Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 857 F.2d 1479 (9th Cir. 1988)

No. 87-5247.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN and CYNTHIA HOLCOMB HALL, Circuit Judges, and BELLONI,*  District Judge

MEMORANDUM** 

BACKGROUND

Jerry Brenner appeals his conviction following a jury trial for conspiracy to transport illegal aliens, and for four counts of transporting illegal aliens and aiding and abetting the transport of aliens.

Brenner filed a motion in limine seeking to prevent the government's use of his prior conviction for transporting illegal aliens. The trial judge denied the motion. At the conclusion of the trial Brenner filed a motion for a judgment of acquittal which was also denied. The defendant presses four issues on appeal. First, he claims that the judge erred in admitting evidence of his prior criminal act; second, that the court erred in denying co-defendant Stein's motion to suppress evidence; third, that the evidence presented at trial was insufficient to sustain a guilty verdict; and, fourth, that the judge erred when he denied appellant's Fed. R. Crim. P. 29 motion for acquittal. We affirm.

DISCUSSION

I. Fed.R.Evid. 404(b).

Brenner's motion in limine sought to exclude evidence of his prior conviction for illegally transporting aliens. After arguments on the motion the district judge determined that the prior conviction was relevant to prove that Brenner knew that there were illegal aliens in the moving van. The judge determined that the evidence's probative value was not outweighed by the danger of unfair prejudice.

The district court has wide discretion in deciding whether to admit evidence under Rule 404(b). United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986), cert. denied, 107 S. Ct. 955 (1987). The district court's decision on the evidence's relevancy is reviewed for an abuse of discretion. Id. The district court's decision balancing the probative value against the possibility of unfair prejudice is also reviewed for an abuse of discretion. Id.

Evidence of other crimes is properly admissible if the evidence meets four prerequisites and its probative value is not substantially outweighed by the danger of unfair prejudice. U.S. v. Vaccaro, 816 F.2d 443, 452-53 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987), overruled in part, Huddleston v. U.S., 108 S. Ct. 1496 (1988)1 . The proof of the prior act must be sufficient to support a finding by the jury that the defendant committed the prior act, the prior act must not be too remote, the offense, in some cases, must be similar to the one charged, and the prior act must be introduced to prove an element of the charged offense that is a material issue in the case. See Huddleston, 108 S. Ct. at 1499-1501; Vaccaro, 816 F.2d at 452-53. Brenner argues that the prior conviction was not offered to prove an essential element of the charged offense that was a material issue in the case. He also contends that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

Brenner did not testify at trial. However, he did rely on co-defendant Stein's testimony that Stein had been hired by a man named Jose, whom he met in a bar, to drive a load of furniture from San Diego to Los Angeles. Stein testified that he and Brenner were at a taco stand while Jose loaded the tractor-trailer and that he did not know what was inside. Although Brenner did not testify, Stein put the defendants' knowledge in issue, and Brenner's counsel relied on Stein's testimony in his closing argument. Brenner's contention that his knowledge was never an issue in the trial is meritless. The prior conviction was relevant to show the absence of mistake, or the requisite knowledge to commit the charged offense. See U.S. v. Morales-Quinones, 812 F.2d 604, 611-12 (10th Cir. 1987) (although defendant did not testify, prior alien smuggling conviction is admissible to show knowledge). The district judge did not abuse his discretion when he determined that the evidence was relevant.

The judge also determined that the probative value of the evidence was not outweighed by the danger of unfair prejudice. Evidence of Brenner's prior conviction for illegally transporting aliens was highly probative. It demonstrated that he was familiar with the manner in which aliens are smuggled. Based on the prior conviction the jury could conclude that Brenner was not involved in the events by mistake and that he was driving the Dodge van in tandem to further the conspiracy's aims.

Evidence of the prior conviction is also prejudicial. Without evidence of the prior conviction the government's case against Brenner would have been substantially weakened. However, we have repeatedly held that admission of prior convictions, or arrests, for smuggling aliens when the defendant is being tried for the same offense is not unfairly prejudicial. See United States v. Winn, 767 F.2d 527, 530 (9th Cir. 1985) (prior conviction); United States v. Longoria, 624 F.2d 66, 68-69 (9th Cir.) (prior conviction), cert. denied, 449 U.S. 858 (1980); United States v. Herrera-Medina, 609 F.2d 376, 379-80 (9th Cir. 1979) (two prior arrests). The judge properly instructed the jury that they could only consider the evidence to determine if the defendant had the requisite intent to commit the crimes charged2 . The district judge did not abuse his discretion when he admitted evidence of the prior conviction.

