Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

MEMORANDUM^** 

Appellants de Ybarra and Torres-Alejo appeal from their convictions for conspiracy to transport and harbor illegal aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a) (1) (B), (C), and for harboring illegal aliens, in violation of 8 U.S.C. § 1324(a) (1) (C). They argue the evidence was insufficient to support their convictions and the district court erred by instructing the jury on probable cause with language that varied from the instruction agreed upon prior to counsels' closing arguments. We affirm.

This court will uphold a conviction if, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the government, any rational trier of fact could have found the appellants guilty beyond a reasonable doubt of each essential element of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Loya, 807 F.2d 1483, 1486 (9th Cir. 1987).

Torres-Alejo and de Ybarra lived together as common-law husband and wife in a house they owned. After their arrests, both Torres-Alejo and de Ybarra gave the address of the house as their home address. Illegal aliens were locked in an attached garage until ransom was paid by a relative or friend of the aliens. The large door for automobiles had been plastered shut. The door leading to the house was modified so it could only be opened from inside the house. The aliens knocked on this door to be brought into the house to use the bathroom. Up to forty aliens were brought to the house the night prior to the arrests. When Torres-Alejo and de Ybarra were arrested at the house, twelve aliens were found in the garage. One of the illegal aliens identified de Ybarra as the woman who had entered the garage three times to bring him food.

A notebook containing lists of names, telephone numbers, and "numerals of hundreds" was open on the kitchen table at the time of arrest. There was testimony such a list is commonly called a "pollo" list and contains the names of aliens and phone numbers of potential ransomers. A similar list was found in a jacket belonging to Torres-Alejo. Co-defendant Jorge Marquez-Torres, to whom appellants had rented a room in their house, used the telephone in the house to call potential ransomers and gave out the house number to call about arrangements. This evidence was sufficient to support the convictions.

Counsel and the court prior to closing arguments agreed the jury instruction on probable cause would be taken from 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, and would include the following language (emphasis added):

Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.

The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.

In his closing argument, counsel for Torres-Alejo illustrated the concept of reasonable doubt by suggesting the jurors imagine themselves trapped in a fire on the eleventh floor of a building. Counsel suggested if the government said a net was below on the sidewalk, " [p]roof beyond a reasonable doubt is you don't hesitate; you go to the window and you jump."

The court, concerned the jury might be misled by counsel's argument, modified the instruction by substituting certain features of the Model Jury Instructions for the Ninth Circuit. The instruction, as given, included the following:

You may not convict on the basis of a mere suspicion.

.... You should return a guilty verdict if, but only if, you found the evidence so convincing that an ordinary person would be willing to make the most important decisions in his or her own life on the basis of such evidence.

Torres-Alejo has not preserved for appeal his objection to the elimination from the jury charge of the reference to "hesitation" contained in the original proposed instructions. Torres-Alejo did preserve his objection to the district court's refusal to include the admonishment against a conviction based "on conjecture." De Ybarra made no objection below to the charge, but challenges the jury charge on appeal.

Fed. R. Crim. P. 30 directs " [t]he court shall inform counsel of its proposed action upon [counsels' requests to charge] prior to their arguments to the jury." Appellants contend the court's deviation from the agreed-upon instruction on probable cause constitutes a reversible violation of Rule 30.

An objection to the language or formulation of a jury instruction is reviewed for an abuse of discretion, United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1989), and a district court's failure to comply with Rule 30 is reversible error only if there is a prejudicial effect on counsel's closing argument. United States v. Gaskins, 849 F.2d 454, 458 (9th Cir. 1988). When no objection is lodged below, we review the jury charge only for plain error, United States v. Bryan, 868 F.2d 1032, 1038 (9th Cir. 1989), and when an objection rests on one ground, a claim of error on appeal on another ground is likewise reviewed for plain error. Id.

The district court's modification of the agreed-upon charge constituted a proper and measured response to counsel's closing argument and did not prejudice appellants. The instruction as given correctly stated the law and introduced no new theory into the case. See United States v. Pemberton, 853 F.2d 730, 735 (9th Cir. 1988). Cf. Gaskins, 849 F.2d at 460 (court's addition of aider-and-abettor instruction after argument prejudiced defendant by injecting new theory into case where counsel had no opportunity to argue defendant had been "merely present").¹  A fortiori, the modifications to the charge do not amount to plain error.

Although neither de Ybarra nor Torres-Alejo raise the issue on appeal, we have held 18 U.S.C. § 3013, the statute authorizing the imposition of a special assessment fee, violates the origination clause of the Constitution. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). We therefore reverse that part of appellants' sentences and remand for the district court to vacate the assessments. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir. 1989) (vacating sua sponte imposition of special assessment).

AFFIRMED in part, REVERSED in part and REMANDED.