FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50415 Plaintiff-Appellee,

D.C. No.

v.  CR-04-01648-BTM

ANGELICA LOPEZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted En Banc

December 12, 2006—San Francisco, California

Filed May 7, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Harry Pregerson, Stephen Reinhardt, Alex Kozinski,

Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,

Ronald M. Gould, Marsha S. Berzon, Richard C. Tallman,

Johnnie B. Rawlinson, Richard R. Clifton,

Consuelo M. Callahan, Carlos T. Bea, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt;

Concurrence by Judge Bea;

Dissent by Judge Tallman

4989
COUNSEL

Steven F. Hubachek, Federal Defenders of San Diego, Inc.,

San Diego, California, for the defendant-appellant. 

Jason A. Forge and Christopher P. Tenorio, Assistant United

States Attorneys, San Diego, California, for the plaintiffappellee. 

OPINION

REINHARDT, Circuit Judge: 

I

The issue before us is whether a driver who transports a

group of illegal aliens from a drop-off point in the United

States to another destination in this country commits only the

offense of transporting aliens “within” the United States or

UNITED STATES v. LOPEZ 4993
whether that individual is also guilty of the additional offense

of aiding and abetting the crime of “bringing” the aliens “to”

the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and

1324(a)(2) (2000);1 18 U.S.C. § 2 (2000). In this case, the

answer depends on the point at which the crime of “bringing

to” terminates. We hold that although all of the elements of

the “bringing to” offense are satisfied once the aliens cross the

border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to

transport them — in other words, the offense continues until

the initial transporter drops off the aliens on the U.S. side of

the border. At that point the offense ends, regardless of the

judicial district in which the termination occurs. Because,

here, the defendant transported undocumented aliens only

within the United States and did so only after the initial transporter had dropped the aliens off inside the country, and

because there is insufficient evidence to establish that the

defendant otherwise aided and abetted the initial transportation, we reverse the convictions on the “bringing to” offense.

§ 1324(a)(2); 18 U.S.C. § 2. 

No question is raised by the defendant regarding the applicability of the “transports within the United States” statute to

her act of transporting undocumented aliens from one location

within the United States to another. Because we took this case

en banc without a three-judge panel decision in order to bring

consistency to our circuit law with respect to the scope and

meaning of the pertinent provisions of § 1324,2 we do not

consider the questions the defendant raises relating to the

admissibility of certain depositions and statements, but refer

1All citations to 8 U.S.C. § 1324 are to the 2000 edition of the United

States Code. Section 1324 has been amended since 2000 but none of the

amendments is relevant to our decision. We use the terms “brings to” and

“bringing to” interchangeably when referring to the offense proscribed by

§ 1324(a)(2). 

2

See United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002);

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

States v. Angwin, 271 F.3d 786 (9th Cir. 2001). 

4994 UNITED STATES v. LOPEZ
those issues to the three-judge panel.3

 Should the panel reject

the defendant’s arguments on those points, it should affirm

the “transports within” convictions. In any event, we here

reverse the convictions on the “bringing to” counts. 

II

At approximately 6:00 p.m. on June 1, 2004, United States

Border Patrol agents stopped a vehicle on Interstate 8 in eastern San Diego County, California, that contained a driver,

Angelica Lopez, and 12 passengers. After questioning the

passengers, the agents arrested Lopez and brought her, along

with the others, to a Border Patrol station roughly 10 miles

away. Lopez was later indicted on three counts of bringing an

undocumented alien to the United States for financial gain, in

violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and aiding and abetting, in violation of 18 U.S.C. § 2, as well as three counts of

transporting an undocumented alien within the United States,

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

abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II). The

details of the June 1 incident were disputed at Lopez’s fourday jury trial. However, for purposes of this opinion, because

she was convicted on all counts, we accept the government’s

version of the facts as correct. 

Border Patrol Agent Eric Huber testified that, on June 1, he

and his partner observed Lopez’s vehicle, a white Ford Expedition, enter the freeway from Buckman Springs Road.

According to Huber, the Expedition bounced in a distinctive

fashion that suggested that it might be carrying an unusually

heavy load. The agents pulled their patrol van alongside

Lopez’s vehicle and Huber peered inside. He observed what

3We take an entire case en banc, and not merely a single issue. The en

banc court may choose, however, to resolve all the issues presented by a

case or instead to decide only the issue or issues that precipitated the convening of the en banc court and to refer other questions back to the threejudge panel. 

UNITED STATES v. LOPEZ 4995
he believed to be several persons lying on the floor in the

back of the SUV. Huber testified that at that point Lopez

slowed her vehicle drastically. The agents ran its license

plates and determined that it was registered to “Angelica

Lopez.” The agents then activated their emergency lights and

effected the stop. 

Huber testified at length about statements Lopez allegedly

made to him at the Border Patrol station. According to Huber,

Lopez told him that earlier that day she had spoken by telephone with an individual named “Jose,” and had made

arrangements with him to pick up the persons later found in

the Expedition. Lopez also gave Huber a vague physical

description of Jose. Jose had instructed Lopez, Huber testified, to drive to the area where the agents first observed her,

where she would find a sweater in the road; the sweater would

mark the meeting place where Lopez would meet her passengers. She was then to transport them to a gas station in El

Centro, where she would be paid $500. Huber testified that

Lopez told him that she believed that her passengers were in

the country illegally, and that he verified that none of the passengers was in fact legally present in the United States. 

After Huber, the government called as material witnesses

two of the passengers named in Lopez’s indictment, Olga

Barrios-De Leon and her husband, Miguel Angel OsorioHernandez. Barrios testified that she is a Guatemalan citizen

who did not have documentation permitting her to enter the

United States. She explained that she and Osorio traveled to

Tijuana, Mexico, where they made arrangements to be taken

to Los Angeles for $1,500 each. The couple took a bus to

Tecate, Mexico, from which point a guide walked them, along

with 18 other persons, through the hills and into the United

States, a journey that lasted two days and nights. The guide

left the group in the hills with instructions to wait until someone came to pick them up. A vehicle came shortly thereafter,

but it was stopped by immigration officials, who also seized

eight individuals from Barrios and Osorio’s group. The

4996 UNITED STATES v. LOPEZ
remaining 12, including the couple, stayed hidden in the hills.

Around this time, Barrios began to menstruate and blood

became visible on the outside of her pants. The following day

the entire group, concerned for Barrios’s health, moved from

the hills to the road to seek assistance. According to Barrios,

all 12 individuals were visible from the road at this point.

About an hour after they moved to the roadside — and a total

of one night and one day after the guide had left them in the

hills — Barrios and the 11 others were picked up by Lopez.

Osorio, who took the stand after Barrios, gave testimony consistent with his wife’s. He added that Lopez had told the passengers “to tell the truth if she was stopped, or if she was

apprehended,” and that she had told them all “to duck.” 

The third material witness named in the indictment, Miguel

Lopez-Villagres, was not present at Lopez’s trial. Over

Lopez’s objection, the trial judge permitted the government to

offer his deposition testimony. That testimony stated that

Lopez-Villagres is a Guatemalan citizen without documentation to enter the United States. His account of the events surrounding the June 1 incident was consistent with Barrios and

Osorio’s and included similar details. According to LopezVillagres, when the individuals climbed into Lopez’s vehicle,

she told them, “Just get in there and make yourselves comfortable so that all of you can fit in.” Some time later she

added, “Don’t blame me if we’re stopped.” 

The district court denied Lopez’s motion for acquittal at the

close of the government’s case. Lopez then took the stand on

her own behalf. She testified that she lived in Pomona with

her parents and three children and paid no rent. At the time

of trial, she said, she had two jobs — one as a floral designer

and one as a teacher at a fabric store. Lopez explained how

she acquired the Expedition she was driving on June 1. She

testified that some time earlier she saw the vehicle sporting a

“for sale” sign in a restaurant parking lot and that she called

the owner from a public phone. When she followed up on

May 28, the owner informed her that the car had been moved

UNITED STATES v. LOPEZ 4997
to an impound lot in San Diego County. Lopez tendered payment and she and the owner registered the vehicle in her name

that day. 

On June 1, according to Lopez, a friend gave her a ride to

the impound lot, two and a half hours from Pomona, to

retrieve the car. The vehicle had no fuel, so Lopez stopped at

a gas station before heading back toward the freeway. She

became lost, however, as she had on her way to the impound

lot as well. Lopez mistakenly entered the eastbound side of

the highway. There, she saw two men on the side of road,

waving “like they looked desperate, like they needed help.”

As she drove closer, she saw a woman with blood on her

pants. Lopez testified that she had offered roadside assistance

to strangers in the past, and that she stopped to do so on June

1. She said that the bleeding woman’s husband told her that

his wife needed help because she was “hemorrhaging.” Lopez

volunteered to take the husband and wife “to the nearest place

so they can get help for her”; when the couple got into

Lopez’s car, however, the other 10 individuals from the group

followed. Lopez testified that she was not concerned with the

passengers’ immigration status because she was concerned

about helping the bleeding woman — as Lopez put it, “you

don’t ask somebody for documents when you are helping

them.” Lopez drove for about 10 minutes before the Border

Patrol pulled her over. She denied braking when the Border

Patrol vehicle pulled up alongside her. 

The agent who stopped Lopez took her keys and began

speaking to the passengers; because she was “told to be

quiet,” Lopez had no chance to explain to him about the

bleeding woman until much later, when she was in custody at

the Border Patrol station.4 Lopez denied telling Huber the

“Jose” story and denied making the statements in the vehicle

that Osorio and Lopez-Villagres attributed to her. Lopez also

4On rebuttal, Agent Huber testified that Lopez never, even at the Border

Patrol station, mentioned that she was trying to help Barrios. 

