United States v. George Stewart , 709 F. App'x 301 ( 2018 )

Case: 17-40442 Document: 00514311720 Page: 1 Date Filed: 01/18/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40442
Fifth Circuit
Summary Calendar
FILED
January 18, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GEORGE STEWART,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-505-1
Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
George Stewart appeals his jury trial convictions for one count of
conspiracy to transport an undocumented alien and two counts of transporting
an undocumented alien for purpose of commercial advantage and private
financial gain. Stewart asserts that the district court erred by providing a jury
instruction on deliberate ignorance and that the evidence was insufficient to
support his convictions.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Stewart’s assertion that the district court abused its discretion by giving
the jury a deliberate ignorance instruction is without merit. See United States
v. Orji-Nwosu, 549 F.3d 1005, 1008 (5th Cir. 2008). The instruction is
appropriate only if a defendant claims a lack of guilty knowledge and the
evidence presented at trial supports inferences that “(1) the defendant was
subjectively aware of a high probability of the existence of the illegal conduct;
and (2) the defendant purposely contrived to avoid learning of the illegal
conduct.” United States v. Brooks, 681 F.3d 678, 701 (5th Cir. 2012) (internal
quotation marks and citation omitted). In light of Stewart’s continued
protestations of ignorance in the face of suspicious circumstances and his
failure to question the legality of the operation or to ascertain the contents of
the rental truck he was paid handsomely to drive across Texas, it was
appropriate for the district court to instruct the jury on deliberate indifference.
Id. Despite Stewart’s argument otherwise, the district court issued a balancing
instruction reminding the jury that deliberate ignorance was one way to
establish knowledge but that “knowledge is still something that must be
proved.”
Regarding the conspiracy conviction, Stewart argues that the
Government failed to establish all elements of the offense, although he argues
primarily that the evidence at trial failed to establish that he knew that ten
undocumented aliens were hidden in the cargo area of the rental truck.
Because Stewart did not renew his motion for a judgment of acquittal after the
close of evidence, we review for plain error. See United States v. Delgado, 672
F.3d 320, 330-31 & n.9 (5th Cir. 2012) (en banc); Puckett v. United States, 556
U.S. 129, 135 (2009). For insufficient evidence to rise to the level of plain error,
the record must be “devoid of evidence pointing to guilt” or the evidence must
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No. 17-40442
be “so tenuous that a conviction is shocking.” Delgado, 672 F.3d at 331
(internal quotation marks, citation, and emphasis omitted).
The record is not devoid of evidence that Stewart voluntarily
participated in a conspiracy to transport an undocumented alien, nor is the
evidence to that end so tenuous that his conviction is shocking. See Delgado,
672 F.3d at 331; see also United States v. Chon, 713 F.3d 812, 818 (5th Cir.
2013); 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I). The jury heard testimony that a
stranger offered Stewart $2,000 to drive a rental truck across Texas; that he
paid for Stewart’s expenses and provided him a fake Penske driver’s uniform;
that the stranger instructed Stewart to open a bank account with a false
address, to drive a circuitous route to a checkpoint with fewer border patrol
agents and canines, and to lie to border patrol agents about his occupation as
a commercial driver and his route; Stewart admitted that he knew his actions
were not legitimate. Stewart was nervous as he approached the checkpoint
and during the primary border patrol inspection; he gave inconsistent
statements to federal agents. See United States v. Richardson, 848 F.2d 509,
513 (5th Cir. 1988); United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th
Cir. 1990). At the very least, as discussed above, Stewart was aware of the
high probability of the existence of the illegal conduct and purposely blinded
himself to that conduct, and the jury was free to find the requisite knowledge
based on his deliberate ignorance. See Brooks, 681 F.3d at 701; see also United
States v. St. Junius, 739 F.3d 193, 206 (5th Cir. 2013). The same conduct shows
that the record is not devoid of evidence establishing that Stewart aided and
abetted the transportation of undocumented aliens for financial gain. See
Delgado, 672 F.3d at 331; see also United States v. Villanueva, 408 F.3d 193,
201 (5th Cir. 2005); § 1324(a)(1)(A)(ii), (v)(II).
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The record reflects a clerical error in the written judgment with respect
to one of the statutory subsections under which Stewart was convicted. The
judgment provides that Stewart was convicted of aiding and abetting under
§ 1324(a)(A)(v)(II), but the correct subsection is § 1324(a)(1)(A)(v)(II).
Accordingly, we remand for correction of the written judgment in accordance
with Federal Rule of Criminal Procedure 36.
AFFIRMED; LIMITED REMAND FOR CORRECTION OF
JUDGMENT.
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