USA v. Alberto Noriega-Perez

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, KAREN NELSON MOORE and RICHARD C. TALLMAN) AFFIRMED. Judge: KNM Concurring & dissenting, Judge: RCT Authoring. FILED AND ENTERED JUDGMENT. [8052135] [8052135]--[Edited 02/01/2012 by RP]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERTO NORIEGA-PEREZ,
Defendant-Appellant.





No. 10-50501
D.C. No.
3:06-cr-02268-JM-2
OPINION

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted November 7, 2011*
Pasadena, California
Filed February 1, 2012
Before: Ferdinand F. Fernandez, Karen Nelson Moore,**
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Moore

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Karen Nelson Moore, United States Circuit Judge for
the Sixth Circuit, sitting by designation.

915

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COUNSEL
Knut S. Johnson, Esq., San Diego, California, for the
defendant-appellant.
Paul L. Starita, Assistant United States Attorney, United
States Attorney’s Office, San Diego, California, for the
plaintiff-appellee.

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OPINION
TALLMAN, Circuit Judge:
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.1 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
1

We address Noriega’s other claims, as well as his pro se submissions
to this Court, in a separate unpublished memorandum disposition filed
simultaneously with this opinion.

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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.
I
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

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(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.2
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
2

The defense argued in reply that the aluminum siding was erected during daylight hours and was not tall enough to completely block the view
onto the property. In reviewing the sufficiency of the evidence, we draw
all reasonable inferences in the light most favorable to support the jury’s
verdict. United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1201-02 (9th
Cir. 2000) (citation omitted).

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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-

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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 used to pay all
of the organization’s members for the services they provide.
Noriega was convicted on all counts and sentenced to sixty
months imprisonment on each count, to run concurrently.
II
We review de novo Noriega’s sufficiency of the evidence
claims, which he raised below, and ask whether, “viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Noriega argues
that there was insufficient evidence of (1) alienage to support
his conviction on the substantive counts naming nontestifying material witnesses, and (2) an extraterritorial connection to support his conviction of aiding and abetting bringing aliens to the United States. We address and reject each of
Noriega’s sufficiency arguments in turn.
A
On the thirty-six substantive counts, the Government had
the burden of proving that each of the material witnesses
named in the indictment was an illegal alien. 8 U.S.C.
§ 1324(a)(1)(A)(ii)-(iii), (B)(ii). There is no dispute that the
Government met this burden on the sixteen counts naming
one of the eight material witnesses who testified at trial.
Noriega challenges the sufficiency of the evidence of alienage
on the twenty counts naming a non-testifying material witness.
[1] At trial, the Government argued that, based on the testimony by eight of the material witnesses that they entered the

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United States without permission, the jury could reasonably
infer that the non-testifying material witnesses lacked permission to enter the country as well. There was nothing improper
in the jury making such an inference. We have previously
approved of inferring facts about non-testifying aliens based
on the testimony of similarly-situated aliens. In United States
v. Tsai, 282 F.3d 690 (9th Cir. 2002), the defendant was convicted on three counts of aiding and abetting bringing an illegal alien to the United States for financial gain based on
evidence that he made travel arrangements and escorted illegal aliens into the United States on three separate occasions.
Id. at 694. One of the aliens testified at trial that a family
member paid for her transport and escort by the defendant on
one of the trips. Id. at 697. In finding sufficient evidence of
pecuniary motive on all three counts, we explained that “the
fact that all three trips followed almost exactly the same pattern gives rise to an inference that” the non-testifying aliens
smuggled by the defendant into the United States on the other
two trips also paid for their transport and escort. Id. at 697.
[2] Noriega argues that the Government somehow improperly shifted the burden of proof of alienage to the defense by
relying on a similar inference in this case, instead of simply
retaining all alleged aliens so that they could testify themselves and be subject to cross-examination. We see no basis
for creating a per se rule that any time alienage is an element
of a crime, the alleged alien who was the subject of the
offense must testify. That would be akin to holding that only
direct evidence of the crime may be admitted to prove the
case. See United States v. Stauffer, 922 F.2d 508, 514 (9th
Cir. 1990) (“[C]ircumstantial evidence can be used to prove
any fact, including facts from which another fact is to be
inferred, and is not to be distinguished from testimonial evidence insofar as the jury’s fact-finding function is concerned.” (internal quotation marks and citation omitted)). In
fact, we have previously held that circumstantial evidence
may suffice. United States v. Hernandez-Orellana, 539 F.3d
994, 1002-03 (9th Cir. 2010) (finding sufficient evidence of