II. Brenner's Challenge of the Search of Stein's Tractor-trailer and Stein's Arrest.

Brenner argues that Stein's arrest and the search of the tractor-trailer violated the Fourth Amendment. He relies on the arguments made by co-defendant Stein in the district court and on appeal. The government contends that Brenner failed to object to the admission of the evidence and therefore cannot attack its admission on appeal. Fed.R.Evid. 103(a). The government argues that the court should view this as an evidentiary issue, and because he did not object, the admission of the evidence is reviewed for plain error. See United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

On the contrary, because Brenner is making a constitutional attack on the evidence his argument is analyzed in terms of a motion to suppress. "Under Fed. R. Crim. P. 12(b) (3), a defendant must raise his defenses and objections relating to the suppression of evidence in a pretrial motion. If a defendant fails to do so, those defenses and objections are waived. See Fed. R. Crim. P. 12(f)." United States v. Erwin, 803 F.2d 1505, 1508 n. 1 (9th Cir. 1986). Brenner's co-defendant did raise the objections below but the transcript discloses that Brenner did not join in the motion. The defendant has offered no excuse for his failure to join in the motion. He has therefore waived his objection. Id. Even if he is deemed not to have waived his objection it is nonetheless futile because we determined in co-defendant Stein's appeal that the district judge properly denied Stein's suppression motion.

III. Sufficiency of the Evidence to Sustain Brenner's Conviction.

Brenner contends that there was insufficient evidence to convict him of the charges in Counts I-IV. This court's inquiry "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). Circumstantial evidence and inferences drawn from it may be sufficient to uphold a conviction, but mere speculation or suspicion is not a valid basis for logical inferences. United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir.), opinion amended, 798 F.2d 1250 (9th Cir. 1986).

Count I charged Brenner with a conspiracy to transport illegal aliens in violation of 18 U.S.C. § 371. Elements of a conspiracy are an agreement to accomplish an illegal objective, along with one or more acts in furtherance of the illegal purpose, and the requisite intent to commit the underlying substantive offense. U.S. v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). Knowledge of the conspiracy's objective is an essential element of the crime. U.S. v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987). "While mere proximity to the scene of illicit activity is not sufficient to establish involvement in a conspiracy, a defendant's presence may support such an inference when viewed in context with other evidence." Penagos, 823 F.2d at 348 (citing United States v. Reese, 775 F.2d 1066, 1071-72 (9th Cir. 1985)).

(1) Agreement.

A conspiracy may be proved by circumstantial evidence and a formal agreement is not necessary. "An agreement constituting a conspiracy may be inferred from the acts of the parties." United States v. Camacho, 528 F.2d 464, 469 (9th Cir.), cert. denied, 425 U.S. 995 (1976). Stein testified that he and Brenner drove to San Diego together. He also testified that while Jose was loading the tractor-trailer he and Brenner went for tacos. Brenner drove the Dodge van. Brenner and Stein were driving in tandem when the Border Patrol stopped Brenner. These acts taken in context are sufficient to infer that there was a criminal agreement between the defendants.

(2) Overt Act.

The indictment charges Brenner with driving a 1978 Dodge van north on Interstate 5. Agent Zimmerman testified that he stopped the Dodge van and that Brenner was driving. There was evidence that the van was traveling in tandem with the tractor-trailer to assist the transportation of the aliens. Stein testified that there were aliens in the trailer. A rational jury could have found that driving the van constituted an overt act.

(3) Requisite Intent to Commit the Underlying Substantive Crime.

The government offered evidence that Brenner had a prior conviction for transporting illegal aliens. The jury could have found that by traveling to San Diego with Stein, and later traveling in tandem up the freeway, Brenner demonstrated the requisite intent to transport illegal aliens because he was familiar with the manner in which illegal aliens are transported.

Counts II through V charged Brenner with knowing or reckless transportation of illegal aliens. The essential elements of the crime are that (1) the aliens were not citizens of the United States, (2) the aliens were not lawfully in the United States, (3) the defendant knew or acted in reckless disregard that the defendants had unlawfully entered or remained in the United States, and (4) that the defendant transported, moved, or attempted to move the aliens in order to help the aliens remain in the United States illegally. 8 U.S.C.A. Sec. 1324(a) (1) (B) (West Supp.1987). See also United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir. 1976) (per curiam) (essential elements under an earlier version of the statute).

(1) Aliens were not citizens of the United States.

The record contains the testimony of four of the aliens found in the tractor-trailer. Alfonso Omar Chan, Ignasio Velasquez-Mendoza and Jose Guadalupe Garcia-Lua testified that they were not citizens of the United States. The deposition of Sergio Arias-Orosco was read into the record and indicates that he is not a United States citizen.

(2) Aliens were not lawfully in the United States.

