                                                                              FILED
                            NOT FOR PUBLICATION                                NOV 30 2009

                                                                          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. 08-50279

              Plaintiff - Appellee,                D.C. No. 3:08-cr-00085-L-1

  v.
                                                   MEMORANDUM *
JOSE GALLEGOS-LOPEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                      Argued and Submitted November 3, 2009
                               Pasadena, California

Before: SCHROEDER, SILER, ** and IKUTA, Circuit Judges.

       Jose Gallegos-Lopez appeals his jury conviction for two counts of bringing

illegal aliens to the United States for financial gain in violation of 8 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
§ 1324(a)(2)(B)(ii), two counts of harboring illegal aliens in violation of 8 U.S.C.

§ 1324(a)(1)(A)(iii), and for aiding and abetting the same crimes.

      Gallegos-Lopez first contends the district court erred when it gave the jury

an instruction with a definition of the term “knowingly” that stated in part that “the

government is not required to prove that the defendant knew that his acts and

omissions were unlawful.” He contends this instruction relieved the government

of its burden to prove intent. The instruction, however, was given in the context of

explaining when an act is done “knowingly.” The element of intent was covered

by different instructions that adequately explained to the jury that the government

must prove that the defendant acted with the intent to violate the United States’

immigration laws. Knowledge and intent are separate and distinct elements of the

immigration crimes and the knowledge instruction was in accordance with the

Ninth Circuit model jury instruction. There was no error in connection with either

of the instructions and defense counsel did not object to either on the ground that

they in any way conflicted.

      Appellant also contends that the evidence was insufficient to support the

convictions. The appellant’s conduct immediately before and after illegal aliens

scaled the border fence adjacent to the property was adequate for the jury to find

that Gallegos-Lopez was materially assisting the aliens’ illegal entry and


                                           2
concealment from border authorities. Unlike the situation in United States v.

Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992), upon which the appellant relies, there

was no readily apparent innocent explanation for the defendant’s conduct.

      AFFIRMED.




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