USA v. Jorge Wilmar Guarin Melchor

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 4, 2010
JOHN LEY
ACTING CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-10268
Non-Argument Calendar
________________________
D. C. Docket No. 07-00014-CR-4-SPM-CS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE WILMER GUARIN MELCHOR,
a.k.a. Jose Wilson-Marin,
a.k.a. Jonatan,
a.k.a. Toti,
a.k.a. Toty,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 4, 2010)
Before BIRCH, CARNES and ANDERSON, Circuit Judges.

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PER CURIAM:
Jorge Wilmar Guarin Melchor (“Melchor”) appeals his convictions for
conspiring and aiding and abetting others to import, transport in interstate and
foreign commerce, and harbor illegal aliens. He contends there was insufficient
evidence to support his convictions. After careful review of the record, we
AFFIRM.
I. BACKGROUND
Melchor was charged in an eight-count indictment with conspiracy to import
illegal aliens for the purposes of prostitution, transport illegal aliens in interstate
and foreign commerce for purposes of prostitution, and harbor illegal aliens, in
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and 18 U.S.C. § 371 (count one);
concealing and harboring illegal aliens for purposes of financial gain, in violation
of 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i) (counts two and three); aiding
and abetting the importation of illegal aliens for purposes of prostitution, in
violation of 8 U.S.C. § 1328 and 18 U.S.C. § 2 (counts four and five); aiding and
abetting the transportation of an individual in interstate and foreign commerce for
purposes of prostitution, in violation of 18 U.S.C. §§ 2421 and 2 (counts six and
seven); and illegal reentry by a deported alien, in violation of 8 U.S.C. § 1326(a)
(count eight).
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Melchor pled guilty to count eight prior to trial. In May 2007, a jury found
him guilty of the remaining seven counts. In January 2009, the court sentenced
Melchor to concurrent terms of 96 months in prison on each count from one
through seven, and 24 months on count eight, to be followed by a total of three
years of supervised release.
At trial, “Wendy” and “Angelica”, both Guatemalan citizens, testified that1
they were smuggled into the United States from Guatemala by a series of
“coyotes” or human traffickers. Both Wendy and Angelica hoped to create a better
life for their families by working in America. Wendy was told before the trip that
it would cost $16,000, which she would pay back through her earnings as a
waitress. Angelica was similarly told that she would pay for her travel by working
as a waitress in the United States, although she was not told up front the exact
amount. Each woman was instructed to bring only minimal clothing.
The arduous journey spanned 15 days. Communicating via cell phone,
coyotes shepherded Wendy and Angelica through Guatemala across a river into
Mexico. Before crossing into Mexico, a coyote confiscated their identification
documents. Another person named “Sandy” joined the two women in Mexico.
The women then sailed with three coyotes across the Rio Grande River into Texas.
We omit reference to their full names to protect their privacy.1
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They trekked for several days through the woods until another coyote picked them
up in a van and drove them to Houston. From there, a new coyote transported
them to Tallahassee, Florida. Along the way, the driver arranged to have someone
meet them in Tallahassee. Melchor was waiting for the women when they arrived
in Tallahassee on Friday, 14 July 2006.
Melchor took the women to his home. Speaking in Spanish to Wendy and
Angelica, he asked them their names and where they were from. Both women said
they were from Guatemala. Melchor informed them the trip cost $16,000, which
they would pay back by working as prostitutes. When they indicated they thought
they would have a different job, Melchor did not respond. Melchor then took the
three women clothes shopping. Afterwards, Melchor instructed Wendy and
Angelica “to get ready . . . to go to the job.” R4 at 81.
Melchor drove Wendy and Angelica to a trailer, where he explained that six
men inside “would choose which one would have sex with them.” Id. at 84.
Wendy had sex with five of the men, using condoms that Melchor had provided.
Each of these men paid Melchor $30. Melchor proceeded to a second trailer,
where Angelica went inside alone and had sex with seven or eight men. At the
next two trailers, both women had sex with several men. At this point, they told
Melchor they wanted to stop, but he replied that they needed to have sex with at
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least 12 to 15 men per night because other women had serviced up to 25 men a
night. Melchor took them to at least ten trailers that night.
Early the next morning, Melchor again ordered Wendy and Angelica “to get
ready because [they] had to go out again.” Id. at 92. When Wendy protested,
Melchor immediately called someone to complain. Sandy and another man told
Wendy and Angelica that they would have to keep working in order to pay off their
debt, referring to their travel expenses for being brought into the United States.
That Saturday night, Angelica and Sandy went with Melchor to nine or ten trailers,
where they both had sex in exchange for money paid to Melchor. Wendy refused
to go, stating that she had no clothing.
On Sunday morning, 17 July 2006, Wendy and Angelica planned their
escape. As soon as Melchor left with Sandy to buy more clothes, Wendy and
Angelica ran out of the house. They knocked at several houses before a woman
finally opened her door and let them in. Both Wendy and Angelica were crying
and shaking, and they looked “scared to death.” Id. at 31. With the help of a
Spanish translator, the neighbor learned that the women had been held as sex
slaves. The neighbor then contacted the police.
