FINDINGS OF FACT

JAMES A. SOTO, District Judge.

On June 28, 2017, the Grand Jury returned an indictment against Gabriel Alvarez-Moreno, charging him with two counts. (Doc. 19.) Count I of the Indictment alleges that on June 2, 2017, Defendant conspired to transport and move an illegal alien for the purpose of commercial advantage or private financial gain, in violation of Title 8, United States Code, Sections 1324(a)(1)(A)(v)(I),1 1324(a)(1)(A)(ii),2 and 1324(a)(1)(B)(i).3 Id. Count II of the Indictment alleges that on June 2, 2017, Defendant knowingly transported an illegal alien for the purpose of commercial advantage and private financial gain, in violation of Title 8, United States Code, Sections 1324(a)(1)(A)(ii)4 and 1324(a)(1)(B)(i).5 Id.

On January 25, 2018, Defendant waived his right to a trial by jury and the Government consented. (Doc. 69.) On February 15, 2018, the Court conducted a bench trial and took the matter under advisement.6 (Doc. 83.) The Court has reviewed the entire record, including but not limited to the Indictment, admitted exhibits, the testimony of witnesses at trial, the trial transcripts, and the video deposition of the material witness.

For Count I, the Government must prove the following beyond a reasonable doubt:

Manuel of Model Criminal Jury Instr. for the District Courts of the Ninth Circuit § 8.20 Conspiracy-Elements (Dec. 2017).7

For Count II, the Government must prove the following beyond a reasonable doubt:

Manuel of Model Criminal Jury Instr. for the District Courts of the Ninth Circuit § 9.2 Alien-Illegal Transportation (8 U.S.C. § 1324(a)(1)(A)(ii)) (Dec. 2017).8

Additionally, if the Government proves either count beyond a reasonable doubt then the Court must consider if Defendant acted for the purpose of commercial advantage or private financial gain. (Doc. 19.)

Based on the evidence at trial and submitted to the Court, the Court finds the following facts.9 On June 2, 2017, in Nogales, Arizona, Defendant appeared to be driving in tandem with another vehicle.10 Records show that Defendant and another person, who was not a contact in Defendant's phone, had several short, telephone conversations that morning.11 Defendant drove up Hudgins Street, a City of Nogales street located close to the United States-Mexico border, and picked up Miguel Angel Reyes-Martinez. Mr. Reyes-Martinez is a national of Mexico and was in the United States illegally.12 Analysis from Mr. Reyes-Martinez's phone shows that he received many calls that morning from two numbers,13 but he missed a majority of the calls.14 The last-answered call was at 8:38 a.m. on June 2, 2017.15 Eventually he received text messages from one of the numbers. The text messages are in Spanish, but generally ask Mr. Reyes-Martinez to answer the phone and inquire as to his location. After picking up Mr. Reyes-Martinez and proceeding back down Hudgins Street, Defendant turned right onto Morley Avenue.16 Agents Gilmore and Pou followed Defendant's vehicle as it travelled North on Morley Avenue. Agents Gilmore and Pou observed Defendant's vehicle speed up and turn on to Beck Street, a dead-end road. During this time, Mr. Reyes-Martinez was laying down in the vehicle.17 Defendant told Mr. Reyes-Martinez to run when the vehicle stopped. Defendant stopped his vehicle and Mr. Reyes-Martinez fled the vehicle. Agent Gilmore contacted Mr. Reyes-Martinez, as Agent Pou contacted Defendant.

The Court finds Defendant not guilty of Count I, conspiracy to transport and move an illegal alien, in violation of title 8, United States Code, Sections 1324(a)(1)(A)(v)(I) and 1324(a)(1)(A)(ii). The Court acknowledges that there is circumstantial evidence18 of a conspiracy in this case, such as appearing to drive in tandem and expert testimony regarding how smuggling operations generally function. However, that evidence does not constitute proof beyond a reasonable doubt.

The Court finds Defendant guilty of Count II, transportation an illegal alien for the purpose of commercial advantage and private financial gain, in violation of Title 8, United States Code, Section 1324(a)(1)(A)(ii). Further the Court finds Defendant not guilty of the conducting that action for the purpose of commercial advantage or private financial gain, in violation of 8, United States Code, Section 1324(a)(1)(B)(i). The Court acknowledges that there is circumstantial evidence that Defendant was motivated by profit. However, that evidence does not rise to proof beyond a reasonable doubt. Accordingly.

IT IS ORDERED that the parties shall appear before the Court at 9:20 a.m. on May 3, 2018 for sentencing.

IT IS FURTHER ORDERED that a Presentence Report shall be prepared. Any objection(s) to the Presentence Report shall be filed no later than 14 days after receiving the presentence report pursuant to Fed. R. Crim. P. 32(f)(1). Any response to the objection(s) shall be filed no later than 11 days after receiving the objection(s).

IT IS FURTHER ORDERED that parties shall file any sentencing memorandum at least 5 business days prior to sentencing.

IT IS FURTHER ORDERED that any party seeking to continue a sentencing date shall file a Motion to Continue no later than two (2) business days prior to the date of the hearing. Additionally, counsel shall telephonically notify chambers when sentencing is within two (2) business days.

IT IS FURTHER ORDERED that failure to comply with this Order may result in the imposition of sanctions.