The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
A federal grand jury issued a two-count Indictment on June 12, 2007, charging Defendant, Cirilo Flores-Perez, with one count of bringing in an illegal alien for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and one count of transporting an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). On July 25, 2007, the grand jury issued a Superseding Indictment, clarifying that Defendant was charged with aiding and abetting the bringing in of an illegal alien for financial gain, and attempting to transport an illegal alien, in violation of the same code sections. Defendant pleaded not guilty to the Superseding Indictment on July 30, 2007.
The Defendant's jury trial began on November 6, 2007. At the close of the Government's case-in-chief, Defendant orally moved for judgment of acquittal pursuant to Rule 29, and he renewed the motion at the close of all of the evidence. Written motions were later filed. In the first written motion, Defendant focused on the absence of the material witness, arguing that the ernment did not establish that Mr. Benjamin Hernandez-Ramirez was an alien. In his supplemental motion, Defendant argued that the Government did not introduce sufficient evidence of aiding and abetting the offense of bringing an illegal alien into the United States for financial gain.
The following testimony and evidence was elicited at trial. Agent Sergio Guzman testified that on May 27, 2007, while working at a fixed observation position east of the Old Port area in downtown Calexico, he saw a male climb the border fence using a lightpost on the exicali side of the border and run north. That male was later identified as Benjamin rnandez-Ramirez ("alien" or "Mr. Hernandez-Ramirez"). Although Agent Guzman turned his rder Patrol vehicle around and drove into the Old Port area, he was unable to immediately te the alien.
Agent Guzman used his radio to call for backup. The agent positioned nearby, Luis Burruel, had not seen the alien reach his location. Both agents searched the area unsuccessfully, and then returned to their surveillance positions.
Shortly after, Agent Burruel noticed the Defendant walking south on a nearby street, approaching the border fence. Agent Burruel watched Defendant walk straight to the northernmost dumpster of four dumpsters and heard him shout, in Spanish, "Get out, get out!" Agent Burruel next saw Defendant speak to some taxi drivers near the dumpsters, talk on a cellular phone, and then return to the dumpster. For approximately 30-60 seconds, Defendant dug his hand into the northernmost dumpster, again speaking loudly and saying "Get out." Afterwards, Defendant went to sit on the bench closest to the dumpsters and waited.
After some time, Mr. Hernandez-Ramirez emerged from the dumpster. Agent Burruel watched the alien walk north from the dumpster, then heard Defendant say, in Spanish, "Keep walking" twice. Agent Burruel saw the alien look in Defendant's direction. Believing Defendant was engaged in alien smuggling, Agent Burruel used his service radio to call for additional agents to respond to the area.
Agents Christian Diaz and Luis Corona responded to Agent Burruel's call. Agent Corona observed Defendant and the alien walking north, approximately ten feet apart, parallel to one another. While Agent Corona could not hear Defendant from the car, he saw Defendant gesture with his hand, in a motion similar to pushing away from his body. Immediately after Defendant made this gesture, Agent Corona saw Defendant and the alien separate, with the alien continuing thwest and Defendant moving eastbound.
After his arrest, Mr. Hernandez-Ramirez admitted he was a Mexican citizen with no documents allowing him to enter the United States. During trial, Agent Corona identified a tograph of Mr. Hernandez-Ramirez as the person he saw walking with Defendant on the date of arrest. Agent Burruel identified the same photograph as the person he saw climbing out of the dumpster. Mr. Hernandez-Ramirez, although designated as the "material witness," did not y at trial because he absconded.
Delia Ramirez-Avelar, Mr. Hernandez-Ramirez' first cousin, testified that she was familiar with his family history. Ms. Ramirez-Avelar also served as a surety for Mr. Hernandez-Ramirez and posted a bond on his behalf. She testified that he was born in Guadalajara, Mexico, that his parents are Mexican citizens, and that he is not a United States citizen. Ms. Ramirez-lar testified that she travels to Guadalajara every summer to visit her grandparents and Mr. Hernandez-Ramirez' mother. Ms. Ramirez-Avelar did not recognize Defendant in court, nor she ever heard his name.
Agent Diaz testified regarding his background and experience working for an undercover alien smuggling apprehension unit in downtown Calexico. Agent Diaz testified that he himself used to hide in the same dumpsters that were used in this incident, because the area was frequently used for alien smuggling. Agent Diaz also described how he used to follow illegal immigrants out of the dumpsters and sought to apprehend their foot guides, who frequently met the illegal immigrants in the Old Port area.
Immigration and Customs Enforcement Senior Agent Don Webster testified as an expert in alien smuggling techniques used in Imperial Valley. Agent Webster described the structure of small-scale alien smuggling organizations, including the role of foot guides in the downtown Calexico area. Specifically, Agent Webster described the stages of small-scale alien smuggling, beginning with recruiting the alien in another country, continuing to the stage of bringing the alien to the border area, then utilizing transporters or guides right at the border where the risk is greatest, and then transporting the aliens to a hub destination, such as Los Angeles. Once the aliens reach the hub, the organization receives money, then sends most of the money south towards the border, paying people along the way for their roles in the ...