                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2008

USA v. Bailey
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3217




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Bailey" (2008). 2008 Decisions. Paper 1018.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1018


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                        No. 06-3217
                                        __________

                            UNITED STATES OF AMERICA

                                              v.

                                      JOHN BAILEY,

                                                           Appellant
                                        __________

                             On Appeal from the District Court
                                    of the Virgin Islands
                            (D.C. Criminal No.05-cr-00035-1)
                        District Judge: Honorable Curtis V. Gomez
                                         __________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   on May 5, 2008

           Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.

                                   (Filed June 17, 2008)
                                        __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

       John Bailey appeals from his conviction for conspiracy to bring illegal aliens into

the United States, attempt to bring illegal aliens into the United States while aiding and

abetting his co-defendant, and attempt to bring illegal aliens into the United States for
financial gain, all in violation of 8 U.S.C. § 1324. The government charged that John

Bailey and co-defendant Michael Barton conspired to bring illegal aliens into the United

States Virgin Islands.

       Both defendants were convicted by a jury on all three counts. For the conspiracy

charge, the government had the burden of proving that there was an agreement and each

defendant knew that the purpose of the agreement and intended to join it. 8 U.S.C. §§

1324(a)(1)(A)(i) & (v)(I). In order to establish guilt on the attempt charge, the

government needed to establish that each defendant brought or attempted to bring one or

more aliens to the United States at a place other than a designated port of entry, that he

knew the person was an alien, and that he acted with intent to commit the underlying

substantive offense. Id. § 1324(a)(1)(A)(i). As to the third count, attempt to bring aliens

into the United States for financial gain, the government was required to show that each

defendant brought or attempted to bring aliens into the United States, knew or acted in

reckless disregard of the fact that the alien was not authorized to enter the United States,

and “acted for the purpose of commercial advantage or private financial gain.” Id.

§ 1324(a)(2)(B)(ii).

       Bailey appeals his conviction on the grounds that the evidence failed to establish

his guilt. Bailey urges that the evidence was insufficient to prove that he knew and

intended to join a conspiracy, that he aided and abetted the attempt to bring the illegal

aliens to the Virgin Islands, and that he acted for financial gain. Bailey also contends



                                              2
that, in closing, the prosecutor made improper assertions regarding his right to remain

silent.

          The facts as presented to the jury belie Bailey’s contention that the proof was

insufficient.1 The boat was found and searched after it had been anchored at Green Cay,

a small island within the territorial waters of St. Croix, for over 24 hours and both Bailey

and Barton had left the boat to go into St. Croix. The evidence was clear that

37 passengers paid between $1,500 and $2,700 each to be transported on a catamaran

with a maximum capacity of 12 people, and that Bailey and Barton were the “drivers” of

the ship.2 None of the passengers had documents to enter the United States, and neither

driver asked for documentation from them. Although 12 of passengers testified that they

were to go to St. Maarten, the 25 others stated that defendants were paid to take them to

St. Thomas; there was also evidence adduced at trial that “Cobra,” the person who took

money from each of the passengers, instructed them to say that St. Maarten was the

intended destination. One passenger testified that, half-way through the trip, one of the

drivers said St. Thomas was the destination.




  1
   In reviewing a jury verdict, we must view the evidence adduced at trial in the light
most favorable to the government and “will sustain the verdict if ‘any rational trier of fact
could have found the essential elements beyond a reasonable doubt.’” United States v.
Dent, 149 F.3d 180, 187 (3d Cir. 1998) (quoting United States v. Voigt, 89 F.3d 1050,
1080 (3d Cir. 1996)).
  2
    While Bailey seemed to contend that he was really an assistant to Barton, each of the
witnesses grouped Barton and Bailey together as drivers of the ship.

                                                3
       At trial, Bailey testified that the ship had suffered engine failure and had merely

drifted into United States territorial waters and he had no intent to bring the illegal aliens

into the United States. This is belied by the fact that the vessel was propelled by sails,

and he had been sailing ships for 30 years and was knowledgeable as to navigation.

Moreover, his testimony at trial was contradicted by his statements to an Immigrations

and Customs Enforcement special agent when first arrested. At that time, Bailey

contended that he was sailing with a friend to the United States, but had told his friend

that he had no valid documents to enter the United States and would not participate in

drug trafficking. He claimed that no one else was aboard the catamaran and did not

mention that the boat had engine problems, drifted, or was destined for St. Maarten. The

jury could easily disbelieve the “drift theory” and believe that he knew full well that the

boat was going to the U.S. Virgin Islands. With regard to evidence of financial gain,

although Bailey did not take money directly from the passengers, Barton did speak by cell

phone to Cobra during the trip, and Bailey admitted that he expected to be paid for his

work on the ship. Given this evidence, we find no basis for overturning the jury’s verdict.

       With respect to the prosecutor’s closing, Bailey points to several phrases that he

argues are offensive. Read in context, however, most of these statements clearly refer,

not to Bailey, but to his co-defendant. None of the others have improper or unfair

implications from a constitutional standpoint.

       Accordingly, we will AFFIRM the Judgment and Commitment Order of the

District Court.

                                               4
