Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Rosa Maria CASTILLO-CARDONA, Defendant-Appellant.

No. 88-5438.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991.* Decided Jan. 29, 1991.

Before ALARCON, WILLIAM A. NORRIS, and WIGGINS, Circuit Judges.


MEMORANDUM** 

Rosa Maria Castillo-Cardona (Castillo-Cardona) appeals from her conviction following a jury trial for harboring Hugo Roberto Gatica-Garcia, an illegal alien, in violation of 8 U.S.C. § 1324(a) (1) (C). On appeal Castillo-Cardona makes the following assertions:

1. The evidence was insufficient.

2. The district court erred in admitting into evidence the $1500.00 found in her purse.

3. The district court improperly restricted her attorney during his cross-examination of Gatica-Garcia, a key government witness.

We disagree and affirm.

Castillo-Cardona argues that her conviction under 8 U.S.C. § 1324(a) (1) (C) must be reversed, because the government has failed to show that she "was aware that the alien named in the indictment [Hugo Roberto Gatica-Garcia] was in the United States illegally." Appellant's Opening Brief at 11.

At the close of the Government's case in chief, Castillo-Cardona moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The motion was denied and the defense proceeded to present the testimony of three witnesses including the defendant. Castillo-Cardona did not renew her motion for judgment of acquittal at the close of her case. When a defendant fails to renew her motion for acquittal at the close of her case, she waives her objection to the sufficiency of the Government's evidence. United States v. Ramirez, 880 F.2d 236, 238 (9th Cir. 1989) (citing United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989)). "In this circuit, however, we may review the denial of a nonrenewed motion for acquittal, but only 'to prevent a manifest miscarriage of justice' or for plain error." Comerford, 857 F.2d at 1324 (quoting United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980)). We consider the evidence in the light most favorable to the government to determine whether plain error or a manifest miscarriage of justice has been demonstrated. Ramirez, 880 at 238.

Section 1324(a) (1) (C) imposes criminal penalties on:

(1) any person who--

(C) knowingly or in reckless disregard of the fact that an alien had come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor or shield from detection, such alien in any place, including any building or any means if transportation....

8 U.S.C. § 1324(a) (1) (C).

The record shows that Castillo-Cardona had knowledge of Gatica-Garcia's illegal status. Gatica-Garcia testified that he was a citizen of Mexico. He crossed the border illegally by foot with the aid of a smuggler. He was then put into the trunk of a car with three others, to avoid immigration check points, and transported to Castillo-Cardona's house. He had agreed to pay $300.00 for these services once he was in Los Angeles. He arrived at defendant's house on May 24, 1988 at around 6:00 P.M. along with the three other aliens.

Gatica-Garcia testified that 15 other illegal immigrants were brought to the residence that evening and remained there until all the occupants of the house were arrested the following morning. He also testified that he was not a friend or acquaintance of defendant or her husband. She provided him with food. He spent the night sleeping on the floor in her living room with the other aliens. At the time of his arrest, Gatica-Garcia was waiting for a friend to arrive with money. His friend was to pay Castillo-Cardona $300.00 before Gatica-Garcia would be permitted to leave her residence.

The Government presented circumstantial evidence that Castillo-Cardona had been providing meals to all the illegal aliens who were in her home. Deputy Sheriff Ramirez testified that he saw several large pots on the stove containing enough food to feed the 15 or 20 people found in the house.

Castillo-Cardona took the stand on her own behalf. She denied having cooked for Gatica-Garcia, but admitted that her husband brought eight illegal aliens to her residence the day prior to her arrest. She also testified that he had brought another group of illegal aliens to the residence the previous week. She further testified that Gatica-Garcia had arrived the night before her arrest.

Castillo-Cardona stated that her husband and Victor Bernal-Peralta were responsible for the presence of the illegal aliens in her home. She admitted that she was aware that harboring the aliens in her house was unlawful. She also admitted that she tried to keep the investigating officers out of the room in her house where a number of the aliens were located because "I knew that they were in there and it would go against me...." Castillo-Cardona also testified that while Gatica-Garcia was in her residence with the other illegal aliens, she believed he was only there to visit friends, and was not being kept there until he paid his fee.

