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United States v. Dominguez

United States Court of Appeals for the Eleventh Circuit

October 31, 2011, Decided; October 31, 2011, Filed

No. 07-13405


 [*1056]  COX, Circuit Judge:

Gustavo Dominguez, a professional sports agent, was convicted of smuggling five Cuban baseball players into the United States, transporting the players from Miami to Los Angeles, and harboring them there until they applied for asylum. See 8 U.S.C. § 1324(a)(2), (a)(1)(A)(ii), and (a)(1)(A)(iii) (criminalizing the bringing in, transporting, and harboring of unauthorized aliens). The theory of prosecution was that Dominguez, and several codefendants not parties to this appeal, conspired to bring, unsuccessfully attempted to bring, and then successfully brought five Cuban baseball  [**2] players to the United States so that the players could pursue professional baseball careers. And, the prosecution's theory was that Dominguez had a role in transporting and harboring the players after their arrival in the United States. Dominguez anticipated that, after the players arrived, he would represent them as their agent, negotiate any potential baseball contract, and collect a percentage of their earnings as a fee. The indictment alleged, and the jury found, that Dominguez smuggled the players for the purpose of commercial advantage or private financial gain. Based on this finding, the district court imposed a five-year mandatory minimum sentence under 8 U.S.C. § 1324(a)(2)(B)(ii).

Dominguez now appeals, challenging his convictions and sentences on various grounds. He argues, among other things, that the evidence did not support any of his convictions.

We conclude that the evidence does not support Dominguez's convictions of transporting and harboring aliens (Counts 44 through 53). We reverse these convictions and vacate their sentences. We conclude the evidence supports Dominguez's convictions of conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and  [**3] abetting a smuggle (Counts 1, 5, 6, 10, 13, 19, 28, 29, 33, 35, 40). We affirm these convictions and sentences. We find Dominguez's other assertions of error to be without merit.


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661 F.3d 1051 *; 2011 U.S. App. LEXIS 22089 **; 86 Fed. R. Evid. Serv. (Callaghan) 1264; 23 Fla. L. Weekly Fed. C 524

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GUSTAVO DOMINGUEZ, a.k.a. Gus, Defendant-Appellant.

Subsequent History: US Supreme Court certiorari denied by Dominguez v. United States, 2012 U.S. LEXIS 4177 (U.S., June 4, 2012)

Prior History:  [**1] Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 05-10009-CR-KMM.



alien, smuggling, players, convictions, criminal intent, transporting, immigration, arrived, Counts, district court, harboring, authorization, Dry-Foot, mens rea, refugees, offenses, reckless disregard, willfully, parole, knowingly, Memorandum, conspiracy, sentence, reside, USCIS, legislative history, designated, indictment, financial gain, conspired

Criminal Law & Procedure, Appeals, Reviewability, General Overview, Trials, Verdicts, Inconsistent Verdicts, Immigration Law, Criminal Offenses, Illegal Entry, Smuggling of Noncitizens, Standards of Review, De Novo Review, Sufficiency of Evidence, Miscellaneous Offenses, Harboring & Transporting Illegal Aliens, Elements, Transportation of Undocumented Noncitizens, Enforcement of Immigration Laws, Concealing, Harboring & Shielding, Inchoate Crimes, Conspiracy, Evidence, Types of Evidence, Circumstantial Evidence, Accusatory Instruments, Indictments, Accessories, Aiding & Abetting, Attempt, Adjustment of Status, Types of Immigrants, Acts & Mental States, Mens Rea, Knowledge, Willfulness, Recklessness, Abuse of Discretion, Jury Instructions, Requests to Charge, Evidence, Admissibility, Conduct Evidence, Prior Acts, Crimes & Wrongs, Witnesses, Harmless & Invited Error