FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 06-50584

v.  D.C. No.

NORMA CR-05-01282-NAJ HERNANDEZ-ORELLANA,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 06-50620 Plaintiff-Appellee,

D.C. No.

v.  CR-05-01282-2-NAJ

MARITZA OLMEDA DREWRY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Argued and Submitted

June 3, 2008—Pasadena, California

Filed August 20, 2008

Before: Diarmuid F. O’Scannlain and Richard C. Tallman,

Circuit Judges, and James K. Singleton,*

Senior District Judge.

Opinion by Judge Tallman

*The Honorable James K. Singleton, Senior United States District

Judge for the District of Alaska, sitting by designation. 

11143
COUNSEL

Steven S. Lubliner, Esquire, Criminal Justice Act Attorney,

Petaluma, California, for defendant-appellant Norma

Hernandez-Orellana. 

11148 UNITED STATES v. HERNANDEZ-ORELLANA
David J. Zugman, Esquire, Criminal Justice Act Attorney, San

Diego, California, for defendant-appellant Maritza Olmeda

Drewry. 

William M. Narus, Esquire, Assistant United States Attorney,

San Diego, California, for plaintiff-appellee United States of

America. 

OPINION

TALLMAN, Circuit Judge: 

Today, we address the question left open in United States

v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc), to explain

what actions render a co-conspirator criminally liable for an

alien smuggling conspiracy for profit even though there is no

evidence that the conspirator herself committed an actual

overt act of smuggling aliens across the border but other coconspirators did. We hold that a reasonable jury could have

determined that Maritza Olmeda Drewry (Drewry)1 and

Norma Hernandez-Orellana (Hernandez) participated in a

conspiracy to bring aliens from Mexico to the United States

for financial gain in violation of 18 U.S.C. § 371 and 8 U.S.C.

§ 1324. We conclude that our en banc decision in Lopez

decided during the pendency of this case compels the reversal

of Drewry’s and Hernandez’s convictions on the substantive

“bringing to” counts, 8 U.S.C. § 1324(a)(2)(B)(ii). We therefore affirm in part and reverse in part the judgment of the district court. Because it is unclear whether the district court

would have imposed the same sentence in light of our decision to reverse the substantive bringing to counts, we also

remand for resentencing. 

1

In the Presentence Report and Judgment, Drewry’s name is spelled

Drewry. In the Superceding Indictment and Reporter’s Transcripts, it is

spelled Drewery. We use the former spelling throughout this opinion. 

UNITED STATES v. HERNANDEZ-ORELLANA 11149
I

The material facts of this case are not seriously in dispute.

On June 19, 2005, Hernandez was caught driving an SUV

with ten undocumented aliens through the Interstate 15

Temecula Border Patrol checkpoint located between San

Diego and Los Angeles, California. Agent Ryan Myers was

on duty as the primary immigration inspector. From his vantage point Myers was only able to view Hernandez and four

of the aliens inside the vehicle. Myers questioned Hernandez

about the immigration status of the aliens and learned they

had no documents. As a result, he directed Hernandez to secondary screening. At secondary, agent Erik Cansino discovered another six aliens hiding in the SUV. Ultimately, the

aliens were permitted to voluntarily return to Mexico, and

Hernandez was identified, questioned, and released. 

Approximately one month thereafter, authorities received a

tip concerning alien smuggling at a San Diego “load house”

just north of the United States-Mexico border. Border Patrol

agents Brian Desrosiers and Damian Caraway responded.

Once at the residence, Desrosiers observed Drewry heading

toward a white Toyota Tundra SUV, which she subsequently

entered. He also saw Hernandez accompanying two individuals to the vehicle who, as subsequent investigation confirmed,

turned out to be undocumented aliens. The aliens climbed in

the back of the Tundra, and Hernandez entered the front passenger door. 

The agents immediately stopped Drewry as she began to

drive everyone away from the house. Desrosiers confirmed

the identity of the driver as Drewry and that the aliens lacked

immigration documentation. He and Caraway then arrested

Drewry and Hernandez; and they called for more Border

Patrol officers. 

When back up arrived at the scene, agents searched the residence from which the aliens had emerged and nearby vehi11150 UNITED STATES v. HERNANDEZ-ORELLANA
cles. In a maroon Toyota Tundra, which agents later

determined was registered to Hernandez, Border Patrol agents

recovered an incriminating ledger. The ledger documented

smuggling activities from Mexico to California from approximately June 30, 2005, until July 15, 2005. The ledger contained the names of various drivers, guides, and the going

rates for cross-border smuggling. In addition, the name

“Diana” (an alias Drewry used) appeared in the ledger along

with “x 10” and the date “07-7-2005,” which the jury could

find suggested that Drewry was responsible for transporting

or arranging transportation for ten undocumented aliens into

the United States on July 7, 2005. The names of the guides

and the smuggling price for each alien were all listed. 

The ledger identified additional aliens for whom Drewry

had responsibility to transport or to make transportation

arrangements. Listed was one alien smuggled on June 30,

2005, twelve aliens on July 1, 2005, two aliens on July 4,

2005, and three aliens on July 11, 2005. Finally, the ledger

indicated that Drewry owed Hernandez $9,000 for driving

aliens. 

Border Patrol agents also discovered a journal in the garage

of the residence. The journal, like the ledger, identified other

aliens apparently transported across the border, names of foot

guides, smugglers, and drivers. Agents also searched Drewry’s purse in which they found an envelope with $1,600 in

cash — the market rate for smuggling an alien from Mexico

to the United States. 

At trial, Hector Contreras-Garcia, one of the two aliens

found with Drewry, explained that he paid $3,300 to be smuggled across the border. He and his wife along with two others

made the crossing in the trunk of a car. Once across the border, Garcia and his wife were taken by another driver in Hernandez’s maroon SUV to the load house, where Hernandez

greeted them. The aliens stayed there for an unspecified

period of time. At some point, though, not more than a few

UNITED STATES v. HERNANDEZ-ORELLANA 11151
days after their arrival, Drewry appeared at the house to escort

them to the white Tundra. Garcia testified that prior to trial,

and as further evidence of her guilt, Drewry threatened him

not to testify. 

