Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

No. 87-5229.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN and CYNTHIA HOLCOMB HALL, Circuit Judges, and ROBERT C. BELLONI,^*  Senior District Judge.

MEMORANDUM^** 

James Stein appeals his conviction following a jury trial for conspiracy to transport illegal aliens, and for four counts of transporting illegal aliens. The grand jury's superseding indictment charged Stein and four others with conspiracy to transport illegal aliens, in violation of 18 U.S.C.A. Sec. 371 (West 1979), and 8 U.S.C.A. Sec. 1324(a) (1) (B) (West Supp.1987) (Count I), and illegal transportation of aliens, in violation of 8 U.S.C. § 1324(a) (1) (B) (Counts II-V). Counts II through V also charged aiding and abetting the transportation of illegal aliens in violation of 18 U.S.C.A. Sec. 2 (West 1969).

Defendant Stein filed pretrial motions including a motion to suppress evidence which challenged the legality of his stop, the search of the tractor-trailer he drove, and his arrest. After hearing argument Judge Rhoades denied the motion. At the conclusion of the trial Stein filed a motion for judgment of acquittal. The judge denied the motion.

BACKGROUND

After 11:00 p.m. on February 21, 1987 an unidentified person called the Chula Vista Border Patrol dispatcher to report that a blue and white tractor-trailer parked at 1770 Kearney Street in San Diego was being filled with illegal aliens. The caller said that several passenger vans were shuttling illegal aliens to the tractor-trailer. During a second call to the Border Patrol the caller provided the tractor-trailer's license number.

Border Patrol agents Herrera and Speiss drove their unmarked car to 1770 Kearney. They saw a blue and white tractor-trailer, with the same license number the unidentified caller provided, parked in front of a church. The agents also spotted a light blue Dodge van. While attempting to set up a surveillance the agents noticed that the tractor-trailer's engine was running. They then followed the tractor-trailer toward Interstate 5. They saw a Dodge van parked near the approach to the freeway, and watched as it blinked its lights three times at the tractor-trailer. The Dodge van followed the moving van onto the freeway. The agents followed the vehicles onto the freeway and noticed that they were traveling in tandem at a relatively slow speed.

Backup units were called to pull over the vehicles traveling in tandem. The moving van and the Dodge van were pulled over. Jerry Brenner was driving the Dodge van. James Stein was driving the tractor-trailer. The agent told Stein to put his hands behind his head and to exit the tractor. When asked what was in the trailer Stein said that he did not know, and gave the officers permission to search the trailer. The officers discovered forty-eight suspected illegal aliens in the back of the moving van. At that point the defendants were arrested.

DISCUSSION

1. Motion to Suppress Evidence Seized from the Tractor-trailer.

Defendant Stein's motion to suppress sought to exclude evidence of the forty-eight illegal aliens in the tractor-trailer which he was driving. After arguments on the motion, the district judge determined that the evidence was admissible because the evidence was not the fruit of an illegal search or arrest.

A. Was there founded suspicion for the investigatory stop of the tractor-trailer?

Defendant Stein argues that the stop of the moving van which he was driving was not supported by founded suspicion. Stein argues that under the totality of the circumstances, the officers did not have a reasonable suspicion that the tractor-trailer contained illegal aliens.

Standard of Review

Fourth amendment issues regarding the lawfulness of a search or seizure generally present mixed questions of law and fact. We uphold findings of fact made at a suppression hearing unless they are clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986), cert. denied, 107 S. Ct. 955 (1987). The district court's conclusion that a particular body of facts constitutes founded suspicion is reviewed de novo. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987).

A vehicle stop that does not occur at the border is justified only if the officers " 'are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle [ ] contain [s] aliens who may be illegally in the country.' " United States v. Magana, 797 F.2d 777, 780 (9th Cir. 1986) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). In reviewing the agents' actions, the totality of the circumstances must be taken into account. United States v. Cortez, 449 U.S. 411, 417 (1981). This review must be undertaken from the perspective of someone trained in law enforcement. Magana, 797 F.2d at 780.

Here, the agents were aware of the following facts that provided founded suspicion for the stop of the moving van:

1. The Border Patrol received an anonymous telephone call that a blue and white moving van located at 1770 Kearny Street in San Diego was being loaded with illegal aliens. The caller said that the aliens were being transported to the moving van by passenger vans. The person made a second phone call and provided the border patrol agents with the license number of the moving van.

2. Border Patrol agents drove to 1770 Kearny Street and observed a blue and white moving van with the same license plate as provided by the caller. The agents also noticed passenger vans in the area.

3. The moving van departed around midnight followed by a station wagon and the passenger van. The vehicles appeared to be traveling in tandem. The van blinked his lights several times in the direction of the tractor-trailer. All three vehicles were traveling at a slow rate of speed.

The agents' observations confirmed the information provided by the anonymous informant and were consistent with alien smuggling activity. The above facts constituted founded suspicion and the district court's denial of Stein's motion to suppress is affirmed.

B. Was there an arrest of Defendant Stein before the search of the trailer?

Defendant Stein argues that he was placed immediately under arrest when the stop was made and that probable cause did not exist for his arrest. He claims he was illegally arrested and his consent was the fruit of that arrest. Stein contends that when he stopped the moving van the officer approached him with his gun drawn and told him to jump down from the cab and place his hands on his head. He argues that these actions constitute excessive force under the circumstances and thus converted a stop into an arrest.

Standard of Review

A district court's determination that there was an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968) rather than an arrest is subject to de novo review. United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987).

