                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 19 2012

                                                                        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. 11-50055

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02347-WQH-2

  v.
                                                 MEMORANDUM *
JOSE ALBERTO TAMAYO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                           Submitted February 17, 2012 **
                               Pasadena, California

Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, sitting by designation.
      Tamayo was convicted of transporting an alien within the United States in

violation of the law and of conspiracy to transport an alien. He argues that there

was insufficient evidence to prove that he was not just a passenger for the first

charge and insufficient evidence connecting him to the conspiracy for the second.

He also argues that the district court improperly instructed the jury about the overt

acts for the conspiracy charge. Tamayo argues that a general unanimity instruction

and a verdict form requiring only a general verdict could therefore have allowed

the jury to render a verdict based on an invalid overt act.

      This court reviews de novo claims of insufficient evidence. United States v.

Odom, 329 F.3d 1032, 1034 (9th Cir. 2003). “[E]vidence establishing beyond a

reasonable doubt defendant's connection with the conspiracy, even though the

connection is slight, is sufficient to convict defendant of knowing participation in

the conspiracy.” United States v. Klimavicius-Viloria, 144 F.3d 1249, 1266 (9th

Cir. 1998), quoting United States v. Penagos, 823 F.2d 346, 348 (9th Cir.1987).

Tamayo’s connection to the conspiracy, not the conspiracy itself, was the only

issue here. At trial, the illegal alien testified that he heard a man’s voice telling

him to get in the vehicle, to get down inside the vehicle, and to run when the

vehicle stopped. Testimony established that Tamayo was the only man in the

vehicle. Further, the alien testified that Tamayo attempted to intimidate him before


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testifying at a deposition. Viewing the evidence in the light most favorable to the

prosecution, a rational jury could have found Tamayo guilty beyond a reasonable

doubt. Odom, 329 F.3d at 1034.

      Tamayo also argues that there was insufficient evidence for a jury to find

intent to assist in the transportation of an illegal alien. See United States v.

Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997). Viewing the above evidence in

the light most favorable to the prosecution, a rational jury could have found

Tamayo guilty beyond a reasonable doubt of this charge. Odom, 329 F.3d at 1034.

      Review of the instruction as to the first overt act—not objected to at trial—is

for plain error, United States v. Fagan, 996 F.2d 1009, 1016 (9th Cir. 1993), while

review of the instruction as to the second overt act is for abuse of discretion as to

the existence of a factual foundation and de novo as to legal questions, United

States v. Hairston, 64 F.3d 491, 493-494 (9th Cir. 1995).

      The overt act necessary to show that a conspiracy is operative should be an

act done in furtherance of the conspiracy, but it need be neither a criminal act nor

the crime that is the object of the conspiracy. Blumenthal v. United States, 158

F.2d 883, 888-9 (9th Cir. 1946). Although the first overt act was an element of a

dropped charge, it may serve as the required overt act for the conspiracy charge. It




                                            3
showed that the conspiracy was operative, was performed in furtherance of the

conspiracy, and had a connection to the crime. There was no plain error.

      Tamayo argues that the second overt act was performed by others and did

not connect him to the crime. A conspirator agrees to all his coconspirators’ acts

and is responsible for them. United States v. Nelson, 66 F.3d 1036, 1044 (9th Cir.

1995). There was sufficient factual foundation for the second act, and it was an

overt act performed in furtherance of the conspiracy. There was no invalid overt

act upon which the jury might have based its verdict and no reversible error as to

the general verdict form.

      AFFIRMED.




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