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937 F2d 614 United States v. Wagner-Kin

937 F.2d 614

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Luis Raul WAGNER-KIN, Cesar Raul Gonzalez-Rodriguez,
Defendants-Appellants.

Nos. 90-50392, 90-50399.

United States Court of Appeals, Ninth Circuit.

Submitted July 8, 1991.*
Decided July 17, 1991.

Before POOLE, KOZINSKI and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Luis Raul Wagner-Kin and Cesar Raul Gonzalez-Rodriguez appeal their convictions and sentences under the Sentencing Guidelines, following a jury trial, for conspiracy to encourage illegal aliens to enter the United States and encouraging illegal aliens to enter the United States, in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324(a)(1)(D). Both appellants contend (1) that the district court lacked jurisdiction over this action because the offenses occurred outside the United States and because they were not citizens of the United States and (2) that the statute 8 U.S.C. Sec. 1324(a)(1)(D) is unconstitutionally void for vagueness. Wagner-Kin specifically alleges that (1) there was insufficient evidence to support the jury's guilty verdict pertaining to his conviction and that (2) he was entitled to a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. We have jurisdiction pursuant to 18 U.S.C. Sec. 1291 and we affirm.

BACKGROUND

3

Luis Raul Wagner-Kin and Cesar Raul Gonzalez-Rodriguez, Argentine nationals, were employed as crewmen aboard an Argentine freighter ship, the Motor Vessel "Liberador General Jose de la Marin" which was bound for Los Angeles Harbor at San Pedro, California. The trial evidence demonstrated that Wagner-Kin, Gonzalez and other conspirators devised a scheme to smuggle undocumented aliens into the United States aboard the ship. The aliens boarded the ship during a stop at Callao, Peru.

4

On February 1 and 2, 1990, while the ship was approximately 400 miles off of Long Beach, California, in international waters, the Captain and his officers uncovered the smuggling operation, finding a total of twelve stowaways. Federal immigration authorities were contacted by radio. At that time, the stowaways were placed in the vessel's custody and remained in that custody until the ship eventually docked in the United States where Wagner-Kin and Gonzalez were arrested by immigration officers on February 6, 1990.

5

Wagner-Kin and Gonzalez were charged along with codefendant Lino Ramon Gauna in a two-count indictment charging them with conspiracy to encourage illegal aliens to enter the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324(a)(1)(D). All defendants were convicted, following a jury trial, on both charges of the indictment. Pursuant to the sentencing guidelines, the district court sentenced appellants to a term of eight months imprisonment and supervised release for two years. Wagner-Kin and Gonzalez timely appeal.

ANALYSIS

A. Jurisdiction

6

Wagner-Kin and Gonzalez contend that the district court lacked jurisdiction to prosecute them because they are not United States citizens and because the charged offenses allegedly occurred while they were either in Peru or international waters and had ceased prior to the ship docking in the United States. These contentions lack merit.

7

This court has recently rejected these same arguments. See United States v. Aguilar 883 F.2d 662, 692 (9th Cir.1989) (defendant's conviction for conspiring to violate statute prohibiting the inducing of aliens to enter the United States was not invalid simply because the criminal acts were committed in Mexico and the defendant was not a United States citizen or resident), cert. denied, 111 S.Ct. 751 (1991). Moreover, Wagner-Kin and Gonzalez were not actually arrested until the ship docked in the Los Angeles Harbor, and thus were within the territorial jurisdiction of the United States at that time. See United States v. Castillo-Felix, 539 F.2d 9, 12-13 (9th Cir.1976) (fact that effect of crimes committed out of the United States takes place in the United States may constitute a crime under 8 U.S.C. Sec. 1324(a)(4) even though act of inducing alien to enter the United States is committed outside of the United States). Thus, we find that the district court had jurisdiction over this case.

B. Sufficiency of Evidence

8

Wagner-Kin contends that the evidence was insufficient to convict him of conspiracy to encourage and induce illegal aliens to enter the United States and of encouraging and inducing illegal aliens to come to, enter and remain the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324(a)(1)(D).

9

In reviewing the sufficiency of evidence, this court must determine whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. United States v. Gillock, 886 F.2d 220, 221 (9th Cir.1989). Moreover, this court gives deference to the jury's ability to "determine the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict." Id. at 222 (quoting United States v. Ramos, 558 F.2d 545, 546 (9th Cir.1977)).