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alienage even though the alleged aliens did not testify). Certainly in some cases the Government may find itself without
sufficient evidence of alienage (direct or circumstantial) following the deportation of the alleged alien. If so, a wronglyconvicted defendant would have a meritorious sufficiency of
the evidence claim.
To require testimony by every alleged alien would run
afoul of the political branches’ authority to regulate immigration. See United States v. Valenzuela-Bernal, 458 U.S. 858,
864 (1982). As the Supreme Court has explained, “prompt
deportation of alien witnesses who are determined by the
Government to possess no material evidence relevant to a
criminal trial . . . satisf[ies] immigration policy” and mitigates
the “substantial financial and physical burdens upon the Government, not to mention the human cost to potential witnesses
who are incarcerated though charged with no crime.” Id. at
865. Consequently, the deportation of an alien does not violate a defendant’s constitutional rights absent a showing of
prejudice and bad faith. Id.3
[3] Seemingly underlying Noriega’s burden-shifting argument is the fact that the Government relied on the eight material witnesses’ testimony to convict him on sixteen counts
naming those witnesses, in addition to the twenty counts naming non-testifying material witnesses. But the Government’s
decision to prosecute Noriega on counts naming both testifying and non-testifying witnesses falls squarely within its prosecutorial discretion and has no impact on our decision today.4
3
We reject Noriega’s separate claim that the release of material witnesses, in and of itself, violated his constitutional rights in the unpublished
memorandum disposition issued concurrently with this opinion. See n.1
supra.
4
Ultimately, the Government’s decision to prosecute Noriega on separate substantive counts for each and every material witness did not impact
the length of Noriega’s sentence because the district court imposed the
same 60-month term of imprisonment on each count, to run concurrently
with the sixty-month conspiracy conviction.

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The jury was properly instructed that the Government had the
burden of proving the alienage of each of the material witnesses named in the indictment. There is nothing to suggest
that the jury believed that if it convicted Noriega on the
counts naming testifying material witnesses, it had no choice
but to convict on the counts naming non-testifying material
witnesses. Thus, the question before us today is whether there
was otherwise sufficient direct and circumstantial evidence of
alienage to support Noriega’s conviction on the counts naming non-testifying alleged aliens—not whether the same evidence was also used to convict him on other counts.
[4] We conclude that the evidence of alienage was sufficient. All of the material witnesses were apprehended at the
same times and in the same cramped quarters at the same
known load houses. Eight of those material witnesses testified
that they lacked permission to enter the United States. A jury
could reasonably infer that the others did as well. This is no
different than the inference we endorsed in Tsai.
[5] Moreover, there was additional circumstantial evidence
of alienage beyond the eight material witnesses’ testimony.
The material witnesses were apprehended under circumstances that strongly suggested they had recently been smuggled into the United States and awaited further transportation.
In particular, the material witnesses were found crowded
together with dozens of others in cramped quarters on the
Alamo and McCabe properties. It bears repeating that there
was substantial, uncontroverted evidence that those properties
were being used to harbor and conceal a steady stream of illegal aliens by a smuggling enterprise that moved more than
3,000 aliens a year across our border with Mexico.
These circumstances stand in stark contrast to the facts in
United States v. Camacho-Davalos, 468 F.2d 1382 (9th Cir.
1972), where we found insufficient evidence of alienage.
There, the border patrol stopped and searched a truck, which
was traveling close to a station wagon on a highway about 75