4998 UNITED STATES v. LOPEZ
called as a witness her sister, who testified that Lopez had lent

roadside assistance to strangers in the past. 

At the end of the testimony, Lopez renewed her motion for

acquittal and the district court again denied the motion. The

jury convicted Lopez on all six counts. Lopez filed post-trial

motions for a judgment of acquittal and a new trial. The district court denied these motions after a hearing. The district

court sentenced Lopez to a mandatory minimum term of five

years in prison, to be followed by two years of supervised

release. See § 1324(a)(2)(B) (establishing penalties). She now

appeals, challenging, inter alia, the sufficiency of the evidence to support her convictions for the three “brings to”

offenses. 

III

A.

[1] In 8 U.S.C. § 1324, Congress created several discrete

immigration offenses, including: (1) bringing an alien to the

United States; (2) transporting or moving an illegal alien

within the United States; (3) harboring or concealing an illegal alien within the United States; and (4) encouraging or

inducing an illegal alien to enter the United States. We consider here the scope and meaning of the first of these offenses,

codified in § 1324(a)(2), which creates criminal liability for

“[a]ny person 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 . . .

the United States in any manner whatsoever, such alien.”

(Emphasis added.) 

The government advocates two theories of liability for

holding that Lopez aided and abetted a “brings to” offense.

First, because of the elementary rule that a defendant may not

be convicted of aiding and abetting a completed offense, see

United States v. Nelson, 137 F.3d 1094, 1104-05 (9th Cir.

UNITED STATES v. LOPEZ 4999
1998), the government argues that a “brings to” offense that

commences outside the United States does not terminate until

the aliens reach their “immediate destination” in the United

States.5 In this case, the government contends that the immediate destination was Los Angeles. Under the government’s

theory, any person who transports the aliens before they reach

their ultimate destination, even if that transportation occurs

solely within the United States, has assisted in the commission of the “brings to” offense and may be held liable, on that

evidence alone, for aiding and abetting that offense. Second,

the government argues that, even if the “brings to” offense

terminates at some earlier point, before the aliens reach their

“intended destination” and before the defendant commences

her transportation of them, aiding and abetting liability was

established by its showing that prior to the termination of the

offense the defendant acted in a fashion that enabled or

encouraged others to commit that offense. The government

contends that Lopez’s convictions are sustainable on either

theory. We conclude that they are sustainable on neither. We

reject the government’s first theory as a matter of law and the

second as a matter of fact. 

[2] The crux of this case is our determination of when the

offense of bringing an alien to the United States terminates.

We hold that it ends when the person who transports the

aliens to the country terminates his act of transportation and

drops off the aliens in the United States.6 In so holding, we

5At various points in its filings before this court, the government

employs the terms “immediate destination,” “final destination,” “ultimate

destination,” and “intended destination” interchangeably. Accordingly,

throughout our opinion, we use the terms interchangeably as well. 

6

In some cases, accompanying or escorting an alien to the United States

on a plane or by foot, or arranging for the alien’s transportation — rather

than driving the alien — will be sufficient to support a finding that the

defendant violated § 1324(a)(2). See, e.g., United States v. Aguilar, 883

F.2d 662, 683-84 (9th Cir. 1989) (upholding a “brings into” conviction in

which the defendant procured false papers for the 13-year-old alien,

5000 UNITED STATES v. LOPEZ
overrule any of our prior decisions that adopt or suggest a different rule. In particular, we reject the “immediate destination” (or ultimate destination) test set forth in United States v.

Ramirez-Martinez.

7

 Although there are a number of plausible

constructions of § 1324(a)(2), the construction we adopt today

is the one most consistent with the statute’s text, structure,

history, and purpose. 

B.

In construing § 1324(a)(2), the first issue we must consider

is whether the “brings to” offense terminates as soon as its

elements are met — as soon as the alien is brought “to” the

United States — or whether instead the statute covers some

conduct engaged in after the act of entry. We have held that

ordinarily “[a] crime is complete when each element of the

crime has occurred.” United States v. Smith, 740 F.2d 734,

736 (9th Cir. 1984). In this case, each element has occurred

as soon as the undocumented alien is brought “to” the United

States — as soon as the alien reaches or crosses the border.8

It would be a plausible reading, therefore, to conclude that the

“brings to” offense terminates at that point. One might argue,

reasonably, that although the pre-1986 version of § 1324(a)(2)

coached her to lie to immigration authorities, walked ahead of her through

immigration, and met up with her immediately thereafter), superseded by

statute on other grounds as stated in Gonzalez-Torres, 309 F.3d at 599;

see also infra pp. 5015-16 (discussing other possible forms of offense conduct). 

7

In that decision, we adopted the “immediate destination” (ultimate or

intended destination) theory that the government currently urges. We held

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. See

Ramirez-Martinez, 273 F.3d at 912. 

8Throughout this opinion, our discussion assumes that the other elements of § 1324(a)(2), including the alienage and lack of authorization of

the person transported, as well as the defendant’s mens rea, are satisfied.

UNITED STATES v. LOPEZ 5001
prohibited bringing an alien “into” the United States — which

appears to criminalize at least some conduct within the United

States — the current version of the statute bans only bringing

an alien “to” the United States, and thus does not criminalize

any conduct after the point at which the alien enters the country. Such a reading, which views the 1986 amendment as a

narrowing one, conflicts, however, with the legislative history

we discussed in Gonzalez-Torres. See 309 F.3d at 599. There

we pointed out that Congress passed the 1986 amendment in

order to cover conduct previously not covered — that the

amendment was intended to overrule case law requiring a

completed legal “entry” to sustain a “brings into” conviction.

Id.9 It is clear from this history that the 1986 amendment was

a broadening amendment — designed to cover conduct not

subject to the earlier version — and not a narrowing one.

Accordingly, the history and purpose of the statute do not

support the conclusion that the offense terminates as soon as

the alien is brought “to” the United States. 

[3] On the contrary, for four reasons we conclude that the

“brings to” offense continues after entry and does not terminate merely because all of the elements are met. First, the

“brings to” offense proscribes an act that is not a static or an

instantaneous occurrence, geographically or temporally.

9The change was made in response to a Southern District of Florida

decision that had construed “brings into” as synonymous with “entering.”

See United States v. Villanueva, 408 F.3d 193, 198 (5th Cir.) (discussing

history), cert. denied, 126 S. Ct. 268 (2005). “Entering” requires more

than physical entry, however — it requires freedom from all official

restraint, including from surveillance by government agents. GonzalezTorres, 309 F.3d at 598. Thus, under the prior statutory wording, a person

who physically transported aliens across the border could have avoided

prosecution under the subsection “if the immigrants he transported were

not allowed entry into the United States” — for example, if those aliens

were never free from government surveillance from the time they crossed

the border until the time they were arrested in the United States. Villanueva, 408 F.3d at 198 (citing United States v. Anaya, 509 F. Supp. 289,

297 (S.D. Fla. 1980) (en banc), aff’d on other grounds sub nom. United

States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982)). 

5002 UNITED STATES v. LOPEZ
Bringing aliens to the United States requires transporting

them over a period of time and distance and thus does not

occur at one particular moment or location. We have held, for

instance, that the offense of transporting illegal aliens continues during the duration of the act of transportation. See United

States v. Covarrubias, 179 F.3d 1219, 1225 (9th Cir. 1999),

abrogated on other grounds by Texas v. Cobb, 532 U.S. 162,

168 & n.1 (2001); see also United States v. Dinkane, 17 F.3d

1192, 1199 (9th Cir. 1994) (holding that bank robbery continues throughout the period of hot pursuit). This result is also

consistent with the “continuing offense” doctrine the Supreme

Court announced in Toussie v. United States, 397 U.S. 112

(1970). See id. at 115, 120 (holding that an offense is “continuing” for statute of limitations purposes when “the nature of

the crime involved” requires as much, such as when the

offense “clearly contemplates a prolonged course of conduct”). 

[4] The second reason supporting our conclusion that the

“brings to” offense continues after entry is that the federal

venue statute, 18 U.S.C. § 3237 (2000), states that “[a]ny

offense involving . . . transportation in interstate or foreign

commerce, or the importation of an object or person into the

United States is a continuing offense and . . . may be inquired

of and prosecuted in any district from, through, or into which

such commerce . . . or imported object or person moves.”

Lopez argues that § 3237 does not apply to § 1324(a)(2),

which criminalizes bringing an alien to the United States, not

into the United States. Cf. Gonzalez-Torres, 309 F.3d at 599

(discussing the distinction between “to” and “into”). It is true

that, under Gonzalez-Torres, one can violate § 1324(a)(2)

without “entering” the United States in a legal sense. See

supra note 10. What § 3237 means, however, is that when a

defendant does import a person into the United States, such

as by driving that person from Mexico across the border to

Las Vegas, he has committed a continuing offense for venue

purposes. Were we to conclude that § 1324(a)(2) terminates

as soon as the border is reached and the statutory elements are

UNITED STATES v. LOPEZ 5003
satisfied, we would sap this part of § 3237 of all meaning.

Venue would always lie only in the district which the alien

first entered the country. There would be no offenses involving the importation of a person into the United States that

were continuing for venue purposes, contrary to what § 3237

clearly contemplates. Such a construction of § 1324(a)(2)

would run contrary to Congress’ intent as expressed in

§ 3237. 

