United States v. 2005-03-10 | 04-50105 | USA VGARCIA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50105
Plaintiff-Appellee, D.C. No.
v.  CR-03-00238-BTM
ODILON GARCIA, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
February 10, 2005—Pasadena, California
Filed March 11, 2005
Before: Alfred T. Goodwin, Frank J. Magill,* and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Rymer
*The Honorable Frank J. Magill, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
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COUNSEL
Todd W. Burns and Ramzi G. Nasser, Federal Defenders of
San Diego, Inc., San Diego, California, for the defendant-
appellant.
Joseph H. Huynh, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
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OPINION
RYMER, Circuit Judge:
We must decide whether aiding and abetting under 18
U.S.C. § 2 is a separate offense from, or a different theory of
liability for, the substantive offenses of alien smuggling and
transportation of aliens in violation of 8 U.S.C. § 1324.
Odilon Garcia appeals his conviction on four counts of
alien smuggling and transportation that also charged him with
aiding and abetting. He maintains that the indictment was
duplicitous because the two have separate elements and thus
are separate offenses, requiring the government to elect
between them or the district court to give a specific unanimity
instruction. Following Supreme Court and our own precedent,
we conclude that aiding and abetting is not a separate offense
from the underlying substantive crime, but rather a different
theory of liability for the same offense. Accordingly, we
affirm Garcia’s conviction on all counts.1
I
In the early morning hours of January 15, 2003, four Bor-
der Patrol agents responded to a sensor alert that had been
triggered on a little-used road not far from the Mexican bor-
der. The agents intercepted two vehicles, one following
behind the other. When the agents ordered each vehicle to
stop, numerous individuals, later determined to be illegal
aliens, jumped out and attempted to flee. Rather than come to
a halt as ordered, the driver of the second vehicle turned his
1For the first time on appeal, Garcia raises a challenge to his sentence
under Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States
v. Booker, 125 S. Ct. 738 (2005). We address this issue in a separate,
unpublished order. Meanwhile, we stay issuance of the mandate. The time
for filing a petition for rehearing or for rehearing en banc pursuant to Fed.
R. App. P. 35 and 40 on both conviction and sentence shall run from the
date that judgment is entered on Garcia’s appeal from sentence.
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truck around and drove back down the road in the other direc-
tion. Agents gave chase, and eventually came upon the vehi-
cle, abandoned by its driver on the side of the road and
teetering on the edge of a steep ravine. There was an individ-
ual in the cab of the truck who had to be helped out. Garcia
was found in the area, injured and walking in a daze. Keys
were found in his pocket that unlocked the abandoned pickup
and started the ignition.
A federal grand jury returned a four-count indictment
charging Garcia with bringing two undocumented aliens into
the United States for private financial gain, in violation of 8
U.S.C. § 1324(a)(2)(B)(ii), and with transporting them within
the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
The indictment also charged Garcia with aiding and abetting
with respect to each count, in violation of 18 U.S.C. § 2.
Garcia filed a pretrial motion to dismiss the indictment on
grounds of duplicity, but the matter proceeded to trial without
a ruling. Garcia also requested a specific unanimity instruc-
tion that would have required the jury to agree, for each count
on which it found Garcia guilty, whether he was guilty as a
principal or as an aider and abettor. The district court declined
to give such an instruction, reasoning that aiding and abetting
is not a separate and distinct offense but rather a different the-
ory of liability for the substantive offense. Standard instruc-
tions on aiding and abetting and on unanimity were given.
The jury found Garcia guilty on all counts. Garcia timely
appeals.
II
The parties dispute whether our review should be de novo
(as it is for the question whether counts of an indictment are
duplicitous, see United States v. Bryan, 868 F.2d 1032, 1037
(9th Cir. 1989)), or for abuse of discretion (as it is for refusal
to give a specific unanimity instruction, see United States v.
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Kim, 196 F.3d 1079, 1082 (9th Cir. 1999)). To an extent each
issue is in play given that Garcia both moved to dismiss and
requested a specific unanimity instruction. However, we see
no need to resolve the debate because Garcia’s challenge fails
even under de novo review.
III
[1] Simply put, Garcia’s position is that the elements of
aiding and abetting are different from the elements of smug-
gling or transporting an alien because the latter is a general
intent crime while the former requires specific intent.2 This
being so, in his view, aiding and abetting is a separate offense
because the presence of different elements means that the
offenses are different. For support, Garcia relies on United
States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001).
There we held that an indictment which charged in the same
count completed transportation of an undocumented alien in
violation of § 1324(a)(1)(A)(ii), and attempted transportation,
was duplicitous because the two crimes contain different
mens rea elements and so are separate offenses. “An indict-
ment is duplicitous where a single count joins two or more
distinct and separate offenses. ‘One vice of duplicity is that a
jury may find a defendant guilty on a count without having
reached a unanimous verdict on the commission of a particu-
lar offense.’ ” Ramirez-Martinez, 273 F.3d at 913 (quoting
2For aiding and abetting liability the government must prove four ele-
ments:
(1) that the accused had the specific intent to facilitate the com-
mission of a crime by another, (2) that the accused had the requi-
site intent of the underlying substantive offense, (3) that the
accused assisted or participated in the commission of the underly-
ing substantive offense, and (4) that someone committed the
underlying substantive offense.
United States v. Delgado, 357 F.3d 1061, 1065-66 (9th Cir. 2004) (quoting
United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988)) (emphasis
added).