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miles north of the Mexican border. Id. at 1383. The agent who
searched the truck testified that “all of the people in the truck
were ‘Mexican appearing,’ spoke Spanish, and did not produce immigration papers on request.” Id. at 1383. In finding
that the agent’s testimony alone was not sufficient evidence
that three of the passengers in the truck were illegal aliens, we
noted that the agent’s description of the alleged aliens “fits
thousands of American citizens.” Id.
[6] The same cannot be said here. Few, if any, American
citizens or legal aliens would ever be found with dozens of
others crowded inside a dimly-lit garage or a room in a trailer
being rented by a vast trafficking enterprise to harbor
recently-smuggled illegal aliens.5 Viewed in the light most
favorable to the Government, the strong circumstantial evidence presented at Noriega’s trial sufficed for the jury to find
beyond a reasonable doubt that the non-testifying material
witnesses were illegal aliens.
B
[7] Noriega also contends that there was insufficient evidence to support his conviction of aiding and abetting “[a]ny
person who, knowing or in reckless disregard of the fact that
an alien has not received prior official authorization to come
to, enter, or reside in the United States, brings to or attempts
to bring to the United States in any manner whatsoever, such
alien,” 8 U.S.C. § 1324(a)(2). As noted above, we held in
Lopez that a “brings to” offense “ends when the person who
transports the aliens to the country terminates his act of trans5

Noreiga also relies on United States v. Ortiz-Lopez, 24 F.3d 53 (9th
Cir. 1994), where we held that no reasonable jury could find beyond a reasonable doubt that the defendant was an illegal alien based solely on a
prior deportation order, which issued under a clear and convincing standard. Id. at 56. Here, the circumstantial evidence relied on by the Government “does not implicate the burden-shifting or standards of proof
problems of Ortiz-Lopez.” United States v. Barajas-Montiel, 185 F.3d 947,
955 (9th Cir. 1999).

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portation and drops off the aliens” on the United States side
of the border. 484 F.3d at 1191. Thus, the defendant in Lopez
could not be held directly liable for a “brings to” offense
because she “encountered the aliens and provided them with
transportation only after they had been dropped off in the
United States.” Id. at 1198.
[8] But we left no doubt that a defendant could aid and
abet a “brings to” offense entirely from within the United
States:
It is clear that under certain circumstances a defendant who does not physically transport aliens across
the border may be held criminally liable for aiding
and abetting a “brings to” offense. A financier who
organizes and funds a smuggling operation, for
example, whether located in or outside of the United
States, may be said to have “associate[d] himself
with the venture, . . . participate[d] in it as in something he wishe[d] to bring about, [and sought] by his
action to make it succeed.”
Id. at 1199 (citations omitted).
Such a theory did not support the conviction in Lopez,
where the defendant was a substitute driver who was called
after the aliens were already in the United States. Id. at 120001. We explained that evidence that the defendant had twice
spoken to a person who might have been the initial guide, put
the vehicle used to transport the aliens in her name, traveled
near the border to pick up the vehicle, and could describe the
initial guide merely suggested that the defendant had prior
contact with the guide and did not rise to the level of sufficient evidence. Id. at 1200.
Since Lopez, we have explained that general participation
in smuggling activities alone is not sufficient to establish that
a defendant aided and abetted the cross-border transportation

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of a specific alien. There must be a nexus between the defendant’s smuggling activities and the cross-border transportation
of the specified alien. In Hernandez-Orellana, we found
insufficient evidence linking the aliens named in the indictment to the defendants, Maritza Drewry and Norma
Hernandez-Orellana, to support their liability for conduct that
occurred before the “brings to” offense terminated. 539 F.3d
at 1006. While the evidence
revealed that Drewry had some connection to transporting aliens as a general matter, . . . Drewry had
discussed where to bring aliens within the United
States in general terms, Drewry would take and
bring aliens to different locations as a general proposition, and Hernandez’s vehicle was used to take [the
named aliens] from some point in the United States
to [a] residence, there [was] no specific evidence
linking Drewry and Hernandez to intentionally aiding, counseling, commanding, inducing or procuring
the cross-border transportation of [the named aliens],
prior to when these aliens were dropped off in the
United States.
Id. (internal quotation marks and citation omitted). But see
United States v. Flores-Blanco, 623 F.3d 912, 920-22 (9th
Cir. 2010) (finding sufficient evidence of extraterritorial conduct where the defendant had coordinated surveillance of the
border, repositioned himself a short distance from the border
fence as the illegal alien approached, and then waved the alien
across).
[9] In United States v. Reyes-Bosque, 596 F.3d 1017 (9th
Cir. 2010), we addressed the sufficiency of the evidence of
aiding and abetting a “brings to” offense where the defendant
provided a load house and held that the evidence “sufficiently
demonstrate[d] that [the defendant] was connected to conduct
that occurred before the entry of illegal aliens to the United
States.” Id. at 1036. We explained that the “key evidence”