[5] Third, our conclusion that an offense under § 1324(a)(2)

does not end simply because all the statutory elements are satisfied is consistent with the ordinary meaning of the phrase

“brings to.” See United States v. Cabaccang, 332 F.3d 622,

626 (9th Cir. 2003) (en banc) (“When Congress has not provided special definitions, we must construe words in a statute

‘according to their ordinary, contemporary, common meaning[s].’ ” (quoting United States v. Hackett, 311 F.3d 989, 992

(9th Cir. 2002)) (alteration in original)). The common understanding of the phrase “brings to,” such as to “bring to” a particular large place, is to bring to some location within that

large place and not simply to its outer boundary. An alien who

is brought to the United States is usually brought by the transporter to a particular place in the country where he is dropped

off, not just to the border. A construction of the statute in

which the offense terminates as soon as the alien reaches the

border conflicts with our common sense understanding of the

language the statute employs. 

[6] Fourth, our determination that the “brings to” offense is

a continuing one is most consistent with the way we view the

physical acts that commonly constitute the offense conduct in

§ 1324(a)(2) cases. If the crime ended as soon as an alien was

brought “to” the United States, a transporter who drove an

alien from Tijuana, Mexico, to a safe house one mile north of

the border, for example, could be punished for two separate

crimes: bringing the aliens “to” the United States and “transporting” them for another mile within the country. It makes

more sense to think of this short, uninterrupted drive as con5004 UNITED STATES v. LOPEZ
stituting a single “brings to” offense, a conception that is

made possible by a construction of the statute that treats the

offense as continuing.10

[7] Of course, our conclusion that the “brings to” offense

continues past the point of entry is not the end of our inquiry,

for “even continuing offenses are completed at some point.”

United States v. Hernandez, 189 F.3d 785, 791 (9th Cir.

1999). Our critical task is to determine when that point occurs

for violations of § 1324(a)(2). We emphasize that the fact that

§ 1324(a)(2) is a continuing offense for venue purposes under

18 U.S.C. § 3237 in no way compels us to reach the conclusion the government suggests — that the “brings to” offense

continues until the aliens reach their ultimate destination. If

the venue statute contained language about ultimate destinations, we would confront a different question, but that is quite

obviously not the case. The fact that a crime is continuing for

venue purposes says nothing about when that crime terminates. It means merely that venue lies in any district touched

by the crime before the crime is completed. See Hernandez,

189 F.3d at 791; United States v. Barnard, 490 F.2d 907, 910

(9th Cir. 1973). For example, a transporter who drives a group

of illegal immigrants across the border at California or Arizona and drops them off in Las Vegas may, under the venue

statute, be prosecuted in any one of two or more districts.

Thus, § 3237 tells us that the crime is a continuing one and

may provide the government with the opportunity to prosecute in more than one venue, but it sheds no light on whether

the “brings to” offense terminates when the alien is dropped

off initially at the location at which the initial transporter’s

conduct ends or whether it continues thereafter while other

individuals commit acts of internal transportation that are covered by a different statutory provision. 

10Our construction of § 1324(a)(2) is also consistent with what we have

previously stated about the “transports within” offense. In United States

v. Covarrubias, we held that “[t]he federal crime of transporting illegal

immigrants [is] a continuing offense; it [remains] in progress as long as

the defendants [are] transporting” the aliens. 179 F.3d at 1225. 

UNITED STATES v. LOPEZ 5005
[8] As stated previously, we hold that a “brings to” offense

under § 1324(a)(2) terminates when the initial transporter

drops the aliens off at a location in the United States: that may

occur in the first district the transporter enters or it may not

occur until after the transporter has driven through several

districts. In so interpreting the statute, we have adopted a view

of § 1324 that is most consistent with its text, structure, history, and purpose, and with the continuing offense venue provision. See Kokoszka v. Belford, 417 U.S. 642, 650 (1974)

(“When ‘interpreting a statute, the court will not look merely

to a particular clause in which general words may be used, but

will take in connection with it the whole statute . . . and the

objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into

execution the will of the Legislature . . . .’ ” (quoting Brown

v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857))). 

[9] In construing the “brings to” offense, we observe initially that “[t]he language of the statute itself indicates that

Congress intended it to apply to extraterritorial conduct.” Villanueva, 408 F.3d at 198. That is, the “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 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

5006 UNITED STATES v. LOPEZ
already inside the country. See WILLIAM N. ESKRIDGE, JR. &

PHILIP P. FRICKEY, LEGISLATION: STATUTES AND THE CREATION

OF PUBLIC POLICY 646 (1988) (“[P]rovisions must be interpreted so as not to derogate from the force of other provisions

and features of the whole statute.”). 

Even more persuasive to us, as we have already noted,

§ 1324 creates four separate offenses, including the “brings

to” offense at issue here as well as the “transports within”

offense of § 1324(a)(1)(A)(ii). Among its other attributes, our

reading of § 1324 best harmonizes the various separate but

often interrelated parts of the statute. In our prior decisions,

we have found it useful to reason from statutory structure in

determining the existence and contours of continuing

offenses. The defendant in United States v. Vowiell, 869 F.2d

1264 (9th Cir. 1989), was charged with, inter alia, assisting

an escape from federal custody, in violation of 18 U.S.C.

§ 752 (1988), and harboring an escapee, in violation of 18

U.S.C. § 1072 (1988). We held that the assisting offense continues through any immediate active pursuit, but no further.

See Vowiell, 869 F.2d at 1268-69. In deciding when the assisting crime terminates, we wrote that “[a]n interpretation that

assisting an escape under § 752(a) included harboring or concealing an escapee would be inconsistent with the clear statutory distinction” between the two provisions. Id. at 1268. We

rejected the government’s argument that United States v. Bailey, 444 U.S. 394 (1980), in which the Supreme Court held

that escape itself continues as long as the escapee remains at

large, required that assisting an escape also be deemed to so

continue. See Vowiell, 869 F.2d at 1268-69. “Assisting escapees after the escape is complete constitutes a separate crime

— harboring or concealing escapees,” we wrote. Id. at 1269.

We further explained: 

This separation reflects the different dangers which

the two crimes pose . . . . In contrast, no separate

crime exists for not turning one’s self in after escaping. As the Supreme Court pointed out in Bailey, an

UNITED STATES v. LOPEZ 5007
escapee can be held liable for not returning to custody, but that conduct is included within the crime of

escape. Not turning one’s self in involves essentially

the same danger as escaping — that someone who is

supposed to be in legal custody will not fulfill the

purpose of that custody. 

Id. (citation omitted). Following the reasoning of Vowiell, we

held in United States v. Gray, 876 F.2d 1411 (9th Cir. 1989),

that failure to appear, in violation of 18 U.S.C. § 3146 (1988),

is a continuing offense: because “no separate crime exists for

failure to return for sentencing after having initially failed to

appear for sentencing,” and because “[t]he two actions pose

the same danger to society and the legal system,” we concluded that “[b]oth are part and parcel of one continuing

offense.” 876 F.2d at 1419. 

[10] In this case, as in Vowiell, an interpretation that

“brings to” under § 1324(a)(2) includes “transports within” —

which, under the government’s “immediate destination” theory, it often would — “would be inconsistent with the clear

statutory distinction” between the two crimes, and even with

the statutory distinction with the two other offenses covered

by § 1324. Transporting an undocumented alien solely within

the United States “constitutes a separate crime” from bringing

one “to” the United States. Congress’ distinction between

those two offenses and the punishments that attach to each

“reflects the different dangers which the two crimes pose.”

Unlike in Gray, a separate crime does exist in this case for the

wholly domestic conduct of transporting an alien from one

place in the United States to another — in other words, Congress has decided that such conduct is not “part and parcel”

of the “brings to” offense. As in Vowiell, then, the “brings to”

offense does not continue beyond the point at which the

“transports [wholly] within” offense begins.11

11Similarly, adopting the government’s construction would erode the

distinction between the “brings to” and harboring offenses. See § 1324(a)

(1)(A)(iii). Harboring or concealing during the period between the external

and internal transportation would constitute aiding and abetting the extraterritorial “brings to” offense. 

5008 UNITED STATES v. LOPEZ
A rule that hinges the termination point of the “brings to”

offense on the end of the initial transporter’s conduct, as does

ours, rather than on the aliens’ ultimately reaching their final

destination, as would the government’s, more accurately

reflects the history and purposes of the various statutory provisions that make up § 1324. In United States v. SanchezVargas, 878 F.2d 1163 (9th Cir. 1989), we traced the evolution of § 1324 and its predecessor statutes. Prior to 1917, we

explained, federal law criminalized only the bringing in or

landing of undocumented aliens into the United States. Id. at

1168. That year, Congress addressed an apparent gap in

immigration law by extending immigration enforcement

efforts inland through proscribing the harboring and concealing of undocumented aliens. Id. Then, in 1952, Congress further broadened the coverage of its earlier legislation by

creating the additional offenses of transporting aliens within

the United States and inducing or encouraging the entry of

aliens into the United States. Id. at 1169. Congressional

debate suggests that the 1952 amendments were directed “at

curbing the widespread practice of transporting illegal immigrants, already in the United States, to jobs and locations

away from the border where immigration enforcement

resources may have been more scarce.” Id. We described the

general evolution of the statute as “broadening the scope of

proscribed conduct,” rather than multiplying the charges or

penalties. Id. Indeed, we concluded that Congress’ purpose in

adding the internal transport offense to the other enumerated

smuggling offenses in § 1324(a)(1) was “to ensure that a ‘new

group of wrongdoers’ — persons transporting aliens within

the United States — would not escape punishment simply

because they had not also brought those aliens into the United

States.” Id. at 1170. Congress’ intent was, thus, not to extend

the reach of the “brings to” provision or to multiply the

charges for which an initial transporter might be eligible. 

