United States v. Jose Tamayo

FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50055
Plaintiff - Appellee, D.C. No. 3:10-cr-02347-WQH-2
v.
MEMORANDUM *
JOSE ALBERTO TAMAYO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted February 17, 2012 **
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, sitting by designation.
Tamayo was convicted of transporting an alien within the United States in
violation of the law and of conspiracy to transport an alien. He argues that there
was insufficient evidence to prove that he was not just a passenger for the first
charge and insufficient evidence connecting him to the conspiracy for the second.
He also argues that the district court improperly instructed the jury about the overt
acts for the conspiracy charge. Tamayo argues that a general unanimity instruction
and a verdict form requiring only a general verdict could therefore have allowed
the jury to render a verdict based on an invalid overt act.
This court reviews de novo claims of insufficient evidence. United States v.
Odom, 329 F.3d 1032, 1034 (9th Cir. 2003). “[E]vidence establishing beyond a
reasonable doubt defendant's connection with the conspiracy, even though the
connection is slight, is sufficient to convict defendant of knowing participation in
the conspiracy.” United States v. Klimavicius-Viloria, 144 F.3d 1249, 1266 (9th
Cir. 1998), quoting United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).
Tamayo’s connection to the conspiracy, not the conspiracy itself, was the only
issue here. At trial, the illegal alien testified that he heard a man’s voice telling
him to get in the vehicle, to get down inside the vehicle, and to run when the
vehicle stopped. Testimony established that Tamayo was the only man in the
vehicle. Further, the alien testified that Tamayo attempted to intimidate him before
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testifying at a deposition. Viewing the evidence in the light most favorable to the
prosecution, a rational jury could have found Tamayo guilty beyond a reasonable
doubt. Odom, 329 F.3d at 1034.
Tamayo also argues that there was insufficient evidence for a jury to find
intent to assist in the transportation of an illegal alien. See United States v.
Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997). Viewing the above evidence in
the light most favorable to the prosecution, a rational jury could have found
Tamayo guilty beyond a reasonable doubt of this charge. Odom, 329 F.3d at 1034.
Review of the instruction as to the first overt act—not objected to at trial—is
for plain error, United States v. Fagan, 996 F.2d 1009, 1016 (9th Cir. 1993), while
review of the instruction as to the second overt act is for abuse of discretion as to
the existence of a factual foundation and de novo as to legal questions, United
States v. Hairston, 64 F.3d 491, 493-494 (9th Cir. 1995).
The overt act necessary to show that a conspiracy is operative should be an
act done in furtherance of the conspiracy, but it need be neither a criminal act nor
the crime that is the object of the conspiracy. Blumenthal v. United States, 158
F.2d 883, 888-9 (9th Cir. 1946). Although the first overt act was an element of a
dropped charge, it may serve as the required overt act for the conspiracy charge. It
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showed that the conspiracy was operative, was performed in furtherance of the
conspiracy, and had a connection to the crime. There was no plain error.
Tamayo argues that the second overt act was performed by others and did
not connect him to the crime. A conspirator agrees to all his coconspirators’ acts
and is responsible for them. United States v. Nelson, 66 F.3d 1036, 1044 (9th Cir.
1995). There was sufficient factual foundation for the second act, and it was an
overt act performed in furtherance of the conspiracy. There was no invalid overt
act upon which the jury might have based its verdict and no reversible error as to
the general verdict form.
AFFIRMED.
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