The totality of the evidence in the record when viewed in the light most favorable to the Government demonstrates that it was not plain error constituting a manifest miscarriage of justice for the jury to find that Castillo-Cardona knowingly harbored an illegal alien. See, e.g., United States v. Sanchez-Murillo, 608 F.2d 1314, 1318 (9th Cir. 1979) (evidence sufficient to sustain defendant's conviction for harboring illegal aliens where defendant was seen bringing food into the garage and driving people from a drop house).

Castillo-Cardona also appears to argue that there was insufficient evidence that Gatica-Garcia was an illegal alien. This argument lacks merit. Gatica-Garcia testified that he was a Mexican citizen who had been in the United States since 1982 as an illegal alien prior to returning to his native country. When asked on cross examination whether he had applied for amnesty, Gatica-Garcia replied "I tried to do it, but then since I was told that it was from year '81, then I couldn't do anything." Gatica-Garcia's testimony concerning his presence in this country without proper documents was uncontradicted.

2. Waiver of Right to Suppress Evidence.

Castillo-Cardona contends that admitting into evidence the $1500.00 found in her purse constituted plain error. She concedes that she did not move to suppress the evidence before trial, or object to the admission of the evidence at trial. Appellant's Supplemental Opening Brief at 3.

Rule 12(b) (3) of the Federal Rules of Criminal Procedure requires that motions to suppress evidence "must be raised prior to trial." Fed. R. Crim. P. 12(b) (3) (emphasis added). We will not review on appeal the admissibility of evidence for which there has been no motion to suppress. United States v. Davis, 663 F.2d 824, 831 (9th Cir. 1981). Accord, United States v. Ulloa, 882 F.2d 41, 43 (2nd Cir. 1989); United State v. Wood, 609 F.2d 246, 248 (6th Cir. 1979).

3. Limitations on the Scope of Cross-Examination

Castillo-Cardona contends that the district court improperly limited her cross-examination of Gatica-Garcia, a key government witness. The record reflects the following proceedings:

MR. MABRY: When you testified here earlier, isn't it a fact that you told us you had to pay $300?

GATICA-GARCIA: That's true.

MR. MABRY: You didn't tell us about your having to pay air fare; Is that right?

MS. KAWAHARA: Objection. Argumentative.

THE COURT: Sustained. That's argumentative by Mr. Mabry.

MR. MABRY: Did you ever tell, state in your testimony here today, that you had to pay air fare to someone?

MS. KAWAHARA: Same objection.

THE COURT: Argumentative. Sustained.

MR. MABRY: Where were you going to pay air fare to?

MS. KAWAHARA: Objection. Irrelevant. Beyond the scope.

THE COURT: Sustained.

MR. MABRY: May we approach, your Honor.

THE COURT: No.

MR. MABRY: Where were you going--strike that. When you came into the United States, you didn't come by air, did you?

GATICA-GARCIA: No.

MR. MABRY: You crossed on foot; is that correct?

GATICA-GARCIA: Yes.

MR. MABRY: So it wasn't necessary for you to think about any air fare at that point; is that correct?

MS. KAWAHARA: Objection. Argumentative. Irrelevant. Beyond the scope.

THE COURT: Sustained.

MR. MABRY: Isn't it a fact, sir, that you came to 618 not from Mexico, but from the United States in order to meet a couple of friends of yours who were at 618 before you arrived?

GATICA-GARCIA: No.

MR. MABRY: And isn't it a fact that you had sufficient money in your pocket if it were necessary for you to pay anyone?

GATICA-GARCIA: No, I did not have sufficient money.

MR. MABRY: You mean that you were $25 short; Is that what you're saying?

GATICA-GARCIA: Well, yes, we had to pay the exact $300; otherwise, we would not get out of there.

MR. MABRY: So you couldn't have--you didn't ask anyone in that house to let you go for $275, did you?

GATICA-GARCIA: No.

MR. MABRY: Because the thought never occurred to you to ask that; is that right?

MS. KAWAHARA: Object. Argumentative.

THE COURT: Sustained.

MR. MABRY: I have nothing further, your Honor.

Reporter's Transcript, 60-63.

The district court did not limit the scope of cross examination. Rather it sustained four objections made by the Government on the grounds that the questions were argumentative. These objections were directed to the form of the question. AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3