Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

Nos. 88-5334, 88-5343.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and PREGERSON, Circuit Judges, and HOWARD D. McKIBBEN, District Judge.^** 

MEMORANDUM^*** 

Felix-Sosa and Medina-Ortega appeal their convictions for conspiracy to harbor illegal aliens in violation of 18 U.S.C. § 371 (count one), and harboring four illegal aliens in violation of 8 U.S.C. § 1342(a) (1) (C) (count two). Felix-Sosa contends that there was insufficient evidence to support conviction on the harboring count, and that the district court erred in admitting a statement of an unindicted coconspirator. Medina-Ortega contends that there was insufficient evidence to support conviction on both counts. We affirm.

Both appellants moved for a judgment of acquittal at the end of the government's case, but failed to renew the motion at the close of evidence. By failing to renew, the appellants waived the benefit of their motions. United States v. Mora, 876 F.2d 76, 77 (9th Cir. 1989); United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988) (per curiam), cert. denied, 109 S. Ct. 812 (1989); United States v. Patton, 771 F.2d 1240, 1243 (9th Cir. 1985); United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980). We may, nonetheless, review the sufficiency of the evidence to prevent a manifest miscarriage of justice or for plain error. Mora, 876 F.2d at 77; Commerford, 857 F.2d at 1324; Ocha-Torres, 626 F.2d at 691; United States v. Larson, 507 F.2d 385, 387 (9th Cir. 1974) (per curiam); United States v. Lewis, 426 F.2d 266, 267 (9th Cir. 1970) (per curiam).

Felix-Sosa argues that this failure to renew should not constitute a waiver and that plain error review is inappropriate in this context. While these arguments may have some merit, the law in this circuit is clear and we are bound to follow the cases cited above. We do acknowledge, however, that if a conviction is clearly not supported by the evidence, it should be reversed even under this more strict standard of review because it would be a "manifest miscarriage of justice" to let such a conviction stand. In the case of these appellants, however, we believe there was no plain error.

In contrast to Medina-Ortega's contentions, the record contains sufficient evidence connecting him to the conspiracy to support his conspiracy conviction. The prosecution presented evidence that Medina-Ortega worked at a house in Tijuana where aliens were held prior to being smuggled into the United States; that he brought aliens food and cleaned up at the "drop house" in La Puente; that he was observed delivering the aliens to relatives; and that one of the smuggled aliens overheard the ringleader of the smuggling operation instruct Medina-Ortega to select the aliens to be be delivered, to call their relatives to find out if they had the smuggling fees, and to deliver the aliens. While Medina-Ortega challenges the credibility of the witnesses who supplied this evidence, we " 'must respect the exclusive province of the jury to determine the credibility of witnesses.' " United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989).

Similarly, there was no "manifest miscarriage of justice" in finding that there is sufficient evidence to support the conviction of both appellants for harboring four named undocumented aliens. Appellants do not challenge the judge's instruction that the jury must have found "knowing or willful conduct that tends to substantially facilitate an alien's remaining in the United States illegally." Appellants contend that there is insufficient evidence of a link between their conduct and the named aliens in count two of the indictment. We find no plain error where the evidence showed that both appellants were observed performing acts that furthered the smuggling operation at the La Puente house, and that the named aliens had entered the United States illegally, had been held at the La Puente house pending payment of their smuggling fees, and were found at the house when the appellants were arrested outside in front and in back of the house.

Federal Rule of Evidence 801(d) (2) (E) provides that " [a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." To determine admissibility under this rule, a court must determine by a preponderance of the evidence that the conspiracy existed and that the defendant was connected to it. Bourjaily v. United States, 483 U.S. 171, 175 (1987). In making that determination, the court may consider the co-conspirator's statement and give the statement such "weight as his judgment and experience counsel." Id. at 181 (quoting United States v. Matlock, 415 U.S. 164, 175 (1974)). However, this court has held that a co-conspirator's statement implicating the defendant in the alleged conspiracy "must be corroborated by fairly incriminating evidence." United States v. Silverman, 861 F.2d 571, 578 (9th Cir. 1988). The standard of review of a district court's ruling that a statement is admissible under this rule depends on whether the ruling is challenged for its factual findings or its legal conclusions. United States v. Vowiell, 869 F.2d 1264, 1267 (9th Cir. 1989).

Here, Felix-Sosa is essentially arguing that there was no reliable evidence corroborating the co-conspirator's out of court statement to Felix-Sosa that "You'll have to go to San Diego to pick up the people. You already know where and everything." We disagree. In addition to evidence that there was indeed a smuggling operation involving La Puente house, the prosecution presented evidence that Felix-Sosa was observed arriving at La Puente house on two occasions in a van carrying illegal aliens, that he guarded the aliens at the house, that he was seen making telephone calls at the house, and that the operation involved making phone calls to relatives and friends of the aliens. It is true that this evidence regarding Felix-Sosa came from the testimony of one witness, the same witness who testified that he overheard the co-conspirator make the out of court statement. However, in contrast to appellant's argument, this situation is unlike that in Silverman where this court held, in part, that one presumptively unreliable hearsay statement cannot be invoked to corroborate another hearsay statement, especially when uttered by the same declarant. 861 F.2d at 579. Here, the co-conspirator's statement was corroborated, not by other statements of the co-conspirator, but by testimony of the witness which was based on personal observation. We find that the district court did not err in admitting the statement.

AFFIRMED.