Teresa Camarena-Reyes, Garcia’s wife, testified to similar

witness intimidation. She stated that she too had been threatened not to reveal anything by Hernandez — while Drewry

was present — shortly before a court hearing. 

Erica Osuna-Millan, an alien living at the load house,

explained at trial that she had witnessed Drewry instructing

Hernandez to bring aliens to certain locations and that she saw

Drewry pay Hernandez for Hernandez’s efforts. Millan also

watched as new aliens arrived and stayed at the residence.

The arrival of the new aliens, Millan testified, seemed to coincide with the comings and goings of Drewry to and from the

home. Millan echoed Reyes’s and Garcia’s statements that

she had been warned by Drewry as well not to say anything

during court proceedings that might be adverse to Drewry or

Hernandez. This warning occurred after a motions hearing

and was in violation of the district court’s order that Drewry

not have contact with witnesses. 

Following her arrest, Hernandez gave a statement to agents.

Agents properly advised Hernandez of her Miranda rights,

and she agreed that her statement could be videotaped. Of

particular relevance was the following exchange, presented to

the jury in transcript form, in which Hernandez admitted she

previously had been arrested at the Temecula checkpoint on

June 19, 2005: 

M1 [Interrogator]: You have been arrested before,

right? 

F1 [Hernandez]: Yes. And I did . . . 

M1: For crossing people? 

11152 UNITED STATES v. HERNANDEZ-ORELLANA
F1: I . . . Yes, exactly. For the person I was telling

you about . . . . 

M1: Who was that person? 

F1: She . . . They caller her . . . “Letty.” Only by

“Letty.” But, uh, her name on the, on the cellular says, “Angelica.” 

M1: Angelica what? 

F1: I don’t know . . . . 

M1: Letty . . . ? You don’t know Letty? 

F1: No. 

M1: Where does . . . Letty live? 

F1: She lives at 1433 “Sakterback . . . , bait . . .”

M1: “Cedar Butte.” 

F1: Yes. In, in “Isleik.” 

M1: In Eastlake. 

F1: All I know is that it’s on Palomar and . . .

Because I went to do the pick-up for that job

that day. I didn’t want . . . 

M1: What day was that? 

F1: The 19th of June. 

M1: Of June? 

F1: Uh-huh. 

UNITED STATES v. HERNANDEZ-ORELLANA 11153
M1: And what did you do on that day? 

F1: “I . . . She told me she was going to give me

50 per person, and I was going to . . . I was

taking 10. She was going to give me 500 dollars[.] 

M1: Five hundred dollars to take people from . . .

. . . 

F1: . . . from San Diego all the way to there. 

M1: To where? 

F1: . . . All the way to Los Angeles. 

. . . 

M1: . . . [W]here were you going to arrive at?

Around where was your final destination? 

F1: Well . . . she told me, “You call once you have

crossed.” 

M1: “Crossed.” That she meant to say that . . . 

F1: Cross. That I have already cross the . . . 

. . . 

M1: In Temecula? Or, where? 

F1: Uh-huh, yes, in Temecula. I was going to call

her and I didn’t, I didn’t call her. I called her

once I was arrested and I came out of there. I

told her that, that how it was that, that, that the

people had been taken from me. She, she

11154 UNITED STATES v. HERNANDEZ-ORELLANA
learned it from the beginning because she supposedly was going to be checking. Yes? You

understan[d]? She told me, “Oh, I’m going to

. . . I’m going to . . . I’ll be checking you. And

you, once . . .” And she said to me, “You can

cross.” At the moment when I’m crossing the

patrol cars stopped and I ended up as the fourth

car. I ended up on the, on the line . . . 

M1: Okay. 

F1: . . . that’s when we were arrested. 

M1: And, and as to the other vehicles that are

under your name . . . 

F1: Okay. That one, those cars, she has used my

name. 

M1: Who? Who is she? 

F1: Letty. Well, she, look, I’ll tell you how they

operate. They take your name, “Oh lend it to

me and I’ll take it out of your name.” I didn’t

even know that car was under my name. That

is all . . . 

M1: There are several cars under your name. 

F1: Yes, yes. 

M1: That have [ ] been used in people smuggling.

F1: Exactly. Exactly. Exactly. But I didn’t know.

During the course of the interview, Hernandez also

explained her motivation for transporting aliens. Although she

made a living cleaning houses, she “suddenly” was overcome

UNITED STATES v. HERNANDEZ-ORELLANA 11155
with “greed” and “[a]mbition.” Hernandez also believed her

participation came about because “[t]hey brainwash you and

then you do it.” 

Hernandez further told authorities that she derived additional income from allowing the smugglers to register load

vehicles in her name. She would receive $150 per car, and

admitted that smugglers would take the cars registered under

her name “and use them how they wanted[.]” Hernandez

claimed that she was duped into thinking that the smugglers

would soon change the registration of the vehicle to a different name and was unaware of exactly how many vehicles

remained in her name. 

Hernandez recalled that Letty’s alien smuggling operation

largely consisted of family members. Although Hernandez

could recall only one of the children’s names, Junior, Letty’s

husband was “the one that checks the jobs.” 

On May 31, 2005, a federal grand jury returned an elevencount superseding indictment charging Hernandez, Drewry,

and co-defendant Cesar Ramos-Vasquez with conspiracy to

bring illegal aliens into the United States for the purpose of

financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and

18 U.S.C. § 371 (count one); bringing Teresa CamarenaReyes, an illegal alien, into the United States on July 14,

2005, for financial gain in violation of 8 U.S.C. § 1324(a)(2)

(B)(ii) and 18 U.S.C. § 2 (count two); bringing Hector

Contreras-Garcia, an illegal alien, into the United States on

July 14, 2005, for financial gain in violation of 8 U.S.C.

