reasoning that the alien’s “testimony that he expected that he would have to pay for his transportation once he arrived in Los Angeles, the substantial evidence of the defendant’s guilt, and the lack of any other possible explanation for Angwin’s conduct” constituted sufficient evidence for the jury to conclude that Angwin committed the offense for the purpose of private financial gain
How later courts described this case
- reasoning that the alien’s “testimony that he expected that he would have to pay for his transportation once he arrived in Los Angeles, the substantial evidence of the defendant’s guilt, and the lack of any other possible explanation for Angwin’s conduct” constituted sufficient evidence for the jury to conclude that Angwin committed the offense for the purpose of private financial gain
- holding that there was sufficient evidence of financial gain where alien testified that he expected to pay and defendant’s explanation was implausible
- upholding § 2L1.1(b)(5) enhancement where aliens smuggled in the back of a pick-up truck
- indicating that a description of a course of action in general does not describe conduct with sufficient particularity to be probative of whether it occurred on a specific occasion
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by United States v. Angelica Lopez, 484 F.3d 1186 (2007)
271 F.3d 786, 799 (9th Cir. 2001), overruled on other grounds by United States 3 v. Lopez, 484 F.3d 1186
Overruled on other grounds by United States v. 4,432 Mastercases of Cigarettes, 448 F.3d 1168 (2006)
271 F.3d 786, 800 (9th Cir. 2001) (indicating that a description of a course of action in general does not describe conduct with sufficient particularity to be probative of whether it occurred on a specific occasion), overruled on other grounds by, United States v. Lopez, 448 F.3d 1186
The opinion
*810 FERGUSON, Circuit Judge,
concurring and dissentihg:
I concur in the affirmance of the conviction of Ted Angwin. I dissent regarding Christine Khamis. I do not believe that there was sufficient evidence to convict her of transporting illegal aliens. To convict Khamis, the Government had to prove beyond a reasonable doubt that she is guilty. United States v. Barajas-Montiel, 185 F.3d 947, 954 (9th Cir.1999). However, even when the evidence is viewed in the light most favorable to the prosecution, United States v. Toomey, 764 F.2d 678, 680 (9th Cir.1985), the facts of this case do not support a guilty verdict. Khamis’ conviction is founded upon mere assumptions, and I cannot agree that she was guilty beyond a reasonable doubt.
“We have recognized that a conviction under this section requires more than just the defendant’s knowledge or reckless disregard of the fact that the alien transported was illegally present in the United States: the Government must also prove that the defendant ‘intended to further the alien’s illegal presence in the United States.’ ” United States v. Hernandez-Guardado, 228 F.3d 1017, 1022 (9th Cir.2000) (quoting United States v. Hernandez-Franco, 189 F.3d 1151, 1155 (9th Cir.1999) (citations omitted)). None of Kham-is’ actions demonstrate this level of criminal intent. See United States v. Nguyen, 73 F.3d 887, 893 (9th Cir.1995).
The majority states that “there can be little doubt that Khamis knew or recklessly disregarded the fact that the aliens were’ not lawfully in the United States.” Maj. op. at 805. The majority seems to believe that Khamis’ mere presence in the motor home infers her knowledge of the particular criminal activity of which she was accused. Khamis’ presence in the motor home proves nothing. The jury instructions clearly stated that more was required:
It is not enough that the Defendant merely associated with that person, or was present at the scene of the crime, or unknowingly or unintentionally did things that were helpful to the principal. The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping that person commit the offense of bringing in ... illegal aliens for financial gain.
When looking at the facts, it is unclear whether Khamis knew that the people in the motor home were illegal aliens, much less whether she was an active participant in a scheme to transport illegal aliens.
There was no evidence that Khamis had prior knowledge that Angwin intended to transport aliens. Khamis was traveling with Angwin, an old family friend, because she believed they were looking at business property. When the motor home stopped in the desert, Khamis got out to take her dog for a walk. She saw no one. When she returned to the motor home, she was told by Angwin, “Don’t ask any questions and look straight ahead.” She kept her eyes forward and heard and felt people getting into the vehicle. The aliens testified that they were hidden inside the motor home during the entire trip. 1 There was no testimony that Khamis actually saw the aliens until the motor home was searched at the border checkpoint.
