USA v. Jorge Thum

Filing

FILED OPINION (SIDNEY R. THOMAS, MILAN D. SMITH, JR. and MORGAN B. CHRISTEN) VACATED; REMANDED. Judge: MDS Authoring, . FILED AND ENTERED JUDGMENT. [9072111]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 13-50176

v.

D.C. No.
3:08-cr-00840-DMS-2

JORGE HUMBERTO THUM,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
April 7, 2014—Pasadena, California
Filed April 25, 2014
Before: Sidney R. Thomas, Milan D. Smith, Jr.,
and Morgan Christen, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.

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SUMMARY*

Criminal Law
Vacating the district court’s judgment revoking
supervised release, the panel held that the defendant did not
encourage or induce an illegal alien to reside in the United
States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), nor aid
and abet the commission of that crime in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(II), merely by escorting an alien from a
fast food restaurant near the border to a nearby vehicle.
The panel remanded with instructions to dismiss the
petition.

COUNSEL
Devin Burstein (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.
Ryan A. Sausedo (argued) and Bruce R. Castetter, Assistant
United States Attorneys, San Diego, California, for PlaintiffAppellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
M. SMITH, Circuit Judge:
In this appeal, we consider whether Jorge Humberto
Thum encouraged or induced an illegal alien to reside in the
United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), or
aided and abetted the commission of this crime, in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(II), merely by escorting that
alien from a fast food restaurant near the border to a nearby
vehicle. We conclude that he did not. Accordingly, we
vacate the district court’s judgment revoking Thum’s
supervised release, and we remand with instructions to
dismiss the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Thum is a United States citizen with a history of
convictions for smuggling illegal aliens. In 2008, the district
court sentenced Thum to 33 months of incarceration and two
years of supervised release after he pleaded guilty to
transporting an illegal alien, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), and aiding and abetting, in violation of
§ 1324(a)(1)(A)(v)(II). On September 30, 2011, the district
court imposed an additional two-year term of supervised
release after Thum admitted to failing to maintain contact
with his probation officer.
On November 19, 2012, federal agents arrested Thum
near the San Ysidro Port of Entry in Southern California. On
November 30, 2012, a probation officer in the Southern
District of California filed a petition alleging that Thum
violated 8 U.S.C. § 1324(a)(1)(A)(iv), and therefore violated
the terms of his supervised release by committing another

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federal crime. Thum denied the allegation, and the district
court held an evidentiary hearing on April 10, 2013.
At the evidentiary hearing, Special Agent Prescilla
Gonzalez of the Department of Homeland Security testified
that, on November 19, 2012, federal agents followed a man
named Aldo Varguez-Rodriguez from the San Ysidro Port of
Entry to a Jack in the Box fast food restaurant near the
border. The agents decided to follow Varguez-Rodriguez
because they suspected that he had presented a false
identification card to the primary inspection officer at the
border, and that he lacked permission to enter the United
States.
Agent Gonzalez testified that, upon entering the Jack in
the Box restaurant, Varguez-Rodriguez sat alone at a table for
a few minutes. Shortly thereafter, Thum joined him, and the
two men conversed briefly.1 Next, Thum and VarguezRodriguez left the restaurant together and crossed the street
to a “transportation van area” where vans waited to take
passengers to Los Angeles. Thum then spoke with a ticket
salesperson. Immediately thereafter, Thum and VarguezRodriguez were arrested when they attempted to enter one of
the vans.
After arresting Thum, the agents brought him to the Port
of Entry and questioned him. Thum told the agents that an
acquaintance of his named Chapalin was an alien smuggler.

1
At the hearing, Agent Gonzalez testified about the contents of
Varguez-Rodriguez and Thum’s conversation based on VarguezRodriguez’s post-arrest statements. The district court sustained Thum’s
objection to this testimony on hearsay grounds, and neither party relies on
it.

