United States v. Moreno-Salazar ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50581
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS MORENO-SALAZAR; MARIA LEGORRETA-DE MORENO,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-52-1-FV
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December 7, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Santos Moreno-Salazar and his wife, Maria Legorreta-De
Moreno, appeal their convictions for harboring illegal aliens.
They argue that the district court’s jury instruction on what
conduct constitutes harboring an alien was incorrect and
prejudicial because the instruction did not require that their
acts rise to the level of substantial facilitation. They admit
that they did not object to the court’s instruction and that this
issue must be reviewed for plain error. See Johnson v. United
States, 520 U.S. 461, 465-466 (1997).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-50581
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The concept of “substantial facilitation” is implicit in the
definitions of “harbor” and “conceal” which the district court
provided to the jury. The conduct so defined by the court is
conduct which by its nature tends to substantially facilitate an
alien’s remaining in the United States illegally. The
“substantial facilitation” language was not intended as a
limitation on the terms “harbor” and “conceal,” but was intended
to encompass conduct beyond that connected with smuggling-related
activity. United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir.
1977); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th
Cir. 1982). The jury charge in this case did not allow the jury
to find appellants guilty of conduct which provided only “minimal
assistance” or conduct which was insufficient to substantially
facilitate the aliens’ remaining in the United States. In the
context of the entire trial, the district court’s instructions on
the elements and definitions of harboring and concealing an alien
were proper. It was for the jury to determine from the evidence
whether or not the appellants acted knowingly and with the intent
to harbor and conceal the aliens. The jury instruction did not
allow the jury to convict based on the mere presence of the
aliens on the appellants’ property.
Appellants contend that the prosecutor improperly bolstered
the credibility of Agent Pena and made misstatements of the law,
depriving them of a fair trial. They argue that it was improper
for the prosecutor to point to Agent Pena’s status as a
Government employee in order to bolster his credibility. They
contend that the prosecutor also misstated the law by suggesting
No. 00-50581
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to the jury that they could convict solely on a finding that
appellants knew the aliens were on their property. Appellants
acknowledge that they did not object at trial to the comments of
the prosecutor which they now challenge on appeal and that the
plain error standard of review applies. See United States v.
Munoz, 150 F.3d 401, 415 (5th Cir. 1998).
Allegedly improper argument must be reviewed “in light of
the argument to which it responded.” United States v. Thomas, 12
F.3d 1350, 1367 (5th Cir. 1994). The government “may even
present what amounts to be a bolstering argument if it is
specifically done in rebuttal to assertions made by defense
counsel in order to remove any stigma cast upon [the prosecutor]
or his witnesses.” Id.; Munoz, 150 F.3d at 415.
A review of the record shows that the challenged comments,
in the context of the entire trial, were not improper. The
prosecutor’s comment about Pena being “the reason this case is
here” was made in the context of his argument that appellants had
tried to insulate themselves from the law by having no direct
contact with the illegal aliens. This comment was based on the
evidence which established that Agent Pena had originated the
investigation after tracking the aliens to their ranch and was
not improper. In response to defense counsel’s suggestion that
Agent Pena was “over zealous” and “over anxious” in his attempts
to convict the landowners, the prosecutor’s comments about Agent
Pena working hard and taking pride in his work were made to
remove any stigma cast upon Pena by defense counsel. Taken in
No. 00-50581
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context, the prosecutor’s comments were not improper and did not
constitute plain error.
Appellants argue that the prosecutor misstated the law by
improperly arguing to the jury that their mere knowledge of
aliens on their property was sufficient to convict them. The
prosecutor did not tell the jury that the law permitted the jury
to find the appellants guilty by the mere fact that they knew of
the presence of the aliens on their property. To the contrary,
the prosecutor repeated the district court’s instruction on
harboring an alien, requiring that they shelter, succor, help, or
give aid. The prosecutor argued that the evidence showed that
appellants had harbored aliens in that they “provided” the
location to the aliens, that they had “anticipated” their
arrival, and that it had been “prearranged” long ago. The
prosecutor’s statements did not constitute plain error.
AFFIRMED.