aided and abetted a “brings to” offense.
First, because of the elementary rule that a defendant may not
be convicted of aiding and abetting a completed offense, see
United States v. Nelson, 137 F.3d 1094, 1104-05 (9th Cir.
5000 UNITED STATES v. LOPEZ
1998), the government argues that a “brings to” offense that
commences outside the United States does not terminate until
the aliens reach their “immediate destination” in the United
States.5 In this case, the government contends that the imme-
diate destination was Los Angeles. Under the government’s
theory, any person who transports the aliens before they reach
their ultimate destination, even if that transportation occurs
solely within the United States, has assisted in the commis-
sion of the “brings to” offense and may be held liable, on that
evidence alone, for aiding and abetting that offense. Second,
the government argues that, even if the “brings to” offense
terminates at some earlier point, before the aliens reach their
“intended destination” and before the defendant commences
her transportation of them, aiding and abetting liability was
established by its showing that prior to the termination of the
offense the defendant acted in a fashion that enabled or
encouraged others to commit that offense. The government
contends that Lopez’s convictions are sustainable on either
theory. We conclude that they are sustainable on neither. We
reject the government’s first theory as a matter of law and the
second as a matter of fact.
[2] The crux of this case is our determination of when the
offense of bringing an alien to the United States terminates.
We hold that it ends when the person who transports the
aliens to the country terminates his act of transportation and
drops off the aliens in the United States.6 In so holding, we
5
At various points in its filings before this court, the government
employs the terms “immediate destination,” “final destination,” “ultimate
destination,” and “intended destination” interchangeably. Accordingly,
throughout our opinion, we use the terms interchangeably as well.
6
In some cases, accompanying or escorting an alien to the United States
on a plane or by foot, or arranging for the alien’s transportation — rather
than driving the alien — will be sufficient to support a finding that the
defendant violated § 1324(a)(2). See, e.g., United States v. Aguilar, 883
F.2d 662, 683-84 (9th Cir. 1989) (upholding a “brings into” conviction in
which the defendant procured false papers for the 13-year-old alien,
UNITED STATES v. LOPEZ 5001
overrule any of our prior decisions that adopt or suggest a dif-
ferent rule. In particular, we reject the “immediate destina-
tion” (or ultimate destination) test set forth in United States v.
Ramirez-Martinez.7 Although there are a number of plausible
constructions of § 1324(a)(2), the construction we adopt today
is the one most consistent with the statute’s text, structure,
history, and purpose.
B.
In construing § 1324(a)(2), the first issue we must consider
is whether the “brings to” offense terminates as soon as its
elements are met — as soon as the alien is brought “to” the
United States — or whether instead the statute covers some
conduct engaged in after the act of entry. We have held that
ordinarily “[a] crime is complete when each element of the
crime has occurred.” United States v. Smith, 740 F.2d 734,
736 (9th Cir. 1984). In this case, each element has occurred
as soon as the undocumented alien is brought “to” the United
States — as soon as the alien reaches or crosses the border.8
It would be a plausible reading, therefore, to conclude that the
“brings to” offense terminates at that point. One might argue,
reasonably, that although the pre-1986 version of § 1324(a)(2)
coached her to lie to immigration authorities, walked ahead of her through
immigration, and met up with her immediately thereafter), superseded by
statute on other grounds as stated in Gonzalez-Torres, 309 F.3d at 599;
see also infra pp. 5015-16 (discussing other possible forms of offense con-
duct).
7
In that decision, we adopted the “immediate destination” (ultimate or
intended destination) theory that the government currently urges. We held
that a “brings to” offense does not terminate 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. See
Ramirez-Martinez, 273 F.3d at 912.
8
Throughout this opinion, our discussion assumes that the other ele-
ments of § 1324(a)(2), including the alienage and lack of authorization of
the person transported, as well as the defendant’s mens rea, are satisfied.
5002 UNITED STATES v. LOPEZ
prohibited bringing an alien “into” the United States — which
appears to criminalize at least some conduct within the United
States — the current version of the statute bans only bringing
an alien “to” the United States, and thus does not criminalize
any conduct after the point at which the alien enters the coun-
try. Such a reading, which views the 1986 amendment as a
narrowing one, conflicts, however, with the legislative history
we discussed in Gonzalez-Torres. See 309 F.3d at 599. There
we pointed out that Congress passed the 1986 amendment in
order to cover conduct previously not covered — that the
amendment was intended to overrule case law requiring a
completed legal “entry” to sustain a “brings into” conviction.
Id.9 It is clear from this history that the 1986 amendment was
a broadening amendment — designed to cover conduct not
subject to the earlier version — and not a narrowing one.
Accordingly, the history and purpose of the statute do not
support the conclusion that the offense terminates as soon as
the alien is brought “to” the United States.
[3] On the contrary, for four reasons we conclude that the
“brings to” offense continues after entry and does not termi-
nate merely because all of the elements are met. First, the
“brings to” offense proscribes an act that is not a static or an
instantaneous occurrence, geographically or temporally.
9
The change was made in response to a Southern District of Florida
decision that had construed “brings into” as synonymous with “entering.”
