In U.S. v. Kendrick, No. 11-12620 (June 1, 2012), http://www.ca11.uscourts.gov/opinions/ops/201112620.pdfthe Court rejected challenges to a conviction for alien smuggling for commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).
Kendrick had been acquitted, at a prior trial, of importing 900 pounds of marihuana into the United States. In his defense at this earlier trial, Kendrick testified that he went to the Bahamas not to bring back marihuana, but aliens. The government thereafter indicted Kendrick of smuggling illegal aliens, and he was convicted. On appeal, Kendrick claimed that he was the victim of vindictive prosecution after his acquittal. Rejecting this claim, the Court noted that the new indictment did not state heightened charges (the maximum penalties for alien smuggling are less than marihuana importing). Moreover, the government explained that until Kendrick admitted at trial having smuggled aliens, it did not have sufficient evidence to charge Kendrick for this offense.
The Court also rejected Kendrick’s challenge to the sufficiency of the evidence, pointing out, inter alia, that Kendrick fled the Coast Guard when a vessel approached his vessel.
The Court also affirmed the district court’s exclusion of evidence that Kendrick had been acquitted of the prior marihuana charge. The Court pointed out that an acquittal is hearsay. The Court also noted that the marihuana charge was irrelevant to alien smuggling.
The Court also rejected the argument that a portion of the prosecutor’s closing argument in the first trial should have been admitted at the second trial. In his closing, the prosecutor stated that the $25,000 Kendrick received was for the risk of smuggling drugs, not aliens. The Court found that this evidence would have “confused” the jury.