One lesson of the history we discussed in Sanchez-Vargas

is that “wrongdoers” who transport aliens within the United

States were not subject to punishment historically under the

UNITED STATES v. LOPEZ 5009
“brings to” provision of § 1324. The purpose of the “brings

to” provision was instead to criminalize the conduct of those

who acted extraterritorially to move aliens from a foreign

country to the United States. Indeed, the fact that wrongdoers

who acted wholly domestically escaped punishment under the

1917 statute was, as we explained, the motivating force

behind the enactment of the “transports within” provision in

1952. The construction of § 1324 most consistent with the

statute’s history and structure, therefore, is one that recognizes that the different provisions of § 1324 cover different

groups of wrongdoers. By designating the termination point

of the “brings to” offense as the end of the initial wrongdoer’s

physical involvement, and by permitting prosecution of the

secondary wrongdoers — those who act entirely within the

United States — only under the “transports within” provision,

our construction accomplishes precisely what Congress

intended. Under the government’s proposed construction, by

contrast, a “brings to” offense does not terminate until the

alien reaches his ultimate destination, regardless of how many

“wrongdoers” (or groups of “wrongdoers”) transport or assist

him during his journey. Such a rule would disregard Congress’ intention to provide for the prosecution of different

groups of wrongdoers under different provisions of the statute. 

This is not, moreover, the only problem with the government’s “immediate destination” test. Another concern is that,

at bottom, the test has little basis in the law. The “immediate

destination” language appears nowhere in § 1324 or the venue

statute, and there is no reason for us to graft it onto § 1324

here. Indeed, the government’s varying descriptions of its proposed rule — “immediate destination,” “final destination,”

“ultimate destination,” “intended destination” — highlight the

sheer arbitrariness of adding to the statute language that has

no basis in statutory text.12

12The “immediate destination” test is also difficult to administer

because it invites debate over whether a particular stop along an alien’s

5010 UNITED STATES v. LOPEZ
The dissent’s analogy between alien smuggling and drug

smuggling, see dis. op. at 5019, is inapt. The statutory

schemes that regulate the two types of importation are structured in entirely different ways. As we have explained at

length, in enacting the current version of § 1324, Congress

decided to punish under separate provisions the wrongdoers

who bring illegal aliens across the border and those who

transport them wholly within the United States. Both the

offenses and the sentences are different. Congress employed

a completely opposite and unitary approach to the transportation of drugs. There is no counterpart in the drug statutes to

the “transports within” provision of § 1324(a)(1)(A)(ii).

Unlike in the case of alien importation, the “importation”

offense in the drug context covers both the extraterritorial

transportation and the ensuing internal transportation. In the

case of drugs, the government must prosecute all persons

involved in their transportation under 21 U.S.C. § 952, the

provision that forbids the “importation of controlled substances.” Thus, the unitary statutory structure compels a

broader reading of the transportation element of the importation of drugs statute than is permissible with respect to the

“brings to” provision of the alien smuggling law, in which

separate provisions exist to cover the different transportation

stages of the criminal venture.13

path into the United States constitutes that alien’s “immediate destination”

or was instead merely a resting place or meeting point. In this case, for

example, Lopez argues that the aliens had reached their immediate destination when they were dropped off at the prearranged point in the United

States, while the government argues that their immediate destination was

their final destination, Los Angeles. 

13The dissent notes that 21 U.S.C. § 841(a)(1) prohibits “manufacturing,

distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance.” Dis. op. at 5026. The point, however, is that the drug statutes do not separately prohibit transporting a

controlled substance “within” the United States, see Cabaccang, 332 F.3d

at 623, whereas the alien smuggling statute does. As explained in the text,

it is this distinction that compels a broader reading of the transportation

element of the “importation” offense in the drug context than is appropriate in the case of the more specific and limited “brings to” provision of

§ 1324(a)(2). 

UNITED STATES v. LOPEZ 5011
The dissent also raises the specter of a circuit split by

beginning with a string citation to out-of-circuit cases every

one of which interprets the drug importation statute and none

of which even mentions § 1324 or alien smuggling. See dis.

op. at 5019. Because of the crucial differences between the

two statutes, any “circuit split” created by these cases is completely illusory. The lone decision adopting the dissent’s construction of § 1324, United States v. Aslam, 936 F.2d 751 (2d

Cir. 1991), failed to consider the structural and historical

arguments on which our opinion is based. See id. at 755. Significantly, the court in Aslam was considering a misdemeanor

rather than a felony conviction. We are not inclined by virtue

of this single decision to set aside our own careful analysis

and adopt a ruling that would conflict with both the language

of § 1324 and the patent congressional purpose of creating

two separate felony alien trafficking offenses.14

14The dissent is of course correct that both alien smuggling and drug

smuggling constitute continuing offenses under the federal venue statute,

18 U.S.C. § 3237. This does not mean, as we have explained, that the two

“importation” offenses terminate at the same point. That is determined by

the substantive statutes. The dissent relies upon a Senate report stating that

the 1984 amendment to the venue statute, which first gave “importation”

offenses their status as continuing crimes, was designed to overcome a district court decision “which limited venue in importation cases to the district of entry rather than of final destination.” See, e.g., dis. op. at 5025

(quoting S. REP. NO. 98-225, at 400 (1984), as reprinted in 1984

U.S.C.C.A.N. 3182, 3538) (internal quotation marks omitted). According

to the dissent, this snippet of legislative history compels us to construe the

extraterritorial “brings to” offense as continuing until the alien reaches his

ultimate destination, no matter how many different persons transport the

alien within the United States and no matter how many brief or extended

layovers the alien may make in the interim. Such a brief quotation from

the legislative history of a venue statute, however, would scarcely cause

us to jettison our entire analysis of the text, structure, history, and purpose

of the substantive statute we are actually construing. In any event, as the

snippet states, the primary purpose of the 1984 amendment was to supersede a decision limiting venue to the district of entry. This is what labeling

“importation” offenses as “continuing” accomplishes. Our construction

effectuates that primary purpose by permitting prosecution of the initial

transporter in any district through which he passes before the offense terminates. 

5012 UNITED STATES v. LOPEZ
[11] Turning to the facts of this case, it is undisputed that

Lopez encountered the aliens and provided them with transportation only after they had been dropped off in the United

States by the initial transporter who brought them across the

border from Mexico. Thus, her act of transporting the aliens

occurred only after the “brings to” offense had terminated and

cannot, standing alone, serve as a basis for sustaining her conviction for aiding and abetting that offense. Lopez’s “brings

to” convictions must therefore be reversed unless the government can prevail on its second theory, that Lopez acted before

the drop-off to aid and abet the extraterritorial offense.15

C.

[12] The government’s second theory of aiding and abetting liability, unlike its first, cannot be rejected as a matter of

law. Under the aiding and abetting statute, 18 U.S.C. § 2, a

person who “aids, abets, counsels, commands, induces or procures” the commission of an offense against the United States

is “punishable as a principal.” We have interpreted this statute

on a number of occasions. In United States v. Zemek, 634

F.2d 1159 (9th Cir. 1980), we wrote that “[c]onviction as an

aider and abettor requires proof the defendant willingly associated himself with the venture and participated therein as

something he wished to bring about.” Id. at 1174. Elsewhere,

we have stated that “[a]n abettor is one ‘who, with mens rea

. . . commands, counsels or otherwise encourages the perpetrator to commit the crime.’ ” United States v. Barnett, 667

F.2d 835, 841 (9th Cir. 1982) (quoting ROLLIN M. PERKINS,

CRIMINAL LAW 645 (2d ed. 1969)); see also NINTH CIRCUIT

MODEL CRIMINAL JURY INSTRUCTIONS § 5.1 (2005) (instructing

15As a point of clarification, our holding today does not require us to

overrule United States v. Gonzales-Torres. Under Gonzalez-Torres, the

elements of the “brings to” offense may be satisfied as soon as the aliens

are brought to the United States, regardless of formal entry; under today’s

decision, the offense continues until the initial transporter who brings the

aliens drops them off at a location in the United States. 

UNITED STATES v. LOPEZ 5013
that, to obtain a conviction for aiding and abetting, the government must prove beyond a reasonable doubt that, inter

alia, the defendant “knowingly and intentionally aided, counseled, commanded, induced or procured [the principal] to

commit each element” of the crime charged). We have held

that aiding and abetting has four elements including, as most

relevant here, “that the accused had the specific intent to facilitate the commission of a crime by another” and “that the

accused assisted or participated in the commission of the

underlying substantive offense.” United States v. Gaskins, 849

F.2d 454, 459 (9th Cir. 1988). 

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.” Nye & Nissen v. United States, 336 U.S. 613, 619

(1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d

Cir. 1938)); cf. Barnes v. United States, 215 F.2d 91, 91 (9th

Cir. 1954) (upholding “brings into” conviction of a defendant

who “negotiated and planned entry for . . . aliens,” drove the

aliens to a Mexican city near the border, and met up with

them again on the United States side). We need not determine

today, however, precisely what actions may and may not render a defendant guilty of aiding and abetting.16 Lopez’s

actions do not qualify under any definition. 

