                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JAN 03 2017

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No.    15-50334

              Plaintiff-Appellee,                D.C. No.
                                                 3:13-cr-04518-AJB-5
 v.

KALA RAINS,                                      MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                     Argued and Submitted December 8, 2016
                              Pasadena, California

Before: REINHARDT and PAEZ, Circuit Judges, and FRIEDMAN,** District
Judge.

      Kala Rains was convicted of conspiracy in violation of 18 U.S.C. § 371

(Count 1), “bringing” two undocumented immigrants (the “Galvan-Moraleses”)

“to” the United States for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii)

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
(Counts 2 & 3), harboring them in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)

(Counts 4 & 5), and transporting them in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)

(Counts 6 & 7). She appeals her convictions on Counts 1, 2, and 3, and the order

requiring forfeiture of her ranch. We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742. See also Libretti v. United States, 516 U.S. 29, 38-39 (1995).

We reverse the convictions on Counts 1, 2, and 3, vacate the sentence and

forfeiture order, and remand for further proceedings.

      1.     Taking the evidence in the light most favorable to the government, as

we must, there was insufficient evidence that Rains committed the “brings to”

offenses (Counts 2 & 3) under an aiding and abetting theory. See United States v.

Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc). To prove aiding and

abetting of a “brings to” offense, the government “must show that the ‘brings to’

offense was something that [Rains] had the specific intent to bring about, and that

she knowingly and intentionally commanded, counseled, or encouraged the initial

transporter to commit the ‘brings to’ offense.” United States v. Lopez, 484 F.3d

1186, 1201 (9th Cir. 2007) (en banc) (citations omitted). There was no record

evidence demonstrating that Rains had any contact with the “initial transporter.”

Nor did the evidence establish a sufficient nexus between Rains’s general offer to

house undocumented immigrants in the United States and the cross-border


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transportation of the Galvan-Moraleses. See United States v. Noriega-Perez, 670

F.3d 1033, 1040 (9th Cir. 2012). Rains’s initial contact with the Galvan-Moraleses

was after they had crossed the border and arrived at a safe house, at which point

any “brings to” offense would have been completed. See Lopez, 484 F.3d at 1201

(holding that the “brings to” offense “terminates when the initial transporter who

brings the alien to the United States drops off the alien at a location in this

country”).

      2.      There was also insufficient evidence to convict Rains on Counts 2 &

3 under a Pinkerton conspiracy theory.1 Under Pinkerton, a defendant may be held

liable for “a substantive offense committed by a co-conspirator as long as the

offense occurred within the course of the conspiracy, was within the scope of the

agreement, and could reasonably have been foreseen as a necessary or natural

consequence of the unlawful agreement[.]” United States v. Alvarez-Valenzuela,

231 F.3d 1198, 1202 (9th Cir. 2000) (citing Pinkerton v. United States, 328 U.S.

640, 647-48 (1946)). Here, however, no rational juror could have concluded

beyond a reasonable doubt that a “co-conspirator” committed the substantive

offenses. To the extent the government argues that the unidentified smuggler in



      1
       Because there was insufficient evidence to support Rains’s convictions on
Counts 2 & 3, we need not address her challenge to the Pinkerton jury instruction.
                                            3
Mexico “brought” the Galvan-Moraleses “to” the United States, the evidence did

not link that individual to the alleged conspiracy. Insofar as the government argues

that either Caroline or Querubin Espindola committed the substantive offenses by

aiding and abetting the “bringing” of the Galvan-Moraleses “to” the United States,

there was insufficient record evidence demonstrating how either of the Espindolas

aided the smuggler or any other member of the conspiracy in committing the

“brings to” offenses. To reach that conclusion, a juror would have to rely on “mere

suspicion or speculation[,]” which “does not rise to the level of sufficient

evidence.” Lopez, 484 F.3d at 1201 (internal quotation marks omitted).

      3.     Because the evidence was insufficient to support Rains’s convictions

on Counts 2 & 3 under any theory, those counts must be reversed. The

government does not dispute that if we reverse on Counts 2 & 3, we must also

reverse on Count 1. Indeed, we are bound to do so. See United States v. Manarite,

44 F.3d 1407, 1413 (9th Cir. 1995) (“[I]f the judge instructs the jury that it need

find only one of the multiple objects, and the reviewing court holds any of the

supporting counts legally insufficient, the conspiracy count also fails.”) (quoting

United States v. DeLuca, 692 F.2d 1277, 1281 (9th Cir. 1982)).

      4.     The district court relied on Rains’s convictions on Counts 1, 2, and 3

in determining her sentence and ordering the forfeiture of her ranch, and we


                                           4
therefore vacate Rains’s sentence and the forfeiture order. On remand, the district

court must resentence on the remaining counts of conviction. And in the event the

government continues to pursue forfeiture of Rains’s ranch, the district court

should be guided by the factors addressed in United States v. Bajakajian, 524 U.S.

321, 337-40 (1998). We discussed those factors in United States v. $100,348.00 in

U.S. Currency, 354 F.3d 1110 (9th Cir. 2004), where we noted that in analyzing

the third Bajakajian factor,“the maximum penalties under the Sentencing

Guidelines should be given greater weight than the statutory maximum because the

Guidelines take into account the specific culpability of the offender.” Id. at 1122;

see also United States v. Real Prop. Located in El Dorado Cty. at 6380 Little

Canyon Rd., El Dorado, Cal., 59 F.3d 974, 985-86 (9th Cir. 1995), abrogated on

other grounds by Bajakajian, 524 U.S. at 334.

      REVERSED, VACATED, and REMANDED.




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