*Of the Tenth Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

Nos. 02-1906

 02-1930

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE GUERRA-GARCIA; ARTURO CAVAZOS,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Lipez, Circuit Judge,

Porfilio,* Senior Circuit Judge,

and Howard, Circuit Judge.

Darla J. Mondou, with whom John M. Claffey was on the brief

for appellant.

Demetra Lambros, Attorney, United States Department of

Justice, with whom Margaret E. Curran, United States Attorney, and

James H. Leavey, Assistant United States Attorney General were on

the brief, for the United States.

July 16, 2003
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PORFILIO, Senior Circuit Judge. In this consolidated

appeal, Defendant Jorge Guerra-Garcia and Arturo Cavazos challenge

their convictions for conspiring to transport an illegal alien

within the United States, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), and of transporting an illegal alien within

the United States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii)

and (v)(II). Trial was held in the United States District Court

for the District of Rhode Island. After the verdict, Defendants

moved for a judgment of acquittal under Fed. R. Crim. P. 29, which

the district court denied. Both Defendants were sentenced to

concurrent 13-month terms of imprisonment. 

On appeal, Defendants make two claims. First, they

assert the district court erred by denying their Rule 29 motions

because evidence was insufficient to support the convictions.

Second, they argue the court committed plain error in instructing

the jury. Concluding Defendants have not carried their appellate

burdens of demonstrating that no rational jury could have convicted

beyond a reasonable doubt and that the district court’s

instructions, taken as a whole, violated their substantial rights,

we affirm.

In February 2001, Francisco Rodriguez illegally entered

the United States from Mexico and attempted to join his son,

Carmen, also an illegal alien living in North Carolina. Initially,

Francisco was led across the Texas border by Mexican alien
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smugglers. Once in Texas, he was put into the hands of Defendants

for the journey to North Carolina. Ten days later, Defendants were

arrested in Providence, Rhode Island, by Immigration and

Naturalization Service (INS) agents. In exchange for their

truthful testimony at Defendants’ trial, Francisco and Carmen were

granted immunity from prosecution, given immigration papers, and

allowed to work in this country during the pendency of the trial.

After many difficulties on the Mexican side of the

border, including Carmen’s $600 payment to a smuggler who left

Francisco stranded in a hotel room in Mexico, Francisco entered the

United States. He hid for about 13 hours, along with 15-20 other

aliens, before he was taken to a safe house run by Luis Martinez.

Martinez asked Francisco for the name and number of the person

paying for his trip to North Carolina. Martinez then contacted

Carmen, who wired $200 for food and clothing for his father.

After two days, Francisco and the others were taken to an

apartment in Houston, where he provided his contact information to

another smuggler, Uriel Cortes Gomez. Gomez requested a balance of

$1,000 from Carmen to take Francisco to North Carolina. Gomez also

stated the trip from Houston to North Carolina would cost an

additional $250 if paid up-front or $450 if paid upon delivery.

Not having the additional $250, Carmen wired Gomez $1,000 and

agreed to pay $450 upon his father’s arrival in North Carolina.
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Two days later, Gomez took Francisco to a “big house”

operated by “Flash Van Tours” where “they ha[d] some vans” outside.

Gomez told Francisco he was “all set” and directed him to a room

inside the house, where he joined about 30 others. Francisco had

no money and only a small bag with a shirt and a pair of pants. 

After about three hours, Defendant Guerra-Garcia called

out the names of 15-17 people, all from Mexico, Guatemala, or

Brazil, and ushered them into a van. He gave Francisco a ticket

which bore his name, but no price. Francisco paid nothing for the

ticket. Guerra-Garcia assigned the passengers to their seats, four

to a bench, directed them not to talk, and took his place in the

driver’s seat. Ten minutes later, they picked up Defendant

Cavazos, who shared driving duties for the rest of the trip.

At their first stop in Louisiana, Guerra-Garcia and

Cavazos allowed a woman and her children, but no one else, to exit

the van and use the bathroom. Guerra-Garcia explained to the group

that the men were not allowed to get out because Louisiana “was a

little bit dangerous” and “people are somewhat racist and they

could say something.” At later stops, passengers were allowed

bathroom breaks and given the opportunity to purchase food.

Throughout the trip, defendants utilized a procedure for

dropping passengers at their destinations. Guerra-Garcia or

Cavazos would call ahead to a “pick-up” person and only those

leaving permanently would exit the van at a specific drop-off
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location. To organize this process, Defendants carried a passenger

manifest, which listed each rider’s name, destination, contact

telephone numbers, and balance owed.

As the van approached North Carolina, Guerra-Garcia

called Carmen, stating that if he had Francisco’s fare, they would

drop him off on Route 85 next to a McDonald’s. Carmen, however,

told Guerra-Garcia he only had $200, but asked to have his father

dropped off anyway and promised to get the remaining $250 by the

weekend. Guerra-Garcia refused, claiming “many people had failed

to pay them.” Carmen said he would try to get the extra money

within a half hour and took down Guerra-Garcia’s cell phone number.

