Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 CR 433 WILLIAM J. LYNCH, Judge.
Fairchild, Cummings and Sprecher, Circuit Judges.
In June 1973, a two-count indictment was filed against defendant. In the first count, he was charged with transporting an alien from Brownsville, Texas, to Chicago Heights, Illinois, on October 15, 1971, knowing that the alien was illegally in the United States. The second count was identical except that it involved another alien and the transportation took place on November 7, 1971. Both counts charged violations of 8 U.S.C. § 1324(a) (2).*fn1
The alien mentioned in Count I, Sara Resendez-Oliva, became defendant's wife a month after his indictment. She and two of her three children entered the United States at Brownsville, Texas, on the authority of a local border-crossing card in October 1971. Defendant awaited her arrival there. They then traveled to Laredo, Texas, in his car and after spending two hours there, drove to Chicago Heights, Illinois, taking two or three days for the trip. Her other child had preceded her there. She and her three children lived with friends of defendant in Chicago Heights. She did not return to Mexico as planned because her fourth pregnancy made her ill.
The Count II alien, Josefina Acosta-Coronado Perez, was transported by defendant across the Rio Grande at midnight in a rowboat and then to Chicago Heights in his car. A month thereafter, she was reunited with her estranged husband in Chicago.
A jury found defendant guilty on both counts. He received concurrent three-year sentences, plus two years' probation and a $4,000 fine. We affirm.
Instructions on Testimony by a Defendant
Defendant first argues that the court's instruction that he had an absolute right to testify abridged the Fifth Amendment privilege against self-incrimination. Thanks to a slip in reading LaBuy Instruction 6.09 (33 F.R.D. 523, 581), the instruction in question provided as follows according to the official transcript:
"A defendant has the absolute right to testify, and the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify.
"A defendant who wishes to testify is a competent witness and his testimony should not be disbelieved merely because he is the defendant. However, in weighing his testimony the jury should consider the fact that the defendant has a vital interest in the outcome of this trial."
The word "not" was inadvertently omitted by the judge after "absolute right" in the first line of this Government-tendered instruction.
At the trial, the following objection was given only with respect to this second paragraph of this instruction:
"The defendant objects to the giving of the government instruction marked as LaBuy 6.09, in that the second paragraph of that instruction calls special attention to the fact that the defendant did not take the stand to testify on his behalf, and we object to the granting of that second paragraph ...