United States v. Gustavo DominguezUnited States v. Gustavo Dominguez
*1 Before TJOFLAT, COX and BLACK, Circuit Judges.
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
*2
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 *3 Dominguez’s convictions of conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and 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.
I. BACKGROUND & PROCEDURAL HISTORY
A. Facts
Gustavo Dominguez is a native of Cuba and a naturalized United States citizen. He works as a sports agent, and through his company, Total Sports International (“TSI”), he has represented over 100 baseball players, many of whom played for Major League baseball teams. Some of these baseball players were Cuban nationals who came to the United States without official documents authorizing their presence in the United States. This criminal case involves Dominguez’s role in helping five Cuban nationals come to the United States in order to pursue professional baseball careers.
The smuggling venture at issue in this case began with Dominguez’s relationship with Ysbel Medina-Santos (“Medina”). Medina has lived a life of crime; he has numerous prior convictions for drug trafficking, smuggling, insurance fraud, *4 and money laundering. When he faced a lengthy prison sentence for drug smuggling, he agreed, in exchange for a potentially reduced sentence, to testify against Dominguez about his role in the smuggling of these Cuban baseball players.
According to Medina, he and Dominguez agreed in November 2003 to smuggle two Cuban players, Yuniesky Betancourt and Saydel Beltran, to the United States. In exchange for Medina’s assistance in smuggling the players into the United States, Dominguez promised that the players would pay Medina 5% of any Major League baseball contract that they might sign. Dominguez anticipated that he would represent the players as their agent, negotiate any potential baseball contract, and collect a percentage of their earnings as a fee. The smuggle was successful and, with the help of Dominguez’s representation, Betancourt signed a Major League contract for $2.8 million with the Seattle Mariners. Medina then asked Dominguez for 5% of the contract ($140,000). After Betancourt failed to pay the $140,000, Medina held Dominguez responsible for the money.
In July 2004, about eight months after the Betancourt-Beltran smuggle, Dominguez contacted Medina about smuggling more Cuban players into the United *5 States. Dominguez and Medina agreed to bring five Cuban players to the United States: Francisely Bueno-Trueba, Osbek Castillo-Perez, Allen Guevara-Perez, Osmany Masso-Arredondo, and Yoankis Turino-Montalno. Medina told Dominguez, however, that he would not attempt to bring these players to the United States until he was paid at least $100,000 of the $140,000 that he was still owed for the Betancourt-Beltran smuggle. Dominguez then made two $50,000 transfers from an account he managed for another athlete client and wired the money to Medina, without the client’s knowledge.
After Medina received the $100,000, he agreed to smuggle these five Cuban players. One of Medina’s contacts called the players in Cuba, asked if they wanted to leave, and told them when and where they should meet the “fast boat.” Medina hired Geoffrey Rodrigues to drive the fast boat from Cuba to the United States.
This July 2004 smuggling attempt failed. The United States Coast Guard intercepted the fast boat about ten miles south of Key West, Florida. When Rodrigues attempted to flee, the Coast Guard shot the engine of the boat to get it to stop. The five players were detained and returned to Cuba.
After the first attempt failed, Dominguez asked Medina about a follow-up smuggle. Medina agreed to the follow-up. Because Rodrigues had been caught, *6 Medina hired Roberto Yosvany Hernandez to bring the players to the United States in exchange for $100,000. The smuggle was successful. The five players, along with over a dozen other Cubans, were dropped off in the water off Deer Key, Florida on August 22, 2004, around 5:00 a.m. All five players testified that they had no papers authorizing their entry into the United States when they arrived.
In exchange for smuggling the five players into the United States, Medina wanted $150,000. Dominguez had no problem sending the money, but he warned Medina not to continue using his same bank account and instead to have the money directed into a friend’s account. After the players arrived on August 22, 2004, and continuing into September 2004, Dominguez transferred $125,000 into the accounts of two of Medina’s friends, his father, and his sister. These individuals then paid Medina. Dominguez still owed Medina $25,000.
After the players arrived in the Florida Keys, Medina brought them to the Miami home of Andy Morales, who is a former Major League player and former Dominguez client. The players were given clothes, food, and shelter. Medina informed Dominguez that the players had arrived, and Dominguez asked Medina to *7 drive the players to Los Angles with Ramon Batista. Medina, Batista, and the players left Miami on August 23 and arrived in Los Angeles on August 26.
When the players arrived in Los Angeles, Dominguez met them at a restaurant. He told them about his past successful representation of Cuban baseball players and that he could represent the players in similar fashion. All five players signed agency contracts with TSI. In addition to the contracts that the players signed with TSI, Dominguez had the players sign contracts obligating them to pay Medina a percentage of their baseball earnings. Dominguez and Medina intended for this arrangement to pay off the $25,000 balance that Dominguez owed Medina for the smuggle.