See United States v. Villanueva, 408 F.3d 193, 198 (5th Cir.) (discussing
history), cert. denied, 126 S. Ct. 268 (2005). “Entering” requires more
than physical entry, however — it requires freedom from all official
restraint, including from surveillance by government agents. Gonzalez-
Torres, 309 F.3d at 598. Thus, under the prior statutory wording, a person
who physically transported aliens across the border could have avoided
prosecution under the subsection “if the immigrants he transported were
not allowed entry into the United States” — for example, if those aliens
were never free from government surveillance from the time they crossed
the border until the time they were arrested in the United States. Villa-
nueva, 408 F.3d at 198 (citing United States v. Anaya, 509 F. Supp. 289,
297 (S.D. Fla. 1980) (en banc), aff’d on other grounds sub nom. United
States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982)).
UNITED STATES v. LOPEZ 5003
Bringing 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. We have held, for
instance, that the offense of transporting illegal aliens contin-
ues during the duration of the act of transportation. See United
States v. Covarrubias, 179 F.3d 1219, 1225 (9th Cir. 1999),
abrogated on other grounds by Texas v. Cobb, 532 U.S. 162,
168 & n.1 (2001); see also United States v. Dinkane, 17 F.3d
1192, 1199 (9th Cir. 1994) (holding that bank robbery contin-
ues throughout the period of hot pursuit). This result is also
consistent with the “continuing offense” doctrine the Supreme
Court announced in Toussie v. United States, 397 U.S. 112
(1970). See id. at 115, 120 (holding that an offense is “contin-
uing” for statute of limitations purposes when “the nature of
the crime involved” requires as much, such as when the
offense “clearly contemplates a prolonged course of con-
duct”).
[4] The second reason supporting our conclusion that the
“brings to” offense continues after entry is that the federal
venue statute, 18 U.S.C. § 3237 (2000), states that “[a]ny
offense involving . . . transportation in interstate or foreign
commerce, or the importation of an object or person into the
United States is a continuing offense and . . . may be inquired
of and prosecuted in any district from, through, or into which
such commerce . . . or imported object or person moves.”
Lopez argues that § 3237 does not apply to § 1324(a)(2),
which criminalizes bringing an alien to the United States, not
into the United States. Cf. Gonzalez-Torres, 309 F.3d at 599
(discussing the distinction between “to” and “into”). It is true
that, under Gonzalez-Torres, one can violate § 1324(a)(2)
without “entering” the United States in a legal sense. See
supra note 10. What § 3237 means, however, is that when a
defendant does import a person into the United States, such
as by driving that person from Mexico across the border to
Las Vegas, he has committed a continuing offense for venue
purposes. Were we to conclude that § 1324(a)(2) terminates
as soon as the border is reached and the statutory elements are
5004 UNITED STATES v. LOPEZ
satisfied, we would sap this part of § 3237 of all meaning.
Venue would always lie only in the district which the alien
first entered the country. There would be no offenses involv-
ing the importation of a person into the United States that
were continuing for venue purposes, contrary to what § 3237
clearly contemplates. Such a construction of § 1324(a)(2)
would run contrary to Congress’ intent as expressed in
§ 3237.
[5] Third, our conclusion that an offense under § 1324(a)(2)
does not end simply because all the statutory elements are sat-
isfied is consistent with the ordinary meaning of the phrase
“brings to.” See United States v. Cabaccang, 332 F.3d 622,
626 (9th Cir. 2003) (en banc) (“When Congress has not pro-
vided special definitions, we must construe words in a statute
‘according to their ordinary, contemporary, common mean-
ing[s].’ ” (quoting United States v. Hackett, 311 F.3d 989, 992
(9th Cir. 2002)) (alteration in original)). The common under-
standing of the phrase “brings to,” such as to “bring to” a par-
ticular large place, is to bring to some location within that
large place and not simply to its outer boundary. An alien who
is brought to the United States is usually brought by the trans-
porter to a particular place in the country where he is dropped
off, not just to the border. A construction of the statute in
which the offense terminates as soon as the alien reaches the
border conflicts with our common sense understanding of the
language the statute employs.
[6] Fourth, our determination that the “brings to” offense is
a continuing one is most consistent with the way we view the
physical acts that commonly constitute the offense conduct in
§ 1324(a)(2) cases. If the crime ended as soon as an alien was
brought “to” the United States, a transporter who drove an
alien from Tijuana, Mexico, to a safe house one mile north of
the border, for example, could be punished for two separate
crimes: bringing the aliens “to” the United States and “trans-
porting” them for another mile within the country. It makes
more sense to think of this short, uninterrupted drive as con-
UNITED STATES v. LOPEZ 5005
stituting a single “brings to” offense, a conception that is
made possible by a construction of the statute that treats the
offense as continuing.10
[7] Of course, our conclusion that the “brings to” offense
continues past the point of entry is not the end of our inquiry,
for “even continuing offenses are completed at some point.”
United States v. Hernandez, 189 F.3d 785, 791 (9th Cir.
1999). Our critical task is to determine when that point occurs
for violations of § 1324(a)(2). We emphasize that the fact that
§ 1324(a)(2) is a continuing offense for venue purposes under
18 U.S.C. § 3237 in no way compels us to reach the conclu-
sion the government suggests — that the “brings to” offense
continues until the aliens reach their ultimate destination. If
the venue statute contained language about ultimate destina-
tions, we would confront a different question, but that is quite
obviously not the case. The fact that a crime is continuing for
venue purposes says nothing about when that crime termi-
nates. It means merely that venue lies in any district touched
by the crime before the crime is completed. See Hernandez,
189 F.3d at 791; United States v. Barnard, 490 F.2d 907, 910
(9th Cir. 1973). For example, a transporter who drives a group
of illegal immigrants across the border at California or Ari-
zona and drops them off in Las Vegas may, under the venue
statute, be prosecuted in any one of two or more districts.
