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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 17-40175                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         February 22, 2018
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ARACELI GARCIA,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, SMITH, and OWEN, Circuit Judges.
REAVLEY, Circuit Judge:
      A jury convicted Araceli Garcia of bringing unlawful aliens into the
United States for the purpose of commercial advantage or private financial
gain, a violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Garcia appeals her conviction,
arguing only that the Government failed to prove that she acted with the
requisite financial purpose. We conclude, however, that the totality of the
evidence allowed the jury to reasonably infer such a purpose. Garcia’s
conviction is affirmed.
                            I.      BACKGROUND
      On May 13, 2016, a Cadillac Escalade travelled from Mexico and arrived
at the Lincoln-Juarez Bridge, which serves as a port of entry into the United
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States by way of Laredo, Texas. Araceli Garcia (the owner of the vehicle) sat in
the passenger’s seat, her 17-year-old daughter was the driver, and five or six
other children occupied the vehicle’s remaining seats.
      United States Customs and Border Protection Officer Andrew Lewinski
approached the vehicle, and Garcia informed him that the vehicle was
overheating. Yet, Lewinski observed that the vehicle’s air conditioning was
running full blast, no warning lights appeared on the dash, and none of the
vehicle’s occupants were sweating. As for the group’s itinerary, Garcia
explained that her daughter and grandchildren drove from Houston toward
Monterrey to visit family, but upon discovering that the Monterrey relatives
were not home, the family turned around to stay with other relatives in Laredo.
This explanation was dubious, too, given the vehicle’s lack of luggage.
      Lewinski then collected identification documents (birth certificates,
passports, etc.) from each person in the vehicle, and he began to read aloud the
names to match the documents to the passengers. Two of the child passengers
responded to names found on a pair of Texas birth certificates: Stephanie Soto
and Adrian Soto. But a brief investigation called into question the validity of
those identities; neither child spoke English, and “Stephanie” misspelled the
name on her purported birth certificate. Ultimately, officers discovered that
“Stephanie” was in reality D.I.P.M. and “Adrian” was M.G.M.—both Mexican
siblings and both without prior permission to come into the United States.
      A grand jury indicted Garcia on two counts of bringing unlawful aliens
into the United States for the purpose of commercial advantage or private
financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). At trial, several
officers explained the factual circumstances of the offense. And, importantly,
D.I.P.M. herself shed further light on the smuggling endeavor. D.I.P.M.
confirmed that arrangements were in place to smuggle her and her brother
into the United States and that Garcia was the person designated to do so.
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D.I.P.M. was not related to Garcia and had never seen her before meeting for
the first time in Nuevo Laredo, Mexico. There, Garcia supplied the children
with the birth certificates and other biographical information to corroborate
the false identities. The group’s ultimate goal was to cross into Laredo and
travel to Garcia’s home in Houston. D.I.P.M. and M.G.M. had been living apart
from their mother (a New York resident), the logical inference being that the
smuggling attempt was meant to reunite the family.
      When asked whether Garcia “was going to be paid money in order to have
[the children] smuggled into the United States,” D.I.P.M. testified: “I only
know that she was going to [be] paid the expenses that we would have on the
journey.” D.I.P.M. learned of this payment from her mother but did not know
how much money it entailed.
      After the Government rested, Garcia moved for acquittal under Federal
Rule of Criminal Procedure 29. The district court denied the motion, the
defense rested without calling a witness, and the jury convicted Garcia on both
counts. Because the statute of conviction carries a three-year mandatory
minimum, the district court sentenced Garcia on each count to three years’
imprisonment with a three-year term of supervised release, each sentence to
run concurrently. 8 U.S.C. § 1324(a)(2)(B). Garcia appealed, challenging only
the sufficiency of the evidence with respect to whether she acted “for the
purpose of commercial advantage or private financial gain.”

                      II.   STANDARD OF REVIEW
      In reviewing Garcia’s preserved legal-sufficiency challenge, we must
affirm her conviction “if, after viewing the evidence and all reasonable
inferences in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en
banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). At the same time,
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we remain obligated to evaluate “whether the inferences drawn by a jury were
rational, as opposed to being speculative or insupportable, and whether the
evidence is sufficient to establish every element of the crime.” Id. at 302.
                             III.    DISCUSSION
      Because Garcia does not dispute that she knowingly brought unlawful
aliens into the United States, this appeal tasks us with evaluating only the
proof of Garcia’s financial purpose. In doing so, we must first articulate what
“for the purpose of commercial advantage or private financial gain” really
means. 8 U.S.C. § 1324(a)(2)(B)(ii). Despite a healthy stream of (mostly
unpublished) smuggling cases, this circuit has yet to define the phrase. Indeed,
that silence is entirely unsurprising given that nearly every one of those cases
involved direct proof of an actual or expected lump-sum payment to either the
defendant or the defendant’s smuggling network. See, e.g., United States v.
