US v. Thum, No. 13-50176 (4-25-14) (M. Smith with Thomas and Christen).
A rare supervised-release violation win. The defendant, with a conviction for alien smuggling, faced revocation because he was arrested for walking an illegal alien from a Jack in the Box close to the border to a waiting van. The violations alleged were commission of a crime -- inducing an illegal alien to reside in the US or aiding and abetting such an act, in violation of 8 USC 1324(a)(1)(A)(iv) and (v)(II). The 9th found insufficient evidence, even after the defendant had admitted to the agents that he was told by a smuggler he knew to meet the illegal alien and escort him to a van. The problem for the government was that the statute punishes two discrete acts -- residing and transporting. The defendant could have been charged with attempted transportation, but there was no evidence that merely walking him to a van was encouraging residence. The 9th rejected the government's argument that getting him away from the POE and agents was in effect helping him to reside.
Congrats to Devin Burstein of the Federal Defenders of San Diego.