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was testimony by an illegal alien that the initial cross-border
guide dropped him off at an apartment furnished by the defendant for use as a load house. Id.
[10] Like the defendant in Reyes-Bosque, Noriega provided the load houses where the named material witnesses
were taken. Several of the named material witnesses testified
that they were brought directly to either the Alamo or
McCabe property by their initial cross-border guide. Noriega
was paid for use of his load houses, erected fencing to shield
the true nature of their usage from discovery, and knew he
was part of a large smuggling venture that brought an average
of 300 illegal aliens a month through his properties. This evidence is sufficient to support Noriega’s conviction on those
“brings to” counts under an aiding and abetting theory of liability.
True, at least some of the substantive “brings to” offenses
terminated before the named alien arrived at Noriega’s properties. In particular, a few of the material witnesses testified
that they were initially dropped somewhere in the United
States before being transported by someone else to the load
house. And, of course, we have no way of knowing whether
the same was true for the non-testifying material witnesses.
Nevertheless, there was sufficient evidence for the jury to reasonably conclude that by providing the load houses, Noriega
knowingly, actively, and intentionally aided this large smuggling enterprise’s cross-border transportation and safe housing
of these material witnesses as well.
A “successful” smuggling organization must have one or
more established load houses, at least in part, to avoid detection. Such an operation requires a place where large numbers
of aliens can be concealed shortly after they cross the border
in order for there to be sufficient time to ensure that all smuggling fees have been paid and to coordinate travel to the final
destination. Not just any property will suffice as a load house.
Agent Bench emphasized the importance of the geographic

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location of an ideal load house: it must be close to both the
border area and major transportation corridors. Noriega’s two
properties fit the bill.
In this way, this appeal differs from our prior cases like
Lopez and Hernandez-Orellana, which addressed intra-United
States drivers. Unlike a load house, drivers themselves are
fungible and need not be in place before an alien is smuggled
across the border. The particular driver on any leg of a trip
may change and, as in Lopez, often at the last minute. For that
reason, the mere fact that an alien is found in a car with the
defendant after the termination of the “brings to” offense is
not itself sufficient to find that the defendant aided and abetted the cross-border transportation of that alien. HernandezOrellana, 539 F.3d at 997.
The Alamo and McCabe properties were established as
load houses long before any of the material witnesses were
dropped on the United States side of the border. Special
Agent Webster testified that ICE surveillance of smuggling
activities at those properties began as early as 2003, years
prior to the raids. Noriega’s properties fit the specific parameters required of a load house. Both properties are located
within ten miles of the border and have easy access to major
highways. Both also have structures allowing for concealment
of large numbers of smuggled aliens and view-obstructed passageways for vehicles to enter and exit the property.
It is beyond dispute that Noriega knew his properties were
being used as load houses. More than that, Noriega was intimately aware of the inner-workings of the alien smuggling
business and, as such, a jury could reasonably infer that he
would have understood the importance to a smuggling organization of establishing and maintaining an effective load
house. Indeed, Noriega took the additional step of erecting
siding on the fence surrounding the Alamo property, which
provided greater concealment of the illegal activities occurring behind it.

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We also note that there is a clear nexus between Noriega’s
involvement in general smuggling activities and the “brings
to” offenses. Namely, each of the material witnesses was
apprehended at one of Noriega’s properties. Noriega’s provision of load houses to the smuggling organization is thus
directly linked to the cross-border transportation of the particular aliens named in the indictment and was an integral part
of the organization’s illegal scheme.
The dissent expresses concern that under our holding today,
a load house owner could be guilty of aiding and abetting the
cross-border transportation of any alien brought to his property, regardless of the passage of time and involvement of
numerous load houses and transporters following the termination of the actual “brings to” offense. But the record in this
case supports the jury’s rejection of the dissent’s speculation
regarding the events leading up to the apprehension of the
material witnesses. Agent Bench testified that after being
smuggled across the border, aliens are brought to a nearby
load house, either by the initial transporter or a second transporter. The eight material witnesses’ trial testimony was in
accord. Some were brought directly to one of Noriega’s properties by the initial cross-border transporter. The remaining
were picked up in a car by a second transporter and driven to
one of Noriega’s properties. None of the material witnesses
spent any time at any other property. The evidence sufficed
for the jury to find that all of the aliens apprehended at Noriega’s properties were brought there directly or shortly after
crossing the border as part of the smuggling plan.
Based on his incriminating admissions captured on tape
recordings, and his erection of the fencing on his property, a
reasonable jury could find Noriega was no innocent landlord.
Of course, we in no way foreclose the possibility that under
different facts, a defendant’s load house would be too far
attenuated from the initial border crossing to support aiding
and abetting liability.