Hilario Vincente-Morales, one of the aliens, testified that the only person he saw other than the people in his group was Angwin. The only testimony indicating that the aliens knew someone else might be present was Vincente-Morales’ statement that he saw a hand waving. This *811 testimony is ambiguous at best. Vincente-Morales did not actually see the person who was waving the hand, and he could not tell if the hand belonged to a male or femále because he was distracted — the hand was toward the front of the motor home, he was running through tall grass that partially blocked his view, there were fourteen other aliens running with him, and people were tripping in their rushed attempt to get into the back of the motor home. Testimony about a briefly-glimpsed, unidentifiable hand does nothing to support Khamis’ conviction. Moreover, there was testimony that two other people at the motor home were waving: both Angwin and one of the aliens reportedly waved their arms in the air. It is difficult to believe that Vincente-Morales did not see either of these hand waves and yet spotted one at a far greater distance from the motor home. It seems most likely that he failed to properly identify the location of the hand wave.
The closest that any testimony puts Khamis to the ambiguous hand wave is 75 feet. No testimony was presented as to the meaning of the wave. There simply is not enough evidence for a jury to infer beyond a reasonable doubt that Khamis was the person waving. Even assuming she did wave, there are no facts to indicate what the wave meant. Vincente-Morales testified that the wave consisted of a hand up in the air, above the person’s head, moving from side to side. Was this a wave encouraging the people to get into the motor home? Was this a person shooing away desert bugs? Was there some other meaning altogether to the wave? Was it actually a wave Vincente-Morales saw as he was running through the tall grass? There are just too many unknowns to support a guilty verdict on this basis.
The majority’s citation to United States v. Loya, 807 F.2d 1483, 1486 (9th Cir.1987), does not strengthen the Government’s case. While circumstantial and indirect evidence may support an inference that a defendant knew that aliens were illegally in the United States, it pre-supposes that the person actually saw the aliens and spoke to them. In Loya , there was evidence that the defendant met with the illegal aliens at the border. Id. at 1488-89 . Similarly, in United States v. Herrera-Medina, 609 F.2d 376, 378 (9th Cir.1979), cited by Loya as support for its holding, 807 F.2d at 1486 , it was uncontroverted that the defendants actually saw and spoke to the people they were transporting. There is absolutely no evidence that Khamis actually saw the aliens either outside or inside the motor home until it was checked by the border patrol agents, and there is no evidence that she spoke to them at any time. Assuming she did see the aliens and knew they were in the motor home, presence in the vehicle is insufficient to infer guilt of transporting illegal aliens. United States v. Esparza, 876 F.2d 1390 , 1392 n. 2 (9th Cir.1989); Maj. op. at 805.
Khamis’ behavior at the checkpoint does nothing to strengthen the other evidence presented by the prosecution. When the motor home arrived at the border checkpoint, border patrol agent Mikuski testified that he became suspicious because Angwin appeared nervous and Khamis never looked at him or spoke to him unless he directly asked her a question. The questions initially posed by Mikuski were general questions directed at both Angwin and Khamis and did not require a response from each of them. When Mikuski asked them if they were citizens of the United States only Angwin answered. There is nothing even remotely incriminating about Khamis not answering this question when Angwin had just responded for both of them. Khamis’ silence in this situation proves nothing.
*812 The majority suggests that Khamis’ conviction is also supported by evidence that she did not look at Mikuski when he was asking questions. However, the most we can infer from this is that she knew she was in the presence of a crime. The majority has already indicated that this knowledge is not enough to support her conviction. Maj. op. at 806-07.
The final piece of evidence relied upon by the majority as support for Khamis’ conviction is that Khamis made a statement to Agent Searle that was inconsistent with Angwin’s testimony about the details of their travel. It is unclear exactly what inconsistencies the majority found, but they apparently eluded the Government. There is no mention of these inconsistencies in the Government’s argument that there was sufficient evidence for Khamis’ conviction. Assuming that there were inconsistencies, all this means is that she did not corroborate the testimony of a guilty person. This is hardly enough to find guilt beyond a reasonable doubt.
The evidence presented by the prosecution builds, at best, a fragile foundation upon which to rest Khamis’ conviction and creates, if anything, an inference that it is slightly more probable that Khamis is guilty. “Slightly more probable” does not satisfy the beyond-a-reasonable-doubt standard required for a conviction in a criminal case. Jackson v. Virginia, 443 U.S. 307, 320 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). The Supreme Court has held that “[a]ny evidence that is relevant — that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, ... could be deemed a ‘mere modicum.’ But it could not seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt.” Id. (citation omitted). All the evidence presented against Khamis equates to a “mere modicum” that crumbles under the scrutiny of the reasonable doubt standard. It does not support a conviction beyond a reasonable doubt.
I would therefore reverse her conviction.
. Agent Mikuski testimony corroborates this.