United States v. German Ramirez-Gonzalez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50096
Plaintiff-Appellee, D.C. No.
3:18-cr-02342-BTM-2
v.
GERMAN RAMIREZ-GONZALEZ, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-50178
Plaintiff-Appellee, D.C. No.
3:18-cr-02342-BTM-3
v.
MARY ARAGON, AKA Mary Delgado,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
Argued and Submitted March 4, 2021
Pasadena, California
Before: GRABER and MILLER, Circuit Judges, and HILLMAN,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants German Ramirez-Gonzalez and Mary Aragon (collectively,
“Defendants”) appeal their convictions for transporting an illegal alien or aliens
within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II),
and three supervised release conditions imposed on Ramirez-Gonzalez. We
affirm, except as to the challenged supervised release conditions.
1. Because the Acting United States Attorney for the Southern District
of California was validly appointed under 28 U.S.C. § 546(d), the United States
had the legal authority to indict and prosecute Defendants. See CFPB v. Gordon,
819 F.3d 1179, 1187 (9th Cir. 2016) (applying de novo review to questions of
constitutional law). We need not consider the constitutionality of Acting Attorney
General Whitaker’s appointment because, to be valid, “indictments need only be
signed by ‘an attorney for the government.’” See United States v. Gantt, 194 F.3d
987, 998 (9th Cir. 1999) (quoting Fed. R. Crim. P. 7(c)(1)) (overruled on other
grounds by United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008)).
2. The Third Superseding Indictment did not prejudicially misstate the
scienter element of the alien transportation statute when it charged that Defendants
acted with “knowing and in reckless disregard” to violate federal immigration law.
ER 1-2 (emphasis added). Defendants cannot show prejudice on plain error review
**
The Honorable Timothy S. Hillman, United States District Judge for
the District of Massachusetts, sitting by designation.
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because framing the indictment conjunctively to require both “knowing and in
reckless disregard” worked to the Defendants’ advantage by making it harder for
the government to prove its case. See United States v. Leo-Maldonado, 302 F.3d
1061, 1064 (9th Cir. 2002) (“[R]eview of an untimely objection to the sufficiency
of the indictment is limited to the plain error test.”).
3. Applying plain error review, United States v. Conti, 804 F.3d 977,
981 (9th Cir. 2015), the district court’s jury instructions on aiding and abetting
liability satisfied the rule announced in Rosemond v. United States that an
accomplice must have advance knowledge of the crime so that he or she has the
requisite intent to assist in its commission. 572 U.S. 65, 77-81 (2014).
4. We review de novo the district court’s denial of Defendants’ Rule 29
motions for judgments of acquittal. See United States v. Goyal, 629 F.3d 912, 914
(9th Cir. 2010). Having considered the evidence presented by the Government at
trial in the light most favorable to the prosecution, we agree that there was
sufficient evidence for the jury to find beyond a reasonable doubt that Aragon not
only aided and abetted co-Defendant Patara in the transportation, but also that she
acted as a principal. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (providing
standard for district courts to evaluate the sufficiency of evidence to support a
criminal conviction). We also agree that there was sufficient evidence to show that
Ramirez-Gonzalez aided and abetted Patara in transporting Lopez, an
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undocumented passenger in Patara’s car. Defendants can be convicted of aiding
and abetting even though one alleged principal, co-Defendant Patara, was
acquitted. As noted, the evidence sufficed to show that Aragon acted as a
principal, and the government pressed that alternative theory at trial. Regardless of
Patara’s acquittal, inconsistent verdicts are not a ground for reversal in this case
because the evidence sufficed to prove beyond a reasonable doubt that someone,
whether Aragon or Patara, committed the underlying substantive crime. United
States v. Martinez, 806 F.2d 945, 947 (9th Cir. 1986).
5. The district court committed plain error by imposing Standard
Supervised Release Conditions 4, 5, and 13 on Ramirez-Gonzalez. See United
States v. Vega, 545 F.3d 743, 747 (9th Cir. 2008) (applying plain error review to
supervised release conditions not challenged at sentencing). We previously held
those conditions to be unconstitutionally vague in United States v. Evans, 883 F.3d
1154, 1162 (9th Cir. 2018). Accordingly, we vacate Standard Supervised Release
Conditions 4, 5, and 13 for Ramirez-Gonzalez and remand to the district court with
instructions to issue an amended judgment consistent with our decision in Evans.
Id. at 1162-64.
AFFIRMED in part, REVERSED in part, and REMANDED as to
Standard Supervised Release Conditions 4, 5, and 13.
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