Several of Melchor’s clients testified at trial that Melchor, known as “Toty,”
regularly supplied them with women from Central and South America to have sex
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with for fifteen minutes for $30. One man remembered paying for sex with a
Guatemalan woman on Friday night, 14 July 2006. Melchor told one of his
customers that the women came from Central American countries. When a client
asked Melchor why he brought certain women, Melchor explained that he supplied
whoever “they were giving to him.” R5 at 246. Another customer testified that
one of the women had fresh marks and scratches resembling the ones he received
from thorny bushes when he illegally entered the United States.
From January through July 2006, Melchor made over 2100 cell phone calls
to long-distance numbers. Most of the calls were to Florida, Texas, and Georgia.
Of the Texas calls, the majority involved Houston numbers. Melchor made an
additional 833 calls using a calling card for long-distance and international
numbers. He supplied Angelica with a calling card and his phone so that she could
contact her husband in Guatemala. During the three days that Wendy and Angelica
were in Melchor’s custody, Melchor received at least 35 calls from Guatemala.
Melchor did not move for a judgment of acquittal at the close of evidence.
He raises only one issue on appeal – whether there was sufficient evidence to
support the jury’s verdict on counts one through seven. Melchor concedes that he
ran a prostitution business and used Wendy and Angelica as prostitutes. However,
he contends that there was no evidence showing he conspired, or aided and abetted
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others, to (1) smuggle them into the United States, (2) transport them across state
lines from Texas to Florida, or (3) harbor them as illegal aliens.
II. DISCUSSION
We review de novo whether there is sufficient evidence to support a jury’s
verdict. United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005) (per curiam).
Where, as here, a defendant fails to move for a judgment of acquittal at trial, we
review the sufficiency of the evidence only for a miscarriage of justice. See United
States v. Tapia, 761 F.2d 1488, 1491 (11th Cir. 1985). In order to reverse, the
evidence on a key element of the offense must be “so tenuous that a conviction
would be shocking.” Id. at 1492 (quotation marks and citation omitted).
Moreover, we must evaluate the evidence, including all reasonable inferences and
credibility choices, in the light most favorable to the government. See Byrd, 403
F.3d at 1288.
A. Importation
Melchor first challenges his convictions for importing illegal aliens for the
purpose of prostitution, which constituted an overt act of the conspiracy count
(count one) and two of the substantive counts (counts four and five). A person is
guilty of importing an alien into the United States for the purpose of prostitution if
he:
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directly or indirectly, import[s] . . . into the United States any alien for
the purpose of prostitution . . . , or shall hold or attempt to hold any
alien for any such purpose in pursuance of such illegal importation, or
shall keep, maintain, control, support, employ, or harbor in any house
or other place, for the purpose of prostitution . . . any alien, in
pursuance of such illegal importation[.]
8 U.S.C. § 1328 (2009). Whoever aids or abets in the commission in an offense
against the United States is punishable as a principal. See 18 U.S.C. § 2(a) (2009).
A person aids or abets a crime if he “associate[s] with the venture in some way and
participate[s] in it as something [he] wishes to bring about.” United States v. Cole,
704 F.2d 554, 559 (11th Cir. 1983).
Melchor argues that there was no evidence that he knew Wendy and
Angelica had illegally crossed the border into the United States. According to
Melchor, the evidence merely showed that he knew the women were from
Guatemala, they spoke only Spanish, and they owed $16,000 for an unknown
reason. He also contends there was no evidence connecting him with any of the
coyotes who transported the women across the border and then later across state
lines.
The record does not support Melchor’s interpretation of the evidence. One
of the first questions Melchor asked Wendy and Angelica was where they were
from. Both women stated they were from Guatemala. The women then asked
Melchor “how much would the trip cost us. And he told us $16,000.” R4 at 67.
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Melchor immediately told the women they would have to pay it back by working.
Contrary to Melchor’s argument, the jury could reasonably infer from this
evidence that Melchor knew the reason for their $16,000 debt was to pay for their
trip from Guatemala.
There was also more than sufficient evidence to connect Melchor to the
coyotes who illegally imported Wendy and Angelica into the United States and
transported them across state lines. The journey from Guatemala to Tallahassee
involved a careful, elaborate orchestration of numerous coyotes who met the
women at designated locations. Melchor was the last stop of their two-week trek.
Wendy testified that the Houston coyote called someone in Tallahassee and told
that person to wait for them. After driving all night from Houston to Tallahassee,
the coyotes transferred the women to one person – Melchor. It is a reasonable
inference that the coyotes would not deliver the women to Melchor unless he was
involved in their importation scheme. Furthermore, the jury heard evidence that
Melchor received numerous international calls from Guatemala, that he had told a
former client that the prostitutes were from Central American countries, and that he
had stated that he supplied whatever women were brought to him. Viewing the
evidence in the light most favorable to the government, a jury could reasonably
conclude that Melchor was involved in an international conspiracy to import illegal
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aliens, including Wendy and Angelica, for the purpose of prostitution, and actively
aided and abetted others in that importation.