§ 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 (count three); unlawfully harboring Reyes in violation of 8 U.S.C. § 1324(a)(1)

(A)(iii) & (v)(II) (count four); unlawfully harboring Garcia in

violation of 8 U.S.C. § 1324(a)(1)(A)(iii) & (v)(II) (count

five); unlawfully transporting Reyes within the United States

in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (v)(II) (count

six); unlawfully transporting Garcia within the United States

in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (v)(II) (count

11156 UNITED STATES v. HERNANDEZ-ORELLANA
seven); Vasquez with using a falsely made border crossing

card bearing the name Manuel Odin Lopez Torres in violation

of 18 U.S.C. § 1546(a) (count eight); Hernandez with unlawfully transporting Estanislao Cortez-Cruz, an illegal alien,

within the United States on June 19, 2005, in violation of 8

U.S.C. § 1324(a)(1)(A)(ii) (count nine); Hernandez with

unlawfully transporting Isaias Tomas Mendez-Vasquez, an

illegal alien, within the United States on June 19, 2005, in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (count ten); and Hernandez with unlawfully transporting Eugenio HernandezRojas, an illegal alien, within the United States on June 19,

2005, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (count

eleven). 

On June 9, 2006, after a two-day trial, the jury returned

guilty verdicts on all counts naming Drewry and Hernandez.

The district court subsequently sentenced Drewry to sixty

months incarceration along with three years of supervised

release. Hernandez received a prison term of thirty-six months

along with three years of supervised release. This timely

appeal followed. 

II

Drewry initially complains that the district court should

have severed her trial from Hernandez’s. She makes two

related arguments that she believes warrant reversal of her

convictions. First, Drewry asserts that the district court’s

admission at trial of a transcript of Hernandez’s videotaped

interview with law enforcement officers deprived Drewry of

her Sixth Amendment right to confrontation. She also insists

that introduction of the transcript exacerbated the two defendants’ mutually antagonistic defenses. We review constitutional questions de novo and the district court’s determination

that severance was unnecessary for abuse of discretion.

United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008).

We conclude that Drewrey’s arguments lack merit. 

UNITED STATES v. HERNANDEZ-ORELLANA 11157
A

[1] The question of Hernandez’s post-arrest statements initially was addressed at a May 25, 2006, hearing on motions

in limine. The district court agreed that to avoid problems

under Bruton v. United States, 391 U.S. 123 (1968), and

Crawford v. Washington, 541 U.S. 36 (2004), “[p]rudence

dictate[d]” that Hernandez’s statements be edited such that

Drewry was not named or implicated. Ultimately, the parties

agreed to the government’s proposal that it: 

prepare a transcript and redact any reference to the

other defendant. When Ms. Hernandez makes statements, any statements referring to the ones[,] in

compliance with Bruton, we would redact. We

would submit these to defense counsel, give them an

opportunity to look at it and see if the parties can

come to a stipulated transcript as to the two statements by Ms. Hernandez. 

The district court admonished the defense attorneys to “[l]ook

at the transcripts, counsel. If there are problems, bring them

to the court’s attention.” No objections were lodged to the

transcript submitted to the jury. 

[2] Drewry’s severance argument, in the first instance, has

been waived. As a general rule, a party must renew her pretrial severance motion at the conclusion of the presentation of

evidence. See Sullivan, 522 F.3d at 981. The record does not

reflect that Drewry renewed her motion. Even on plain error

review, see United States v. Cope, 527 F.3d 944, 957 (9th Cir.

2008), the district court did not err in failing to sever the trial.

[3] It is well-established that in the federal system there is

a preference for joint trials where defendants have been

jointly indicted. Zafiro v. United States, 506 U.S. 534, 537

(1993). Under certain circumstances, none of which are present here, Federal Rule of Criminal Procedure 14 provides

11158 UNITED STATES v. HERNANDEZ-ORELLANA
relief from prejudicial joinder. Fed. R. Cr. P. 14(a) (stating

“[i]f the joinder of . . . defendants in an indictment . . . appears

to prejudice a defendant . . . the court may . . . sever the

defendants’ trials”). We have developed a four-part test to aid

the district court’s determination, including: “(1) whether the

jury may reasonably be expected to collate and appraise the

individual evidence against each defendant; (2) the judge’s

diligence in instructing the jury on the limited purposes for

which certain evidence may be used; (3) whether the nature

of the evidence and the legal concepts involved are within the

competence of the ordinary juror; and (4) whether Appellants

could show, with some particularity, a risk that the joint trial

would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment

about guilt or innocence.” Sullivan, 522 F.3d at 982 n.9 (internal quotation marks and citation omitted). 

Drewry’s argument focuses on the fourth prong, compromise of her specific trial rights. She contends that Crawford

prevents Hernandez’s statements from being admitted against

her because Hernandez cannot be compelled to testify in Hernandez’s own trial and thus Drewry could not confront Hernandez on cross-examination. 

[4] Drewry, however, ignores the very careful manner in

which the district court proceeded. Significantly, the government was required to redact any damaging statements in the

transcripts with respect to her. And a review of the record

confirms that no statement introduced even mentioned Drewry. As the government points out, under Bruton and its progeny “the admission of a statement made by a non-testifying

codefendant violates the Confrontation Clause when that

statement facially, expressly, or powerfully implicates the

defendant.” United States v. Mitchell, 502 F.3d 931, 965 (9th

Cir. 2007) (internal quotation marks and citation omitted).

Nothing in the record can be read as implicating Drewry, let

alone in the manner of a Bruton violation. Thus, Drewry’s

contention that her specific right to confront the witnesses

UNITED STATES v. HERNANDEZ-ORELLANA 11159
against her was abridged is unavailing. See United States v.