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Chapalin had spoken with Thum earlier that day and told
Thum that he planned to transport two illegal aliens from the
border to Northern California. Chapalin offered to transport
Thum to Carlsbad, California if Thum agreed to escort an
illegal alien—Varguez-Rodriguez—from the Jack in the Box
restaurant to a nearby vehicle. Agent Gonzalez further
testified that agents later confirmed that Varguez-Rodriguez
was an illegal alien.
The government also called Probation Officer Edward
Nover II, who testified that, in his opinion, Thum had
violated the conditions of his supervised release. No other
evidence was taken. Based on the testimony at the
evidentiary hearing, the district court sustained the
government’s allegation, revoked Thum’s supervised release,
sentenced him to time served, and imposed an additional twoyear term of supervised release. In so doing, the district court
concluded that Agent Gonzalez’s testimony showed that
Thum had committed the crime of “encouraging or inducing
[an illegal alien] to reside in the United States,” in violation
of 8 U.S.C. § 1324(a)(1)(A)(iv), because “[o]ne can more
readily reside in the United States if he is . . . taken away
from the Port of Entry and away from ICE agents and others.”
Thum timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. United
States v. Rojas-Pedroza, 716 F.3d 1253, 1260 (9th Cir. 2013).
We review a district court’s revocation of a term of
supervised release for an abuse of discretion. United States
v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003). In
evaluating the sufficiency of the evidence supporting a
supervised release revocation, “we ask whether, ‘viewing the

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evidence in the light most favorable to the government, any
rational trier of fact could have found the essential elements
of a violation’ by ‘a preponderance of the evidence.’” United
States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (quoting
United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir.
2007)).
DISCUSSION
Thum argues that the evidence before the district court
was insufficient to establish that he encouraged or induced an
illegal alien (i.e., Varguez-Rodriguez) to reside in the United
States. Thum further contends that the evidence was
insufficient to prove that he aided or abetted Chapalin in
encouraging or inducing an illegal alien to reside in this
country. We address these arguments in turn.
I. Encourages or Induces
Thum first argues that the evidence was insufficient to
prove that he encouraged or induced Varguez-Rodriguez to
reside in the United States, in violation 8 U.S.C.
§ 1324(a)(1)(A)(iv). His argument focuses chiefly on the
statutory text. Under § 1324(a)(1)(A)(iv), it is a federal crime
to “encourage[] or induce[] an alien to come to, enter, or
reside in the United States, knowing or in reckless disregard
of the fact that such coming to, entry, or residence is or will
be in violation of law.” As we have previously explained,
8 U.S.C. § 1324 codifies “several discrete immigration
offenses, including: (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 [or reside in] the United States.” United States

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v. Lopez, 484 F.3d 1186, 1190–91 (9th Cir. 2007) (en banc).
Thum argues that the evidence here—i.e., that he escorted an
illegal alien from a restaurant to a van, knowing that the alien
would be transported to Northern California—shows, at most,
that he aided in the attempted transportation of the alien,
which would be covered under 8 U.S.C. § 1324(a)(1)(A)(ii).2
Thum asserts, however, that there is no evidence suggesting
that he did anything to encourage or induce the alien to reside
in this country. And he maintains that encouraging or
inducing an illegal alien to reside in the United States must
mean something other than aiding in the transportation of an
illegal alien within this country.
Even viewing the evidence in the light most favorable to
the government, see King, 608 F.3d at 1129, Thum’s
argument is persuasive. In Lopez, we explained that each of
the immigration offenses codified in 8 U.S.C. § 1324 is
“discrete,” and that Congress intended each to “cover
different groups of wrongdoers.” Lopez, 484 F.3d at 1190,
1197. As such, we rejected an interpretation of the statute
that would elide the distinction between bringing an illegal
alien into the United States, in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii), and transporting an illegal alien within
the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
Lopez, 484 F.3d at 1197. Similarly here, under the
government’s and the district court’s interpretation of the
statute, a defendant who transported an illegal alien within the
2

8 U.S.C. § 1324(a)(1)(A)(ii) criminalizes “knowing or in reckless
disregard of the fact that an alien has come to, entered, or remains in the
United States in violation of law, transport[ing], or mov[ing] or
attempt[ing] to transport or move such alien within the United States by
means of transportation or otherwise, in furtherance of such violation of
law.” Thum does not concede that the evidence was sufficient to show
that he committed any crime.

