## Facts

- Norma Hernandez-Orellana was stopped at a Border Patrol checkpoint near Temecula, California while driving an SUV with ten undocumented aliens; agents determined the passengers lacked immigration documents.
- Authorities later investigated a San Diego residence used as a “load house” where undocumented aliens were held and then moved onward.
- Surveillance linked Hernandez-Orellana and Maritza Olmeda Drewry to transporting undocumented aliens from the load house within the United States.
- A ledger/journal found in Hernandez-Orellana’s vehicle recorded smuggling-related transactions and payments; cash was found on Drewry, and testimony described payments for smuggling services.
- Witnesses testified that both defendants made threats intended to discourage aliens from testifying.
- Hernandez-Orellana admitted at trial that she transported aliens for financial gain.
- The evidence showed defendants arranged logistics and transported aliens after entry, but did not show they transported aliens into the United States or participated in the border-crossing phase.

## Issues

1. Whether sufficient evidence supported convictions for conspiracy to bring illegal aliens into the United States for financial gain where defendants’ proven acts were largely post-entry and they did not personally commit the border-crossing conduct.
2. Whether sufficient evidence supported substantive convictions for “bringing to” illegal aliens for financial gain under 8 U.S.C. § 1324(a)(2)(B)(ii) when the proof tied defendants only to post-entry transportation and load-house logistics.

## Decision

- The Ninth Circuit affirmed the conspiracy convictions under 18 U.S.C. § 371 and 8 U.S.C. § 1324.
- The court reversed the substantive “bringing to” convictions under 8 U.S.C. § 1324(a)(2)(B)(ii) (and related aiding-and-abetting theory) because the evidence did not connect defendants to pre-border or at-border conduct.
- The case was remanded for resentencing because it was unclear whether the district court would have imposed the same sentences absent the reversed substantive counts.

## Legal Principles

- Conspiracy liability requires proof of an agreement to achieve an unlawful objective and an overt act in furtherance by any conspirator; a conspirator need not personally perform the substantive offense.
- A jury may infer knowing participation in an alien-smuggling conspiracy for profit from circumstantial evidence such as coordinated logistics, transportation roles, smuggling records, payments, and admissions.
- The substantive “bringing to” offense in 8 U.S.C. § 1324(a)(2) targets conduct connected to bringing an alien to the United States; post-entry transportation or housing alone does not satisfy the “bringing to” element.
- Evidence adequate for conspiracy participation may be inadequate for substantive “bringing to” liability when it shows only post-entry conduct.

## Conclusion

The Ninth Circuit held that post-entry transportation and logistical support could support a conviction for conspiracy to bring aliens into the United States for financial gain, but could not sustain substantive “bringing to” convictions absent proof tying defendants to the pre-border or border-crossing phase; it therefore affirmed in part, reversed in part, and remanded for resentencing.


United States v. Hernandez-Orellana, 539 F.3d 994 (9th Cir. 2008)