Hernandez, 608 F.2d 741, 749 (9th Cir. 1979) (explaining that

“[w]here a statement does not allude to the defendant, or

where all references have been deleted, his right of confrontation is not abridged”) (internal quotation marks and citations

omitted). 

B

Drewry maintains that combined with Hernandez’s statements, Hernandez’s defense amounted to a blame game: Hernandez could point the finger at Drewry without any remedy

available to Drewry. Their defenses, Drewry concludes, were

mutually antagonistic. 

[5] Drewry’s claim, in essence, amounts to a sort of catchall guilt-by-association argument. However, we have

described Drewry’s burden as a heavy one, and the district

court’s decision not to sever trials seldom will be disturbed.

See United States v. Ponce, 51 F.3d 820, 831 (9th Cir. 1995).

Indeed, in order to prevail on an antagonistic defense theory,

Drewry must demonstrate that “acquittal of [Hernandez]

would necessarily call for [her own] conviction.” See United

States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991); see

also United States v. Throckmorton, 87 F.3d 1069, 1072 (9th

Cir. 1996) (reasoning that the “defendant must show that the

core of the codefendant’s defense is so irreconcilable with the

core of his own defense that the acceptance of the codefendant’s theory by the jury precludes acquittal of the defendant”). 

[6] Drewry cannot meet that heavy burden here. Importantly, her argument is belied by the fact that the jury convicted her and Hernandez of all counts with which they were

charged. In the end, the record does not compel the result that,

because Drewry and Hernandez had different interests in the

trial, severance was necessary. 

11160 UNITED STATES v. HERNANDEZ-ORELLANA
III

Hernandez urges us to reverse her conviction as to count

nine of the superseding indictment because, she alleges, the

government failed to prove the alienage of the individuals in

her vehicle. We disagree. 

Title 8, section 1324(a) of the United States Code provides

criminal sanctions for: 

(1)(A) Any person who— 

. . . 

(ii) knowing 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. 

Hernandez claims that the government was unable to show

that she knew of, or acted in reckless disregard as to the illegal status of Estanislao Cortez-Cruz. We review a claim of

insufficient evidence de novo and ask whether, viewing the

evidence in the light most favorable to the government, any

reasonable jury could have found the essential elements of the

crime beyond a reasonable doubt. United States v. Shipsey,

363 F.3d 962, 971 n.8 (9th Cir. 2004) 

Cruz was one of the aliens found inside Hernandez’s vehicle when it was stopped at the Interstate 15 Temecula checkpoint on June 19, 2005. Agent Myers specifically asked

Hernandez whether the aliens had immigration documents.

Hernandez admitted that “no, nobody does.” At that point, the

UNITED STATES v. HERNANDEZ-ORELLANA 11161
vehicle was sent to secondary inspection where the additional

aliens were discovered packed in the SUV. 

[7] Hernandez made other damaging statements during her

taped interview about the events that took place on June 19,

2005. Hernandez explained that a woman named “Letty” had

paid her $500 to drive the aliens through the Temecula checkpoint. This statement lends a reasonable inference that those

present in the vehicle were inside the United States unlawfully: there would be no need to pay Hernandez fifty dollars

per alien to drive them through a border checkpoint if they

were legally in the United States. At a minimum, Hernandez

was in reckless disregard of the reason why she was being

paid to transport these individuals if they were not, as she

claims, illegal aliens. 

[8] The conditions in which the aliens were found further

supports this conclusion. First, only four individuals were visible from outside the vehicle to Border Patrol agents. The

other six were found hidden inside upon closer inspection.

Second, the individuals were not wearing seatbelts suggesting

that there was not enough room to safely transport the aliens,

the aliens were attempting to pass unnoticed, and Hernandez

was attempting to maximize the space in her vehicle in order

to maximize what she was to be paid. Finally, after the June

19, 2005, incident, the individuals inside her SUV were permitted to voluntarily return to Mexico. 

[9] Taken together, a reasonable jury could have concluded

beyond a reasonable doubt that the aliens were unlawfully in

the United States and Hernandez either knew that fact or

turned a blind eye toward it. Sufficient evidence, therefore,

supports Hernandez’s conviction on count nine. 

IV

[10] Whether sufficient evidence supports Drewry’s and

Hernandez’s convictions on count one, conspiracy to bring

11162 UNITED STATES v. HERNANDEZ-ORELLANA
illegal aliens into the United States, and counts two and three,

bringing illegal aliens into the United States for financial gain

presents, in our view, the closer question. We conclude that

Lopez compels us to reverse the substantive “bringing to”

convictions on counts two and three. However, the totality of

the evidence plainly is sufficient for a reasonable jury to

determine beyond a reasonable doubt that Drewry and Hernandez were active and knowing participants in the international smuggling conspiracy. 

The so-called “bringing to” offense imposes criminal penalties on individuals who: 

knowing or in reckless disregard of the fact that an

alien has not received prior official authorization to

come to, enter, or reside in the United States, brings

to or attempts to bring to the United States in any

manner whatsoever, such alien, regardless of any

official action which may later be taken with respect

to such alien shall, for each alien in respect to whom

a violation of this paragraph occurs— 

. . . 

(B) in the case of— 

. . . 

(ii) an offense done for the purpose of commercial

advantage or private financial gain, or 

. . . 

be fined under Title 18 and shall be imprisoned, . . .

in the case of a first or second violation of subparagraph . . . (B)(ii), not less than 3 nor more than 10

years, and for any other violation, not less than 5 nor

more than 15 years. 

UNITED STATES v. HERNANDEZ-ORELLANA 11163
8 U.S.C. § 1324(a)(2). 

[11] In Lopez, we concluded that a bringing to offense terminated at the time aliens were transported across the border

and “drop[ped] off” in the United States. 484 F.3d at 1191. As

a result, we “overrule[d] any of our prior decisions that adopt

or suggest a different rule.” Id. Specifically, we rejected “the

‘immediate destination’ (or ultimate destination) test set forth

in United States v. Ramirez-Martinez.” Id. (citing United

States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001)).

