Opinion
No. CR-19-02942-TUC-JGZ(LAB)
04-14-2021
United States of America, Plaintiff, v. Jose Adan Olivas, Defendant.
Report and Recommendation
The District Court referred this case to the Magistrate Judge for a hearing on the defendant's amended motion to dismiss Count One of the indictment. (Doc. 159) The defendant, Jose Adan Olivas, argues that the conspiracy count is not properly charged because it does not allege an overt act. His position is that the conspiracy should have been charged under 8 U.S.C. § 371, not 8 U.S.C. § 1324(a)(1)(A)(v)(I). He moves the Court to dismiss Count One, pursuant to Rule 7(c)(1), Fed.R. of Crim.Pro.
A hearing was held on 4/6/2021. No witnesses testified. No Exhibits were offered. Charge :
The defendant is charged in a nine (9) count indictment with, Conspiracy to Transport Illegal Aliens for Profit and Transportation of Illegal Aliens for Profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii) and (a)(1)(B)(i), and 18 U.S.C. § 2. The indictment includes a forfeiture allegation that is charged pursuant to 18 U.S.C. §§ 982(a)(6) and (b)(1), and 21 U.S.C. §§ 853 and 2461(c). Motion to Dismiss :
The defendant argues that his Double Jeopardy rights are being violated because he is charged with conspiracy to transport illegal aliens for profit under 8 U.S.C. § 1324(a)(1)(A)(v)(I), which sets forth the criminal penalties for anyone who engages "in any conspiracy to commit any of the preceding acts." The act charged in the indictment pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii) describes transporting an alien within the United States while knowing or being in reckless disregard of the fact that the alien came to, entered or remains in this country in violation of the law.
The defendant moves that the Court dismiss Count One because without an overt act allegation, the indictment lacks an element of the offense and the defendant does not have adequate notice of what he must defend against. The missing element is a fatal flaw. He argues that the case should have been charged under the general conspiracy statute, 8 U.S.C. § 371, which, unlike § 1324 (a)(1)(A)(ii), requires an overt act.
The government responds that section 1324's conspiracy statute does not impose an overt act requirement. In its notice of supplemental authority (Doc. 164) it explains that the issue has recently been decided in this district in U.S. v. Ramos, CR 20-00051-TUC-JAS(DTF). In Ramos, the district court issued an order on 3/29/21 finding that proof of an overt act is not an element of a conspiracy charge brought under Title 8 U.S.C. § 1324. The Court determined that the final jury instruction should not include the element of an overt act.
The Court concludes that Count One is properly charged. It includes all the elements required by the statute. The motion should be DENIED. DISCUSSION :
The district court in US v. Ramos, CR-20-00051-TUC-JAS(DTF), and the government in its notice of supplemental authority, relied US v. Torralba-Mendia, 784 F.3d 652, 663 (9 Cir. 2015). In that case the Ninth Circuit set forth the elements necessary to prove a section 1324 alien smuggling conspiracy. "To establish an alien smuggling conspiracy, the government must prove an agreement to carry out one of the substantive offenses, and that [the defendant] had the intent necessary to commit the underlying offense." Torralba-Mendia, 784 F.3d at 663.
The District Court in Ramos, and the government in the present case, further cite US v. Shabani, 513 U.S. 10, 13 (1994) (defendant charged with drug trafficking conspiracy pursuant to 21 U.S.C. § 846) where the Supreme Court held conspiracies only require an overt act when that is explicitly stated in the text of the statute.
In accordance with Ramos, Torralba-Mendia, and Shabani, this court concludes that Count One of the Indictment properly charges a conspiracy pursuant to 8 U.S.C. § 1324(a)(1)(A)(v)(I). Section 1324(a)(1)(A)(v)(I) does not explicitly require an overt act, and this court will not infer that such an act is an element of the offense. See also Whitfield v. US, 543 U.S. 209, 214 (2005) (Government does not have to prove an overt act to obtain a conviction for money laundering where the statute omits any overt-act requirement.).
The defense argues that the facts of the case dictate whether it is proper for the government to charge a conspiracy under § 1324 or § 371. No case law is cited for that proposition. The defense cites the Court to US v. Nguyen, 73 F.3d 887 (9 Cir. 1995), US v. Hernandez-Orellana, 539 F.3d 994 (9 Cir. 2008) and US v. Noriega-Perez, 670 F.3d 1033 (9 Cir. 2012) to support its argument that an alien smuggling conspiracy should be charged under the general conspiracy statute, rather than the alien smuggling statute. The court finds these cases distinguishable. While the government did charge the alien smuggling conspiracies pursuant to 8 U.S.C. § 371 in the cases cited, there is no holding that requires or even encourages the government to do so. RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the amended motion to dismiss Count One. (Doc. 159)
Defense counsel may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.
Dated this 14th day of April, 2021.
/s/_________
Honorable Leslie A. Bowman
United States Magistrate Judge