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[11] In sum, the jury could reasonably find that Noriega
rented the Alamo and McCabe properties well knowing they
would be used as load houses long before the named material
witnesses were brought across the border. Noriega provided
an essential component of the alien smuggling operation and,
in so doing, knowingly and intentionally aided in bringing
about the smuggling of the named material witnesses into the
United States. Accordingly, a reasonable jury could find sufficient “specific evidence” linking Noriega to “intentionally
aiding . . . the cross-border transportation” of the named material witnesses prior to when they were dropped off in the
United States. See Hernandez-Orellana, 539 F.3d at 1006.
AFFIRMED.

MOORE, Circuit Judge, concurring in part and dissenting in
part:
I concur with the majority’s holding in Part II.A on the
issue of alienage. I also concur with the Memorandum Disposition. I dissent from Part II.B because I do not agree that
Noriega-Perez’s convictions for aiding and abetting a “brings
to” offense should stand where the evidence clearly demonstrates that the cross-border transportation of a specific material witness terminated before any connection between
Noriega-Perez and that alien occurred.
Noriega-Perez was charged with eighteen counts of aiding
and abetting “brings to”1 offenses under 8 U.S.C.
1
This Circuit uses the phrase “brings to” and “bringing to” interchangeably to describe violations of § 1324(a)(2). United States v. Lopez, 484
F.3d 1186, 1188 n.1 (9th Cir. 2007) (en banc). Four types of conduct are
prohibited in 8 U.S.C. § 1324: “(1) bringing an alien to the United States;
(2) transporting or moving an illegal alien within the United States; (3)
harboring or concealing an illegal alien within the United States; and (4)
encouraging or inducing an illegal alien to enter the United States.” Id. at
1190-91.

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§ 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. A different alien was
named as the material witness in each count. To be guilty of
aiding and abetting a “brings to” offense, the defendant must
provide some assistance to the transporters of a named alien
before the termination of the underlying offense. Otherwise,
the requisite extraterritorial nexus is lacking. A “brings to”
offense does not terminate upon the alien crossing the border
into the United States, however, even though that is the point
at which all of the statutory elements are satisfied. United
States v. Lopez, 484 F.3d 1186, 1192 (9th Cir. 2007) (en
banc). Termination of a “brings to” offense occurs when “the
initial transporter drops the aliens off at a location in the
United States.” Id. at 1194 (emphasis added). A person whose
activities are entirely domestic may be guilty of aiding and
abetting a “brings to” offense if he induces or commands the
principal to bring the alien across the border, id. at 11991200, or if he provides any assistance to the principal regarding the transportation of the alien before the offense terminates, United States v. Reyes-Bosque, 596 F.3d 1017, 1036
(9th Cir. 2010) (holding operator of load house aided and
abetted an alien’s crossing because the “bringing to” offense
did not terminate until the alien arrived at his building), cert.
denied, 131 S. Ct. 898 (2011).
This Circuit on numerous occasions has rejected the use of
general participation in smuggling activities alone to establish
that a defendant aided and abetted the cross-border transportation of a specific alien. In United States v. Singh, the court
began its analysis by noting that the strong evidence of the
defendant’s general involvement in smuggling and his
engagement in general preparatory work was insufficient on
its own to establish aiding and abetting a “brings to” offense
for a specific alien. 532 F.3d 1053, 1058-60 (9th Cir. 2008).
However, upon the showing of a nexus between the defendant’s general preparatory work and the “bringing to” of the
alien—in Singh’s case a telephone conversation in close proximity to the alien’s arrival, during which the defendant agreed
to drop the alien off somewhere else in the United States and

