Argued and Submitted February 2, 2015 San Francisco, California
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:10-cr-00754-CKJ-JR-13. Cindy K. Jorgenson, District Judge, Presiding.
The panel affirmed a conviction for conspiring to smuggle undocumented immigrants into the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I).
The panel held that, in light of United States v. Vera, 770 F.3d 1232 (9th Cir. 2014), the district court committed plain error by not instructing the jury on how to properly evaluate the testimony of ICE Agent Frazier, whom the government used as both an expert and lay witness. The panel found that the error was not prejudicial because the government bifurcated Frazier's expert and lay opinion testimony, there was an adequate foundation for his observations, and sufficient evidence independent of his testimony linked the defendant to the conspiracy.
The panel held that the district court did not abuse its discretion in admitting ICE Agent Burrola's expert testimony about alien smuggling organizations. The panel held that the testimony helped the jury understand the defendant's role in the alien smuggling scheme, and that the testimony was not unduly prejudicial.
The panel held that a rational juror could find beyond a reasonable doubt that the defendant joined the conspiracy with the intent to further it.
The panel rejected the defendant's arguments that I-213 immigration forms, which the government introduced to show that many of the passengers detained during the investigation were in fact deported, contained inadmissible hearsay and that their introduction violated the Confrontation Clause. The panel held that the redacted forms were admissible under Fed.R.Evid. 803(8) as ministerial records, kept in the regular course of Department of Homeland Security business, and not implicating the purposes animating the law enforcement exception to admissibility. The panel held that admission of the forms did not violate the defendant's confrontation rights because nothing in them suggests they were completed in anticipation of litigation, and they are not testimonial.
Saji Vettiyil, Vettiyil & Associates, Nogales, Arizona, for Defendant-Appellant.
John S. Leonardo, United States Attorney, Robert L. Miskell, Appellate Chief, Bruce M. Ferg (argued), Assistant United States Attorney, United States Attorney's Office, Tucson, Arizona, for Plaintiff-Appellee.
Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Stephen Joseph Murphy III, District Judge.[*]
Stephen Joseph Murphy III, District Judge.
A jury convicted Miguel Torralba-Mendia of conspiring to smuggle undocumented immigrants into the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). Torralba appeals his conviction, contending there was insufficient evidence connecting him to the conspiracy. In addition, he argues the district court incorrectly allowed an expert witness to testify about common practices of alien smuggling organizations. He contends the district court erred in allowing the case agent to offer both lay and expert testimony without giving a curative instruction. And he argues the district court incorrectly admitted redacted I-213 immigration
forms. We have jurisdiction under 28 U.S.C. § 1291, find no prejudicial error, and affirm.
Between 2007 and 2010, Immigration and Customs Enforcement (" ICE" ) agents investigated a human smuggling operation near Nogales, Arizona. The investigation revealed that members of the smuggling organization would meet migrants on the Mexican side of the border. Escorts would guide the migrants through the ravines and creek-beds that lie adjacent to Nogales. Once inside the United States, a van or sedan would meet the migrants in the desert and drive them to Geuro Shuttle (" GS" ), a company operating out of Tucson. From there, shuttles would drive the migrants to safe houses where they were confined until family members paid for their release.
During the investigation, agents observed Torralba at GS between twenty and twenty-five times. Through intercepted phone calls, agents overheard Torralba coordinate the pick up of migrants and organize their drive north. Agents listened as a person at GS told Torralba to charge $2100 to drive two people to Tucson. And agents observed Torralba pick up and deliver suspected illegal immigrants to locations in Phoenix.
On one occasion, Torralba picked up several people from GS. Before starting the drive to Phoenix, Torralba did a " heat run" through a local neighborhood: He rapidly accelerated and decelerated, to check if police were following him. He then parked outside a carwash for ten minutes, watching the road. On another occasion, he drove past an unmarked police car with tinted windows parked across from GS. Torralba stopped his car next to the vehicle and tried to look in. He then called GS and told them about the car. Torralba also called GS to tell them that " [t]hey just opened up over here, straight ahead." GS then notified other shuttle drivers that ICE was not operating its checkpoint along the route from Nogales to Tucson.
At trial, the government called Agent Burrola as an expert witness. Burrola has more than a decade of law enforcement experience along the border, including three years undercover smuggling undocumented immigrants from Nogales to stash houses in Tucson and Phoenix. He testified about the standard practices of alien smuggling organizations, including how they escorted people over the border, circumvented ICE checkpoints, and utilized safe houses. He explained how to identify ...