United States of America v. Hector Castaneda-Melchor

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Jack J. Camp, Senior United States District Judge for***
the District of Northern Georgia, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR CASTANEDA-MELCHOR,
Defendant - Appellant.
No. 09-50400
D.C. No. 3:08-cr-4207-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry Alan Burns, District Judge, Presiding
Submitted July 13, 2010**
Pasadena, California
Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior District
Judge.***
FILED
JUL 15 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Hector Castaneda-Melchor appeals his conviction for harboring illegal aliens
and for conspiracy to harbor illegal aliens. After considering his arguments and
the evidence presented at trial, we affirm his conviction.
I. Background
United States Border Patrol agents arrested Castaneda-Melchor after finding
eleven illegal aliens hidden in his trailer home in Calexico, California on
November 21, 2008. He was indicted on four counts of harboring illegal aliens
“with the intent to violate the immigration laws of the United States,” in violation
of 8 U.S.C. § 1324(a)(1)(A)(iii) and (v)(II), and one count of conspiracy to harbor
illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A),(ii), (iii) and (v)(I).
At trial, four of the aliens testified that Castaneda-Melchor had hidden them
in his trailer and instructed them in how to avoid detection by federal immigration
authorities. Over his objection, the district court used the Ninth Circuit Pattern
Instruction for the offense and instructed the jury to find the defendant guilty if it
found that he had “concealed [illegal aliens] for the purpose of avoiding their
detection by immigration authorities.” After deliberating, the jury convicted
Castaneda-Melchor of all five counts. Subsequently, the district court sentenced
Castaneda-Melchor to 30 months imprisonment, followed by three years
supervised release.

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II. Defendant’s Contentions
Castaneda-Melchor appeals his convictions. He argues that the jury
instructions given by the district court constructively amended the indictment in his
case by significantly broadening the offense charged. In the alternative, he argues
that the jury instructions were a fatal variance from the indictment. Finally, he
contends that this Court should vacate his conspiracy conviction if it vacates his
conviction for harboring illegal aliens. We affirm his conviction for the reasons
discussed below.
III. Analysis
This Court reviews an allegation that the district court constructively
amended an indictment or permitted a variance of an indictment de novo. United
States v. Adamson, 291 F.3d 606, 612 (9th Cir. 2002); United States v. Bhagat,
436 F.3d 1140, 1145 (9th Cir. 2006). “A constructive amendment mandates per se
reversal, however, a variance warrants reversal only if the defendant’s ‘substantial
rights’ were affected.” Bhagat, 436 F.3d at 1145 (quoting Adamson, 291 F.3d at
615).
A constructive amendment exists where “(1) there is a complex of facts
presented at trial distinctly different from those set forth in the charging
instrument, or (2) the crime charged in the indictment was substantially altered at

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trial, so that it was impossible to know whether the grand jury would have indicted
for the crime actually proved.” United States v. Abramson, 291 F.3d 606, 615 (9th
Cir. 2002) (quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984)).
The jury instructions did not constructively amend the indictment in this
case because, according to binding precedent in this Circuit, the language
contained in the indictment (“with the intent to violate the immigration laws of the
United States”) is synonymous with the language used in the jury instructions (“for
the purpose of avoiding [the aliens’] detection by immigration authorities”).
United States v. You, 382 F.3d 958, 966 (9th Cir. 2004).
In You, this Court considered an appeal by two defendants convicted of
harboring illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Id. at 962.
The district court instructed the jury that it could find the defendants guilty if it
found that they had “harbored . . . [an illegal alien] for the purpose of avoiding [the
alien’s] detection by Immigration authorities.” Id. at 963. On appeal, they argued
that the jury instructions misstated the elements of § 1324 by failing to require the
jury to find that the defendants had intended to violate the law. Id. at 965-66. In
affirming the convictions, this Court held that the phrases “for the purpose of
avoiding [the aliens’] detection” and “that the defendant intended to violate the

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law” are interchangeable and that both phrases contain the necessary mens rea for a
conviction under § 1324. Id.
You controls in this case, and it holds that the language used in Castaneda-
Melchor’s jury instruction is synonymous with the language used in the
indictment. Therefore, the jury instructions did not alter the crime charged in the
Castaneda-Melchor indictment. Abramson, 291 F.3d at 615; Von Stoll, 726 F.2d
at 586.
In the alternative, Castaneda-Melchor argues that if the jury instructions did
not constructively amend the indictment, they constituted a fatal variance from it.
He contends that although the evidence may have showed that he concealed aliens
for the purpose of avoiding their detection by immigration officers, no evidence
was presented at trial that he intended to violate immigration laws. This semantic
distinction does not help Castaneda-Melchor.
This Court has explained that a fatal variance occurs where “the evidence
offered at trial proves facts materially different from those alleged in the
indictment” and if the variance affects the defendant’s substantial rights. Von
Stoll, 726 F.2d at 586; Bhagat, 436 F.3d at 1146. Where the difference between
the proof offered at trial and the events alleged in the indictment is so minor as to

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not mislead the defendant in preparing his defense, the variance is not fatal. United
States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997).
The evidence offered at trial did not prove facts that are materially different
from those alleged in the indictment. The evidence at trial showed that eleven
illegal aliens were found hidden in Castaneda-Melchor’s house, and that
Castaneda-Melchor had told the aliens that they might be discovered if they looked
outside. If difference exists between the evidence offered at trial and the acts
charged in the indictment, it is so minor that it could not have misled the defendant
in preparing for his trial. Id. Therefore, the evidence at trial was not a fatal
variance from the indictment.
Finally, Castaneda-Melchor argued that, if this Court vacated his conviction
for harboring illegal aliens it should also vacate his conviction for conspiracy to
harbor illegal aliens. Because this Court declines to vacate the conviction for
harboring illegal aliens, it need not reach Castaneda-Melchor’s argument regarding
his conspiracy conviction. Accordingly, this Court affirms Castaneda-Melchor’s
convictions for harboring illegal aliens and for conspiracy to harbor illegal aliens.
IV. Conclusion
In conclusion, Castaneda-Melchor has not demonstrated that the district
court’s instructions to the jury constructively amended the indictment in his case.

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Nor has he demonstrated that a fatal variance exists in his case. Therefore, the
Court AFFIRMS his conviction.

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