Ramirez’s immediate destination theory, we explained, stands

for the proposition that “a ‘brings to’ offense does not terminate until the aliens reach their ‘immediate destination’ within

the United States, and that anyone who transports the aliens

within the United States before that point has, based on that

conduct alone, aided and abetted the ‘brings to’ crime.” Id. at

n.7 (citation omitted). 

[12] We reasoned that our reading of the statute “best harmonizes the various separate, but often interrelated parts of

the statute.” Id. at 1195. We observed: 

[T]he “brings to” language of § 1324(a)(2) clearly

connotes the act of bringing the alien “from outside”

the country. The “transports within” offense of

§ 1324(a)(1)(A)(ii), by contrast, does not by its text

implicate extraterritorial behavior. Indeed, the language of the latter provision limits the offense to acts

“within the United States.” On a plain reading of the

statutory language, then, a person who moves aliens

from one location in the United States to another has

not brought those aliens “to” the United States, has

not acted extraterritorially, and has not committed a

“brings to” offense. He has acted entirely on domestic soil and has committed only a “transports within”

offense. An interpretation of § 1324(a)(2) as persisting beyond the point at which the extraterritorial

transporter terminates his conduct and drops the

11164 UNITED STATES v. HERNANDEZ-ORELLANA
aliens off at some location in the United States

would thus undermine the extraterritorial foundation

of the crime as well as the distinction Congress

established between bringing an alien “to” the

United States and transporting one already inside the

country. 

Id. at 1198 (internal citations omitted). 

[13] Under the facts of Lopez, because it was undisputed

that the defendant “encountered the aliens and provided them

with transportation only after they had been dropped off in the

United States,” the defendant’s conduct “occurred only after

the ‘brings to’ offense had terminated.” Id. Consequently,

these actions, “standing alone, [could not] serve as a basis for

sustaining her conviction.” 

[14] We made clear, however, that there were certain

instances in which a defendant could aid and abet a brings to

offense from within the United States alone. 

It is clear that under certain circumstances a defendant who does not physically transport aliens across

the border may be held criminally liable for aiding

and abetting a “brings to” offense. A financier who

organizes and funds a smuggling operation, for

example, whether located in or outside of the United

States, may be said to have “associate[d] himself

with the venture, . . . participate[d] in it as in something he wishe[d] to bring about, [and sought] by his

action to make it succeed.” 

Id. at 1199. 

[15] The defendant in Lopez, however, could not be held

criminally liable on such a theory because “[t]he mere act of

picking up aliens at a location near the border and transporting them within the United States is not sufficient to support

UNITED STATES v. HERNANDEZ-ORELLANA 11165
a conviction for aiding and abetting a ‘brings to’ offense.” Id.

at 1199-1200. Similarly, we were unpersuaded by the fact that

the defendant had twice spoken to a person who might have

been the initial transporter after the aliens were dropped off,

the defendant put the vehicle in her name and traveled near

the border to pick the car up, and that the defendant could

provide agents with a description of the initial transporter —

presumably suggesting that the defendant had prior contact

with the transporter. This evidence, we concluded, amounted

to “mere suspicion or speculation [that] does not rise to the

level of sufficient evidence.” Id. at 1200. 

In sum, “any rational juror would have had at the least a

reasonable doubt as to whether Lopez ‘knowingly and intentionally aided, counseled, commanded, induced or procured

[the principal] to commit each element’ of the ‘brings to’

offense.” Id. 

A

The substantive counts here, numbered two and three, read

as follows: 

Count 2

On or about July 14, 2005 . . . defendants

NORMA HERNANDEZ-ORELLANA, MARITZA

OLMEDA DREWRY, and CESAR RAMOSVASQUEZ, with the intent to violate the immigration laws of the United States, knowing and in reckless disregard of the fact that an alien, namely,

Teresa Camarena-Reyes, had not received prior official authorization to come to, enter and reside in the

United States, did bring to the United States said

alien for the purpose of commercial advantage and

private financial gain. 

Count 3

11166 UNITED STATES v. HERNANDEZ-ORELLANA
On or about July 14, 2005 . . . defendants

NORMA HERNANDEZ-ORELLANA, MARITZA

OLMEDA DREWRY, and CESAR RAMOSVASQUEZ, with the intent to violate the immigration laws of the United States, knowing and in reckless disregard of the fact that an alien, namely,

Hector Contreras-Garcia, had not received prior official authorization to come to, enter and reside in the

United States, did bring to the United States said

alien for the purpose of commercial advantage and

private financial gain. 

We think it arguable that the government’s proofs at trial

linked Drewry and Hernandez only to post-termination conduct for purposes of these substantive “brings to” offenses

under the rationale of Lopez. But even Lopez left open the

door to liability for other criminal conduct, including potential

aider and abettor liability. It is not a long reach to impose conspiracy liability as charged on this record. The government

cites to evidence that clearly show that Drewry was involved

in some illegal activity. It first argues that the ledger and journal recovered during the search of the residence and vehicles

“prove that, as part of the alien smuggling conspiracy, Drewry

was responsible for numerous aliens being brought to the

United State before the aliens in Counts 2 and 3 crossed the

border.” Second, the government maintains that “Drewry kept

track of which guides led which aliens across the border, and

kept track of who was owed what, again before the aliens in

Counts 2 and 3 crossed the border.” Third, the government

contends that “Drewry instructed Hernandez where to drive

aliens, and paid Hernandez for her smuggling, also before the

aliens in Counts 2 and 3 crossed the border.” 