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to return the passport for a fee—the evidence became sufficient to establish that the defendant’s aid in the alien’s crossing came before the “brings to” violation terminated, even
though the defendant did not physically pick up the alien until
after the border crossing was complete. Id. at 1060-61.
In United States v. Hernandez-Orellana, the government
again had indisputable evidence that the co-defendants participated in the general smuggling of illegal aliens. 539 F.3d
994, 1005-06 (9th Cir. 2008). One of the defendants was
found with a ledger keeping track of the many aliens whom
she had helped cross the border, the dates of their crossings,
and the rates for crossings, and someone had overheard the
defendants discussing the potential smuggling of other
unnamed aliens. The defendants were arrested together when
they were found leaving a load house in the United States
with two illegal aliens in the car. Id. at 997. Both defendants
were charged with, among other counts, aiding and abetting
the “bringing to” of those two specific aliens—Garcia and
Reyes. This court held that the overwhelming general evidence of cross-border smuggling was insufficient to support
the conviction of aiding and abetting the “bringing to” of
those two aliens, because the defendants’ sole connection to
Garcia and Reyes was that they were in the car when the
defendants were stopped and detained:
Problematically for the government here, however,
counts two and three specifically identify the aliens
who were allegedly “brought to” the United States.
The evidence presented to the jury stops short of
linking those aliens to [the defendants] that would
support their liability for conduct that occurred
before the bringing to offense terminated. Significantly, the ledger and the journal make no reference
to [the named] aliens Garcia or Reyes at all.
Id. at 1005. Because the government failed to provide “specific evidence linking [the defendants] to intentionally aiding,

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counseling, commanding, inducing or procuring the crossborder transportation of Reyes and Garcia, prior to when
these aliens were dropped off in the United States,” the evidence was insufficient to support a conviction for aiding and
abetting the offense of bringing those aliens to the United
States. Id. at 1006 (internal quotation marks and alterations
omitted) (emphasis added).
Noriega-Perez was similarly charged with aiding and abetting the cross-border transportation of eighteen specific,
named aliens. Of the eight material witnesses to testify, some
stated that upon crossing the border they were first unloaded
at one of Noriega-Perez’s properties. For these aliens, I agree
with the majority that the evidence was sufficient to establish
that Noriega-Perez aided and abetted their “bringing to” the
United States, because his assistance came before the “bringing to” offense had terminated. See Reyes-Bosque, 596 F.3d
at 1036. Other material witnesses, however, testified that they
spent various periods of time at other properties before someone else transported them to Noriega-Perez’s property. The
majority concedes that these aliens were brought to NoriegaPerez’s property after the “brings to” offense had unquestionably terminated, but nonetheless the majority concludes that
the evidence sufficiently linked Noriega-Perez to their crossborder transportation before termination. The majority does
not dispute that there must be sufficient evidence linking
Noriega-Perez to the cross-border transportation of each of
the named material witnesses before the offense terminated,
but, despite this acknowledgment, the majority relies solely
on Noriega-Perez’s general participation in the smuggling
ring and the fact that the aliens were arrested on NoriegaPerez’s property to hold that the evidence was sufficient for
those witnesses whose border crossings indisputably terminated before they arrived at his house. I cannot agree.
As was true for the defendants in Hernandez-Orellana,
Singh, and Reyes-Bosque, Noriega-Perez was undeniably
involved in general smuggling activities before the cross-

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border transportation of each material witnesses occurred. As
the majority correctly notes, Noriega-Perez’s load houses
were part of a large smuggling organization bringing illegal
aliens to the United States. He understood that his houses
were an integral part of this organization, and he knew that
the houses were harboring illegal aliens.2 None of the evidence cited by the majority, however, makes any reference to
any of the specific material witnesses whose crossings
Noriega-Perez was charged with assisting until after they
were brought to the United States. For those who arrived at
Noriega-Perez’s load house after their initial transportation to
the United States terminated, this deficiency is fatal, as it was
in Hernandez-Orellana. The majority relies heavily on the
fact that this was a load house and not a form of transportation
to distinguish it somehow from Hernandez-Orellana and
Lopez. I have found no support for this distinction. As was the
case in Reyes-Bosque, even operators of load houses must
have some pre-termination nexus to be guilty of aiding and
abetting the cross-border transportation of an alien. 596 F.3d
at 1036.3 I do not agree that post-termination presence on
Noriega-Perez’s property satisfies that requirement.
2