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United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir.
1976)) (citation omitted). As we explained, attempting to
transport, which requires specific intent to transport an
undocumented alien, and actual transportation, which requires
only that the defendant transported the alien with knowledge
or in reckless disregard of the alien’s undocumented status,
involve two different levels of mental culpability and, accord-
ingly, are separate and distinct crimes.
Ramirez-Martinez is not, however, dispositive. As it hap-
pens, the defendant there was also charged in a different count
as an aider and abettor with bringing to the United States an
undocumented alien for financial gain in violation of 8 U.S.C.
§ 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. In that connection we
observed that “[s]ection 2(a) of Title 18 does not define a sep-
arate offense but rather makes it unlawful to aid or abet
another in the commission of a substantive offense.” Ramirez-
Martinez, 273 F.3d at 911. We also pointed out that the aiding
and abetting provision of Title 18 is applicable across the
board to the criminal code unless Congress says otherwise,
which it has not done with respect to 8 U.S.C.
§§ 1324(a)(2)(B)(ii) — bringing in illegal aliens — or
(a)(1)(A)(ii) — transporting illegal aliens.
[2] More importantly, there are fundamental differences
between attempting to commit a crime, and aiding and abet-
ting its commission, that distinguish Ramirez-Martinez. In an
attempt case there is no crime apart from the attempt, which
is the crime itself; for this reason the defendant must act with
the purpose of violating the immigration laws even though
that mens rea is not required for the substantive offense. In the
context of aider and abettor liability, there is a single crime
that the defendant is charged with committing; he could com-
mit that offense by directly performing illegal acts himself, or
by aiding, abetting, counseling, commanding, inducing, or
procuring the commission of the offense. Whichever, the
defendant (if convicted) is liable as a principal. See 18 U.S.C.
§ 2(a) (“Whoever commits an offense against the United
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States or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal.”). Thus, unlike
the mens rea for attempts, an aider and abettor’s intent regard-
ing the substantive offense is the same intent required for con-
viction as a principal. See, e.g., Gaskins, 849 F.2d at 459.
[3] Of course, to prove liability as an aider and abettor the
government must establish beyond a reasonable doubt that the
accused had the specific intent to facilitate the commission of
a crime by someone else — and this is an “element” that need
not be established for conviction on the underlying offense.
However, as the Supreme Court pointed out in Schad v. Ari-
zona, 501 U.S. 624 (1991) (plurality opinion), jurors are not
required to agree unanimously on alternative means of com-
mitting a crime. In Schad, the defendant was convicted of
first-degree murder in Arizona state court based on alternative
theories of premeditated murder and felony murder (in the
course of a robbery). Id. at 629-30. On appeal, Schad argued
that these should have been charged as separate offenses and
that his conviction under instructions that did not require the
jury to agree on one of the theories was unconstitutional. Id.
at 630-31. The Court rejected his position, holding that pre-
meditated murder and felony murder are simply different the-
ories of liability for the single offense of first degree murder,
even though premeditated murder requires an intent to kill,
while felony murder requires only the intent to commit the
underlying felony. Id. at 639, 643-45.
[4] We believe that aiding and abetting as charged in this
case falls naturally within the Schad analysis. Aiding and
abetting is simply one means of committing a single crime.
Indeed, we have often referred to aiding and abetting as a the-
ory of liability. See, e.g., Gaskins, 849 F.2d at 459; United
States v. Angwin, 271 F.3d 786, 800 (9th Cir. 2001). We have
also held a number of times in different contexts that aiding
and abetting is embedded in every federal indictment for a
substantive crime. See, e.g., Ramirez-Martinez, 273 F.3d at
911; Gaskins, 849 F.2d at 459 (noting that “all indictments for
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substantive offenses must be read as if the alternative pro-
vided by 18 U.S.C. § 2 were embodied in the indictment”)
(internal quotation marks and citations omitted); United States
v. Armstrong, 909 F.2d 1238, 1241, 1242 (9th Cir. 1990)
(“Aiding and abetting is implied in every federal indictment
for a substantive offense[,]” even though the elements neces-
sary to convict as a principal and as an aider and abettor are
different.); United States v. Vaandering, 50 F.3d 696, 702 (9th
Cir. 1995) (holding that a general aiding and abetting instruc-
tion need not be tied to a specific count of an indictment). It
follows that aiding and abetting is a different means of com-
mitting a single crime, not a separate offense itself, for other-
wise it could not be implicit in a substantive charge.
[5] Garcia postulates that this creates a unanimity issue, but
we disagree. In this case, the jury was properly instructed on
the elements of the substantive offenses and for aiding and
abetting liability. The general verdict reflects agreement that
Garcia committed the particular offenses of bringing illegal
aliens to, and transporting them within, the United States. It
does not matter whether some jurors found that he performed
these acts himself, and others that he intended to help some-
one else who did, because either way, Garcia’s liability is the
same: as a principal, for committing the acts charged.
[6] Accordingly, the indictment charging Garcia with the
substantive offenses of smuggling illegal aliens in violation of
8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2, and transport-
ing them in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18
U.S.C. § 2, was not duplicitous. Aiding and abetting is not a
separate and distinct offense from the underlying substantive
crime, but is a different theory of liability for the same
offense. For this reason, the government had no obligation to
elect between charging a substantive offense and charging lia-
bility on an aiding and abetting theory, nor was the district
court obliged to give a specific unanimity instruction.
AFFIRMED.
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