[16] Problematically for the government here, however,

counts two and three specifically identify the aliens who were

allegedly “brought to” the United States. The evidence presented to the jury stops short of linking those aliens to Drewry

and Hernandez that would support their liability for conduct

UNITED STATES v. HERNANDEZ-ORELLANA 11167
that occurred before the bringing to offense terminated. Significantly, the ledger and the journal make no reference to

aliens Garcia or Reyes at all. 

[17] Similarly, Drewry’s instructions to Hernandez as to

where to drive the aliens had nothing to do with Garcia and

Reyes, and importantly, only included directives to take

unnamed aliens to locations after they had been dropped off

in the United States. Millan, the alien living at the load house

— and upon whose testimony the government relies — confirms only that (1) Millan overheard “Diana [ ] talking to

Norma how she was going to take some people”; (2) Hernandez and Drewry did not discuss exact addresses; only that

the transportation would occur “well, only here in the United

States”; and (3) that money changed hands between Drewry

and Hernandez at the residence. Ultimately, Millan testified

that “Diana . . . she used to bring people, and she would take

people, and she used to pay the people that helped her[.]”

Indeed, Millan characterized Drewry as “the one who delivered the people to their families[.]” 

[18] The evidence, therefore, establishes no explicit extraterritorial connection as Lopez requires. The undisputed facts

reveal that Hernandez allowed an individual to use a vehicle

registered in her name to pick up Reyes and Garcia after they

had crossed the border and had been dropped off in the United

States. Hernandez only met Reyes and Garcia once they

arrived at the load house. At best, then, Hernandez can only

be linked to the vehicle that transported Garcia and Reyes

within the United States. Drewry, for her part, is even farther

removed. After the aliens arrived at the residence and stayed

for a short while, Drewry attempted to drive them to an

unknown location. At that point, she was stopped by Border

Patrol agents. 

[19] In the end, although money exchanged hands for some

unknown activities prior to Garcia’s and Reyes’s crossing, the

ledger and journal revealed that Drewry had some connection

11168 UNITED STATES v. HERNANDEZ-ORELLANA
to transporting aliens as a general matter, testimony revealed

that Drewry had discussed where to bring aliens within the

United States in general terms, Drewry would take and bring

aliens to different locations as a general proposition, and Hernandez’s vehicle was used to take Garcia and Reyes from

some point in the United States to the residence, there is no

specific evidence linking Drewry and Hernandez to “intentionally aid[ing], counsel[ing], command[ing], induc[ing] or

procur[ing]” the cross-border transportation of Reyes and

Garcia, prior to when these aliens were dropped off in the

United States. See id.

[20] Because Drewry and Hernandez engaged in “the mere

act of picking up aliens at a location near the border and transporting them within the United States,” we are compelled by

Lopez to find that they are not criminally liable under the theories alleged in the substantive “bringing to” counts. Id. at

1999-1200. Therefore, we reverse Drewry’s and Hernandez’s

sentences and convictions on those two substantive counts.

B

[21] We cannot agree that Lopez mandates the same result

for their conviction for participating in the alien smuggling

conspiracy. Three considerations inform our conclusion. 

1

[22] First, nothing in Lopez can be read as transforming the

traditional elements of a criminal conspiracy, which would

not under the circumstances presented here require either Drewry or Hernandez to have physically smuggled the illegal

aliens across the border or to have specifically taken a substantial step to achieve that end. In other words, Lopez

addressed only the evidentiary requirements sufficient for a

conviction of a substantive “bringing to” crime and aiding

and abetting that offense for which there was marginal evidence. 

UNITED STATES v. HERNANDEZ-ORELLANA 11169
The difference between the classic common law elements

of aiding and abetting and a criminal conspiracy underscores

this material distinction, although at first blush the two appear

similar. Aiding and abetting the commission of a specific

crime, we have held, includes four elements: (1) that the

accused had the specific intent to facilitate the commission of

a crime by another, (2) that the accused had the requisite

intent to commit the underlying substantive offense, (3) that

the accused assisted or participated in the commission of the

underlying substantive offense, and (4) that the principal committed the underlying offense. United States v. Gaskins, 849

F.2d 454, 459 (9th Cir. 1988). As Lopez emphasized, the

accused generally must “associate[ ] himself with the venture

. . . participate[ ] in it as something he wish[es] to bring about,

and [sought by] his action to make it succeed.” 484 F.3d at

1199 (internal quotation marks omitted). 

By contrast, a classic criminal conspiracy as charged in 18

U.S.C. § 371 is broader. The government need only prove

“(1) an agreement to engage in criminal activity, (2) one or

more overt acts taken to implement the agreement, and (3) the

requisite intent to commit the substantive crime.” Sullivan,

522 F.3d at 976 (internal quotation marks omitted). Indeed, a

drug conspiracy does not even require commission of an overt

act in furtherance of the conspiracy. 21 U.S.C. § 846; United

States v. Jackson, 167 F.3d 1280, 1285 (9th Cir. 1999). 

Two distinctions become readily apparent after a more

careful comparison. First, the substantive offense which may

be the object in a § 371 conspiracy need not be completed.

Second, the emphasis in a § 371 conspiracy is on whether one

or more overt acts was undertaken. This language necessarily

is couched in passive voice for it matters only that a coconspirator commit the overt act, not necessarily that the

accused herself does so. In an aiding and abetting case, not

only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a

substantial step, toward associating herself with the criminal

11170 UNITED STATES v. HERNANDEZ-ORELLANA
venture. See Lopez, 484 F.3d at 1199. These differences are

critical to the disposition of this case because neither Drewry

nor Hernandez undertook the critical pre-border crossing

step. They clearly committed overt acts domestically in furtherance of the alien smuggling enterprise; but they need not

have done so internationally to violate the general conspiracy

statute. See 18 U.S.C. § 371. 

[23] The case law further distinguishes a § 371 conspiracy.

Significantly, we have held that “[t]he agreement need not be

explicit; it is sufficient if the conspirators knew or had reason

to know of the scope of the conspiracy and that their own benefits depended on the success of the venture.” Sullivan, 522

F.3d at 976 (internal quotation marks and citation omitted).