16Any complete specification of the category of aiders and abettors

would have to take into account, and attempt to avoid redundancy with,

the separate offense Congress created for one who “encourages or induces

an alien to come to, enter, or reside in the United States, knowing or in

reckless disregard of the fact that such coming to, entry, or residence is or

will be in violation of law.” § 1324(a)(1)(A)(iv). 

5014 UNITED STATES v. LOPEZ
[13] The mere act of picking up aliens at a location near the

border and transporting them within the United States is not

sufficient to support a conviction for aiding and abetting a

“brings to” offense.17 Nor does the fact that following completion of the “brings to” offense Lopez twice spoke to a person

who may have been the transporter add anything to the equation. Such evidence cannot, without more, establish the intent

necessary to prove aiding and abetting — it cannot show that

the defendant knowingly and intentionally commanded, counseled, or encouraged the initial transporter to commit the

“brings to” offense. Moreover, a “brings to” conviction would

be particularly inappropriate in this case, in which, as the district court found, the defendant “wasn’t obviously the first

choice” — “someone else was supposed to pick [the aliens]

up,” and Lopez was contacted on the day she transported

them only after the aliens were already in the country and the

plan for the first person to pick them up had been frustrated

by his arrest when he appeared at the designated location. 

The government attempts to squeeze from the record additional evidence to show that Lopez aided and abetted the

smuggling scheme before the aliens were brought to the

United States. The government points to two pieces of evidence in the record. First, the government notes that Lopez

made “arrangements to put the vehicle in her name on May

28, 2004 and to travel near the border to pick up the vehicle.”

Second, the government points out that “Lopez stated that she

was contacted by ‘Jose’ twice on the day of the offense

regarding the transportation arrangements. At no point,” the

government observes, “did Agent Huber say, nor did the Government argue, that Lopez’s discussions with Jose on June 1,

2004, were her first contact with him.” The government then

notes, “the fact that Lopez was able to provide Agent Huber

17Two of our prior decisions, Ramirez-Martinez and Angwin, may be

read to suggest that such evidence is sufficient. See 273 F.3d at 912-13;

271 F.3d at 804-05. To the extent that these decisions stand for that proposition, we overrule them today. 

UNITED STATES v. LOPEZ 5015
with a physical description of Jose implies contact with him

that predated the telephone conversations she had with him

that day.”

18 The district court found this evidence sufficient to

prove beyond a reasonable doubt that Lopez was involved in

transporting the aliens to the United States before the aliens

entered the country, although it agreed with the defense that

“it’s somewhat questionable, because [Lopez] wasn’t obviously the first choice. Because someone else was supposed to

pick them up.” 

We hold that, viewing the evidence in the light most favorable to the government, 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. The government merely speculated that

the timing of Lopez’s vehicle purchase seemed suspicious. As

the district court found, however, even after the date on which

she acquired the car, Lopez was not the person Jose made

arrangements with to drive the illegal aliens to Los Angeles

upon their arrival in the United States — she was instead only

a substitute who was called after they were already here.

Thus, the government’s arguments about the inferences a

rational juror might draw from the timing of the purchase are

wholly unpersuasive. As we have previously held, “mere suspicion or speculation does not rise to the level of sufficient

18The record contains no further information as to who Jose is or what

role he played. There is no testimony as to whether he was located in

Mexico or the United States, whether he physically brought the illegal

aliens to the United States himself or simply made the arrangements for

their transportation, whether the transportation of the group of aliens in

this case was an isolated episode or, as seems more likely, whether Jose

was regularly engaged in the alien smuggling business. Given the minimal

evidence in the record as to Jose’s identity and role as well as to Lopez’s

connection with Jose, it is difficult to understand what inferences the government believes that the jury could have drawn that would support a verdict that Lopez was guilty beyond a reasonable doubt of aiding and

abetting the extraterritorial act. 

5016 UNITED STATES v. LOPEZ
evidence.” United States v. Stauffer, 922 F.2d 508, 514 (9th

Cir. 1990). The government’s other argument regarding Jose

fares no better. Whatever the relevance may be of communications prior to the time aliens are brought from outside the

country to the United States, any communication Lopez had

with Jose on June 1 is clearly irrelevant because it occurred

after the “brings to” offense had been completed. Even if, as

the government suggests, Lopez’s ability to give a physical

description of Jose tends to show that she had met Jose prior

to June 1, that is all it shows. The inferential leap required to

conclude that Lopez and Jose’s prior communications

involved efforts on the part of Lopez to induce or encourage

Jose to smuggle aliens on June 1 is completely without foundation, and no rational juror could draw such an inference or

conclude that the fact of a prior acquaintanceship constitutes

proof beyond a reasonable doubt of any such effort on

Lopez’s part. 

[14] Nor is all of the government’s evidence taken together

sufficient to allow a rational factfinder to find Lopez guilty.

To prove aiding and abetting, the government cannot show

merely that Lopez was associated with Jose or with the transportation of the aliens within the United States — it must

show more. See NINTH CIRCUIT MODEL CRIMINAL JURY

INSTRUCTIONS § 5.1 (2005); United States v. Burgess, 791 F.2d

676, 679-80 (9th Cir. 1986). Specifically, it must show that

the “brings to” offense was something that Lopez had the specific intent to bring about, Gaskins, 849 F.2d at 459; Zemek,

634 F.2d at 1174, and that she knowingly and intentionally

commanded, counseled, or encouraged the initial transporter

to commit the “brings to” offense, Barnett, 667 F.2d at 841.19

19Contrary to the dissent’s oblique suggestion, see dis. op. at 5031, we

do not decide that if a smuggling operation “relies on” a secondary, stateside transporter — in the sense that the secondary transporter’s agreement

to participate induces or encourages the commission of the initial, extraterritorial “brings to” offense and the secondary transporter intended to so

induce or encourage the commission of the crime — aiding and abetting

liability will never lie. Those are not the facts of this case and we do not

consider that question here. 

UNITED STATES v. LOPEZ 5017
There is no evidence whatsoever to this effect in the record.

We therefore reverse Lopez’s “brings to” convictions. 

IV

We hold that the offense of bringing an alien to the United

States in violation of 8 U.S.C. § 1324(a)(2) is a continuing

offense that terminates when the initial transporter who brings

the alien to the United States drops off the alien at a location

in this country. Viewing the statute in that light, we reverse

Lopez’s convictions for violations of § 1324(a)(2). Lopez

transported the aliens only within this country and only after

they had been dropped off here and the “brings to” offense

had terminated. The evidence of her involvement prior to the

termination of the “brings to” offense, to the extent that any

exists in the record, is wholly insufficient to establish aiding

and abetting liability on her part. We express no opinion on

Lopez’s Miranda and Confrontation Clause claims with

respect to the “transports within” counts and refer those

counts to the original three-judge panel for resolution of those

and any other issues. 

REVERSED IN PART AND REFERRED IN PART TO

THE THREE-JUDGE PANEL.

BEA, Circuit Judge, specially concurring: 

I agree with the majority that Lopez transported illegal

aliens only within the United States and that there is insufficient evidence that Lopez otherwise aided and abetted the

“brings to” offense. I do not agree that the “brings to” offense

continues until the initial transporter drops off the aliens. By

the plain text of the statute, the offense is completed at the

border. Any further transportation may constitute transporting

an illegal alien within the United States under 8 U.S.C.

5018 UNITED STATES v. LOPEZ
§ 1324(a)(1)(A)(ii), but does not constitute “bringing to” the

United States such alien. 

The majority opinion is an extended exercise in statutory

interpretation, on grounds and using methods which I do not

endorse. But there is no point in commenting further because

it is also an exercise unnecessary to decision. 8 U.S.C.

§ 1324(a)(2)(B)(ii) makes it illegal to “bring[ ] to . . . the

United States” an illegal alien. A person “brings to” the

United States an illegal alien when he transports the alien

across any border. That is the plain meaning of the statute,

and I can see no reason to depart from it. 

TALLMAN, Circuit Judge, with whom Circuit Judges

RAWLINSON, CLIFTON and CALLAHAN join, dissenting:

The law should be the same whether smuggling aliens,

drugs, or contraband goods. Today, the majority creates a circuit split by announcing a rule that contravenes established

precedent and undermines congressional intent. Congress and

every other circuit court to address the issue have all concluded that importation offenses continue until the imported

objects or persons reach their final destination within the

United States. See United States v. Haire, 371 F.3d 833, 838

(D.C. Cir. 2004), vacated on other grounds, 543 U.S. 1109

(2005); United States v. Turner, 936 F.2d 221, 226 (6th Cir.

1991); United States v. Leal, 831 F.2d 7, 9-10 (1st Cir. 1987)

(per curiam); United States v. Sandini, 803 F.2d 123, 128 (3d

Cir. 1986); United States v. MacDougall, 790 F.2d 1135,

1150-51 (4th Cir. 1986); United States v. Netz, 758 F.2d 1308,

1312 (8th Cir. 1985) (per curiam); United States v. Corbin,

734 F.2d 643, 652 (11th Cir. 1984); United States v. Godwin,

546 F.2d 145, 146-48 (5th Cir. 1977); United States v. Jackson, 482 F.2d 1167, 1178-79 (10th Cir. 1973); S. REP. NO. 98-

225, at 400 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,

3538. 

UNITED STATES v. LOPEZ 5019
Rather than following this long line of authority, our court

unnecessarily injects inconsistency into the law by concluding

that alien importation ends once the “initial transporter who

brings the aliens to the United States ceases to transport [the

aliens].” Maj. op. 4994. In doing so, the majority fails to give

sufficient credence to the long recognized doctrine of aider

and abetter liability, which punishes the convicted defendant

as a principal. See 18 U.S.C. § 2. I respectfully dissent. 

