US v. Munoz

No. 04-50086 (6-14-05). The defendant was convicted of alien smuggling for profit and failure to present to an immigration officer. The defendant came across the border, appeared to be sweating, looked nervous, and the van had a non-factory cover along the bottom. Of course this lead her to being referred to secondary, where a search revealed two Chinese under the floorboard. At trial, the jury instruction stated that the gov't didn't have to show or prove financial gain. Wrong, said the 9th. This fact leads to an enhanced penalty, and so: "We hold that, in order to impose 1324(a)(2)(B)(ii) enhanced penalties on a defendant prosecuted as a principal, the government must prove she intended to derive a financial gain from the transaction." This error was not harmless given the issue of profits. The 9th though on the other counts found no distinction between the "come to" and "enter" in terms of permission. The 9th also brushed aside the arguments for judgment of acquittal and sufficiency going to the defendant's state of mind as there was evidence that the jury could have used. The 9th finally found no abuse of discretion in allowing in the officer's reasons for referring defendant to secondary.
Congrats to AFPD Steve Hubachek of San Diego for the "elements" win.