Similarly, Pinkerton v. United States, 328 U.S. 640, 647

(1946), renders all co-conspirators criminally liable for reasonably foreseeable overt acts committed by others in furtherance of the conspiracy they have joined, whether they were

aware of them or not. Thus, in our view, Lopez is not controlling where an alien smuggling conspiracy has been charged.

2

The problem the Lopez court confronted was bringing to

offenses that were bound temporally to isolated acts. In

United States v. Singh, 532 F.3d 1053, No. 07-30150 (9th Cir.

July 17, 2008), we concluded that there was sufficient evidence of aiding and abetting on plain error review to sustain

convictions under 8 U.S.C. § 1324(a)(2)(B)(ii). In so doing,

we described the meager evidence of aiding and abetting the

Lopez court examined: 

After completion of the “brings to” offense, Lopez

twice spoke to a person who might have been the

transporter. This fact alone, however, did not provide

sufficient evidence of aiding and abetting because it

could not establish that the defendant “knowingly

and intentionally commanded, counseled, or encourUNITED STATES v. HERNANDEZ-ORELLANA 11171
aged the initial transporter to commit the ‘brings to’

offense.” Similarly, merely showing that Lopez was

associated with someone who was involved with a

smuggling operation in some unknown way or that

she was associated with the transportation of the

aliens within the United States after the fact of

smuggling was insufficient to show that she had the

specific intent to bring about the “brings to” offense

or that she knowingly and intentionally commanded,

counseled, or encouraged the initial transporter to

commit the “brings to” offense. We noted that a

“brings to” conviction would be “particularly inappropriate” in Lopez because the district court found

that “the defendant ‘wasn’t obviously the first

choice’—‘someone else was supposed to pick [the

aliens] up,’ ” and Lopez was contacted “only after

the aliens were already in the country and the plan

for the first person to pick them up had been frustrated.” 

Slip Op. at 8817 (internal citations omitted). 

Singh’s involvement in the smuggling operation, we noted,

“stood in stark contrast” to the evidence of participation

described above. Id. at 8817-18. We concluded the jury’s verdict could stand “on the basis of the other evidence that Singh

agreed ahead of time not only to assist with secondary stateside transportation, but also to return to Vancouver after

delivering [the illegal alien] to New York.” Id. at 8818

(emphasis added). 

Singh emphasizes what we have found sufficient to constitute aiding and abetting liability post-Lopez, and the infirmity

of the substantive counts here simply was a function of the

indictment and the dearth of evidence to support an aiding and

abetting theory of a § 1324 violation involving the two aliens

named in counts two and three. The law at the time of the

indictment permitted the government to charge a brings to

11172 UNITED STATES v. HERNANDEZ-ORELLANA
offense on the basis of the intermediate or final destination

theory, to which the language of counts two and three conform. See Lopez, 484 F.3d at 1191 n.7. Those counts were

premised on the notion that Drewry and Hernandez were a

critical part of the offenses because the aliens, under existing

law, had not yet been “dropped off.” They were still in the

process of being “brought to” the United States — their final

destination or some intermediate point had not been reached.

Lopez rejected the final destination theory for a place of

arrival theory. 

[24] However, post-Lopez, because the superseding indictment was specific as to the identity of the aliens and the precise date when they crossed the border, the mere fact that

Drewry and Hernandez had transported the aliens after they

were “dropped off” was no longer sufficient to sustain their

convictions. We are convinced that had the state of the law

been clear, the government would have had no problem meeting its burden under an aiding and abetting theory as to different aliens previously smuggled. We are also convinced that

the alien smuggling conspiracy as charged in the superseding

indictment is broad enough and written in a way that avoids

Lopez proof issues to support convicting both Drewry and

Hernandez.

3

The conspiracy count reads as follows: 

Count 1

A. OBJECTS OF THE CONSPIRACY 

Beginning on a date unknown to the grand jury and

continuing up to and including on or about July 14,

2005, in San Diego County . . . and elsewhere,

defendants NORMA HERNANDEZ-ORELLANA,

MARITZA OLMEDA DREWRY, and CESAR

UNITED STATES v. HERNANDEZ-ORELLANA 11173
RAMOS-VASQUEZ, and others known and

unknown to the Grand Jury, conspired and agreed

with each other to commit the following offense

against the United States: 

To bring to the United States for the purpose of

obtaining private financial gain, aliens, knowing and

in reckless disregard of the fact that such aliens had

not received prior official authorization to come to,

enter, or reside in the United States, in violation of

Title 8, United States Code, Section 1324(a)(2)

(B)(ii). 

B. MEANS BY WHICH THE OBJECTS OF THE

CONSPIRACY WERE TO BE ACCOMPLISHED 

The objects of the conspiracy were to be accomplished, in substance, as follows: 

1. Aliens who had not received prior official authorization to come to, enter, or reside in the United

States, would meet with known and unknown co

conspirators in Mexico to be smuggled into the

United States in exchange for a payment of a fee. 

2. Known and unknown co-conspirators would

smuggle the illegal aliens across the Mexican border

into the United States. 

3. Defendant CESAR RAMOS-VASQUEZ and

known and unknown co-conspirators would pick up

the smuggled aliens after they crossed the border

into the United States and transport and move the

smuggled aliens to load houses, including a house

located at 1262 Riviera Summit, San Diego, . . .

where they would wait and be transported to their

ultimate destination within the United States. 

11174 UNITED STATES v. HERNANDEZ-ORELLANA
4. Defendants NORMA HERNANDEZORELLANA, MARITZA OLMEDA DREWRY,

and CESAR RAMOS-VASQUEZ would harbor,

conceal, and shield from detection the smuggled

aliens at the Load House until the aliens were transported and moved to another location within the

United States en route to their ultimate destination.