I

Even under the majority’s interpretation of the scope of the

“brings to” offense, the convictions should be affirmed. There

was sufficient evidence for the jury to find that Lopez agreed

to participate in the alien smuggling venture prior to when the

initial transporter ceased transporting the aliens. We review

de novo a district court’s denial of a motion for judgment of

acquittal under Federal Rule of Criminal Procedure 29.

United States v. Bahena-Cardenas, 70 F.3d 1071, 1072 (9th

Cir. 1995). “In assessing the sufficiency of the evidence, ‘we

are required to view the evidence in the light most favorable

to the government and determine whether there was sufficient

evidence from which a jury could rationally conclude beyond

a reasonable doubt that [the defendant] was guilty of each

count charged.’ ” United States. v. Barajas-Montiel, 185 F.3d

947, 954 (9th Cir. 1999) (quoting United States v. Esparza,

876 F.2d 1390, 1391 (9th Cir. 1989)). “[C]ircumstantial evidence can be used to prove any fact, including facts from

which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury’s factfinding function is concerned.” United States v. Stauffer, 922

F.2d 508, 514 (9th Cir. 1990) (internal quotation marks omitted; alteration in original). 

Border Patrol Agents apprehended Angelica Lopez

(“Lopez”) on June 1, 2004, using a large white Ford Expedition to transport twelve illegal aliens east on Interstate 8.

Agent Huber testified that Lopez admitted to making arrange5020 UNITED STATES v. LOPEZ
ments with a person named Jose earlier that day to transport

the aliens to El Centro, California. Jose instructed her to drive

to a location near where the agents apprehended her and

advised her that there would be a sweater lying in the road to

indicate where she could find the aliens. Initially, Jose promised to pay Lopez $100 for each individual she transported;

however, he called her sometime later to change the arrangements to a flat fee of $500 for the entire group. Lopez gave

a vague physical description of Jose, describing him as a bald,

short, heavyset man. 

Lopez also testified that she had purchased her Ford Expedition a few days earlier on May 28, 2004. She had noticed

the vehicle outside an Applebee’s restaurant in Montclaire,

California. However, when she made arrangements to actually

purchase the car, the owner had it in a tow yard located some

two and a half hours from where she lived, near where the

aliens where to be picked up. The vehicle was registered in

Lopez’s name on May 28, 2004, but Lopez did not go to pick

it up until June 1, 2004, the day Jose contacted her about

transporting the aliens to El Centro. 

Viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could reasonably conclude that Lopez made arrangements with Jose prior to June

1, 2004, to aid in the completion of this smuggling venture.

The jury could also reasonably infer that her decision to purchase this used Ford Expedition—which happened to be

located near where the aliens were hiding—and to pick up the

vehicle on the day Jose asked her to transport the aliens was

more than a mere coincidence. It is not unheard of in our

experience for smugglers to employ used or rented vehicles in

aid of their schemes in case of interdiction, seizure, and subsequent forfeiture of the instrumentality of the crime. As the

district court concluded:

[I]f you combine [Lopez’s] testimony as to when she

was getting the car, that would be some evidence as

UNITED STATES v. LOPEZ 5021
to the fact that she was involved in this before the

aliens crossed; or about the time. Because when she

registered it to her, registered the vehicle to her, she

indicated it was before the day she went down there.

And so, although Jose calls her, according to her

statement, that day, that doesn’t mean that she had

an agreement with Jose before, that she was going to

do it; just Jose was going to call her and tell her

when, get the car registered. I’ll let you know when

to do it. I think that’s a reasonable inference that can

be drawn. 

Because there is sufficient evidence to conclude that Lopez

aided and abetted the venture prior to when the initial transporter ceased transporting the aliens, the convictions should

be affirmed even under the majority’s novel interpretation. 

II

Our court glosses over Congress’s expressed purpose to

treat importation schemes as continuing offenses in enacting

the companion federal venue statute, 18 U.S.C. § 3237,1 when

it holds that the “brings to” offense under 8 U.S.C. § 1324(a)(2)2

terminates once the initial transporter ceases transporting the

alien. In light of § 3237’s plain language, the court acknowledges that importation crimes are continuing offenses for

1

In pertinent part, § 3237(a) provides: 

Any offense involving the use of the mails, transportation in

interstate or foreign commerce, or the importation of an object or

person into the United States is a continuing offense and, except

as otherwise expressly provided by enactment of Congress, may

be inquired of and prosecuted in any district from, through, or

into which such commerce, mail matter, or imported object or

person moves. 

2As does the majority, I will cite to the 2000 edition of the United States

Code. See Maj. Op. 4994 n.1. 

5022 UNITED STATES v. LOPEZ
venue purposes. Maj. op. 5000-04. However, it surmises that

this “in no way compels” a conclusion that the “brings to”

offense continues until the alien reaches his or her final destination in the United States because the words “ultimate destination” do not appear anywhere in the federal venue statute.

Maj. op. 5004-05.3 After scouring the text of the federal venue

statute, its legislative history, and § 1324, one searches in vain

to find the words “initial transporter,” a phrase our court now

employs to define the scope of the “brings to” offense. 

When a statute is ambiguous “we [must] determine its

scope with reference to its legislative history.” Coeur D’Alene

Tribe of Idaho v. Hammond, 384 F.3d 674, 692-93 (9th Cir.

2004) (citing Rosebud Sioux Tribe v. Kneip, 430 U.S. 584,

587 (1977)). The legislative history of § 3237 is clear: importation offenses continue until the imported person or object

reaches its final destination within the United States. See S.

REP. NO. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N.

at 3538. 

In 1984 Congress amended the federal venue statute, see

Pub. L. No. 98-473, § 1204, 98 Stat. 1837, 2152 (1984), to

abrogate judicial opinions in which courts had held that

importation offenses end once the person or object arrives at

the district of entry. See S. REP. NO. 98-225, at 400, as

reprinted in 1984 U.S.C.C.A.N. at 3538. The legislative history reflects that through this amendment Congress intended

to “add offenses involving the importation of a person or an

object into the United States and thereby to classify such

offenses as continuing offenses for which venue is appropriate

in any district in which the imported object or person moves.”

Id. In doing so, Congress sought to “overcome” restrictive

3The majority goes on to state that “the government’s varying descriptions of its proposed rule—‘immediate destination,’ ‘final destination,’

‘ultimate destination,’ ‘intended destination’—highlight the sheer arbitrariness of adding to the statute language that has no basis in statutory text.”

Maj. op. 5010. 

UNITED STATES v. LOPEZ 5023
decisions such as United States v. Lember, 319 F. Supp. 249

(E.D. Va. 1970), in which the district court determined that

the crime of smuggling terminates once the contraband

arrived in the district of entry as opposed to the district of

final destination. S. REP. NO. 98-225, at 400, as reprinted in

1984 U.S.C.C.A.N. at 3538. 

Our court overlooks this integral piece of legislative history.4

It makes no mention of the fact that even though the district

court in Lember based its reasoning on many of the same

arguments the majority now cites in support of its narrower

interpretation, Congress nevertheless favored the broader

interpretation—that importation offenses continue until the

person or object reaches its final destination. In Lember, a

package mailed from Vietnam was addressed to the defendant’s wife in Virginia Beach, Virginia. 319 F. Supp. at 250.

When the package arrived at the San Francisco International

Airport, a United States customs agent opened the package

during a routine check and found marijuana. Id. The agent

resealed and delivered the package to the Virginia Beach

address. Id. Eventually, the defendant was indicted and tried

in the Eastern District of Virginia. Id. After the district court

declared a mistrial, the defense filed a motion for judgment of

acquittal, arguing that the prosecution could not proceed in

Virginia, but rather that proper venue lay only in the Northern

District of California. Id. The district court agreed. Id. at 251-

52. Relying on an 1899 decision of the Supreme Court, Keck

v. United States, 172 U.S. 434, it concluded that “the crime

of smuggling was complete when the package arrived ashore

and was opened at the San Francisco Airport.” Lember, 319

F. Supp. at 251. 

In Keck, the Supreme Court determined that the offense of

4Although the court concedes that “[i]f the venue statute contained language about ultimate destinations, we would confront a different question,” maj. op. 5005, it dismisses such language as a mere “snippet” of

legislative history, maj. op. at 5012 n.14. 

5024 UNITED STATES v. LOPEZ
smuggling or clandestinely introducing contraband into the

United States was completed once the goods arrived at the

port of entry. 172 U.S. at 454-55; see also Lember, 319 F.

Supp. at 251 (discussing Keck). The Court reasoned that the

statute 

was not intended to make smuggling embrace each

or all of the acts theretofore prohibited which could

precede or which might follow smuggling . . . [;] that

is, the statute was intended not to merge into one and

the same offense all the many acts which had been

previously classified and punished by different penalties, but to legislate against the overt act of smuggling itself. 

172 U.S. at 454-55. Therefore, in the Court’s view, the smuggling statute “related not generally to acts which precede

smuggling[ ] or which might follow it, but to the concrete

offense of smuggling[ ] alone.” Id. at 455. The majority

reverts to the same rationale here by pointing to the different

crimes of transporting, bringing to, and harboring or concealing. 

In amending the statute, Congress rejected the rationale of

Lember, and in turn, the rationale of Keck, at least to the

extent Keck is read for the proposition that illegal importation

ends at the port of entry. Therefore, although the majority correctly notes that § 1324 punishes four distinct acts related to

smuggling, see maj. op. 5006-07, the legislative history indicates that Congress nevertheless intended to punish—under

the “brings to” offense—any person who helped get the alien

to his or her final destination within the United States. See S.