Accordingly, we find no miscarriage of justice in Melchor’s convictions for
importation in counts one, four and five.
B. Transportation
Melchor next argues that there is insufficient evidence to support his
convictions in counts one, six, and seven for conspiring to transport, and aiding
and abetting the transportation of, individuals for purposes of prostitution.
Pursuant to 18 U.S.C. § 2421, a person is prohibited from knowingly transporting
someone in interstate or foreign commerce with the “intent that such individual
engage in prostitution[.]” 18 U.S.C. § 2421 (2009). Melchor asserts there was no
evidence that he participated in, assisted with, or even knew of Wendy and
Angelica’s illegal transportation from Guatemala through Mexico into Texas, and
from there to Florida.
The record reveals no miscarriage of justice. The evidence showed that
Melchor staffed his prostitution business with women from Central American
countries who were supplied by other individuals. The high volume of long-
distance and international calls to and from his cell phone indicates his
participation in an international operation to transport women illegally into the
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United States for the purpose of prostitution. As part of this ongoing operation,
Melchor obtained custody of Wendy and Angelica from a coyote. Even though he
knew they had traveled from Texas, he still questioned them as to where they were
from. He voiced no surprise when he learned the women were from Guatemala
and readily provided Angelica with a calling card to contact her husband in
Guatemala. He knew the cost of their trip and put them to work as prostitutes that
same night, collecting any money they earned. When they refused to go out the
next day, Melchor promptly called another individual, who instructed the women
that they had to keep working as prostitutes in order to pay for their trip to the
United States. The jury could reasonably infer from this evidence that Melchor not
only knew the women had been illegally transported from Guatemala into Texas
and then across state lines to Florida, but that he conspired and actively assisted
others to transport them with the intent to use the women as prostitutes for his own
monetary gain. Accordingly, we affirm Melchor’s transportation convictions in
counts one, six, and seven.
C. Harboring
Melchor’s final challenge pertains to his convictions for harboring, as
contained in counts one, two, and three. He acknowledges that he harbored Wendy
and Angelica by providing them with food, clothing, housing, and employment.
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However, he contends there was insufficient evidence that he either knew or
recklessly disregarded the fact that the women were illegal aliens.
Under 8 U.S.C. § 1324, a person is subject to ten years of imprisonment if
he:
knowing or in reckless disregard of the fact that an alien has come to,
entered, or remains in the United States in violation of law, conceals,
harbors, or shields from detection, or attempts to conceal, harbor, or
shield from detection, such alien in any place, including any building
or any means of transportation[.]
8 U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i) (2009). A person acts with reckless
disregard if he is “aware of, but consciously and carelessly ignore[s], facts and
circumstances clearly indicating that the person transported was an alien who had
entered or remained in the United States in violation of law.” United States v.
Perez, 443 F.3d 772, 781 (11th Cir. 2006) (quotation marks and citation omitted)
(emphasis in original). Additionally, reckless disregard includes “deliberate
indifference to facts which, if considered and weighed in a reasonable manner,
indicate the highest probability that the alleged aliens were in fact aliens and were
in the United States unlawfully.” Id. (quotation marks and citation omitted).
There were numerous facts and circumstances here clearly indicating that
Wendy and Angelica were unlawful aliens, and that Melchor either knew or
recklessly ignored these facts. Melchor knew they were from Guatemala and
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spoke only Spanish. He never asked them for identification papers; if he had, he
would have learned they had none. He knew they had been transported by a coyote
from Texas. He knew they carried very few clothes and would need to buy more.
In addition to clothing, he knew he was supposed to provide them with housing
and food. He knew their trip cost $16,000, that they had not paid for it, and that
they would be working as prostitutes to pay it back. Finally, Melchor knew that
Angelica still had ties to Guatemala and provided her with a calling card and his
phone to contact her family. These facts and circumstances indicate “the highest
probability” that Wendy and Angelica were unlawful aliens. Id. (quotation marks
and citation omitted). Additionally, a jury could draw a reasonable inference from
this evidence that Melchor knew Wendy and Angelica were illegal aliens, or that
he recklessly disregarded the relevant facts. The evidence regarding the element of
“knowing or in reckless disregard” is therefore not “so tenuous that a conviction
would be shocking.” Tapia, 761 F.2d at 1492. Consequently, we affirm Melchor’s
convictions for harboring illegal aliens in counts one, two, and three.
III. CONCLUSION
Based on the foregoing, we conclude that there was ample evidence to
support Melchor’s convictions on counts one through seven. No miscarriage of
justice has been shown. Accordingly, we AFFIRM his convictions.
AFFIRMED.
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