Opinion
No. 72-1355.
June 8, 1972.
Kevin J. McInerney, San Diego, Cal., for defendant-appellant.
R. Michael Bruney, Stephen G. Nelson, Asst. U.S. Attys., Harry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before MERRILL, ELY and GOODWIN, Circuit Judges.
Appellant was found guilty and convicted by the District Court of willful and knowing encouragement and inducement of the illegal entry of aliens into the United States, 8 U.S.C. § 1324(a) (4), and of transportation of aliens within the United States with knowledge that the aliens were in this country illegally and with reasonable grounds to believe that their entries occurred less than three years prior to the transportation, 8 U.S.C. § 1324(a)(2).
Appellant asserts that the District Court should have granted his motion to suppress his confession on the ground that the confession was involuntary. He says that the assertion of his interrogators that the aliens had implicated him and would testify against him misled him into thinking that all of the aliens would testify against him when in fact only five were retained by the Government for that purpose. (The others were returned to Mexico, a common practice prior to this court's decision in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971).) His confession allegedly flowed from that misimpression.
We are not persuaded by the argument. Even assuming arguendo that there was an element of deception here, we are not persuaded that the reasonable effect could have been to affect the voluntariness of appellant's confession; the trial judge's apparent assessment of the confession and the surrounding facts was not plainly untenable. See Moser v. United States, 381 F.2d 363 (9th Cir. 1967), cert. denied, 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 850 (1968); Fernandez-Delgado v. United States, 368 F.2d 34, 36 (9th Cir. 1966); United States ex rel. Lathan v. Deegan, 450 F.2d 181, 185 (2d Cir. 1971); cf. Williams v. Nelson, 457 F.2d 376 (9th Cir. 1972).
The conviction is affirmed.