Carmen was not able to obtain the money and again

promised to raise money over the weekend. Guerra-Garcia refused,

stating they would keep Francisco for the trip to Boston; if Carmen

had the money by the time they returned to North Carolina, they

would drop Francisco off then. If not, they would return him to

Houston.

The trip continued. In Virginia, Guerra-Garcia and

Cavazos left the van and brought back hamburgers for the

passengers. When they reached Boston and dropped off a group of

Brazilians at a private home, everyone was invited in for dinner.

Meanwhile, in Providence, INS agents received a tip that a group of

illegal aliens was headed their way.
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After the meal, Francisco, two remaining passengers, and

Defendants headed toward Rhode Island. Upon their arrival in

Providence on February 20, 2001, Defendants were arrested. INS

agents seized $5,461 in cash from the Defendants’ personal

possession and a cell phone from Guerra-Garcia. In the van, agents

discovered the passenger manifest, an envelope with receipts for

fuel, tolls, and food, and a Rand McNally atlas opened to a map of

Massachusetts.

I. Denial of the Motion for Judgment of Acquittal 

- Sufficiency of the Evidence

We review a district court’s denial of a judgment of

acquittal de novo. United States v. Collazo-Aponte, 216 F.3d 163,

193 (1st Cir. 2000). In appealing the denial of a Rule 29 motion,

a defendant who challenges the sufficiency of the evidence must

show no rational jury could have found him guilty beyond a

reasonable doubt. United States v. Rodriguez, 162 F.3d 135, 141

(1st Cir. 1998); see United States v. Hernandez, 218 F.3d 58, 64

n.4 (challenges to denial of Rule 29 motion and to sufficiency of

evidence raise same question). We view the evidence in the light

most favorable to the prosecution, drawing all inferences in its

favor, and resolve all credibility determinations in line with the

verdict. United States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002);

United States v. Medina-Garcia, 918 F.2d 4, 7 (1st Cir. 1990) (Rule

29). 
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Count III charged a violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), which makes it a crime to “engage[] in any

conspiracy to commit” the substantive act of knowingly or

recklessly transporting an illegal alien. The statutory basis

for Count IV, 8 U.S.C. § 1324(a)(1)(A)(ii), provides that anyone

who:

Knowingly or in reckless disregard of the fact

that an alien has come to, entered, or remains

in the United States in violation of law,

transports, or moves or attempts to transport

or move such alien within the United States by

means of transportation or otherwise, in

furtherance of such violation of law . . .

shall be punished.

As the district court instructed the jury, to convict on Count IV,

the Government had to prove: (1) the alien named in the indictment

(here, Francisco Rodriguez) was not lawfully in the United States;

(2) defendants knew or recklessly disregarded that fact; (3)

defendants transported the alien into the United States; and (4)

defendants acted willfully in furtherance of the alien’s illegal

presence in the United States. See United States v. Angwin, 271

F.3d 786, 805 (9th Cir. 2001), cert. denied, 535 U.S. 966 (2002);

Federal Jury Practice & Instructions, § 51B.06 (1999 Supplement).

Defendants take issue with the proof of the conspiracy

element of Count III, the touchstone of which is an agreement to do

an unlawful act. United States v. Martinez-Medina, 279 F.3d 105,

113 (1st Cir. 2002). The Government must prove a defendant’s
1The Ninth Circuit has held there is no ipso facto exemption

from 8 U.S.C. § 1324(a) for those who transport illegal aliens

during the course of employment. United States v. HernandezGuardado, 228 F.3d 1017, 1023 (9th Cir. 2000). The First Circuit

has not ruled on this precise issue. Because other circumstantial

evidence supports Defendants’ conviction on both the transport and

conspiracy counts, we need not resolve the issue in this case.

2To the extent Defendants regard such acts as required conduct

of illegal alien transporters, their hypothesis is unrealistic.

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intent to agree and intent to commit the substantive offense with

the named co-conspirators or unnamed others. United States v.

Gomez-Pabon, 911 F.2d 847, 853 (1st Cir. 1990). A defendant need

not have knowledge of all the details of the conspiracy, the

participants in the conspiracy, or their acts. United States v.

Williams, 809 F.2d 75, 86 (1st Cir. 1986). “The jury may infer an

agreement circumstantially by evidence of, inter alia, a common

purpose (such as a purpose to sell illicit drugs), overlap of

participants, and interdependence of elements in the overall plan.”

Martinez-Medina, 279 F.3d at 113-14.

Claiming they made no attempt to hide their activities,

Defendants maintain they did not act in a manner consistent with a

conspiracy to transport an illegal alien.

