Unpublished Disposition, 844 F.2d 792 (9th Cir. 1986)

MEMORANDUM^** 

John Burnette appeals his conviction under 8 U.S.C. § 1324(a) (1) (B) for transporting illegal aliens. He contends that the district court erred in giving a jury instruction on the definition of "reckless disregard" because it permitted the jury to convict him on legally insufficient proof. He also contends that the district court erred in admitting evidence of his prior alien smuggling activities.

On December 23, 1986, John Burnette drove up to the immigration checkpoint in San Clemente, California. Because of his nervous mannerisms and the appearance of his car, Burnette was referred for a secondary inspection where a border patrol agent asked to inspect his vehicle. Burnette consented and when he opened the trunk, three undocumented aliens were discovered inside. Burnette was then arrested.

Burnette was indicted on two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Before trial, Burnette filed a motion in limine to preclude the government from introducing evidence of two prior incidents where he had been stopped at the San Clemente checkpoint and border patrol agents had discovered undocumented aliens in the trunk of his car. The district court denied the motion upon finding that the evidence of the two prior incidents was relevant to establishing Burnette's knowledge of the aliens' presence in the trunk.

Burnette also objected to the jury instruction on "reckless disregard" as unnecessary and misleading. The district court, however, determined that the "reckless disregard" instruction was necessary to define an element of the offense of transporting illegal aliens, i.e., Burnette's knowledge of the aliens' illegal status.

After a jury trial, Burnette was found guilty of both counts, and was sentenced to concurrent terms of two years on each count. Burnette timely appeals.

Burnette contends that the district court erred in instructing the jury on the definition of "reckless disregard," thus permitting the jury to convict him on legally insufficient proof. This contention lacks merit.

A district court's formulation of jury instructions is reviewed for an abuse of discretion. See United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986).¹  Jury instructions are considered as a whole to determine if they are misleading or inadequate. The district court's formulation of those instructions is within the court's discretion, " [s]o long as the instructions fairly and adequately cover the issues presented." United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

Burnette is charged with transporting illegal aliens in violation of Sec. 1324(a) (1) (B).²  Under the unambiguous language of that statute, a defendant can be convicted if he transports an alien within the United States with reckless disregard as to the alien's illegal immigration status.

Burnette's entire defense to the charge was that he did not knowingly transport the aliens; he claims that he did not know they were in the trunk of his car. He concedes that if he had known that the aliens were in the trunk, he recklessly disregarded their illegal status. Burnette asserts that by instructing the jury of the definition of "reckless disregard," the court misled the jury into believing they could convict Burnette if they found that he recklessly disregarded the fact that the aliens were in his trunk; such proof would be legally insufficient. When the jury instructions are viewed as a whole in the order given, Burnette's contention fails.

The district court explained to the jury that they must find Burnette not guilty unless the government "proved beyond a reasonable doubt that the defendant committed every element of the offense with which he is charged." The court then defined the elements of the crime of transporting aliens.³  The court next defined what it means to be in the country illegally, and then defined "reckless disregard."⁴  The court further instructed the jury that the crime of transporting aliens requires "specific intent," meaning knowingly doing an act that the law forbids, or purposefully intending to violate the law. The court told the jury that " [an] act is done knowingly if done voluntarily and intentionally" and not "because of a mistake, accident, or other innocent reason."

When the court's instruction on "reckless disregard" is viewed together with the prior instruction on the elements of the offense and the subsequent instruction on specific intent, it is clear that the "reckless disregard" instruction refers only to the defendant's knowledge of his passengers' immigration status. Hence, it defines an element of the crime of transporting illegal aliens. The jurors could not reasonably infer from these instructions that Burnette could be convicted if he recklessly disregarded the fact that the aliens were in his trunk, because the court clearly instructed the jury that the proscribed activity of transporting illegal aliens requires specific intent. When reviewed as a whole, the instructions were not misleading and they adequately conveyed the applicable law on "reckless disregard" to the jury. See Burgess, 791 F.2d at 680.

II. Admission of Prior Alien Smuggling Activities

Burnette contends that the district court erred in admitting evidence of his prior alien smuggling activities. This contention is meritless.

A district court's admission of evidence of prior crimes, wrongs or bad acts pursuant to Fed.R.Evid. 404(b) is reviewed for abuse of discretion, United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987). The government bears the burden of (1) showing that the admission of the prior acts evidence is relevant to one or more issues in the case; and (2) demonstrating that, on balance, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant. A court's balancing of the probative value of the evidence against its prejudicial potential under Fed.R.Evid. 403 is also reviewed for abuse of discretion. United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987); United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987).

A. Relevance of Prior Alien Smuggling Activities

Burnette first argues that the district court erred in admitting evidence of Burnette's prior alien smuggling activities as relevant to the issue of whether Burnette knew that undocumented aliens were in the trunk of his car.

Burnette's entire defense was that he was not aware that the undocumented aliens were in the trunk of his car when he drove up to the San Clemente checkpoint. Burnette testified that on December 23, 1986, he agreed to drive a car to Santa Ana from San Diego, and that because he had previously been stopped for transporting aliens, he checked the trunk to make sure it was empty. However, he also testified that he left the car after he checked the trunk, walked several blocks to a cafe to drink a cup of coffee, and did not check the trunk again until he was stopped by the border patrol. In the two prior incidents, Burnette was stopped on April 15, 1983, and on July 20, 1986, at the San Clemente checkpoint. Both times, illegal aliens were found in the trunk of the car that he was driving. Burnette testified at trial in the present case that he knew illegal aliens were in the trunk of the car on both of these prior occasions.