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United States would also have encouraged that alien to reside
in the United States. This reading of the statute is foreclosed
by Lopez, as it would render the statutory ban on transporting
illegal aliens within the United States a mere subset of the
prohibition on encouraging such aliens to reside in this
country.
The government counters that its broad reading of
“encourages or induces” to “reside” is compelled by the plain
language of the statute, and that Thum encouraged VarguezRodriguez to remain in this country by assisting in his
attempt to travel north. This argument is unpersuasive. At
the outset, we agree with the government, and the Seventh
Circuit, that “to encourage” means “to inspire with courage,
spirit, or hope . . . to spur on . . . to give help or patronage to.”
United States v. He, 245 F.3d 954, 960 (7th Cir. 2001)
(quoting Merriam Webster’s Collegiate Dictionary 381 (10th
ed. 1996)).
Indeed, we have previously equated
“encouraged” with “helped.” United States v. Yoshida,
303 F.3d 1145, 1150 (9th Cir. 2002).
But the government’s argument that Thum encouraged
Varguez-Rodriguez to reside in the United States merely by
escorting him to a van that Thum knew was traveling north
clashes with the statutory text. It is axiomatic that “a statute
should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous,
void or insignificant.” Corley v. United States, 556 U.S. 303,
314 (2009) (internal quotation marks and alterations omitted);
see also United States v. Lin, 738 F.3d 1082, 1084 (9th Cir.
2013) (rejecting an interpretation of one statutory provision
that “would leave no work to be done by” another). And
here, reading “encourages” under § 1324(a)(1)(A)(iv) as
broadly as the government seeks “would leave no work to be

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done by” the separate ban on transporting an illegal alien
within the United States under § 1324(a)(1)(A)(ii). Lin,
738 F.3d at 1084. We therefore reject the government’s
reading of § 1324(a)(1)(A)(iv).3
Our decision in Yoshida, on which the government relies,
does not compel a contrary conclusion. In that case, the
defendant escorted three aliens onto an airplane and
accompanied them from Japan to the United States. Yoshida,
303 F.3d at 1148. We affirmed the defendant’s conviction for
both encouraging or inducing the aliens to enter the United
States, under§ 1324(a)(1)(A)(iv), and bringing those aliens to
the United States, under § 1324(a)(2)(B)(ii). Id. at 1149. The
government correctly observes that, under Yoshida, the same
criminal conduct may violate more than one provision of
§ 1324 at the same time. Accordingly, if Thum had both
assisted in the transportation of an illegal alien within the
United States and taken steps to encourage that alien to reside
here, Yoshida would permit the revocation of his supervised
release under both the “encourages or induces” and the

3

The government argues that Lopez should not apply here because “an
encouraging offense and a transportation offense both carry the same
maximum penalties and no mandatory minimum penalty,” and therefore
“[n]othing would be gained” by interpreting § 1324 “to eliminate any
potential overlap between the two offenses.” But, regardless of such
practical concerns, we must construe § 1324 in a manner that gives
independent effect to each of its provisions. Corley, 556 U.S. at 314.
Further, before a district court may revoke a probationer’s supervised
release, due process requires that the probationer “receive notice of the
specific statute he is charged with violating.” United States v. Havier, 155
F.3d 1090, 1093 (9th Cir. 1998). Here, the government proceeded against
Thum under 8 U.S.C. § 1324(a)(1)(A)(iv), and not under
§ 1324(a)(1)(A)(ii). The mere fact that the two distinct crimes may carry
the same maximum punishment does not excuse the government’s failure
to charge Thum under the proper statutory provision.