Alfonso Omar Chan testified that he did not cross through a port of entry but came through a fence. Ignasio Velasquez-Mendoza testified that he did not stop at a port of entry and is not legally in the United States, and that he paid $300 to be brought into the United States. Jose Guadalupe Garcia-Lua testified that he entered the United States on foot through the hills, and that he was not legally in this country. Sergio Arias-Orosco testified by deposition that he was not legally in the United States.

(3) Brenner knew or acted in reckless disregard that the aliens had unlawfully entered or remained in the United States.

The jury heard evidence of Brenner's prior conviction for illegal transportation of aliens from which it could conclude that he was familiar with the methods used to transport illegal aliens. The evidence also shows that the aliens were hidden in the trailer and were transported in the middle of the night. Evidence of the time and place of these events is sufficient to support an inference that Brenner knew the people had entered the United States illegally. See United States v. Loya, 807 F.2d 1483, 1486 (9th Cir. 1987). There is sufficient evidence for the jury to conclude that Brenner knew or acted in reckless disregard that the aliens unlawfully entered the United States.

(4) Brenner transported, moved, or attempted to move, the aliens in order to help the aliens remain in the United States illegally.

This element is satisfied by the evidence that Brenner drove in tandem with the tractor-trailer, and that he accompanied Stein to San Diego.

To obtain a conviction for aiding and abetting a crime the government must show that the defendant intentionally associated himself with a criminal activity and by his active participation sought to make it succeed. Vaccaro, 816 F.2d at 455. The defendant need not be aware of every detail of the crime, nor need he be present when the substantive crime is committed. U.S. v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987).

(1) Brenner intentionally associated himself with criminal activity.

To sustain an aiding and abetting conviction, the government must show not only that Brenner participated in the criminal venture but that he intentionally assisted the venture's illegal purpose. United States v. Groomer, 596 F.2d 356, 358 (9th Cir. 1979). Brenner's criminal intent, however, may be inferred from the attendant facts and circumstances. Id. The evidence includes Brenner's prior conviction from which the jury could conclude that he knew the details of how illegal aliens are transported. Stein testified that he and Brenner traveled to San Diego together. Stein was arrested with 48 people hidden in his trailer. The jury could conclude that Brenner knew what was in the trailer. Based on Stein's testimony and the totality of the circumstances the jury could conclude that Brenner intentionally went to San Diego with Stein to smuggle aliens.

(2) Brenner's active participation sought to make it succeed.

This element is satisfied by the overt act of Brenner driving the Dodge van in tandem with the tractor-trailer.

Because Brenner had recently been convicted of knowingly transporting illegal aliens, and had spent many hours with co-defendant Stein that night, and based on the large scale of the operation, a rational jury could conclude from the evidence that Jerry Brenner conspired to transport illegal aliens, transported illegal aliens, and aided and abetted the transportation of illegal aliens.

IV. Brenner's Motion for a Judgment of Acquittal

Brenner's final contention is that the court erred when it denied his Fed. R. Crim. P. 29 motion. He argues that the judge reserved ruling on the admissibility of the prior convictions, and that the prosecution improperly mentioned the convictions in opening statements. This contention is meritless. The judge denied Brenner's motion in limine before trial and ruled that the prior conviction was admissible under Fed.R.Evid. 404(b). Consequently, the judge had ruled the evidence admissible before opening arguments. Brenner also argues that the court should have granted the motion because evidence of his prior conviction was improperly admited. We have already rejected this argument. The judge did not err when he denied the motion for a judgment of acquittal.

CONCLUSION

The district judge did not abuse his discretion when he admitted evidence of Brenner's prior conviction. Brenner's attack on the search of the tractor-trailer and Stein's arrest fails. There is sufficient evidence to sustain Brenner's convictions on all the counts. The district court's denial of Brenner's motion for acquittal was proper. Brenner's convictions on Counts I through V are AFFIRMED.

 *

Honorable Robert C. Belloni, Senior United States District Judge for the District of Oregon, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Prior to Huddleston this circuit required the government to prove to the court by clear and convincing evidence that the defendant committed the similar act. In Huddleston v. U.S., 108 S. Ct. 1496, 1499-1501 (1988) the Court clarified that prior act evidence is admissible if there is sufficient evidence from which the jury can find that the defendant committed the prior act. This part of the test was never an issue in Brenner's trial

 2

Brenner also contends that the judge erred because he read the instruction concerning prior acts twice. The first time through, the judge misread the instruction. This was brought to his attention at a side-bar conference. He later re-read the instruction properly. The judge's correction of his simple mistake in reading the instruction was not an abuse of discretion, and it therefore does not warrant reversal. See United States v. Patel, 762 F.2d 784, 790 (9th Cir. 1985)

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