Thus, § 3237 tells us that the crime is a continuing one and
may provide the government with the opportunity to prose-
cute in more than one venue, but it sheds no light on whether
the “brings to” offense terminates when the alien is dropped
off initially at the location at which the initial transporter’s
conduct ends or whether it continues thereafter while other
individuals commit acts of internal transportation that are cov-
ered by a different statutory provision.
10
Our construction of § 1324(a)(2) is also consistent with what we have
previously stated about the “transports within” offense. In United States
v. Covarrubias, we held that “[t]he federal crime of transporting illegal
immigrants [is] a continuing offense; it [remains] in progress as long as
the defendants [are] transporting” the aliens. 179 F.3d at 1225.
5006 UNITED STATES v. LOPEZ
[8] As stated previously, we hold that a “brings to” offense
under § 1324(a)(2) terminates when the initial transporter
drops the aliens off at a location in the United States: that may
occur in the first district the transporter enters or it may not
occur until after the transporter has driven through several
districts. In so interpreting the statute, we have adopted a view
of § 1324 that is most consistent with its text, structure, his-
tory, and purpose, and with the continuing offense venue pro-
vision. See Kokoszka v. Belford, 417 U.S. 642, 650 (1974)
(“When ‘interpreting a statute, the court will not look merely
to a particular clause in which general words may be used, but
will take in connection with it the whole statute . . . and the
objects and policy of the law, as indicated by its various pro-
visions, and give to it such a construction as will carry into
execution the will of the Legislature . . . .’ ” (quoting Brown
v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857))).
[9] In construing the “brings to” offense, we observe ini-
tially that “[t]he language of the statute itself indicates that
Congress intended it to apply to extraterritorial conduct.” Vil-
lanueva, 408 F.3d at 198. That is, the “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 language 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 domestic soil
and has committed only a “transports within” offense. An
interpretation of § 1324(a)(2) as persisting beyond the point at
which the extraterritorial transporter terminates his conduct
and drops the 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
UNITED STATES v. LOPEZ 5007
already inside the country. See WILLIAM N. ESKRIDGE, JR. &
PHILIP P. FRICKEY, LEGISLATION: STATUTES AND THE CREATION
OF PUBLIC POLICY 646 (1988) (“[P]rovisions must be inter-
preted so as not to derogate from the force of other provisions
and features of the whole statute.”).
Even more persuasive to us, as we have already noted,
§ 1324 creates four separate offenses, including the “brings
to” offense at issue here as well as the “transports within”
offense of § 1324(a)(1)(A)(ii). Among its other attributes, our
reading of § 1324 best harmonizes the various separate but
often interrelated parts of the statute. In our prior decisions,
we have found it useful to reason from statutory structure in
determining the existence and contours of continuing
offenses. The defendant in United States v. Vowiell, 869 F.2d
1264 (9th Cir. 1989), was charged with, inter alia, assisting
an escape from federal custody, in violation of 18 U.S.C.
§ 752 (1988), and harboring an escapee, in violation of 18
U.S.C. § 1072 (1988). We held that the assisting offense con-
tinues through any immediate active pursuit, but no further.
See Vowiell, 869 F.2d at 1268-69. In deciding when the assist-
ing crime terminates, we wrote that “[a]n interpretation that
assisting an escape under § 752(a) included harboring or con-
cealing an escapee would be inconsistent with the clear statu-
tory distinction” between the two provisions. Id. at 1268. We
rejected the government’s argument that United States v. Bai-
ley, 444 U.S. 394 (1980), in which the Supreme Court held
that escape itself continues as long as the escapee remains at
large, required that assisting an escape also be deemed to so
continue. See Vowiell, 869 F.2d at 1268-69. “Assisting escap-
ees after the escape is complete constitutes a separate crime
— harboring or concealing escapees,” we wrote. Id. at 1269.
We further explained:
This separation reflects the different dangers which
the two crimes pose . . . . In contrast, no separate
crime exists for not turning one’s self in after escap-
ing. As the Supreme Court pointed out in Bailey, an
5008 UNITED STATES v. LOPEZ
escapee can be held liable for not returning to cus-
tody, but that conduct is included within the crime of
escape. Not turning one’s self in involves essentially
the same danger as escaping — that someone who is
supposed to be in legal custody will not fulfill the
purpose of that custody.
Id. (citation omitted). Following the reasoning of Vowiell, we
held in United States v. Gray, 876 F.2d 1411 (9th Cir. 1989),
that failure to appear, in violation of 18 U.S.C. § 3146 (1988),
is a continuing offense: because “no separate crime exists for
failure to return for sentencing after having initially failed to
appear for sentencing,” and because “[t]he two actions pose
the same danger to society and the legal system,” we con-
cluded that “[b]oth are part and parcel of one continuing
offense.” 876 F.2d at 1419.
[10] In this case, as in Vowiell, an interpretation that
“brings to” under § 1324(a)(2) includes “transports within” —
which, under the government’s “immediate destination” the-
ory, it often would — “would be inconsistent with the clear
statutory distinction” between the two crimes, and even with
the statutory distinction with the two other offenses covered
by § 1324. Transporting an undocumented alien solely within
the United States “constitutes a separate crime” from bringing
one “to” the United States. Congress’ distinction between
those two offenses and the punishments that attach to each
“reflects the different dangers which the two crimes pose.”
