United States v. Lopez

590 F.3d 1238, 2009 WL 4912117
Court of Appeals for the Eleventh Circuit·Decided December 22, 2009·No. 08-13605·Published·Cited by 181 cases

Opinions

HULL, Circuit Judge:

Jose Lopez appeals his convictions for (1) conspiring to encourage or induce an alien to enter the United States, in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(D (Count 1), (2) encouraging or inducing 17 aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(l)(A)(iv) (Counts 2-18), and (3) and knowingly aiding or assisting an alien, who was inadmissible under 8 U.S.C. § 1182(a)(2) due to a prior aggravated felony conviction, to enter the United States, in violation of 8 U.S.C. § 1327 (Count 19). After careful review and oral argument, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lopez was indicted with two other codefendants, Jorge Carnet-Castro (“CarnetCastro”) and Carlos Monge (“Monge”), on a 19-count indictment alleging the three defendants conspired to encourage or induce 17 aliens to unlawfully enter the United States. The U.S. Coast Guard (“USCG”) intercepted the defendants while they were traveling by a boat, driven by Lopez, from the Bahamas heading westward towards Miami. A search of the vessel revealed 17 aliens in the boat’s forward cabin.

Lopez initially pleaded not guilty. Lopez later attempted to change his plea to guilty. During the plea colloquy, Lopez stated to the district court that when he went to the Bahamas by boat with the other two codefendants he was unaware that the purpose of their trip was to smuggle aliens to the United States, but that he became aware during the voyage that the aliens onboard were illegal. Based upon these statements, the district court refused to accept Lopez’s guilty plea.1

The case proceeded to trial, at which the following evidence was produced.

A The Government’s Evidence

The government presented the testimony of USCG Bosun’s Mate First Class Matthew Parker, who captained the USCG vessel that stopped the boat Lopez was driving approximately a mile from Baker’s Haulover Inlet, Miami. Officer Parker saw Lopez driving the boat, with approximately 8-10 people on the boat’s deck. Upon being questioned in Spanish by another USCG officer, Lopez identified the others on deck as his friends from Miami and that they had returned from a fishing trip. USCG officers asked Lopez and the others to produce identification. Lopez and his codefendants Carnet-Castro and Monge produced identification, but Lopez stated that the other passengers had left their identifications at the boat ramp. Officer Parker boarded the vessel Lopez was [1244]*1244driving and, while conducting a safety inspection, discovered approximately 10-12 people in the boat’s forward cabin. Upon being asked who those individuals were, Lopez initially stated the only people on the boat were the people on the boat’s main deck.

The government also presented the testimony of USCG officer Jonathan LaSalle, who was also on board the USCG vessel that stopped the boat Lopez was piloting. Officer LaSalle testified consistent with Parker. Officer LaSalle also stated he was told by Carnet-Castro that Lopez and his codefendants had picked the aliens up from a vessel in the ocean.

Special Agent Eric Moreno, of U.S. Immigrations and Customs Enforcement, testified that he questioned Lopez upon arriving at the scene. Lopez stated to Agent Moreno that he was driving the boat, which he did not own, from the Lucaya Freeport area in the Bahamas. Lopez stated they had gone to the Bahamas to test the boat. Lopez stated he was taking the aliens on board the boat to a marina in Miami, where two waiting vans were going to pick up the aliens, in exchange for which he would receive a gift. In an interview conducted the following day, Lopez told Moreno that he and the two other codefendants had met with a Bahamian while in the Bahamas, who directed them to an abandoned hotel to pick up the aliens. Moreno also testified that his investigation of the seventeen aliens on board the boat revealed that none of them had legal status to enter the United States and one, Pedro Valdez-Alvarado, had previously been deported for a felony drug conviction.

The government also presented the testimony of codefendant Carnet-Castro, who had pled guilty and agreed to cooperate with the government. Carnet-Castro testified that he met Lopez in connection with a business deal Lopez had made to smuggle aliens to the United States from Cuba. Carnet-Castro testified that he had made one previous alien-smuggling trip with Lopez from the Freeport area of the Bahamas, in October 2007. Carnet Castro testified Lopez earned $20,000 for his participation in this previous smuggling trip.

Codefendant CarneNCastro also testified about the events that culminated in Lopez’s arrest. Carnet-Castro, Lopez, and Monge, Carnet-Castro’s nephew, left Miami in the morning. Lopez piloted the boat to the Bahamas, where the three defendants stayed in a hotel for the night. CarneNCastro testified that they called their contact in the Bahamas, who advised them to pick up the aliens at an abandoned hotel in Port Lucaya. Carnet-Castro testified that he and Lopez were to split the proceeds of the trip — -about $4,000 per person smuggled — after deducting expenses. Lopez drove the boat back from the Bahamas towards Miami, with the exception of about fifteen minutes. Carnet^Castro explained that when they were stopped by the USCG, he initially lied and said that the aliens were not illegal, when he knew they were, but that he later told the truth after being arrested. On cross-examination, CarneNCastro testified that Lopez knew why they were going to the Bahamas.

The parties stipulated that the 17 aliens on board the boat Lopez was driving could not legally enter the United States, after which the government closed its case. Lopez moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29, which the district court denied.

B. Lopez’s Testimony

Lopez testified in his defense. Lopez testified that his brother-in-law introduced [1245]*1245him to codefendant Carnet-Castro as a fellow former inmate. Lopez stated that the day before his arrest he had taken his brother-in-law to a clinic in Miami. While there, Lopez spoke with Carnet-Castro, who asked him to help him test a friend’s boat Carnet-Castro was repairing, because Lopez was an experienced boater. Lopez agreed. Mechanics who had fixed the boat’s engine suggested that Carnet-Castro test the boat thoroughly. Lopez, Car-net-Castro, and Monge, Carnet-Castro’s nephew, left the marina to test the boat in a bay. After testing the boat in the bay, the men returned to the marina, purchased fuel and water, and Carnet-Castro suggested going out to the open ocean where there were waves. Once off the Florida coast, codefendant Carnet-Castro suggested that they continue to the Bahamas so that codefendant Monge could see the islands. Lopez agreed, stating they would have to be quick so that he could retrieve his brother-in-law from the clinic. They left at approximately 12:30 to 1:00 in the afternoon, arriving in the Bahamas around 3:00 p.m.

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United States v. Lopez, 590 F.3d 1238, 2009 WL 4912117 (11th Cir. 2009).

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