10

The record is replete with evidence supporting Wagner-Kin's conviction on both counts. Each of the six smuggled aliens who testified at trial described making payments to one of the defendants and, in many cases to an unindicted co-conspirator, Ahmed Ali, as well. Each of the aliens testified that he was kept under lock and key in either Wagner-Kin's cabin or in the storeroom of appellant Gonzalez, the ship's cook. Witness Carlos Arroyo identified Wagner-Kin in court and testified that Wagner-Kin offered to smuggle him aboard the ship in exchange for payment of $1,000; that Wagner-Kin hid Arroyo in his cabin, along with six other people throughout the voyage, some 13 days before the smuggled aliens were discovered by the ship's officers and that he paid the money to co-conspirator Gauna while he was securely aboard the ship. Another witness, Mario Santos Rosell, identified Wagner-Kin in court and testified that Wagner-Kin also hid him in his cabin for fifteen days and took $150 from him in exchange.

11

Two other witnesses, Charanjit Padda and Bahadur Singh also testified that Ali offered to smuggle them to the United States; that they each paid $4,000 to Ali to be smuggled aboard the ship; that Ali initially took the $4,000 from each of them and then returned a portion to them before they boarded the ship; that Ali instructed them to pay the returned portion to a sailor aboard the ship, whom they identified in court as Gauna; and that they were hidden in Wagner-Kin's room for 13 days and that Wagner-Kin came to the cabin daily to feed the smuggled aliens and to wash occassionally. They paid Gauna and Gauna visited them in Wagner-Kin's cabin on a couple of occasions during the voyage. Padda also testified that he once asked both Gauna and Wagner-Kin where the immigration papers were that were promised him and was told that they did not have a chance to talk to the Captain about them yet. Furthermore, Wagner-Kin took the stand and admitted that he hid the aliens in the cabin and expected to be paid.

12

Based on this testimony, the jury properly inferred the existence of a conspiracy whose members included Wagner-Kin, Gauna and Ali. The solicitations and arrangements made by Ali, the acceptance of money by each of these three conspirators and the active role played by Wagner-Kin in hiding the aliens to prevent their detection, amply support the conviction. Viewing the evidence in the light most favorable to the government, a reasonable jury could have concluded that Wagner-Kin could have conspired to and did encourage or induce aliens to enter the United States.

C. Constitutionality of Statute

13

Appellants contend that 8 U.S.C. Sec. 1324(a)(1)(D) is unconstitutional because it violates due process under two theories: (1) the words "encourage and induce" are vague and fail to give knowledge to the person of the possibility of what a crime may be and (2) this law violates free speech. We reject these contentions.

14

This court has summarily rejected arguments that 8 U.S.C. Sec. 1324 is vague on numerous occasions. See United States v. Moreno, 561 F.2d 1321, 1322 (9th Cir.1977); United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1977); United States v. Sanchez-Mata, 429 F.2d 1391, 1392 (9th Cir.1970) (citing Herrera v. United States, 208 F.2d 215 (9th Cir.1953), cert. denied, 347 U.S. 927 (1953)). Moreover, we are not persuaded by the appellants' attempt to create a free speech issue for the first time on appeal. Because the facts of this case indicate that appellants engaged in far more than speech, this issue is irrelevant and the constitutionality of the statute is upheld. See American Baptist Churches v. Meese, 712 F.Supp. 756, 764 (N.D.Cal.1989).

D. Upward Departure

15

Wagner-Kin contends that the district court erred by failing to give him a sentence reduction pursuant to Section 3E1.1 of the Sentencing Guidelines.

16

Whether or not a defendant has accepted responsibility for his crime is a factual determination and is considered under the "clearly erroneous" standard to such questions. See United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1991). Section 3E1.1 provides for a reduction in sentence if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility." for his wrongdoing. Id.

17

In the present case, Wagner-Kin testified that he knew what he was doing at the time he placed the aliens in his cabin and that it was wrong. He further testified that had he been found out by the captain, he would have gone to jail.

18

Wagner-Kin asserts that the district court erred by failing to make any findings of fact concerning his objection to the presentence report's failure to award him a two-point reduction for acceptance of responsibility. However, the record demonstrates that the district court considered the fact that the presentence report recommended against the reduction and heard argument by both parties before ruling. See United States v. Corley, 909 F.2d 359, 352 (9th Cir.1990) (a court's statement adopting the recommendation of the presentence report is a sufficient finding in refusing to award 2-point reduction). Accordingly, Wagner-Kin's contention is meritless.

19

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)

**

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