Unlike in Gray, a separate crime does exist in this case for the
wholly domestic conduct of transporting an alien from one
place in the United States to another — in other words, Con-
gress has decided that such conduct is not “part and parcel”
of the “brings to” offense. As in Vowiell, then, the “brings to”
offense does not continue beyond the point at which the
“transports [wholly] within” offense begins.11
11
Similarly, adopting the government’s construction would erode the
distinction between the “brings to” and harboring offenses. See § 1324(a)
(1)(A)(iii). Harboring or concealing during the period between the external
and internal transportation would constitute aiding and abetting the extra-
territorial “brings to” offense.
UNITED STATES v. LOPEZ 5009
A rule that hinges the termination point of the “brings to”
offense on the end of the initial transporter’s conduct, as does
ours, rather than on the aliens’ ultimately reaching their final
destination, as would the government’s, more accurately
reflects the history and purposes of the various statutory pro-
visions that make up § 1324. In United States v. Sanchez-
Vargas, 878 F.2d 1163 (9th Cir. 1989), we traced the evolu-
tion of § 1324 and its predecessor statutes. Prior to 1917, we
explained, federal law criminalized only the bringing in or
landing of undocumented aliens into the United States. Id. at
1168. That year, Congress addressed an apparent gap in
immigration law by extending immigration enforcement
efforts inland through proscribing the harboring and conceal-
ing of undocumented aliens. Id. Then, in 1952, Congress fur-
ther broadened the coverage of its earlier legislation by
creating the additional offenses of transporting aliens within
the United States and inducing or encouraging the entry of
aliens into the United States. Id. at 1169. Congressional
debate suggests that the 1952 amendments were directed “at
curbing the widespread practice of transporting illegal immi-
grants, already in the United States, to jobs and locations
away from the border where immigration enforcement
resources may have been more scarce.” Id. We described the
general evolution of the statute as “broadening the scope of
proscribed conduct,” rather than multiplying the charges or
penalties. Id. Indeed, we concluded that Congress’ purpose in
adding the internal transport offense to the other enumerated
smuggling offenses in § 1324(a)(1) was “to ensure that a ‘new
group of wrongdoers’ — persons transporting aliens within
the United States — would not escape punishment simply
because they had not also brought those aliens into the United
States.” Id. at 1170. Congress’ intent was, thus, not to extend
the reach of the “brings to” provision or to multiply the
charges for which an initial transporter might be eligible.
One lesson of the history we discussed in Sanchez-Vargas
is that “wrongdoers” who transport aliens within the United
States were not subject to punishment historically under the
5010 UNITED STATES v. LOPEZ
“brings to” provision of § 1324. The purpose of the “brings
to” provision was instead to criminalize the conduct of those
who acted extraterritorially to move aliens from a foreign
country to the United States. Indeed, the fact that wrongdoers
who acted wholly domestically escaped punishment under the
1917 statute was, as we explained, the motivating force
behind the enactment of the “transports within” provision in
1952. The construction of § 1324 most consistent with the
statute’s history and structure, therefore, is one that recog-
nizes that the different provisions of § 1324 cover different
groups of wrongdoers. By designating the termination point
of the “brings to” offense as the end of the initial wrongdoer’s
physical involvement, and by permitting prosecution of the
secondary wrongdoers — those who act entirely within the
United States — only under the “transports within” provision,
our construction accomplishes precisely what Congress
intended. Under the government’s proposed construction, by
contrast, a “brings to” offense does not terminate until the
alien reaches his ultimate destination, regardless of how many
“wrongdoers” (or groups of “wrongdoers”) transport or assist
him during his journey. Such a rule would disregard Con-
gress’ intention to provide for the prosecution of different
groups of wrongdoers under different provisions of the stat-
ute.
This is not, moreover, the only problem with the govern-
ment’s “immediate destination” test. Another concern is that,
at bottom, the test has little basis in the law. The “immediate
destination” language appears nowhere in § 1324 or the venue
statute, and there is no reason for us to graft it onto § 1324
here. Indeed, the government’s varying descriptions of its pro-
posed 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.12
12
The “immediate destination” test is also difficult to administer
because it invites debate over whether a particular stop along an alien’s
UNITED STATES v. LOPEZ 5011
The dissent’s analogy between alien smuggling and drug
smuggling, see dis. op. at 5019, is inapt. The statutory
schemes that regulate the two types of importation are struc-
tured in entirely different ways. As we have explained at
length, in enacting the current version of § 1324, Congress
decided to punish under separate provisions the wrongdoers
who bring illegal aliens across the border and those who
transport them wholly within the United States. Both the
offenses and the sentences are different. Congress employed
a completely opposite and unitary approach to the transporta-
tion of drugs. There is no counterpart in the drug statutes to
the “transports within” provision of § 1324(a)(1)(A)(ii).
Unlike in the case of alien importation, the “importation”
offense in the drug context covers both the extraterritorial
transportation and the ensuing internal transportation. In the
case of drugs, the government must prosecute all persons
involved in their transportation under 21 U.S.C. § 952, the
provision that forbids the “importation of controlled sub-
stances.” Thus, the unitary statutory structure compels a
broader reading of the transportation element of the importa-
tion of drugs statute than is permissible with respect to the
“brings to” provision of the alien smuggling law, in which
separate provisions exist to cover the different transportation
stages of the criminal venture.13
path into the United States constitutes that alien’s “immediate destination”
or was instead merely a resting place or meeting point. In this case, for
example, Lopez argues that the aliens had reached their immediate desti-
nation when they were dropped off at the prearranged point in the United
States, while the government argues that their immediate destination was
their final destination, Los Angeles.