5. Defendants NORMA HERNADEZORELLANA and MARITZA OLMEDA DREWRY

would transport and move the smuggled aliens from

the Load House to another location within the United

States en route to their ultimate destination. 

C. OVERT ACTS 

In furtherance of said conspiracy and to effect and

accomplish the objects thereof, the following overt

acts, among others, were committed within the

Southern District of California, and elsewhere: 

1. On or about or before June 19, 2005, unknown

co-conspirators brought aliens [the “June Aliens”]

across the Mexican border into the United States. 

2. On or about June 19, 2005, defendant NORMA

HERNANDEZ ORELLANA transported and moved

the June Aliens in a vehicle northbound on the Interstate 15 freeway. 

3. On or about July 14, 2005, known and unknown

co-conspirators brought aliens, including Teresa

Camarena-Reyes and Hector Contreras-Garcia [the

“July Aliens”] across the Mexican border into the

United States. 

4. On or about July 14, 2005, known and unknown

co-conspirators transported the July Aliens to the

Load House. 

UNITED STATES v. HERNANDEZ-ORELLANA 11175
5. On or about July 14, 2005, defendants NORMA

HERNANDEZ-ORELLANA, MARITZA

OLMEDA DREWREY, and CESAR RAMOSVASQUEZ harbored concealed, and shielded from

detection the July Aliens at the Load House. 

6. On or about July 14, 2005, defendants NORMA

HERNADEZ-ORELLANA and MARITZA

OLMEDA DREWREY instructed the July Aliens to

exit the Load House and enter a vehicle. 

7. On or about July 14, 2005, defendants NORMA

HERNANDEZ-ORELLANA and MARITZA

OLMEDA DREWREY prepared to transport and

move the July Aliens to another location. 

8. On or about July 14, 2005, defendant

MARITZA OLMEDA DREWREY began transporting and moving the July Aliens in a vehicle from the

Load House to another location. 

All in violation of 18 U.S.C. § 371. 

[25] The record in this case is replete with evidence of a

widespread alien-smuggling conspiracy, which both defendants knowingly agreed to join, and whose scope included the

on-going smuggling, harboring, and transporting of illegal

aliens. The ledger that law enforcement officers uncovered in

Hernandez’s maroon Toyota SUV documented smuggling

activities that spanned several days. The government introduced testimony that the ledger contained the names of various drivers, guides, as well as the market rate for smuggling

aliens across the border. An alias that Drewry often used,

“Diana,” similarly was found in the ledger along with “x 10”

and the date “7-07-2005.” Evidence at trial confirmed that

Drewry was responsible for arranging the transportation for

ten undocumented aliens from Mexico into the United States

on July 7, 2007.

11176 UNITED STATES v. HERNANDEZ-ORELLANA
The ledger identified additional illegal aliens for whom

Drewry had organized cross-border transportation and accommodation at the load house. Included among that information

was an undocumented alien who was smuggled on June 30,

2005, twelve aliens on July 1, 2005, two aliens on July 4,

2005, and three aliens on July 11, 2005. According to the ledger, Drewry also owed Hernandez approximately $9,000 for

her role in transporting aliens. Similarly, a search of the

garage at the load house revealed another journal, which documented the identity of numerous additional aliens transported across the border, foot guides, smugglers, and drivers.

Finally, Border Patrol agents searched Drewry’s purse and

recovered an envelope with $1,600 — the market rate for

smuggling an alien from Mexico into the United States. 

From the testimony of witnesses, corroborated by information in the ledger and the journal and the incriminating acts

and statements of the defendants, we are convinced that there

is sufficient evidence from which a jury could have found

beyond a reasonable doubt that Hernandez and Drewry

entered into a criminal conspiracy which intended to bring

aliens into the United States for financial gain and that all coconspirators agreed with each other to do so. Neither Drewry

nor Hernandez would have derived any monetary benefit had

the undocumented aliens not been crossed in this case.

Indeed, both Drewry and Hernandez largely furthered the

aims of the conspiracy: they possessed the contacts with

smugglers, guides, and drivers, arranged logistics, registered

load vehicles in their names, directed the harboring and movement of aliens smuggled to the United States, and collected

money, among others things. 

As noted, the government had to prove and the jury was

required to find that at least one overt act was taken in furtherance of the conspiracy. At least one of the overt acts alleged

in the indictment encompassed extraterritorial conduct. Specifically, co-conspirators “brought aliens . . . across the Mexican border into the United States.” Based on the evidence and

UNITED STATES v. HERNANDEZ-ORELLANA 11177
the language charged in the superseding indictment, the jury

easily could have concluded that co-conspirators brought

undocumented aliens across the border at which point either

Drewry or Hernandez picked them up, harbored them temporarily in a safe haven, arranged for their transportation, or

transported them on their way. The evidence presented at trial

was more than sufficient to permit the jury to infer that Drewry’s and Hernandez’s compensation for their role in the

alien smuggling operation depended entirely on the crossing

of those illegal aliens. 

V

Sufficient evidence supports the jury’s verdict that Drewry

and Hernandez engaged in a conspiracy to bring illegal aliens

from Mexico into the United States for financial gain and supports their convictions on the remaining counts save for the

substantive bringing to offenses, counts two and three. We

affirm their convictions on all counts but these two. We

remand the matter for re-sentencing in light of our disposition.

Because the advisory guidelines range was calculated taking

into consideration conviction on these two counts, the sentence was procedurally erroneous. See United States v. Carty,

520 F.3d 984, 991 (9th Cir. 2008) (en banc). Because we cannot conclude on this record that the district court would

impose the same sentence on remand (though it is not

restricted from doing so), we affirm in part as to all counts of

conviction except counts two and three; reverse in part as to

those two counts; vacate the sentences imposed; and remand

for re-sentencing. See id. 

AFFIRMED IN PART; REVERSED IN PART;

REMANDED. 

11178 UNITED STATES v. HERNANDEZ-ORELLANA