Case o' The Week: Reinhardt "brings to" en banc opinion a majority on "brings to" statute, Lopez

A great en banc decision by Judge Stephen Reinhardt (left), and a great win by the San Diego Community Defender, means a dramatic change for border defense practice. See United States v. Angelica Lopez, __ F.3d __, 2007 WL 1309689 (9th Cir. May 7, 2007), decision available here.

Players: Another win for Chief Appellate Attorney Steve Hubachek of the San Diego Community Defender.

Facts: Angelica Lopez was arrested by the Border Patrol while driving a van full of undocumented aliens in San Diego County. Lopez, 2007 WL 1309689,*2. She was charged with bringing an alien to the US for financial gain, aiding and abetting, and transporting an undocumented alien within the US. Id. at *1. The “bringing to” charge carries a five year mandatory minimum. Id. at *3. At trial, alien material witnesses and the defendant herself testified that she picked the aliens up after they had been smuggled across the border, in the United States. Id. at *2-*4. She was convicted, and got the mand-min five years. Id. at *3.

Issue(s): “The issue before us is whether a driver who transports a group of illegal aliens from a drop-off point in the United States to another destination in this country commits only the offense of transporting aliens ‘within’ the United States or whether that individual is also guilty of the additional offense of aiding and abetting the crime of ‘bringing’ the aliens ‘to’ the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(2) (2000); 18 U.S.C. § 2 (2000).” Id. at *1 (footnote omitted).

Held: “We hold that although all of the elements of the ‘bringing to’ offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them-in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border. At that point the offense ends, regardless of the judicial district in which the termination occurs. Because, here, the defendant transported undocumented aliens only within the United States and did so only after the initial transporter had dropped the aliens off inside the country, and because there is insufficient evidence to establish that the defendant otherwise aided and abetted the initial transportation, we reverse the convictions on the ‘bringing to’ offense.” Id. at *1

Of Note: This masterful Reinhardt opinion is worth a read in several respects. First, it has had an immediate impact on defense practice on the border. AUSAs there have been fond of abusing the “bringing to” statute to threaten mand-mins, and coerce “fast track” (high-custody) deals. Lopez has put a quick end to that abuse: we’re already hearing reports of better deals and more freedom to try cases. The decision is also interesting for its discussion of Section 1324 and how the subsections of this statute interrelate.

Finally, the en banc case is a revealing snapshot of Circuit fault lines: Chief Judge Schroeder, Judges Reinhardt, Pregerson, Kozinski, Hawkins, Thomas, Graber, Gould, Berzon and Smith prevailed, Judge Bea “specially” concurred, and Judges Tallman, Rawlinson, Clifton and Callahan (forcefully) dissented.

How to Use: An easily-overlooked (though important) part of Lopez is its critical analysis of “aiding and abetting.” See id. at *11-*12. That discussion is a welcome re-emphasis of A&A’s mens rea requirements. Judge Reinhardt insists that an “aider and abettor” is only one “who, with mens rea ... commands, counsels or otherwise encourages the perpetrator to commit the crime.’” Id. at *11. Use this great language in where aiding and abetting liability is in play.

For Further Reading: How long this appellate victory will survive Congressional “correction” is an open question. Earlier this month, (Democrats) in the House of Representatives sent a bill to the Senate that dramatically increased funding for border enforcement – but that did not include committee provisions which “toughen[ed] penalties for alien smuggling.” See ABC News article here. This bill, however, evoked a promise of a Presidential veto. See id. Meanwhile, bipartisan negotiators in the Senate reported on May 9th what they call a “grand bargain” on immigration, which addressed the severity of penalties for illegal immigrants. See New York Times article here.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org


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