9.1 ALIEN—BRINGING TO UNITED STATES (OTHER THAN DESIGNATED PLACE) (8 U.S.C. § 1324(a)(1)(A)(i))
The defendant is charged in [Count _______ of] the indictment with [bringing] [attempting to bring] an alien to the United States in violation of Section 1324(a)(1)(A)(i) 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, the defendant [brought] [attempted to bring] a person who was an alien to the United States at a place other than a designated port of entry or at a place other than as designated by a United States immigration official;
Second, the defendant knew that the person was an alien; [and]
Third, the defendant acted with the intent to violate the United States immigration laws by assisting that person to enter the United States at a time or place other than as designated by a United States immigration official[.] [; and]
[Fourth, the defendant did something that was a substantial step toward committing the crime.
Mere preparation is not a substantial step toward committing a 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.]
An alien is a person who is not a natural-born or naturalized citizen of the United States.
Bringing an alien to the United States does not require that the alien be free from official restraint as is required for offenses under 8 U.S.C. § 1326 for aliens illegally reentering or being found in the United States. United States v. Lopez, 484 F.3d 1186, 1193 (9th Cir.2007); United States v. Hernandez-Garcia, 284 F.3d 1135, 1137-38 (9th Cir.), cert. denied, 537 U.S. 932 (2002); see also Comment to Instruction 9.6 (Alien—Deported Alien Reentering United States Without Consent).
The offense of bringing an alien to the United States is a continuing offense; "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." Lopez, 484 F.3d at 1187-88. Thereafter, the offense is illegal "transport within" the United States, 8 U.S.C. § 1324(a)(1)(A)(ii). Id. at 1194-98. Lopez overrules United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir.2001) (applying immediate destination analysis of whether the alien had reached the ultimate or intended destination within the United States); United States v. Angwin, 271 F.3d 786, 271 F.3d 786 (9th Cir.2001) (same)). Lopez at 1191.
Aiding and abetting, involving a state-side transporter, requires proof of the specific intent to facilitate the commission of the "bringing to" offense and evidence that the state-side transporter involved himself in the bringing to offense prior to its completion. See United States v. Singh, 532 F.3d 1053, 1057-59 (9th Cir.2008); see also United States v. Flores-Blanco, 623 F.3d 912 (9th Cir.2010).
Statutory maximum sentences under § 1324 are increased for offenses causing serious bodily injury, placing the life of any person in jeopardy, or resulting in the death of a person. In such cases, a special jury finding is required.
An alien is also defined as being a person who is not a national. In the rare event that there is an issue as to the alien being a national, the definition of alien in the last paragraph of the instruction should be modified accordingly. See 8 U.S.C. § 1101(a)(22); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-68 (9th Cir.2003); United States v. Sotelo, 109 F.3d 1446, 1447-1448 (9th Cir.1997).
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).