13
The dissent notes that 21 U.S.C. § 841(a)(1) prohibits “manufacturing,
distributing, dispensing, or possessing with intent to manufacture, distrib-
ute, or dispense, a controlled substance.” Dis. op. at 5026. The point, how-
ever, is that the drug statutes do not separately prohibit transporting a
controlled substance “within” the United States, see Cabaccang, 332 F.3d
at 623, whereas the alien smuggling statute does. As explained in the text,
it is this distinction that compels a broader reading of the transportation
element of the “importation” offense in the drug context than is appropri-
ate in the case of the more specific and limited “brings to” provision of
§ 1324(a)(2).
5012 UNITED STATES v. LOPEZ
The dissent also raises the specter of a circuit split by
beginning with a string citation to out-of-circuit cases every
one of which interprets the drug importation statute and none
of which even mentions § 1324 or alien smuggling. See dis.
op. at 5019. Because of the crucial differences between the
two statutes, any “circuit split” created by these cases is com-
pletely illusory. The lone decision adopting the dissent’s con-
struction of § 1324, United States v. Aslam, 936 F.2d 751 (2d
Cir. 1991), failed to consider the structural and historical
arguments on which our opinion is based. See id. at 755. Sig-
nificantly, the court in Aslam was considering a misdemeanor
rather than a felony conviction. We are not inclined by virtue
of this single decision to set aside our own careful analysis
and adopt a ruling that would conflict with both the language
of § 1324 and the patent congressional purpose of creating
two separate felony alien trafficking offenses.14
14
The dissent is of course correct that both alien smuggling and drug
smuggling constitute continuing offenses under the federal venue statute,
18 U.S.C. § 3237. This does not mean, as we have explained, that the two
“importation” offenses terminate at the same point. That is determined by
the substantive statutes. The dissent relies upon a Senate report stating that
the 1984 amendment to the venue statute, which first gave “importation”
offenses their status as continuing crimes, was designed to overcome a dis-
trict court decision “which limited venue in importation cases to the dis-
trict of entry rather than of final destination.” See, e.g., dis. op. at 5025
(quoting S. REP. NO. 98-225, at 400 (1984), as reprinted in 1984
U.S.C.C.A.N. 3182, 3538) (internal quotation marks omitted). According
to the dissent, this snippet of legislative history compels us to construe the
extraterritorial “brings to” offense as continuing until the alien reaches his
ultimate destination, no matter how many different persons transport the
alien within the United States and no matter how many brief or extended
layovers the alien may make in the interim. Such a brief quotation from
the legislative history of a venue statute, however, would scarcely cause
us to jettison our entire analysis of the text, structure, history, and purpose
of the substantive statute we are actually construing. In any event, as the
snippet states, the primary purpose of the 1984 amendment was to super-
sede a decision limiting venue to the district of entry. This is what labeling
“importation” offenses as “continuing” accomplishes. Our construction
effectuates that primary purpose by permitting prosecution of the initial
transporter in any district through which he passes before the offense ter-
minates.
UNITED STATES v. LOPEZ 5013
[11] Turning to the facts of this case, it is undisputed that
Lopez encountered the aliens and provided them with trans-
portation only after they had been dropped off in the United
States by the initial transporter who brought them across the
border from Mexico. Thus, her act of transporting the aliens
occurred only after the “brings to” offense had terminated and
cannot, standing alone, serve as a basis for sustaining her con-
viction for aiding and abetting that offense. Lopez’s “brings
to” convictions must therefore be reversed unless the govern-
ment can prevail on its second theory, that Lopez acted before
the drop-off to aid and abet the extraterritorial offense.15
C.
[12] The government’s second theory of aiding and abet-
ting liability, unlike its first, cannot be rejected as a matter of
law. Under the aiding and abetting statute, 18 U.S.C. § 2, a
person who “aids, abets, counsels, commands, induces or pro-
cures” the commission of an offense against the United States
is “punishable as a principal.” We have interpreted this statute
on a number of occasions. In United States v. Zemek, 634
F.2d 1159 (9th Cir. 1980), we wrote that “[c]onviction as an
aider and abettor requires proof the defendant willingly asso-
ciated himself with the venture and participated therein as
something he wished to bring about.” Id. at 1174. Elsewhere,
we have stated that “[a]n abettor is one ‘who, with mens rea
. . . commands, counsels or otherwise encourages the perpe-
trator to commit the crime.’ ” United States v. Barnett, 667
F.2d 835, 841 (9th Cir. 1982) (quoting ROLLIN M. PERKINS,
CRIMINAL LAW 645 (2d ed. 1969)); see also NINTH CIRCUIT
MODEL CRIMINAL JURY INSTRUCTIONS § 5.1 (2005) (instructing
15
As a point of clarification, our holding today does not require us to
overrule United States v. Gonzales-Torres. Under Gonzalez-Torres, the
elements of the “brings to” offense may be satisfied as soon as the aliens
are brought to the United States, regardless of formal entry; under today’s
decision, the offense continues until the initial transporter who brings the
aliens drops them off at a location in the United States.
5014 UNITED STATES v. LOPEZ
that, to obtain a conviction for aiding and abetting, the gov-
ernment must prove beyond a reasonable doubt that, inter
alia, the defendant “knowingly and intentionally aided, coun-
seled, commanded, induced or procured [the principal] to
commit each element” of the crime charged). We have held
that aiding and abetting has four elements including, as most
relevant here, “that the accused had the specific intent to facil-
itate the commission of a crime by another” and “that the
accused assisted or participated in the commission of the
underlying substantive offense.” United States v. Gaskins, 849
F.2d 454, 459 (9th Cir. 1988).