The test of whether a detention by police amounts to an arrest is whether a reasonable innocent person in such circumstances would conclude that after brief questioning, he or she would not be free to leave. United States v. Pinion, 800 F.2d 976, 978-979 (9th Cir. 1986), cert. denied, --- U.S. ----, 107 S. Ct. 1580 (1987). A valid stop is not transformed into an arrest merely because law enforcement agents momentarily restrict a person's freedom of movement and the use of force in making a stop will not convert the stop into an arrest if it occurs under circumstances justifying fears for personal safety. United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983) (court held an investigative stop is not turned into an arrest merely because the police officer had ordered defendant to "prone out" at gunpoint as a protective measure while he continued his investigation).

When Agent Harner approached the cab of the moving van he had his gun drawn. However, he did not point the gun at Defendant Stein. Agent Harner instructed Stein to jump down from the cab and put his hands behind his head. Agent Harner walked Stein to his vehicle. At this point, his gun was no longer out. Agent Ewalt had approached the cab from the passenger's side and never drew his gun. No words of arrest were used and Stein was not handcuffed. Agent Harner asked Stein if he minded if they looked into the back of the truck. Stein replied that he did not care.

Under the circumstances of this case, a reasonable innocent person would not believe that he was being taken into custody. Stein was not under arrest at the time he consented to the search of the moving van. Stein did in fact consent to the search. Consent to a search is a recognized exception to the fourth amendment requirement of a search warrant before executing a search. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The district court properly denied Stein's motion to suppress evidence obtained from the tractor-trailer search.

2. Was the Evidence Sufficient to Sustain Stein's Conviction?

Stein contends that there was insufficient evidence to convict him of the charges in Counts I-IV. The 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 Stein with a conspiracy in violation of 18 U.S.C. § 371 by transporting illegal aliens. 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. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). Knowledge of the conspiracy's objective is an essential element of the crime. United States 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 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 van he and Brenner went for tacos. Brenner drove the Dodge van and blinked the van's lights three times at the tractor-trailer. 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 that on or about February 22, 1987, defendant James Blaine Stein drove a 1971 International tractor-trailer containing forty-eight illegal aliens north on Interstate 5 in San Diego County, California. Agent Harner testified that Stein was apprehended as the driver of a moving van found to contain illegal aliens.

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

Defendant Stein was apprehended as the driver and sole occupant (other than the aliens) of a moving van found to contain illegal aliens in the rear of the truck. From this fact, the jury could infer that Stein knew that the aliens were in the moving van. United States v. Castillo-Burgos, 501 F.2d 217, 218-219 (9th Cir.) (jury may infer defendant aware of contraband in a vehicle in which defendant was the driver and sole occupant), cert. denied, 419 U.S. 1010 (1974). Furthermore, the implausibility of defendant Stein's own testimony was sufficient for the jury to disbelieve him and to find that he did know that he was driving a load of illegal aliens. Stein claimed he worked for North American Van Lines. He was wearing a company shirt and driving a van with the company name written on the side. However, North American Van Lines' records indicated that Stein did not work for the company. Stein's driver's license had been suspended since 1981. Stein claimed that he was to pick up a load of furniture from a two-bedroom apartment on Kearny Street. However, when Stein parked the moving van in San Diego, he parked it in front of a church and school. The nearest residence was fifty yards away. These facts taken together provide ample proof that Stein was involved in the criminal enterprise of transporting illegal aliens.

B. Transporting Illegal Aliens.

Counts II through V charged Stein 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). 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.

Aliens 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) Stein knew or acted in reckless disregard that the aliens had unlawfully entered or remained in the United States.

Stein was the driver and sole occupant (other than the aliens) of a moving van found to contain the aliens in the rear of the truck. Furthermore, a jury could reasonably find Stein's own testimony implausible. See supra section 3.A. (3). The evidence shows that the aliens were hidden in the back of the truck and that the transportation occurred in the middle of the night. The evidence of the time and place of these events is sufficient to support an inference that Stein knew that each of these persons was an alien who had entered the United States illegally within the last three years. See United States v. Loya, 807 F.2d 1483, 1486 (9th Cir. 1987). There is sufficient evidence to conclude that Stein knew or acted in reckless disregard that the aliens had unlawfully entered the United States.

(4) Stein 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 overt act of Stein driving the moving van with the forty-eight aliens in the back of it.

C. Aiding and Abetting.

(1) Stein intentionally associated himself with criminal activity.

To obtain a conviction for aiding and abetting the government must show not only that Stein participated in the criminal venture but that he intentionally assisted in the venture's illegal purpose. United States v. Groomer, 596 F.2d 356, 358 (9th Cir. 1979). Stein's criminal intent, however, may be inferred from the attendant facts and circumstances. Id. Stein was the driver of the moving van and was therefore present at the scene when the agents discovered the aliens in the back of the van. Stein's driver's license had been suspended since 1981 and he was not an employee of North American Van Lines. Stein was driving in tandem which is common in alien smuggling cases. When the agents stopped the moving van, it was around midnight. Stein refused to yield when the Border Patrol agents activated their lights and siren.

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

This element is satisfied by the overt act of Stein driving the moving van with the forty-eight aliens in the back of it.

CONCLUSION

Stein's motion to suppress evidence from the tractor-trailer was properly denied. There was founded suspicion for the investigatory stop of the moving van. Stein was not under arrest when he consented to the search of the moving van. There is sufficient evidence to sustain Stein's convictions on all the counts. We affirm Stein's conviction.