Shortly after the players arrived in Los Angeles, Dominguez arranged for Humberto Gray, an experienced immigration attorney who has done immigration work for TSI since the late 1990s, to process the players through immigration. By October, Gray had interviewed the players and was doing whatever was necessary to process them, including having them undergo examinations by physicians approved by United States Citizenship and Immigration Services (USCIS). Gray told Dominguez that he had set up an “initial appointment” for the players at the USCIS Los Angeles office sometime toward the end of October. Gray had the appointment *8 changed to November because Dominguez had a conflict and would be unable to accompany the players to the USCIS office in October.
Meanwhile, TSI had the five players housed in an apartment complex. Every weekday, and on some Saturdays, they trained and played games at the Pierce College baseball facility in Woodland Hills. They were free to come and go as they pleased. They went out with friends, to restaurants, and to watch professional baseball games. The players were also featured in a documentary film that sought to portray the progression of Cuban baseball players in the United States. On November 12, TSI had the players tryout in front of scouts from almost all of the Major League clubs. The tryout was successful, as three of the five players signed Minor League contracts.
On November 19, Gray and Dominguez accompanied the five Cubans to the USCIS to apply for asylum and parole. They were paroled. Gray thereafter represented them before the USCIS. Turino and Guevara stayed in the United States. Bueno, Castillo, and Masso went to the Dominican Republic; Dominguez had arranged for them to play baseball in the Dominican Republic where they could be showcased before Major League scouts.
Dominguez testified at trial. “Dominguez’s defense was based on testimony he was unaware the players were smuggled from Cuba and only found out they were *9 in Miami after their arrival.” (Appellant’s Brief at 55.) He denied having entered into an agreement with Medina to have them brought from Cuba to the United States.
B. Procedural History
1.
The Indictment
In October 2006, a Southern District of Florida grand jury returned a fifty-three
count indictment against Dominguez and others who are not parties to this appeal.
The Government dismissed most of these counts prior to trial. Dominguez proceeded
to trial on twenty-one counts: Count 1 charges Dominguez with conspiring to bring
aliens to the United States, transport aliens within the United States, and conceal,
harbor, and shield aliens within the United States, all for the purpose of commercial
advantage or private financial gain, in violation of
For the sake of clarity and brevity, our opinion groups Dominguez’s convictions into three categories based on the nature of the charges. We refer to his convictions of conspiracy to smuggle (Count 1), the attempt to smuggle, (Counts 5, 6, 10, 13, 19), and smuggling (Counts 28, 29, 33, 35, 40) as the smuggling convictions. We refer to his convictions of transporting aliens (Counts 44 through 48) as the transporting convictions. And, we refer to his convictions of concealing, harboring, and shielding aliens from detection (Counts 49 through 53) as the harboring convictions.
2. Motion in Limine
Prior to trial, the Government filed a motion in limine seeking to preclude
Dominguez from referring to “Legislative and Executive Branch immigration
policies” that apply specifically to Cubans–namely, the Cuban Adjustment Act
(“CAA”),
3. Motion for Judgment of Acquittal
After the Government’s case-in-chief, Dominguez moved the district court for
a judgment of acquittal under
4.
Sentencing
After a seven-day trial, the jury convicted Dominguez on all twenty-one counts.
The court sentenced Dominguez to a five-year mandatory minimum term for each of
the twenty-one counts of conviction, with each term to be served concurrently.
Dominguez received the five-year mandatory minimum under
II. ISSUES ON APPEAL
Dominguez raises the following issues on appeal: (1) whether the district court
erred in denying his motion for judgment of acquittal because the evidence does not
support any of his convictions; (2) whether the court erred in excluding evidence of
the Wet-Foot / Dry-Foot policy and the Cuban Adjustment Act; (3) whether the court
erred in precluding the testimony of an expert immigration witness; (4) whether the
court erred in precluding evidence of the Major League baseball free agency rules;
*13
(5) whether the court erred in admitting evidence of the Betancourt-Beltran smuggle
under
III. DISCUSSION
A. Sufficiency of the Evidence
Dominguez contends that the evidence at trial was insufficient to support his
convictions for smuggling, transporting, and harboring aliens. We review challenges
to the sufficiency of the evidence in criminal cases de novo, viewing the evidence in
the light most favorable to the government.
United States v. Williams
,
1.
Transporting (Counts 44-48)
Dominguez contends that the evidence is insufficient to support his conviction
for transporting aliens in violation of
Any person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law . . . .
Id.
Dominguez argues that the evidence failed to prove that he transported the Cuban players within the United States to further the players’ unlawful presence. We agree.
The evidence at trial showed that Dominguez sent Ramon Batista to pick up the five players in Miami and take them to Los Angeles. They arrived in Los Angeles on August 26, 2004. Shortly after the players arrived, they were taken to Humberto Gray, an experienced immigration attorney–who has done immigration work for TSI players since the late 1990s–to process the players through immigration. By October, Gray had interviewed the players and was doing whatever was necessary, including having them undergo examinations by physicians approved by USCIS, to process them. Gray told Dominguez that he had set up an “initial appointment” for the players at the USCIS Los Angeles office sometime toward the end of October. Gray had the appointment changed to November because Dominguez had a conflict and *16 would be unable to accompany the players to the USCIS office in October. On November 19, 2004, Gray and Dominguez accompanied the five Cubans to the USCIS to apply for asylum and parole. They were paroled.