It is clear that under certain circumstances a defendant 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 something he
wishe[d] to bring about, [and sought] by his action to make
it succeed.” Nye & Nissen v. United States, 336 U.S. 613, 619
(1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d
Cir. 1938)); cf. Barnes v. United States, 215 F.2d 91, 91 (9th
Cir. 1954) (upholding “brings into” conviction of a defendant
who “negotiated and planned entry for . . . aliens,” drove the
aliens to a Mexican city near the border, and met up with
them again on the United States side). We need not determine
today, however, precisely what actions may and may not ren-
der a defendant guilty of aiding and abetting.16 Lopez’s
actions do not qualify under any definition.
16
Any complete specification of the category of aiders and abettors
would have to take into account, and attempt to avoid redundancy with,
the separate offense Congress created for one who “encourages or induces
an alien to come to, enter, or reside in the United States, knowing or in
reckless disregard of the fact that such coming to, entry, or residence is or
will be in violation of law.” § 1324(a)(1)(A)(iv).
UNITED STATES v. LOPEZ 5015
[13] The mere act of picking up aliens at a location near the
border and transporting them within the United States is not
sufficient to support a conviction for aiding and abetting a
“brings to” offense.17 Nor does the fact that following comple-
tion of the “brings to” offense Lopez twice spoke to a person
who may have been the transporter add anything to the equa-
tion. Such evidence cannot, without more, establish the intent
necessary to prove aiding and abetting — it cannot show that
the defendant knowingly and intentionally commanded, coun-
seled, or encouraged the initial transporter to commit the
“brings to” offense. Moreover, a “brings to” conviction would
be particularly inappropriate in this case, in which, as the dis-
trict court found, the defendant “wasn’t obviously the first
choice” — “someone else was supposed to pick [the aliens]
up,” and Lopez was contacted on the day she transported
them only after the aliens were already in the country and the
plan for the first person to pick them up had been frustrated
by his arrest when he appeared at the designated location.
The government attempts to squeeze from the record addi-
tional evidence to show that Lopez aided and abetted the
smuggling scheme before the aliens were brought to the
United States. The government points to two pieces of evi-
dence in the record. First, the government notes that Lopez
made “arrangements to put the vehicle in her name on May
28, 2004 and to travel near the border to pick up the vehicle.”
Second, the government points out that “Lopez stated that she
was contacted by ‘Jose’ twice on the day of the offense
regarding the transportation arrangements. At no point,” the
government observes, “did Agent Huber say, nor did the Gov-
ernment argue, that Lopez’s discussions with Jose on June 1,
2004, were her first contact with him.” The government then
notes, “the fact that Lopez was able to provide Agent Huber
17
Two of our prior decisions, Ramirez-Martinez and Angwin, may be
read to suggest that such evidence is sufficient. See 273 F.3d at 912-13;
271 F.3d at 804-05. To the extent that these decisions stand for that propo-
sition, we overrule them today.
5016 UNITED STATES v. LOPEZ
with a physical description of Jose implies contact with him
that predated the telephone conversations she had with him
that day.”18 The district court found this evidence sufficient to
prove beyond a reasonable doubt that Lopez was involved in
transporting the aliens to the United States before the aliens
entered the country, although it agreed with the defense that
“it’s somewhat questionable, because [Lopez] wasn’t obvi-
ously the first choice. Because someone else was supposed to
pick them up.”
We hold that, viewing the evidence in the light most favor-
able to the government, any rational juror would have had at
the least a reasonable doubt as to whether Lopez “knowingly
and intentionally aided, counseled, commanded, induced or
procured [the principal] to commit each element” of the
“brings to” offense. The government merely speculated that
the timing of Lopez’s vehicle purchase seemed suspicious. As
the district court found, however, even after the date on which
she acquired the car, Lopez was not the person Jose made
arrangements with to drive the illegal aliens to Los Angeles
upon their arrival in the United States — she was instead only
a substitute who was called after they were already here.
Thus, the government’s arguments about the inferences a
rational juror might draw from the timing of the purchase are
wholly unpersuasive. As we have previously held, “mere sus-
picion or speculation does not rise to the level of sufficient
18
The record contains no further information as to who Jose is or what
role he played. There is no testimony as to whether he was located in
Mexico or the United States, whether he physically brought the illegal
aliens to the United States himself or simply made the arrangements for
their transportation, whether the transportation of the group of aliens in
this case was an isolated episode or, as seems more likely, whether Jose
was regularly engaged in the alien smuggling business. Given the minimal
evidence in the record as to Jose’s identity and role as well as to Lopez’s
connection with Jose, it is difficult to understand what inferences the gov-
ernment believes that the jury could have drawn that would support a ver-
dict that Lopez was guilty beyond a reasonable doubt of aiding and
abetting the extraterritorial act.
UNITED STATES v. LOPEZ 5017
evidence.” United States v. Stauffer, 922 F.2d 508, 514 (9th
Cir. 1990). The government’s other argument regarding Jose
fares no better. Whatever the relevance may be of communi-
cations prior to the time aliens are brought from outside the
country to the United States, any communication Lopez had
with Jose on June 1 is clearly irrelevant because it occurred
after the “brings to” offense had been completed. Even if, as
the government suggests, Lopez’s ability to give a physical
description of Jose tends to show that she had met Jose prior
to June 1, that is all it shows. The inferential leap required to
conclude that Lopez and Jose’s prior communications
involved efforts on the part of Lopez to induce or encourage
Jose to smuggle aliens on June 1 is completely without foun-
dation, and no rational juror could draw such an inference or
conclude that the fact of a prior acquaintanceship constitutes
proof beyond a reasonable doubt of any such effort on
Lopez’s part.
