                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 12 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50310

             Plaintiff - Appellee,               D.C. No. 3:07-cr-03355-LAB-2

  v.
                                                 MEMORANDUM *
MARK NEEL,

             Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted May 6, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**

       Mark Neel appeals his conviction and sentence following a jury trial for

bringing an undocumented alien to the United States for, inter alia, commercial

advantage or private financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
18 U.S.C. § 2 (Count 1). Neel raises three issues: (1) whether the district court

erred in failing to instruct the jury that an aider and abetter must act with the intent

to violate the immigration laws of the United States; (2) whether the district court

erred in its inquiry into the impact Neel’s discontinued use of lithium had on

Neel’s mental competency during his change of plea colloquy; and (3) whether the

district court abused its discretion in refusing to permit Neel to submit an Alford

plea. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      First, a charge of aiding and abetting the bringing of an undocumented alien

to the United States for commercial advantage or private financial gain requires an

element of intent to violate the United States immigration laws. United States v.

Barajas-Montiel, 185 F.3d 947, 953 (9th Cir. 1999); see United States v. Garcia,

400 F.3d 816, 819-20 (9th Cir. 2005) (holding that the intent necessary to convict a

defendant as an aider and abettor is the same intent necessary to convict him as a

principal). The government concedes that it was error for the district court to omit

this element from the jury instructions as to the Count 1 aiding and abetting charge.

We agree that the district court erred on this ground.

      We hold, however, that the error was harmless in light of all the evidence

establishing Neel’s guilt. Barajas-Montiel, 185 F.3d at 953 (noting that despite

lack of such an instruction, “the evidence presented at trial overwhelmingly


                                            2
demonstrated that the alien smuggling scheme in this case was conducted in

knowing violation of the immigration laws, and that [the defendant’s] involvement

was substantial[]”). Further, the court gave Neel’s theory of defense instruction,

which incorporated the necessary element of “intent to violate the immigration

laws by transporting [the illegal alien] or helping to transport him in the vehicle.”

See id. (explaining that “[c]ases in which a defendant knowingly transported an

alien without permission to enter into the United States, and did so for financial

gain, but did not intend to violate immigration laws, would be rare[]”).

      Second, we hold that the district court’s inquiry into whether Neel’s ability

to understand the plea proceedings was impaired by his recent cessation of lithium

was sufficient. Neel’s counsel stated that the purpose of Neel’s discontinued use of

lithium “a few weeks back” was so that Neel could “think more clearly.” This

statement was consistent with Neel’s trial testimony, in which he stated that one of

the side affects of lithium is confusion. The district court inquired into whether

Neel had taken any drugs in the last two days that might affect his ability to

understand the plea proceedings and specifically asked Neel if he had “a clear mind

and a clear head” about his decision to plead guilty. At all times Neel answered in

the affirmative. Accordingly, the court had no reason to believe that Neel was not




                                           3
competent, and therefore did not err by not continuing to question Neel on his

mental state.

      Finally, during Neel’s plea colloquy, counsel for Neel suggested that Neel

should be allowed to plead guilty pursuant to North Carolina v. Alford, 400 U.S.

25 (1970). However, regarding the element of knowledge required for the charged

crime, Neel informed the court that “[a]t the time I had no idea [that there was an

undocumented alien hidden in the car]. That’s the only reason I want to take this

[to] trial, your Honor. We were supposed to rent a car.” Neel continued to

maintain that at the time of the crime, he did not know that he was involved in any

criminal activity. In light of Neel’s statement during the plea colloquy that he

wanted a trial, the district court did not abuse its discretion in rejecting Neel’s

Alford plea. Moreover, it properly exercised its discretion to deny the Alford plea

because the plea did not meet the “factual basis” requirement of Rule 11. See Fed.

R. Crim. P. 11(b)(3).


      AFFIRMED.




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