Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^* 

Armando Perez-Gonzalez and Javier Sanchez-Perez appeal from convictions of harboring aliens, 8 U.S.C. § 1324 (Supp.IV 1986), and conspiracy to transport and harbor aliens, 18 U.S.C. § 371 (1982). Perez-Gonzalez claims that the trial court erroneously refused his request for a jury instruction relating to intoxication. Sanchez-Perez claims that the evidence presented at trial was insufficient to support his convictions. We affirm as to both appellants.

An undercover agent of the Immigration and Naturalization Service testified that Perez-Gonzalez appeared intoxicated during a conversation that formed the bulk of the government's evidence at trial. Perez-Gonzalez claims that he was entitled to an instruction that his intoxication could have deprived him of the ability to form the requisite intent to harbor aliens and to join the conspiracy.

Intoxication on one day, however, cannot negate the intent to commit crimes that continue over a period of weeks. The government presented evidence that the conspirators harbored aliens for at least several weeks. Perez-Gonzalez's intoxication on that one day had no bearing on his intent to harbor and conspire over the entire period. To be entitled to a jury instruction on intoxication, Perez-Gonzalez would have had to have been drunk for a lot longer.

Perez-Gonzalez argues, however, that his intoxication when he talked to the agent would reduce the probative value of the statements the agent heard and related to the jury. But this goes to the weight of the evidence, not to Perez-Gonzalez's capacity to commit the crime. Defense counsel was free to argue that the jury should not infer criminal intent from Perez-Gonzalez's statements to the agent because Perez-Gonzalez was intoxicated. No specific instruction was necessary for that purpose. In any event, the proffered instruction rejected by the court made no mention of the effect of Perez-Gonzalez's intoxication on the probative value of his statements.

Sanchez-Perez's claim is also without merit. The government presented enough evidence for a rational juror to find guilt beyond a reasonable doubt. See United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984). The undercover agent saw Sanchez-Perez many times at the drop house used for hiding the aliens. Each time the house was crowded with illegal aliens. Sanchez-Perez discussed alien-smuggling with the undercover agent on several occasions, and gave the agent permission to stay at the drop house and use the telephone. While the evidence against Sanchez-Perez was not overpowering, a rational juror could certainly have found it sufficient to convict.

AFFIRMED.