Unpublished Disposition, 874 F.2d 817 (9th Cir. 1987)

MEMORANDUM^** 

Jose De Jesus Correa-Fausto appeals his jury conviction of conspiring to transport or harbor illegal aliens in violation of 18 U.S.C. § 371 (1982) and of harboring or shielding from detection illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (C) (Supp. IV 1986). Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identifies as a possible issue for review the sufficiency of the evidence to support the appellant's convictions. We affirm.

We review the sufficiency of the evidence by determining 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. United States v. Loya, 807 F.2d 1483, 1486 (9th Cir. 1987).

To convict a defendant of a conspiracy, the government must prove that he participated in an act in furtherance of the conspiracy with knowledge of its existence. See Loya, 807 F.2d at 1488-89. Mere association with coconspirators is insufficient. United States v. Dunn, 564 F.2d 348, 359 (9th Cir. 1977) (citing United States v. Peterson, 549 F.2d 654, 658 (9th Cir. 1977)). Further, although the accused's connection to a conspiracy may be slight, the connection must be proved beyond a reasonable doubt. Loya, 807 F.2d at 1488. Here, the evidence is sufficient to support Correa-Fausto's conspiracy conviction.

Correa-Fausto was not a mere onlooker. The illegal alien witnesses testified that at the drop house (where the smuggled persons were kept until they were picked up by relatives or friends upon payment of the smuggling fee), Correa-Fausto acted as a guard who told the illegal aliens to be quiet and warned them not to go outside the house. The witnesses also testified that on June 15, 1987, Correa-Fausto collected the smuggling fee on two occasions from persons who had come to pick up smuggled persons at the drop house. In addition, when the immigration officers arrived at the drop house on June 15, Correa-Fausto ran into the house to warn the illegal aliens, who fled or hid.

While no direct evidence was introduced of Correa-Fausto's knowledge of criminal activity, such knowledge may be inferred from Correa-Fausto's acts in serving as a lookout and in warning the aliens of the immigration officers' approach. See United States v. Sanchez-Murillo, 608 F.2d 1314, 1318 (9th Cir. 1979). Thus, the evidence demonstrates that Correa-Fausto participated in acts in furtherance of the conspiracy with knowledge of its existence. See Loya, 807 F.2d at 1489.

To convict Correa-Fausto of an 8 U.S.C. § 1324(a) (1) (C) violation, the jury must have found beyond a reasonable doubt that he knowingly concealed, harbored or shielded from detection illegal aliens or attempted to commit these acts. See United States v. Rubio-Gonzales, 674 F.2d 1067, 1072-73 (9th Cir. 1982) (construing the former statute). Warning illegal aliens of the presence of immigration officers to prevent the aliens' detection constitutes attempting to shield illegal aliens from detection in violation of the statute. See id. at 1072. Thus here, Correa-Fausto violated section 1324(a) (1) (C) by warning the illegal aliens of the immigration officers' arrival in addition to his other actions in furtherance of the drop house operation. See id. Sufficient evidence supports both of Correa-Fausto's convictions. See Loya, 807 F.2d at 1486.

Our independent review of the record, see Penson v. Ohio, 109 S. Ct. 346, 351 (1988), has disclosed another possible issue for review which also lacks merit. Correa-Fausto's trial counsel claimed surprise due to the government's alleged untimely production of certain documents and brought motions to strike and for a mistrial based upon immigration agent Robert Montes' testimony regarding the seizure of about $663 from Correa-Fausto upon his arrest. The district court denied both motions.

The district court did not abuse its discretion in denying the motion for a mistrial. See United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir.), cert. denied, 469 U.S. 934 (1984). Correa-Fausto failed to preserve the alleged error by not objecting contemporaneously to Montes' direct examination testimony regarding the seizure of money from Correa-Fausto. Id. at 1347-48. Further, he has failed to show prejudice warranting reversal in light of the abundant evidence of his guilt. See id. at 1347.

Even assuming that the district court improperly denied the motion to strike the contested testimony, any error was harmless in light of the other strong evidence of Correa-Fausto's guilt presented during the 5-day trial. See id. at 1347; United States v. Skinner, 667 F.2d 1306, 1310 (9th Cir. 1982), cert. denied, 463 U.S. 1229 (1983).

AFFIRMED.