1 The van used to

transport Francisco had windows, the doors were not bolted shut,

and Francisco was not handcuffed or restrained in any manner.2

Passengers were allowed to use the bathroom and purchase food at

stores during the trip. Flash Van Tours operated openly in

Houston; people were allowed to enter and exit the building freely.
3On appeal, Defendants do not address the inference of

conspiracy arising from the fact that Guerra-Garcia refused to drop

Francisco off in North Carolina because Carmen did not have the

fare he previously promised.

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Defendants concede the passenger manifest demonstrates

their purported involvement in an alleged conspiracy, but maintain

it is insufficient to satisfy proof beyond a reasonable doubt,

particularly because the list did not state the nationalities or

citizenship of passengers. Francisco’s presence in the van

resulted from the manager of Flash Van Tours’ “on-the-side deal”

with Martinez and Gomez, reached entirely without Defendants’

involvement. Further, Defendants point to the fact the INS

investigation of telephone records showed no calls between

Defendants to Gomez or Martinez or vice versa.3

In contrast, the Government urges there was sufficient

evidence to support the conspiracy convictions. We agree.

Together, Defendants transported Francisco within the United

States, knowing or recklessly disregarding his illegal alien status

in furtherance of his unlawful presence in this country. At least,

Defendants agreed with each other to illegally transport Francisco

– sufficient standing alone to satisfy a conspiracy charge. See

United States v. Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985)

(conspiratorial agreement “may consist of no more than a tacit

understanding”).
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Further, circumstantial proof indicates Defendants were

part of a larger conspiracy involving Gomez, Martinez, and unnamed

others. Gomez and Martinez facilitated Francisco’s border

crossing; Gomez negotiated Francisco’s fare to North Carolina with

Carmen; and Gomez delivered Francisco to the house where he was

later collected by Guerra-Garcia. Defendants were aware of the

terms of the deal Gomez had reached with Carmen, and, because “many

people had failed to pay them,” refused, without consulting

superiors at Flash Van Tours, to deliver Francisco unless full

payment was tendered. The jury could have inferred Defendants were

in league with Gomez, as bill collectors at minimum, or as agents

or partners. Once the existence of a conspiracy is established, a

defendant’s connection to it need only be slight, if knowing and

willing. United States v. Brandon, 17 F.3d 409, 428 (1st Cir.

1994) (once conspiracy and defendant’s intent to further it is

established, “any connection between the defendant and the

conspiracy, even a slight one, will be sufficient to establish

knowing participation”).

Defendants next contend the Government did not prove they

knowingly and recklessly disregarded the fact that Francisco was an

illegal alien. Although there is no direct evidence Defendants

knew Francisco was an illegal alien, that they had knowledge of

that fact or recklessly disregarded it may be based entirely on

circumstantial evidence, including inferences from the surrounding
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circumstances. See United States v. Olbres, 61 F.3d 967, 971 (1st

Cir. 1995). 

Defendants maintain the surrounding circumstances

reasonably did not cause them to question Francisco’s alienage.

First, they claim Francisco’s inability to speak English bore no

correlation to his illegal alien status because many United States

citizens speak only Spanish. The fact he was carrying only a small

bag and had no money did not indicate his status because many

foreign-born travelers carry light luggage. Defendants suggest,

for example, a Puerto Rican Spanish-speaker traveling from Houston,

carrying only a small bag would not be an illegal alien. Second,

their refusal to drop off Francisco without full payment from

Carmen was not an indication Defendants knew or recklessly

disregarded Francisco’s illegal presence in this country.

Defendants claim they were merely following orders from superiors

at Flash Van Tours not to release any traveler without full

payment. While acknowledging the practice is unusual, Defendants

urge Flash Van Tours’ collection of the bus fare at the point of

destination does not support an inference that only illegal aliens

would agree to such terms. Moreover, the fact that Defendants

intended to return Francisco to Houston, in their view, is evidence

they did not know he was an illegal alien.

By contrast, the Government points to numerous factors

from which a jury could infer Defendants knew or recklessly
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disregarded Francisco’s alien status. When Guerra-Garcia first met

Francisco, they were in Houston, a border state city, in a room

full of foreigners from Guatemala, Mexico, and Brazil. Francisco

had no money, no luggage other than a small bag with a shirt and

pants, and no bus ticket. See United States v. Shaddix, 693 F.2d

1138 (5th Cir. 1982) (fact that individuals carried cloth sacks and

spoke no English, among other things, indicated they were in the

United States illegally). On the trip, Defendants acted as guards

and guardians of their charges, directing passengers to the van,

assigning seats, instructing them not to talk, and refusing to let

male riders off for a bathroom break in North Carolina because

people are “somewhat racist” and “could say something.” At another

stop, Defendants bought hamburgers for the passengers and accepted

on their behalf a dinner invitation at the Boston home of a

Brazilian rider’s sponsor. 