Durant, 167 F. App’x 369, 370 (5th Cir. 2006) (per curiam) (affirming conviction
when unlawful aliens found in defendant’s trailer “had agreed to pay between
$1,000 and $1,200 upon their arrival in Houston”). When the Government
adduced proof of such payments, it mattered not what the precise contours of
the definition entailed because the smuggler’s prospect of financial gain was
readily apparent.
      But in this case, the breadth of the financial-purpose element matters
insofar as it affects the trajectory of our analysis. If proof of any expected
payment suffices, then this case is open and shut—D.I.P.M. testified flatly that
Garcia was to be paid expenses for their journey. If, however, the monetary
expectation must be of a more profit-based character (as Garcia suggests), then
this case becomes less straightforward because the Government did not offer
direct proof of expected payment beyond that of a pure reimbursement. In turn,
Garcia’s conviction would stand or fall on the Government’s circumstantial
evidence and the rational inferences therefrom.
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A.    “Commercial Advantage” and “Private Financial Gain”
      We are not without guidance in defining the terms “commercial
advantage” and “private financial gain” in the context of this statute. In United
States v. Zheng, 306 F.3d 1080, 1085 (11th Cir. 2002), the Eleventh Circuit
took up the task and concluded that the meanings of those terms are “hardly
arcane.” Because Congress left those terms undefined in the smuggling
statute, the Zheng court looked to “other sources and common sense” in giving
the terms their “ordinary or natural meaning.” Id. (citations omitted). And, as
a result, the court defined “commercial advantage” as “a profit or gain in money
obtained through business activity” and defined “private financial gain” as “an
additional profit specifically for a particular person or group.” Id. at 1086
(quoting WEBSTER’S NEW INT’L DICTIONARY (3d ed. 1986)); see also MERRIAM
WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 2002) (defining the relevant
terms in a nearly identical manner). 1 Garcia suggests we follow in Zheng’s
footsteps.
      We agree, and we now adopt the essence of the Zheng court’s definition
of the financial-purpose element: the defendant must seek to profit or
otherwise secure some economic benefit from her smuggling endeavor. See 306
F.3d at 1085–86. But what does that mean as a practical matter? Relevant to
this case, it means that the Government must prove an anticipated gain
beyond that of a pure reimbursement. A smuggler who seeks only her incurred
smuggling costs seeks no economic benefit at all—she simply aims to maintain
her financial status quo of zero dollars spent. 2


      1 The Second Circuit, too, has defined the phrase “commercial advantage” in largely
the same way. See United States v. Kim, 193 F.3d 567, 577 (2d Cir. 1999).
      2  The Government cites United States v. Puac-Zamora, 56 F.3d 1385, 1385 n.3 (5th
Cir. 1995) (per curiam) (unpublished), for the proposition that a reimbursement can
constitute financial gain when the smuggler was already “traveling to [the intended
destination] with or without the illegal alien passengers” because, in that scenario, the
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      However, this is not at all to say that financial gain must necessarily
take the form of cash placed directly in the smuggler’s pocket. One could
conceive of plenty of circumstances in which a smuggler hopes to secure a less
traditional (but equally pecuniary) benefit. See, e.g., United States v. Fujii, 301
F.3d 535, 540 (7th Cir. 2002) (finding the “pecuniary motive” element satisfied
when the smuggler acted to satisfy a pre-existing debt). Resolving this case
does not require us to hypothesize the outermost edges of the financial-purpose
universe.
      The Government offers little resistance to the benefit-centric definition
we outline above. Instead, the Government simply contrasts Zheng’s definition
with a statutory definition found in the context of another crime. Specifically,
the Government cites 18 U.S.C. § 2320, which criminalizes trafficking
counterfeit goods “for purposes of commercial advantage or private financial
gain” and defines “financial gain” as “includ[ing] the receipt, or expected
receipt, of anything of value”—a definition the Government presumably views
as more expansive. 18 U.S.C. § 2320(f)(2). But the Government’s citation
appears without elaboration. The Government does not demonstrate why we
should use a definition specific to another crime to interpret a phrase Congress
left undefined in the statute before us. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 172–73 (2012) (explaining that,
without more, “[t]he mere fact that the [same] words are used in each instance
is not a sufficient reason for treating a decision on the meaning of the words of
one statute as authoritative on the construction of another statute”) (citation
omitted). And, more fundamentally, the Government fails to explain why the



“reimbursement” is actually money gained. We do not question Puac-Zamora’s logic. Our
resolution of this appeal, however, is based on other evidence and does not require us to
decide if Garcia's itinerary testimony would be sufficient to support the conviction even
though the Government tried the case on the theory that this testimony was false.