REP. NO. 98-225, at 400, as reprinted in 1984 U.S.C.C.A.N.

at 3538 (stating that the amendment “[wa]s designed to overcome the decision in United States v. Lember, which limited

venue in importation cases to the district of entry rather than

of final destination” (footnote omitted; emphasis added)). Any

other construction would be “unjustified” in that it “would

UNITED STATES v. LOPEZ 5025
create difficulties since the witnesses are usually located in

the place of destination” and “the district of destination rather

than first entry normally has the greater interest in vindicating

the offense.” Id. 

In disregarding legislative history our court also creates a

circuit split, departing from how other circuits have defined

the scope of importation offenses. In Sandini, the Third Circuit rejected the defendant’s argument, which would have “reinstate[d] Lember’s irrational port of entry rule” and held that

under the “plain meaning of [§ 3237], venue [wa]s proper in

the Western District of Pennsylvania because the ‘imported

object,’ i.e., the marijuana, ‘move[d]’ into the Western District of Pennsylvania.” 803 F.2d at 128, 129 (final alteration

in original); see also id. at 128 (“Although the Western District of Pennsylvania may not have been the final destination

intended by the appellant, it was nevertheless the final destination of a considerable amount of the marijuana he conspired

to import into this country.”). Moreover, every circuit that has

addressed the issue has concluded that importation offenses

continue until the imported object reaches its final destination

within the United States. See supra, at 5019. 

The majority employs a spurious structural argument in an

attempt to justify its inconsistent treatment of alien and drug

smuggling. See Maj. op. 5011. In doing so, it ignores 21

U.S.C. § 841(a)(1), which punishes the related drugtrafficking offenses of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or

dispense, a controlled substance. Congress intended

§ 841(a)(1) to cover conduct intimately connected to the act

of smuggling drugs, e.g., simultaneously punishing possession with intent to distribute, see United States v. Dubrofsky,

581 F.2d 208, 213 (9th Cir. 1978) (“Congress clearly viewed

importation and possession with intent to distribute as separate evils that could be punished cumulatively.”), whether the

smuggler was interdicted inside or outside the territorial

boundaries of the United States, see United States v. Larsen,

5026 UNITED STATES v. LOPEZ
952 F.2d 1099, 1100-01 (9th Cir. 1991) (holding that

§ 841(a)(1) has extraterritorial application). 

Persons involved in drug smuggling schemes, like those

involved in alien smuggling schemes, can be prosecuted

under a variety of statutory means, not just under the misnamed “unitary” crime of § 952 as the majority reasons. The

venue statute, 18 U.S.C. § 3237, should be harmoniously read

to reach all such means of violating either alien or drug smuggling statutes. That is why drug importation crimes can be

freely prosecuted in any federal district impacted by the activities of the drug smuggling enterprise. Logic compels the conclusion that Congress expected no different result when

prosecuting enterprises involving alien smuggling. The split

created today by the majority’s approach is real and substantial and cannot be dismissed in reliance on the narrow structural differentiation employed in our court’s decision. 

A conclusion that the “brings to” offense continues until

the alien reaches his or her final destination would not seriously erode the distinction between the importation offense

and the transportation offense. The act of bringing aliens to

the United States encompasses activities that occur at the earliest manifestations of an alien smuggling venture. As the

majority notes, “[b]ringing aliens to the United States requires

transporting them over a period of time and distance[,] and

thus does not occur at one particular moment or location.”

Maj. op. 5002-03. Large scale importation operations do not

terminate once the “initial transporter” or “guide” ceases to

transport the aliens. As is the case here, aliens often pay the

smuggler to transport them to a particular place in the country, not a hillside just across the border. Recognizing that

importation “is not a static or an instantaneous occurrence,

geographically or temporally,” maj. op. 5002, the crime punishing the importation of aliens should include the transportation of those aliens to their final destination. 

UNITED STATES v. LOPEZ 5027
In comparison, the transportation and harboring or concealing of illegal aliens covers the continued presence and operation of the alien smugglers within the United States.5

 Thus,

separate crimes apply to later criminal conduct by those who

knowingly transport, harbor, or conceal aliens even though

they had nothing to do with smuggling them into the United

States. Each case must turn on its own facts. But Congress

was free to criminalize a broad range of activities, punishing

those who assist others in flouting our immigration laws.

Those who arrange, pay for, or otherwise aid or abet the

smuggling venture are liable as principals under 18 U.S.C.

§ 2. See United States v. Carranza, 289 F.3d 634, 642 (9th

Cir. 2002) (finding sufficient evidence to convict defendant of

importing marijuana when he participated in a test run, riding

as a passenger in the vehicle that brought drugs across the

border); United States v. Flickinger, 573 F.2d 1349, 1359-60

(9th Cir. 1978) (convicting defendants of illegally importing

marijuana into the United States because they aided or abetted

the crime), overruled on other grounds by United States v.

McConney, 728 F.2d 1195, 1204-05 (9th Cir. 1984) (en banc),

abrogated on other grounds as recognized in Estate of Merchant v. Comm’r, 947 F.2d 1390 (9th Cir. 1991). 

As we stated in United States v. Sanchez-Vargas, 878 F.2d

1163 (9th Cir. 1989), “congressional debate . . . suggests that

the transport offense was directed, in large part, at curbing the

5The inquiry is heavily dependant on the facts of the particular case.

Here, the evidence showed payment to smugglers to deliver the aliens to

Los Angeles, where the aliens presumably intended to meet friends or

family. On these facts, once they reached Los Angeles the “brings to”

crime would have been completed. Thus, a family member who thereafter

picked up an alien in Los Angeles and transported him or her to Portland,

Oregon, could not be convicted of the “brings to” offense, but only the

transportation offense, in the absence of any evidence linking the family

member to the smugglers. Similarly, a family member who allowed an

alien to stay at his or her home in Los Angeles, knowing the alien was

here illegally, could be convicted of harboring or concealing an illegal

alien. See 8 U.S.C. § 1324(a)(1)(A)(iii). 

5028 UNITED STATES v. LOPEZ
widespread practice of transporting illegal immigrants,

already in the United States, to jobs and locations away from

the border where immigration enforcement resources may

have been more scarce.” Id. at 1169. In other words, Congress

intended to punish those who encouraged the continued presence of the illegal aliens by transporting them to other locations within the United States.6

The legislative history also cites with approval the Fifth

Circuit’s decision in Godwin, 546 F.2d 145, and the Tenth

Circuit’s decision in Jackson, 482 F.2d 1167. S. REP. NO. 98-

225, at 400 n.945, as reprinted in 1984 U.S.C.C.A.N. at 3538.

In Jackson, the defendant argued that the federal district court

in Colorado was not the proper venue to try the case when the

authorities first discovered the smuggling venture in California. 482 F.2d at 1178. The Tenth Circuit rejected that argument, reasoning:

[Title 21 U.S.C. §] 952(a) prohibits importation of

heroin into the United States from any place outside

thereof. The statute does not necessarily pertain to

any particular locality such as the place of entry, for

it prohibits importation anywhere in the United

States. Appellants charge, however, the offense was

completed the moment the smuggling attempt was

discovered in California and thus does not continue

6That Congress provided differing punishments for certain conduct

reflects only a legislative judgment that specific behavior is more or less

culpable and deserving of a harsher penalty. It has no bearing on the statutory interpretation question we here decide. Nevertheless, I note that a

conviction under 8 U.S.C. § 1324(a)(2) for bringing illegal aliens to the

United States for commercial advantage or private financial gain will

result in a sentence of not less than 3 years and not more than 10 years

for the first or second offense. Id. § 1324(a)(2)(B). For any such other violation, the district court shall impose a sentence of not less than 5 but not

more than 15 years. Id. In comparison, a conviction under 8 U.S.C.

§ 1324(a)(1)(A)(ii) for transporting illegal aliens for commercial advantage or private financial gain will result in a sentence of not more than 10

years. Id. § 1324(a)(1)(B)(i). 

UNITED STATES v. LOPEZ 5029
to the smuggling attempt’s destination point in Colorado. Admittedly a crime was committed the

moment the heroin package entered the United

States, but discovery of the crime in California did

not exhaust it. The illicit scheme originated in Thailand and from there it extended to Lowry Air Force

Base, Colorado. During the illicit venture the heroin

was discovered in California but certainly the crime

was not completed there. It was a continuous crime

which received no finality until the package arrived

at Lowry Air Force Base. 

Id. (citation omitted). In Godwin, the court expressly rejected

the holding in Lember and adopted the reasoning of the Tenth

Circuit in Jackson. 546 F.2d at 146-47. 

The need for consistency in the interpretation of importation offenses—whether it involves the importation of illegal

aliens or illegal contraband—did not go unnoticed by the Second Circuit. The “immediate destination” theory adopted by

a three-judge panel of our court in United States v. RamirezMartinez, 273 F.3d 903, 912 (9th Cir. 2001), originated in

United States v. Aslam, 936 F.2d 751, 755 (2d Cir. 1991).