For this reason and the reasons set forth in the Memorandum Disposition, Noriega-Perez’s challenge to the count for conspiracy to bring aliens
to the United States also fails, as the conspiracy count does not name or
otherwise rely on the “bringing to” of any specific aliens. See also
Hernandez-Orellana, 539 F.3d at 1008-09 (affirming conspiracy conviction for bringing aliens to the United States despite reversing convictions
for two of the underlying substantive offenses).
3
The Reyes-Bosque opinion is unusual in that it addresses the sufficiency of the evidence argument with respect to only one of the four
counts for aiding and abetting a “brings to” offense, perhaps because the
government focused its argument on that one alien in its brief on appeal.
I do not view the court’s lack of discussion of the other three aliens in
Reyes-Bosque as creating a holding that we must impute an extraterritorial
nexus to all material witnesses upon a showing that the nexus existed for
one material witness, as that issue was not clearly before the court. Nor
does the majority urge that approach today. I agree with the majority that
the key evidence in Reyes-Bosque to support the defendant’s conviction
for aiding and abetting a “brings to” offense was the testimony of the alien
that his initial transporter dropped him off at the defendant’s load house
such that the offense had not yet terminated. See Reyes-Bosque, 596 F.3d
at 1036.

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The limitations set forth in current precedent are not without good reason. Under the majority’s view, a load house
owner is guilty of aiding and abetting the cross-border transportation of any illegal alien found on his property at any
point, so long as he knew and understood the purpose of his
house was to hold illegal aliens on behalf of the organization.
If that same organization brings an alien to Texas, keeps him
there for thirty days on someone else’s property, and then
decides to have yet another person bring him to NoriegaPerez’s property in California, Noriega-Perez would be guilty,
under the majority’s view, of aiding and abetting the crossborder transportation of that alien. The alien could be brought
to ten different properties in the United States, using ten different drivers, and so long as he eventually ends up at
Noriega-Perez’s load house, Noriega-Perez has aided and
abetted, under the majority’s theory, the cross-border transportation of that alien. This sweeping approach is not consistent with Congress’s clear intent to create separate crimes for
bringing an alien to the United States and for harboring an
alien in the United States. See 8 U.S.C. § 1324 (a)(1)(A)(iii)
(separately criminalizing harboring or concealing an illegal
alien within the United States); Lopez, 484 F.3d at 1196
(emphasizing “clear statutory distinction” between each of the
§ 1324 crimes). Hernandez-Orellana wisely distinguished the
act of aiding and abetting an alien’s cross-border transportation from situations factually insufficient for the application
of this statute, and I see no reason to depart from that welldrawn line today.
I would therefore affirm Noriega-Perez’s convictions for
aiding and abetting the cross-border transportation of any of
the material witnesses who were initially dropped at one of
his load houses and reverse his convictions for aiding and
abetting the cross-border transportation of those aliens whose
cross border transportation terminated before reaching

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Noriega-Perez’s property.4

4

For the ten material witnesses who did not testify, I would deem the
evidence insufficient to establish the requisite nexus. In reviewing a jury
verdict, we must give the government the benefit of all reasonable inferences that can be drawn from the evidence and resolve all conflicts in the
government’s favor. United States v. Nevils, 598 F.3d 1158, 1163-64 (9th
Cir. 2010) (en banc). However, the evidence remains insufficient where
there is a “total failure of proof.” Id. at 1167 (quoting Briceno v. Scribner,
555 F.3d 1069, 1079 (9th Cir. 2009)) (alteration in original). An inference
on the issue of alienage was reasonable because the non-testifying witnesses were all apprehended under similar circumstances as those who testified, who in turn were all in the United States without permission.
However, there was no evidence presented to support an inference that the
non-testifying material witnesses were transported in the same manner as
certain of the testifying witnesses but not the others. Because such an
inference would not be reasonable on the evidence, I would reverse
Noriega-Perez’s convictions for those counts involving the non-testifying
witnesses as well.