The Government maintains Defendants’ method of dropping

off passengers was also far from that of a typical bus driver.

Each passenger was delivered to his own unique spot, where others

were not allowed to leave the van. Payment likewise was unusual.

A rider’s fare, which had to be paid in cash only, was prearranged

with his “contact person” and collected at the end of the trip.

As the Government correctly states, while any one factor

in evidence, standing alone, might not itself be proof of

knowledge, the combination of all the circumstances equals “more
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than the sum of its parts.” United States v. De La Cruz, 996 F.2d

1307, 1311 (1st Cir. 1993); see also United States v. Martin, 228

F.3d 1, 10 (1st Cir. 2000) (juries need not evaluate pieces of

evidence in isolation, but “may draw conclusions from the sum of an

evidentiary presentation”). Defendants’ arguments on the issue of

knowledge are not persuasive.

Finally, Defendants argue to be guilty of the “in

furtherance” element of 18 U.S.C. § 1324(a), one must have

knowledge of the alien’s illegal status in the United States.

Relying upon their theory that the prosecution did not prove their

knowledge of Francisco’s status, Defendants argue it follows the

prosecution likewise did not prove the “in furtherance” element.

The argument fails because it is based upon a faulty premise.

II. Jury Instructions

Defendants challenge the instruction defining the term

“reckless disregard” as an element of the offense of transporting

an illegal alien. See 8 U.S.C. § 1324(a)(1)(A)(ii). They claim

the instruction given diminished the Government’s burden of proving

guilty knowledge. No objection was made at trial; therefore, we

will review this issue for plain error. See United States v.

Geronimo, 330 F.3d 67, 74-75 (1st Cir. 2003); United States v.

Weems, 322 F.3d 18, 26 (1st Cir. 2003). In the course of this

review, we may correct only “particularly egregious” errors.

United States v. Richard, 234 F.3d 763, 770 (1st Cir. 2000)
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(internal quotation marks omitted); see also United States v.

Young, 470 U.S. 1, 15 (1985) (“[T]he plain-error exception to the

contemporaneous-objection rule is to be ‘used sparingly, solely in

those circumstances in which a miscarriage of justice would

otherwise result.’”) (citation omitted).

The district court gave a lengthy instruction on the

meaning of “recklessly disregard,” ultimately explaining precisely

how the Government could show the Defendants acted with reckless

disregard. The court stated:

A Defendant may be found to have recklessly

disregarded a fact if the Defendant had

knowledge of a fact or if you find that the

Defendant deliberately closed his eyes to a

fact that otherwise would have been obvious to

him. . . . [I]n order to infer that a

Defendant had knowledge of a fact, you have

got to be satisfied that the Government has

proven two things beyond a reasonable doubt .

. . first you have got to be satisfied that

the Government has shown that the Defendant

knew that it was very likely that the matter

to be inferred was a fact. And in this case,

the matter to be inferred, that the Government

is asking you to infer, that is that . . .

Francisco Rodriguez was here illegally. So

the first thing the Government has to show you

is that the Defendant knew that it was very

likely that Mr. Rodriguez was here illegally.

And the second thing that the Government has

to show is that the Defendant consciously and

deliberately avoided learning that fact; that

is to say, that the Defendant [may not] avoid

criminal responsibility by deliberately and

purposely avoiding learning a fact that he

knows is very likely to be so. That’s what it

basically comes down to.

* * *
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[T]he question isn’t whether the Defendant

should have been or could have been more alert

or more diligent in determining whether Mr.

Rodriguez knew that he . . . probably was and

deliberately took steps to avoid learning that

for certain. That’s what it comes down to.

(Emphasis added).

Defendants object to the use of the word “probably” in

the last paragraph, arguing it allowed them to be convicted upon a

finding they “probably” knew Francisco Rodriguez was an illegal

alien. We do not agree. We believe the court’s use of “probably”

in the instruction was a reference to Mr. Rodriguez’ status, and

not to the likelihood of the Defendants’ knowledge of that status.

Defendants’ argument simply fails to show a particularly

egregious error or to demonstrate a miscarriage of justice occurred

that would lead to a finding of plain error. Indeed, there was no

error at all. See United States v. Cunan, 152 F.3d 29, 40 (1st

Cir. 1998) (“The record demonstrates that the court instructed the

jury that the government must prove the knowledge element of the

offense beyond a reasonable doubt, before outlining the ways in

which the knowledge element could be satisfied, including willful

blindness.”).

Defendants also contend the district court failed to

instruct on aiding and abetting, asserting the failure affected

their substantial rights. This, if error at all, is harmless. See

United States v. Abozid, 257 F.3d 191, 199-200 (2d Cir. 2000).

Affirmed.