U.S. v. Flores-Blanco, No. 09-50040 (10-4-10) (Canby with Hall and O'Scannlain). Fences may make good neighbors, but they are obstacles when it comes to alien smuggling. Here, the defendant was convicted of alien smuggling for gain, conspiracy, and encouraging an alien to come across. The defendant was outside his house in Calexico, right up against the border. As agents watched him from a concealed location, he and another man (co-defendant) appeared to be talking on a cellphone to others across the border. They made hand gestures, waves, and moved in unison. They then had an undocumented alien jump the fence, with instructions to go to the person wearing what the defendant was described to have been wearing. The defendant, though, had spied the agents and hurriedly walked away. Not for long, though, as he, the co-defendant, and the alien were arrested. At trial, the defendant subpoenaed co-defendant to testify, arguing that he had exculpatory testimony that it was essentially all his doing. The co-defendant invoked the Fifth, even though he had plead guilty under a plea agreement. Defense counsel asked the court to grant him immunity or order the government to. The court did not, and the government refused. The Ninth found this not to be error. It was open whether the co-defendant would have relevant testimony, and he still faced other possible charges. The government did not give other witnesses in the same shoes immunity. The 9th also found that the court did not err in allowing in under F.R.E. 404(b) other evidence of a prior alien smuggling in the same general area. This was to prove intent, knowledge and plan. There was also sufficient evidence that defendant helped to aid and abet the bringing in of the alien, although he did not physically transport him. Here, the defendant was sufficiently connected to helping the alien come in before he crossed the fence as shown by the phone and actions. There was also sufficient conspiracy evidence.