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9.2 Alien—Illegal Transportation

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(8 U.S.C. § 1324(a)(1)(A)(ii))

The defendant is charged in [Count _______ of] the indictment with [attempted] illegal transportation of an alien in violation of Section 1324(a)(1)(A)(ii) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [name of alien] was an alien;

Second, [name of alien] was not lawfully in the United States;

Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien] was not lawfully in the United States; [and]

Fourth, the defendant knowingly [transported or moved] [attempted to transport or move] [name of alien] in order to help [him] [her] remain in the United States illegally[.] [; and] 

[Fifth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime. 

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances. 

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]

An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien is not lawfully in this country if the person was not duly admitted by an Immigration Officer. 


See Comment to Instruction 9.1 (Alien—Bringing to the United States (Other than Designated Place)). 

"Reckless disregard" is not defined in Title 8, United States Code, and Ninth Circuit case law has not defined the phrase as used in this context. "Reckless disregard" has been defined by other circuits as being aware of facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustifiable risk that the alleged aliens were in fact aliens and were in the United States unlawfully. See United States v. Zlatogur, 271 F.3d 1025, 1029 (11th Cir. 2001), cert. denied, 535 U.S. 946 (2002); United States v. Uresti-Hernandez, 968 F.2d 1042, 1046 (10th Cir. 1992). 

Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person. In such cases, a special jury finding is required. 

For an attempt to commit the crime, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010). 

If the defendant is charged with transportation of illegal aliens resulting in deaths under 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(iv), the government must proves beyond a reasonable doubt that the defendant’s conduct was the proximate cause of the charged deaths. United States v. Pineda-Doval,614 F.3d 1019, 1026-28 (9th Cir. 2010). In such cases, the instruction should be modified to instruct on the proximate cause element of "resulting in death." 

The "strongly corroborates" language is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

Approved 3/2018