Wednesday, February 01, 2012

U.S. v. Noriega-Perez, No. 10-50501 (2-1-12) (Tallman with Fernandez; partial dissent by Moore, D.J.).

It is hard to find renters now a-days. In this case, with two houses close to the Mexico border, the defendant rented to alien smuggling organizations (the rent was paid on time). Convicted, he argued on appeal that there was insufficient evidence of the alienage of material witnesses named in the indictment but who did not testify; eight did. The 9th held there was sufficient evidence of alienage. The witnesses who testified were situated in the same place, under the same conditions, as the ones who did not. An inference is permitted. The 9th also held that there was sufficient evidence of cross-border crossing, even if some of the witnesses were stopped at another location prior. Moore dissented from this portion concerning those witnesses who stopped at other locations. He argues that there has to be a terminus, and the nexus may well be stretched to an extent it would not support the cross border entry, but rather a harboring conviction.


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