The evidence of Burnette's prior alien smuggling activities was properly admitted under Rule 404(b) to show Burnette's knowledge that the illegal aliens were in the trunk of his car. The two prior incidents where Burnette was caught transporting illegal aliens occurred under circumstances very similar to those in the present case. Under Rule 404(b), evidence of:

[other] crimes, wrongs, or acts ... may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This court has held that when there is a close factual similarity between the prior act and the present offense, the jury may reasonably infer that a defendant who knowingly committed an illegal act in a prior instance had the same knowledge when he committed the present offense. See United States v. Hernandez-Miranda, 601 F.2d 1104, 1108-09 (9th Cir. 1979).

In United States v. Mehrmanesh, 689 F.2d 822 (9th Cir. 1982), a case with facts similar to the instant case, this court affirmed the admission of evidence of Merhmanesh's knowing involvement in an earlier hashish smuggling incident as relevant to the issue of whether Mehrmanesh knew that a suitcase from Kuwait contained heroin. The court concluded that the jury could have reasonably inferred that because Mehrmanesh, in the prior incident, knowingly possessed illegal narcotics in packages smuggled into the United States, he must have known that the suitcase from Kuwait contained narcotics. Id. at 831.

Finally, this court has noted that the greater the similarity of the prior act to the present offense, the less tenuous the logical inference of knowledge that may be drawn from the prior act. See Hernandez-Miranda, 601 F.2d at 1108-09;⁵  see also United States v. Winn, 767 F.2d 527, 530 (9th Cir. 1985) (prior conviction for aiding and abetting the transportation of illegal aliens relevant to present prosecution for the same charge because it shows Winn's knowledge of the alien smuggling operation in which he was involved).

In the present case, because Burnette's defense was that he lacked knowledge that the aliens were in the trunk, the government established that the prior evidence of alien smuggling was relevant to an issue in the case. See Mehrmanesh, 689 F.2d at 830. The jury could have reasonably inferred that a person who had knowingly smuggled aliens in the trunk of his car twice in the past knew that aliens were present in the trunk of his car when he was caught the third time. See Hernandez-Miranda, 601 F.2d at 1108.

Furthermore, the district court instructed the jury that it should not consider the two prior incidents as evidence that Burnette committed the smuggling activity charged in the indictment, but could, once it found beyond a reasonable doubt that Burnette committed the acts charged, consider evidence of the similar prior acts "in determining the state of mind, intent or knowledge with which the accused did the act charged in that particular count." The government also made clear to the jury that it had introduced the evidence of Burnette's prior acts of transporting undocumented aliens only to show that Burnette had actual knowledge in the present case that the aliens were in his trunk.⁶ 

In conclusion, the district court did not err in admitting evidence of Burnette's prior alien smuggling activities as being probative on the issue of whether he knew aliens were in the trunk in the present case, particularly because the proper use of the evidence was clarified by the court's jury instructions.

B. Weighing of Prejudicial Defects against Probative Value

Burnette also contends that, even if the two prior alien smuggling incidents were admissible under Rule 404(b), the district court erred in failing to consider the prejudicial effect of the prior acts evidence as required by Rule 403, and that the prejudicial effects of the evidence outweighed its probative value.⁷  Burnette's contentions lack merit.

This court has held that the trial court need not make an express finding that the probative value of evidence outweighs its prejudicial effects. Johnson, 820 F.2d at 1069;⁸  United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978) (a mechanical recitation on the record of the Rule 403 formula is not required as a prerequisite to admitting evidence under Rule 404(b)). Johnson reaffirmed this court's holding in Sangrey, that the district court's decision would not be overturned "as long as it appeared on the record that the trial judge performed the balancing required by Rule 403." Johnson, 820 F.2d at 1069. In Sangrey, this court found that the district court must have implicitly performed the necessary weighing because it knew the requirement of Rule 403, and because defense counsel argued the issue of prejudice to the court. Sangrey, 586 F.2d at 1315.

In this case after hearing argument on the admission of the prior acts of Burnette, the district court stated that the prior acts evidence was admissible as relevant to the issue of Burnette's knowledge:

Well, Ladies and Gentlemen, let me tell you where I am. I think that the so-called similar acts are relevant and probative. I think they go to the issue of knowledge, which I assume is the sole issue of the trier of fact.

The district court implicitly balanced the probative value of the prior acts evidence against its prejudicial effects. Burnette argued to the district court that admission of evidence of the two prior stops involving the transportation of undocumented aliens would be "highly prejudicial," and specifically mentioned Rule 403 in his in limine motion.

Once a court concludes that the balancing weighs in favor of admitting prior acts evidence, an instruction should be given to the jury on the limited purpose for which the evidence is admitted. Sangrey, 586 F.2d at 1314; see also United States v. McCollum, 732 F.2d 1419, 1424 n. 4 (9th Cir.), cert. denied, 469 U.S. 920 (1984). In the present case, the district court cautioned the jury not to consider Burnette's prior alien smuggling activities in determining whether Burnette committed the acts charged in the indictment, and thus gave the jury the required limiting instruction to minimize any potential prejudice. See Sangrey, 586 F.2d at 1314.

On this record, the district court did not abuse its discretion in admitting the two prior incidents of transporting illegal aliens. See Johnson, 820 F.2d at 1070; Hernandez-Miranda, 601 F.2d at 1108.

The judgment is AFFIRMED.