Aslam, a Pakistani citizen, met two illegal aliens just south of

the Canadian border. Id. at 753. The evidence showed that a

guide had driven the aliens to the Canadian side of the border,

accompanied them across the border, and then walked back to

the Canadian side. Id. Aslam waited for the aliens at a prearranged location south of the border to “complete their entry

into the United States.” Id. In concluding that Aslam’s conduct violated the “bringing to” prong of the statute, the Second Circuit stated that

section 1324(a)(2) punishes those who participate in

the process of bringing illegal aliens into the United

States, and . . . the offense does not end at the instant

the alien sets foot across the border. The illegal

importation of aliens, like the illegal importation of

5030 UNITED STATES v. LOPEZ
drugs, see United States v. Leal, 831 F.2d 7, 9 (1st

Cir. 1987), United States v. MacDougall, 790 F.2d

1135, 1150-51, 1153 (4th Cir. 1986), continues at

least until the alien reaches his immediate destination in this country. 

Id. at 755 (emphasis added). 

The Aslam court compared illegal importation of aliens to

the illegal importation of controlled substances. In doing so,

it cited Leal, 831 F.2d 7, and MacDougall, 790 F.2d 1135,

where the First Circuit and the Fourth Circuit stated, not that

the illegal importation ended when the initial transporter

ceases to transport the imported object or person, but rather

when they reached their “final destination.” Leal, 831 F.2d at

9 (“[I]mportation is a “ ‘continuous crime” that is not complete until the controlled substance reaches its final destination point.’ ” (quoting Corbin, 734 F.2d at 652));

MacDougall, 790 F.2d at 1151 (same); see also Sandini, 803

F.2d at 128 (stating that for purposes of establishing venue

under 18 U.S.C. § 3237(a), “the proper venue for the prosecution was the final destination of the contraband rather than the

port at which the narcotics entered the country”). 

No court has conclusively defined the temporal parameters

of importation offenses. See Leal, 831 F.2d at 9 (stating that

“[w]hile the precise temporal parameters of importation have

not yet been addressed,” it is clear that “importation is a continuous crime that is not complete until the controlled substance reaches its final destination point” (internal quotation

marks omitted)). Nevertheless, as in other contexts, this is a

matter that is best left for the jury to decide based on the facts

presented in each case and the vagaries of smuggling schemes

concocted by the criminal mind.7

7For instance, the majority cites United States v. Vowiell, 869 F.2d 1264

(9th Cir. 1989), in which we held that the crime of aiding an escape ends

once the immediate active pursuit of the escapee ends. Id. at 1268-69.

UNITED STATES v. LOPEZ 5031
Moreover, when Congress amended the alien smuggling

statute in 1986, it did not seek to narrow its construction of

general importation offenses. Instead, it sought to “expand the

scope of activities proscribed” by “smuggling and related

offenses.” See H.R. REP. NO. 99-682(I), 65 (1986), reprinted

in 1986 U.S.C.C.A.N. 5649, 5669. “[It] believe[d] such modifications . . . essential in light of recent judicial opinions

which ha[d] interpreted [then] existing law as not applying to

certain activities that clearly [we]re prejudicial to the interests

of the United States.” Id. Today, rather than adhering to

unambiguous congressional intent, our court unnecessarily

restricts the scope of the “brings to” offense and creates

inconsistency in the law by treating alien smuggling differently from drug smuggling. 

III

We should reaffirm our prior decisions in United States v.

Ramirez-Martinez, 273 F.3d 903, and United States v. Angwin, 271 F.3d 786 (9th Cir. 2001). Pre-border involvement is

not required for a “bringing to” conviction under 8 U.S.C.

§ 1324(a)(2). Cf. Flickinger, 573 F.2d at 1359-60 (affirming

conviction because, although the defendants did not transport

the marijuana across the border, they aided and abetted the

importation venture). As the panel concluded in RamirezMartinez, if the defendant is involved in any “concerted

action” to bring an illegal alien to the United States he is

guilty of the “bringing to” crime. 273 F.3d at 912. This is consistent with notions of aider and abetter liability long recognized in federal criminal law. See 18 U.S.C. § 2; see also

Ramirez-Martinez, 273 F.3d at 912 (citing Pinkerton v.

However, determining when the “immediate active pursuit” ends is no

more difficult than ascertaining the aliens’ “final destination.” See United

States v. Smithers, 27 F.3d 142, 145 (5th Cir. 1994) (noting that determining the end of an “immediate active pursuit” is obviously a fact-intensive

inquiry). 

5032 UNITED STATES v. LOPEZ
United States, 328 U.S. 640, 646 (1946) (“[S]o long as the

partnership in crime continues, the partners act for each other

in carrying it forward.”); Smith v. United States, 24 F.2d 907,

907 (5th Cir. 1928) (finding aider and abetter liability when

defendant waited in the woods with an automobile for illegal

aliens arriving from Cuba and then transported them to

Tampa, Florida)). 

In Ramirez-Martinez, we upheld a conviction for bringing

an illegal alien to the United States when the evidence supporting Ramirez-Martinez’s conviction was that he knew an

unidentified individual who took him to a prearranged location to meet the illegal aliens, after which Ramirez-Martinez

planned to drive the aliens to Los Angeles for money. 273

F.3d at 907, 912-13. In support of our holding we said: 

When a defendant does not physically accompany

the undocumented alien across the United States border, for example, the government can still prove that

the defendant acted before the offense was completed by showing, for instance, that the defendant

was part of some “concerted action” to bring the

aliens to the United States. As the Fifth Circuit put

the matter: “If what the evidence showed [the defendant] did in concert with other accused encouraged

the latter unlawfully to bring the aliens into and land

them in the United States, he aided and abetted them

in so doing.” Smith v. United States, 24 F.2d 907,

907 (5th Cir. 1928). 

Id. at 912 (alteration in original). Because there was a “concerted effort to bring the undocumented aliens” to the United

States, and because Ramirez-Martinez was a part of that

effort, there was sufficient evidence to convict him of the

“bringing to” crime. Id.

We also upheld a similar conviction in Angwin, 271 F.3d

786, emphasizing Angwin’s role in the overall operation as

UNITED STATES v. LOPEZ 5033
opposed to his connection to the “initial transporter.” See id.

at 805. Rejecting Angwin’s argument of insufficient evidence,

we said:

The aliens Angwin transported were traveling to Los

Angeles, Angwin met them at a prearranged location

shortly after some of them arrived at the United

States, and he immediately helped transport them

north. Under those circumstances a rational jury

could easily conclude beyond a reasonable doubt

that Angwin aided and abetted a smuggling operation to bring aliens to the United States. His role in

meeting the aliens at a prearranged location just

north of the border within minutes of their arrival

[in] the United States was essential to the success of

the entire operation. While there may be some circumstances where a defendant’s prearranged transportation of aliens is so remote in time and/or

geography from the aliens’ entry into the United

States that no rational jury could conclude that the

defendant aided and abetted the bringing of the

aliens to the United States, such circumstances are

not present here. 

Id. at 804-05. 

Under the new interpretation announced today, the convictions in Ramirez-Martinez and Angwin could not stand. See

Maj. op. 5014-17 & n.17. Although we concluded that

Ramirez-Martinez took part in a “concerted action” to bring

the aliens to the United States, the evidence tying RamirezMartinez to the smuggling operation before the “initial transporter” ceased transporting the aliens was minimal. Similarly,

in Angwin, the defendant played an “essential role” in a smuggling operation by picking up aliens on this side of the border.

As revealed by our analysis there, the importance of the

defendant’s assistance in Angwin did not relate particularly to

whether the defendant became involved before or after the

5034 UNITED STATES v. LOPEZ
“initial transporter” ceased transporting the aliens, 271 F.3d at

804-05, yet under the majority’s view that irrelevant fact will

henceforth be determinative. 

As these cases illustrate, the purpose of the more sophisticated smuggling operations is not to simply transport the alien

across the border. The aliens often pay the smugglers to take

them to a less-dangerous prearranged location well within the

United States where interdiction resources are scarce or nonexistent. For such a scheme to succeed, the operation often

relies on accomplices beyond the “initial transporter.” In

Flickinger, we stated that “[t]o prove aiding and abetting [of

drug importation], the government was required to demonstrate that [the defendants] participated in the crime of importation and by their actions sought to bring about its success.”

573 F.2d at 1359. In this case, as well as in Ramirez-Martinez

and Angwin, the defendants played an essential role in the

success of the overall smuggling operation. In order to get the

aliens to their final destinations as they had contracted, the

principals of the smuggling operations relied on these defendants to transport the aliens from desolate areas just across the

border to locations well within the United States where they

faced a lower risk of apprehension. 

IV

The court erroneously adopts a truncated view of criminal

culpability for those involved in sophisticated smuggling

operations like this one. Not all smuggling operations end

once the initial transporter ceases to have contact with the

smuggled aliens. This decision constrains the latitudinous

scope of the “brings to” statute and undermines congressional

intent to punish any person who aids and abets in the bringing

of illegal aliens to their final destination within the United

States under 8 U.S.C. § 1342(a)(2). We need to maintain uniformity in our smuggling case law by construing the “brings

to” offense under § 1324(a)(2) consistently with how courts

UNITED STATES v. LOPEZ 5035
construe the illegal importation of controlled substances under

21 U.S.C. § 952. 

In this case, a group of illegal aliens made arrangements

with “guides” in Mexico. The aliens agreed to pay smugglers

$1500 to smuggle them across the border and bring them

safely to Los Angeles, California. The Defendant, Lopez,

played an essential role in the success of this smuggling operation. For her part, Lopez was recruited to pick up a car and

drive the aliens from a location somewhere near the Mexican

border to a gas station in El Centro, California. Because

Lopez aided and abetted the venture before the completion of

the “brings to” offense—in other words, before the smugglers

finally delivered the aliens to Los Angeles as they had

contracted—her conviction should be upheld. 

I respectfully dissent.

5036 UNITED STATES v. LOPEZ