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“transports within” provisions of § 1324. But, as discussed
above, Thum took no steps to encourage an illegal alien to
reside in this country, and nothing in Yoshida supports the
proposition that the “encourages or induces” provision is
violated whenever a defendant engages in conduct that may
violate the “transports within” provision. Yoshida is therefore
inapposite.
Rather, as Thum argues, the out-of-circuit decisions in
United States v. Ndiaye, 434 F.3d 1270, 1298 (11th Cir.
2006), and United States v. Oloyede, 982 F.2d 133, 135–37
(4th Cir. 1993) (per curiam), provide more useful guidance
here. In Ndiaye, the Eleventh Circuit concluded that a
defendant who enabled an illegal alien to work in the United
States without fear of detection by supplying the alien with a
Social Security number to which he was not entitled was
properly convicted of encouraging the alien to reside here.
Ndiaye, 434 F.3d at 1298. Similarly, in Oloyede, the Fourth
Circuit concluded that the defendant encouraged illegal aliens
to reside in the United States by providing them with false
documents for citizenship applications. Oloyede, 982 F.2d at
137. As these cases demonstrate, a defendant “encourages”
an illegal alien to “reside” in the United States when the
defendant takes some action “to convince the illegal alien to
. . . stay in this country,” id., or to facilitate the alien’s ability
to live in this country indefinitely, see Ndiaye, 434 F.3d at
1298.
In this case, by contrast, the government proffered no
evidence showing that Thum did anything to persuade, or
even assist, an illegal alien to reside here. Rather, the
evidence viewed in the light most favorable to the
government merely shows that Thum attempted to help an
illegal alien travel within the United States. As discussed

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above, if merely facilitating the transportation of an illegal
alien within this country sufficed to show “encouragement,”
then the separate statutory prohibition on “transportation”
would be superfluous. As such, the evidence was insufficient
to support the district court’s conclusion that Thum violated
his supervised release by encouraging an illegal alien to
reside in the Untied States.
II. Aiding and Abetting
Just as the evidence was insufficient to find that Thum
encouraged an illegal alien to reside in the United States,
there was insufficient evidence to show that Thum aided and
abetted the commission of this crime. In revoking Thum’s
supervised release, the district court concluded that Thum
“was aiding and abetting Chapalin in [Varguez-Rodriguez]
residing in the United States.” The government attempts to
support this decision by observing that Thum knew that
Varguez-Rodriguez was an illegal alien, that Chapalin was an
alien smuggler, and that Chapalin intended to transport
Varguez-Rodriguez from the border to Northern California.
But while this evidence may have been sufficient to show that
Thum aided and abetted Chapalin’s attempted transportation
of an illegal alien, there is no evidence to show that Thum
aided and abetted Chapalin in encouraging an illegal alien to
reside in the United States.4

4

The government also argues that a rational trier of fact could have
concluded that Thum aided Chapalin in encouraging an illegal alien to
enter the United States, which is also prohibited under
§ 1324(a)(1)(A)(iv). But we discern no evidence in the record showing
that Thum had anything to do with Varguez-Rodriguez’s decision to enter
this country illegally.

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“In this circuit, the elements necessary for an aiding and
abetting conviction are: (1) that the accused had the specific
intent to facilitate the commission of a crime by another,
(2) that the accused had the requisite intent of the underlying
substantive offense, (3) that the accused assisted or
participated in the commission of the underlying substantive
offense, and (4) that someone committed the underlying
substantive offense.” United States v. Shorty, 741 F.3d 961,
969–70 (9th Cir. 2013) (quoting United States v. Singh,
532 F.3d 1053, 1057–58 (9th Cir. 2008)). Even viewing the
evidence in the light most favorable to the government, there
is no evidence that Chapalin “committed the underlying
substantive offense” by encouraging an illegal alien to reside
in the United States. Shorty, 741 F.3d at 970.
Encouraging an illegal alien to reside in the United States
must mean something more than merely transporting such an
alien within this country. See United States v. SanchezVargas, 878 F.2d 1163, 1169 (9th Cir. 1989) (“[T]he
transport offense was directed, in large part, at curbing the
widespread practice of transporting illegal immigrants,
already in the United States, to jobs and locations away from
the border where immigration enforcement resources may
have been more scarce.”). And here, the evidence showed
only that Chapalin sought to transport illegal aliens to
Northern California. On this scant record, no rational trier of
fact could conclude that Chapalin encouraged an illegal alien
to reside in the United States. Accordingly, there was
insufficient evidence to prove that Thum aided and abetted
Chapalin in so doing. See Shorty, 741 F.3d at 970.

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CONCLUSION
For the foregoing reasons, we vacate the district court’s
judgment revoking Thum’s supervised release, and we
remand with instructions to dismiss the petition.
VACATED AND REMANDED, with instructions.