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phrase “expected receipt, of anything of value” is meaningfully different from
the definition we adopt. “Value,” after all, is “the monetary worth of
something.” Value, MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th ed.
2002). When someone performs a service and expects in return only a
reimbursement for incurred costs, she has not acted for the purpose of
receiving anything of worth—she expects, on balance, to receive no “value” at
all for her services.
      Therefore, whichever terminology we employ, the inescapable definitions
of “commercial advantage” and “financial gain” relate to a pecuniary benefit:
the goal of improving one’s economic status in one way or another. It is to that
standard we must now hold the Government.
B.    Inferring Financial Purpose from the Evidence
      Now that we have clarified the financial-purpose element, Garcia
suggests we can stop here. In other words, because pure reimbursements do
not qualify, and because the Government’s testimony indicated only a promise
to reimburse, Garcia argues the record contains no evidence of a profit-based
motive. Given our preceding analysis, we agree with Garcia that D.I.P.M.’s
testimony about travel expenses does not, by itself, satisfy the Government’s
burden. But we disagree with Garcia’s suggestion that the jury could not
reasonably infer financial purpose from the quantum of the Government’s
circumstantial proof.
      First, we bear in mind that the statute does not confine itself to
smuggling that results in actual commercial advantage or financial gain; it
criminalizes smuggling undertaken “for the purpose” of such gains. 8 U.S.C.
§ 1324(a)(2)(B)(ii). Thus, the financial-purpose element is of a prospective,
intent-based character. See United States v. Bailey, 444 U.S. 394, 405 (1980)
(“‘[P]urpose’ corresponds loosely with the common-law concept of specific
intent.”). And, a defendant’s “mental state is almost always proved by
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circumstantial evidence from which the jury must infer guilt beyond a
reasonable doubt.” United States v. Giraldi, 86 F.3d 1368, 1374 (5th Cir. 1996).
      The question becomes: what kind of circumstantial evidence must we
require? The very best circumstantial evidence of a defendant’s purpose is, of
course, testimony that the defendant (1) planned to achieve some result or
(2) in fact secured some objective—in terms of this case, testimony of an
agreement to pay or an actual payment. But our jurisprudence simply does not
require such evidence for a jury to draw the necessary inference.
      Take, by way of analogy, a prosecution for possession of drugs with intent
to distribute. There, the best evidence of intent is naturally an agreement to
distribute or evidence of the distribution itself. See United States v. Chapman,
851 F.3d 363, 379 (5th Cir. 2017) (inferring intent to distribute from evidence
“that [the defendant] himself distributed drugs to buyers”). But we
nevertheless allow a jury to draw the inference from other, more indirect
circumstantial indicators. See, e.g., United States v. Williamson, 533 F.3d 269,
277–78 (5th Cir. 2008) (“We have held in the past that the mere possession of
a quantity of drugs inconsistent with personal use will suffice for the jury to
find intent to distribute.”) (quotation omitted); United States v. Munoz, 957
F.2d 171, 174 (5th Cir. 1992) (finding “distribution paraphernalia, large
quantities of cash, or the value and quality of the substance” probative of
intent).
      In short, whatever the context, a defendant’s purpose often goes hand in
hand with certain suspicious circumstances, and we do not forbid jurors from
drawing rational connections between the two. We therefore agree with our
sister circuits that have decided the Government need not prove “an ‘actual
payment or even an agreement to pay’” to satisfy the financial-purpose
element. United States v. Kim, 435 F.3d 182, 185 (2d Cir. 2006) (per curiam)
(quoting United States v. Angwin, 271 F.3d 786, 805 (9th Cir. 2001)).
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Consequently, the fact that D.I.P.M. did not testify to an agreed-upon,
profitable payment does not end our inquiry.
      Turning to the record before us, we find sufficient circumstantial
indicators of Garcia’s pecuniary motive. First, and most important, the jury
was free to infer that Garcia bore no relation (familial or otherwise) to the
smuggled children. D.I.P.M. testified that she was not related to Garcia; nor
had the two met before the day of the smuggling. Garcia points out that
D.I.P.M. did not know all of her mother’s acquaintances, and in turn, the
Government “could not rule out that Ms. Garcia was acting out of friendship
[with the mother] rather than financial motive.” Yet, D.I.P.M. did know some
of her mother’s friends and was nonetheless wholly unfamiliar with Garcia.
And, in any event, the evidence “need not exclude every reasonable hypothesis
of innocence.” United States v. Gibson, 875 F.3d 179, 185 (5th Cir. 2017)
(quotation omitted). Rather, the jury was free to choose among reasonable
constructions of the evidence, including that Garcia was unrelated to and
unacquainted with D.I.P.M.’s family.