[14] Nor is all of the government’s evidence taken together
sufficient to allow a rational factfinder to find Lopez guilty.
To prove aiding and abetting, the government cannot show
merely that Lopez was associated with Jose or with the trans-
portation of the aliens within the United States — it must
show more. See NINTH CIRCUIT MODEL CRIMINAL JURY
INSTRUCTIONS § 5.1 (2005); United States v. Burgess, 791 F.2d
676, 679-80 (9th Cir. 1986). Specifically, it must show that
the “brings to” offense was something that Lopez had the spe-
cific intent to bring about, Gaskins, 849 F.2d at 459; Zemek,
634 F.2d at 1174, and that she knowingly and intentionally
commanded, counseled, or encouraged the initial transporter
to commit the “brings to” offense, Barnett, 667 F.2d at 841.19
19
Contrary to the dissent’s oblique suggestion, see dis. op. at 5031, we
do not decide that if a smuggling operation “relies on” a secondary, state-
side transporter — in the sense that the secondary transporter’s agreement
to participate induces or encourages the commission of the initial, extrater-
ritorial “brings to” offense and the secondary transporter intended to so
induce or encourage the commission of the crime — aiding and abetting
liability will never lie. Those are not the facts of this case and we do not
consider that question here.
5018 UNITED STATES v. LOPEZ
There is no evidence whatsoever to this effect in the record.
We therefore reverse Lopez’s “brings to” convictions.
IV
We hold that the offense of bringing an alien to the United
States in violation of 8 U.S.C. § 1324(a)(2) is a continuing
offense that terminates when the initial transporter who brings
the alien to the United States drops off the alien at a location
in this country. Viewing the statute in that light, we reverse
Lopez’s convictions for violations of § 1324(a)(2). Lopez
transported the aliens only within this country and only after
they had been dropped off here and the “brings to” offense
had terminated. The evidence of her involvement prior to the
termination of the “brings to” offense, to the extent that any
exists in the record, is wholly insufficient to establish aiding
and abetting liability on her part. We express no opinion on
Lopez’s Miranda and Confrontation Clause claims with
respect to the “transports within” counts and refer those
counts to the original three-judge panel for resolution of those
and any other issues.
REVERSED IN PART AND REFERRED IN PART TO
THE THREE-JUDGE PANEL.
BEA, Circuit Judge, specially concurring:
I agree with the majority that Lopez transported illegal
aliens only within the United States and that there is insuffi-
cient evidence that Lopez otherwise aided and abetted the
“brings to” offense. I do not agree that the “brings to” offense
continues until the initial transporter drops off the aliens. By
the plain text of the statute, the offense is completed at the
border. Any further transportation may constitute transporting
an illegal alien within the United States under 8 U.S.C.
UNITED STATES v. LOPEZ 5019
§ 1324(a)(1)(A)(ii), but does not constitute “bringing to” the
United States such alien.
The majority opinion is an extended exercise in statutory
interpretation, on grounds and using methods which I do not
endorse. But there is no point in commenting further because
it is also an exercise unnecessary to decision. 8 U.S.C.
§ 1324(a)(2)(B)(ii) makes it illegal to “bring[ ] to . . . the
United States” an illegal alien. A person “brings to” the
United States an illegal alien when he transports the alien
across any border. That is the plain meaning of the statute,
and I can see no reason to depart from it.
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 cir-
cuit 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 con-
cluded 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
(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. Jack-
son, 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.
5020 UNITED STATES v. LOPEZ
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. 4994. 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. I 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 evi-
dence can be used to prove any fact, including facts from
which another fact is to be inferred, and is not to be distin-
guished 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 omit-
ted; alteration in original).
Border Patrol Agents apprehended Angelica Lopez
(“Lopez”) on June 1, 2004, using a large white Ford Expedi-
tion to transport twelve illegal aliens east on Interstate 8.
Agent Huber testified that Lopez admitted to making arrange-
UNITED STATES v. LOPEZ 5021
ments 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 prom-
ised to pay Lopez $100 for each individual she transported;
however, he called her sometime later to change the arrange-
ments 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 Expe-
dition 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 con-
clude 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 pur-
chase 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 sub-
sequent 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
5022 UNITED STATES v. LOPEZ
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 trans-
porter 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 acknowl-
edges that importation crimes are continuing offenses for
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. 4994 n.1.
UNITED STATES v. LOPEZ 5023
venue purposes. Maj. op. 5000-04. 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 desti-
nation in the United States because the words “ultimate desti-
nation” do not appear anywhere in the federal venue statute.
Maj. op. 5004-05.3 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 (1977)). The legislative history of § 3237 is clear: impor-
tation 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 his-
tory 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
3
The majority goes on to state that “the government’s varying descrip-
tions of its proposed rule—‘immediate destination,’ ‘final destination,’
‘ultimate destination,’ ‘intended destination’—highlight the sheer arbitrar-
iness of adding to the statute language that has no basis in statutory text.”
Maj. op. 5010.
5024 UNITED STATES v. LOPEZ
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 defen-
dant’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, 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
4
Although the court concedes that “[i]f the venue statute contained lan-
guage about ultimate destinations, we would confront a different ques-
tion,” maj. op. 5005, it dismisses such language as a mere “snippet” of
legislative history, maj. op. at 5012 n.14.
