Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, Senior District Judge, Presiding D.C. No. 3:06-cr-02268-JM-2
The opinion of the court was delivered by: Tallman, Circuit Judge:
Submitted November 7, 2011*fn1 Pasadena, California
Before: Ferdinand F. Fernandez, Karen Nelson Moore,*fn2 and Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman; Partial Concurrence and Partial Dissent by Judge Moore
Defendant-Appellant Alberto Noriega-Perez ("Noriega") appeals his conviction by jury verdict on one count of conspiracy to bring illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 371), one count of conspiracy to harbor illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii), (v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2), and eighteen counts of aiding and abetting harboring illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii), (v)(II)). Noriega rented two properties he owned near the United States-Mexico border to an alien smuggling organization knowing that they would be used as load houses to conceal and later transfer recently arrived aliens.
United States Immigration and Customs Enforcement ("ICE") officers raided both properties and apprehended numerous illegal aliens found there. Of those apprehended, ICE identified eighteen as material witnesses. All eighteen material witnesses were named in the substantive counts of the operative indictment as persons brought into the United States from Mexico by the smuggling ring, but only eight testified at Noriega's trial.
On appeal, Noriega challenges the sufficiency of the evidence on two grounds.*fn3 First, he argues that there was insufficient evidence of alienage with respect to the ten material witnesses named in the indictment who did not testify at trial. Second, as to his conviction for aiding and abetting the bringing of illegal aliens to the United States for financial gain, he contends that there was insufficient evidence linking him to the cross-border transportation of the named material witnesses before they were dropped in the United States, as required under our decision in United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc). We have jurisdiction, 28 U.S.C. § 1291, reject his arguments, and affirm.
In 2003, ICE Special Agent Donald Webster began investigating two properties owned by Noriega-the "McCabe" property and the "Alamo" property-located in Holtville, California, about ten miles from the United States-Mexico border. Noriega rented these properties to an alien smuggling organization for use as "load houses" (i.e., premises used to harbor and shield illegal aliens shortly after they have been smuggled across the border while they await transportation to their final destination). The smuggling operation was extensive. Noriega speculated to a cooperating informant wearing a body recorder that the organization renting his properties made over $1,000,000 smuggling illegal aliens. The confidential informant estimated that approximately 300 illegal aliens per month were harbored at the McCabe property, with each alien paying a fee of about $1,500 to $2,000. Surveillance videos taken of the Alamo property show numerous pickup trucks arriving and departing, as well as people being loaded onto the back of trucks and then covered with tarps. On one occasion, ICE agents attempted to stop one of the trucks leaving the Alamo property; after a high-speed chase and abandonment of the vehicle by the driver, twelve or thirteen alleged aliens were found lying on top of each other in the bed of the truck.
Noriega was well aware that he was renting his properties so that they could be used as load houses. He lived at the McCabe property with his mother while it was being used as a load house, and often ate his meals with illegal aliens being held there. In negotiating the rental of the Alamo property (the conversation that was recorded by the cooperating informant), Noriega estimated that the garage on the property was big enough to hold fifty to sixty "illegals." In another recorded conversation, Noriega recounted detailed information about the smuggling organization, including the activities of various members and certain records that had recently been lost. A surveillance video taken in April 2005 shows Noriega erecting aluminum siding along the chain-link fence surrounding the Alamo property, which the Government urged the jury to believe was done to obstruct from plain view the smuggling activities taking place there.*fn4
On October 11, 2005, federal agents executed a search warrant at the McCabe property. The agents apprehended approximately seventy-four suspected aliens, most of whom were found crowded in a warm, unlit room in a trailer located on the property. Nine were retained as material witnesses. On November 7, 2005, agents executed a second search warrant at the Alamo property and discovered another thirty-eight suspected aliens inside the garage. Nine were retained as material witnesses.
Noriega was indicted on October 18, 2006. The Government ultimately pursued one count of conspiracy to bring illegal aliens to the United States for financial gain, one count of conspiracy to harbor illegal aliens, eighteen counts of aiding and abetting the bringing of an illegal alien to the United States for financial gain, and eighteen counts of aiding and abetting the harboring of an illegal alien. In the operative indictment, each of the substantive counts named one of the eighteen material witnesses apprehended during the raids at the Alamo and McCabe properties. All substantive counts were charged as overt acts in furtherance of the alien smuggling conspiracy.
At Noriega's trial, Special Agent Webster explained the process used to identify material witnesses and then listed the names of the eighteen material witnesses named in the operative indictment. Only eight of the eighteen material witnesses testified. In relevant part, each testified that he or she did not have permission to enter the United States, but arranged to do so by paying the smugglers fees ranging from $1,500 to $2,500. Each alien was guided across the border and then brought to either the McCabe or Alamo property, where each was apprehended by ICE. Most had been at the load house for only a brief period of time (between a few hours and three days), although one witness testified that he was at the McCabe property for eleven to twelve days. None recognized Noriega or identified any of the non-testifying material witnesses.
ICE Officer Frances Bench testified regarding the structure and operation of an alien smuggling organization. Officer Bench explained to the jury that a recruiter identifies customers, i.e., aliens willing to pay to be smuggled into the United States. A guide escorts illegal aliens through or between ports of entry into the United States. Sometimes the guide takes the illegal aliens directly to a load house; other times, a driver meets the guide at a specific pick-up location in the immediate border area, who in turn transports the illegal aliens to a nearby load house. Because illegal aliens are brought there shortly after entering the United States while they await transportation to their final destination, the load house needs to be located in close proximity to both the border area and major transportation corridors, such as highways and interstate freeways.
Illegal aliens generally remain at the load house for a few hours to a couple of days, unless there is a delay in the pay- ment of the smuggling fee. They are then transported to their final destination. Officer Branch explained that smuggling is a for-profit endeavor, and smuggling fees are ...