      This lack of connection between Garcia and the smuggled children
undercuts the exculpatory inference that Garcia acted for a charitable,
non-pecuniary purpose, thereby making the contrary financial motive all the
more probable. Multiple courts (this one included) have recognized as much.
See, e.g., United States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002)
(“Yoshida, as a stranger to the aliens, had no benevolent reason to lead them
into the United States. It was reasonable for the jury to infer that Yoshida
expected some payment for her role in leading the aliens . . . .”); United States
v. Lopez-Cabrera, 617 F. App’x 332, 336 (5th Cir. 2015) (per curiam) (listing
the fact that “[n]one of the immigrants Cabrera transported had any personal
relationship with Cabrera” among the circumstantial evidence probative of a
financial purpose). And this logic is not unique to the smuggling context either;
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just as a large quantity of drugs negates the exculpatory inference of personal
consumption and lends itself to an intent to distribute, Williamson, 533 F.3d
at 277–78, when someone smuggles a stranger, a rational inference is that she
does so for compensation, Yoshida, 303 F.3d at 1152.
      Second, the nature of Garcia’s offense is itself probative of an intent to
profit. Garcia’s smuggling was by no means a casual undertaking. To the
contrary, the trial evidence confirmed that Garcia’s operation was
premeditated, complete with an international journey, false identities, cover
stories, and Texas birth certificates to legitimize the facade. The jury could
reasonably infer that this level of planning and coordination was more
consistent with that of a professional, financed operation than an amateur,
philanthropic one. See United States v. Allende-Garcia, 407 F. App’x 829, 835
(5th Cir. 2011) (unpublished) (“The coordination and planning that was
required for transporting a number of aliens, using a raft, a house, two cars,
and a truck, could lead a reasonable jury to infer that a smuggling network
was moving the aliens . . . .”). Furthermore, Garcia carried out the smuggling
at great risk of legal consequences, not only to herself but to her 17-year old
daughter in the driver’s seat. Such risk, when unexplained, further buttresses
an inference of pecuniary motive. See id. (noting that the defendant “did not
advance at trial any alternative, non-pecuniary explanation of why he would
risk being caught, losing his job, and going to prison for transporting the
aliens”).
      Finally, we reach D.I.P.M.’s testimony about a payment for expenses.
True, this expected reimbursement does not meet the Government’s burden of
proof on its own. But the payment does provide an important piece of the
circumstantial equation: Garcia’s smuggling operation had a financer,
someone who was ready and willing to contribute money to facilitate the
operation’s success. D.I.P.M. did not profess exhaustive knowledge of the
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financial arrangements; she “only kn[e]w” about the reimbursement. Thus, the
jury could simultaneously credit D.I.P.M.’s testimony and nevertheless infer—
given the circumstantial indicators recognized above—that Garcia sought
compensation from the unknown           financer   beyond     that of    a mere
reimbursement.
      This body of evidence differs markedly from Garcia’s best case, United
States v. Garza, 587 F.3d 304 (5th Cir. 2009) (per curiam). There, despite the
fact that the defendant pleaded guilty only to smuggling unlawful aliens under
8 U.S.C. § 1324(a)(1)(B)(ii) (a lesser crime that does not require a pecuniary
motive), the district court erroneously entered judgment for smuggling with a
financial purpose. Id. at 311–12. On appeal, both sides agreed that “no
financial gain motive was established,” and the record confirmed why: two
aliens approached the defendant at a gas station and asked her for a ride, the
defendant claimed she had not discussed payment with the men and expected
no compensation in return for her assistance, and, importantly, the “record
suggest[ed] that the men had no ability to pay and actually asked Garza for
money before asking for a ride.” Id. at 307, 312. Thus, not only did the record
contain a non-pecuniary explanation for the defendant’s assistance, any
conceivable financial inference was nullified by the aliens’ unwillingness and
inability to pay. See id. at 312. Quite the opposite here. The evidence below
gave the jury an impression of both financial motive and the existence of a
financial source, and the jury heard absolutely nothing to suggest otherwise.
      At the end of the day, “[j]urors need not leave their commonsense on the
courthouse steps.” Williamson, 533 F.3d at 278. Though the Government’s
circumstantial evidence was not overwhelming, we cannot conclude that the
only reasonable inference therefrom was that Garcia desired to perform her
smuggling service for free. Nor can we conclude that the contrary financial
inference was unduly speculative. In so deciding, we do not evaluate the
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hypothetical sufficiency of any one piece of the Government’s circumstantial
evidence. We can only judge the case before us, and the confluence of evidence
in this case was sufficient to sustain Garcia’s conviction.
      AFFIRMED.




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