UNITED STATES v. LOPEZ 5025
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; 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 pen-
alties, but to legislate against the overt act of smug-
gling itself.
172 U.S. at 454-55. Therefore, in the Court’s view, the smug-
gling 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. The majority
reverts to the same rationale here by pointing to the different
crimes of transporting, bringing to, and harboring or conceal-
ing.
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 cor-
rectly notes that § 1324 punishes four distinct acts related to
smuggling, see maj. op. 5006-07, the legislative history indi-
cates 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 over-
come 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
5026 UNITED STATES v. LOPEZ
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 Cir-
cuit rejected the defendant’s argument, which would have “re-
instate[d] 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 Dis-
trict of Pennsylvania.” 803 F.2d at 128, 129 (final alteration
in original); see also id. at 128 (“Although the Western Dis-
trict of Pennsylvania may not have been the final destination
intended by the appellant, it was nevertheless the final desti-
nation 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 5019.
The majority employs a spurious structural argument in an
attempt to justify its inconsistent treatment of alien and drug
smuggling. See Maj. op. 5011. In doing so, it ignores 21
U.S.C. § 841(a)(1), which punishes the related drug-
trafficking offenses of manufacturing, distributing, dispens-
ing, 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 posses-
sion 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 sepa-
rate 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,
UNITED STATES v. LOPEZ 5027
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 mis-
named “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 smug-
gling statutes. That is why drug importation crimes can be
freely prosecuted in any federal district impacted by the activ-
ities of the drug smuggling enterprise. Logic compels the con-
clusion that Congress expected no different result when
prosecuting enterprises involving alien smuggling. The split
created today by the majority’s approach is real and substan-
tial and cannot be dismissed in reliance on the narrow struc-
tural 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 seri-
ously 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 ear-
liest 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. 5002-03. 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 coun-
try, not a hillside just across the border. Recognizing that
importation “is not a static or an instantaneous occurrence,
geographically or temporally,” maj. op. 5002, the crime pun-
ishing the importation of aliens should include the transporta-
tion of those aliens to their final destination.
5028 UNITED STATES v. LOPEZ
In comparison, the transportation and harboring or conceal-
ing of illegal aliens covers the continued presence and opera-
tion 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 Mer-
chant 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
5
The inquiry is heavily dependant 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)(1)(A)(iii).
UNITED STATES v. LOPEZ 5029
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 pres-
ence of the illegal aliens by transporting them to other loca-
tions 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 Califor-
nia. 482 F.2d at 1178. The Tenth Circuit rejected that argu-
ment, 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
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 statu-
tory 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 vio-
lation, 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)(1)(A)(ii) for transporting illegal aliens for commercial advan-
tage or private financial gain will result in a sentence of not more than 10
years. Id. § 1324(a)(1)(B)(i).
5030 UNITED STATES v. LOPEZ
to the smuggling attempt’s destination point in Colo-
rado. 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 Thai-
land 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 importa-
tion offenses—whether it involves the importation of illegal
aliens or illegal contraband—did not go unnoticed by the Sec-
ond 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 prear-
ranged location south of the border to “complete their entry
into the United States.” Id. In concluding that Aslam’s con-
duct violated the “bringing to” prong of the statute, the Sec-
ond 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
UNITED STATES v. LOPEZ 5031
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 destina-
tion 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 (“[I]mportation is a “ ‘continuous crime” that is not com-
plete until the controlled substance reaches its final destina-
tion 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 prosecu-
tion 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 con-
tinuous crime that is not complete until the controlled sub-
stance 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
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.
5032 UNITED STATES v. LOPEZ
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(I), 65 (1986), reprinted
in 1986 U.S.C.C.A.N. 5649, 5669. “[It] believe[d] such modi-
fications . . . 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 differ-
ently from drug smuggling.
III
We should reaffirm our prior decisions in United States v.
Ramirez-Martinez, 273 F.3d 903, and United States v. Ang-
win, 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 con-
sistent with notions of aider and abetter liability long recog-
nized in federal criminal law. See 18 U.S.C. § 2; see also
Ramirez-Martinez, 273 F.3d at 912 (citing Pinkerton v.
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 determin-
ing the end of an “immediate active pursuit” is obviously a fact-intensive
inquiry).
UNITED STATES v. LOPEZ 5033
United States, 328 U.S. 640, 646 (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 sup-
porting Ramirez-Martinez’s conviction was that he knew an
unidentified individual who took him to a prearranged loca-
tion 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 bor-
der, for example, the government can still prove that
the defendant acted before the offense was com-
pleted 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 defen-
dant] 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 “con-
certed 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 Angwin’s role in the overall operation as
5034 UNITED STATES v. LOPEZ
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 opera-
tion 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 cir-
cumstances where a defendant’s prearranged trans-
portation 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 convic-
tions in Ramirez-Martinez and Angwin could not stand. See
Maj. op. 5014-17 & 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 trans-
porter” ceased transporting the aliens was minimal. Similarly,
in Angwin, the defendant played an “essential role” in a smug-
gling 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
UNITED STATES v. LOPEZ 5035
“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 sophisti-
cated 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 demon-
strate that [the defendants] participated in the crime of impor-
tation 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 defen-
dants 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 latitudinous
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. § 1342(a)(2). We need to maintain uni-
formity in our smuggling case law by construing the “brings
to” offense under § 1324(a)(2) consistently with how courts
5036 UNITED STATES v. LOPEZ
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 oper-
ation. 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.