The evidence further showed that, from the time the players arrived on August 23, 2004 to the time they were paroled on November 19, 2004, the players lived freely and openly. They played baseball, went out with friends, ate at restaurants, and watched professional baseball games. On November 12, 2004, the players were “showcased” in front of scouts from almost every Major League team.
Based on this evidence, a reasonable jury could not find beyond a reasonable
doubt that Dominguez transported the Cuban players from Miami to Los Angeles in
order to further their illegal status. To the contrary, the players were taken to an
experienced immigration attorney shortly after arriving in Los Angeles for the
purpose of processing the players through immigration, and the players were paroled
three months later. During that three month period, the players lived freely, openly,
and in no way acted in a manner suggesting they were avoiding immigration officials.
We therefore conclude that the evidence was insufficient to support Dominguez’s
conviction for transporting under
In arguing that the evidence is sufficient to prove that Dominguez acted to further the illegal status of the Cuban players, the Government relies on the fact that Dominguez waited about three months before taking the players to immigration officials. The Government does not, however, point to any statute or regulation with a specific time requirement for presenting Cubans to immigration officials. Considering that the immigration process started shortly after the players arrived, as well as the circumstances surrounding the purpose of the trip to Los Angeles, we cannot say that the three-month delay in reporting to immigration authorities supports the conclusion that Dominguez intended to transport the players in order to further their illegal immigration status.
2.
Harboring (Counts 49-53)
Dominguez contends that the evidence is insufficient to support his conviction
of harboring aliens in violation of
Any person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation . . . .
Id.
Dominguez argues that the evidence did not establish that he “knowingly concealed, harbored, or shielded from detection” the five Cuban players from United States immigration officials. We agree.
The jury was given the following instruction defining the phrase “conceal,
harbor or shield from detection”: “To ‘conceal, harbor or shield from detection’
includes any knowing conduct by the defendant tending to substantially facilitate an
alien’s escaping detection thereby remaining in the United States illegally.” (R.14 at
1383; Dkt. 217 at 22.) The evidence does not support the conclusion that Dominguez
substantially facilitated the Cuban players’ escaping detection from immigration
officials. As noted in discussing the transporting convictions, Dominguez took the
players to experienced immigration counsel shortly after they arrived to process them
through immigration, and the players in no way engaged in conduct suggesting that
*19
they were hiding from or otherwise avoiding immigration officials. We therefore
conclude that the evidence was insufficient to support Dominguez’s convictions
under
3. Smuggling Convictions: Conspiracy to Smuggle, Aiding and Abetting the Attempt to Smuggle, and Aiding and Abetting an Actual Smuggle
a.
Conspiracy to Smuggle (Count 1)
Dominguez contends that the evidence was insufficient to support his
conviction of conspiring, in violation of
Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien . . . .
Id.
Thus, the elements of smuggling aliens in violation of
Dominguez argues that the evidence did not establish that he and Medina conspired to bring the five Cuban players to the United States without prior official authorization and that he knowingly participated in the conspiracy. Dominguez points out that, while Medina testified that Dominguez requested the five Cuban players, Medina did not testify that Dominguez knew they would arrive in the United States without prior official authorization.
The evidence was sufficient to prove that Dominguez willfully conspired to
bring aliens to the United States in violation of
Medina testified that he had an extensive and ongoing smuggling relationship
with Dominguez. The relationship started in 2003 when Medina and Dominguez
agreed to smuggle Betancourt and Beltran to the United States so they could pursue
professional baseball careers. This prior smuggle involved the same conduct as the
charged smuggling offenses and occurred less than a year prior to the charged
smuggling offenses. Further, Dominguez paid Medina $125,000 in order to fund the
smuggling of the five Cuban players. Dominguez sent the payments to the accounts
of Medina’s friends and family who then paid Medina. And, to pay off the $25,000
balance that Dominguez owed Medina for the smuggle, Dominguez had the players
sign contracts obligating them to pay a percentage of their baseball earnings to
Medina. Finally, the players arrived in the United States in a speed boat and were
*22
dropped off in the water off Deer Key, Florida, around 5 a.m. Based on the totality
of the evidence, a reasonable jury could find that Dominguez knew or recklessly
disregarded the fact that the five Cuban players did not have prior official
authorization to come to the United States; that Dominguez willfully conspired with
Medina–that is, acted with the specific intent to do something the law forbids; and
that Medina knowingly brought the players to the United States in violation of
The conspiracy count in the indictment, Count 1, also charged a conspiracy to
transport aliens, in violation of
b. Aiding and Abetting the Attempt to Smuggle (Counts 5, 6, 10, 13, 19)
Dominguez contends that the evidence was insufficient to support his
convictions of aiding and abetting, in violation
To prove a substantive alien-smuggling offense under a theory of aiding and
abetting, pursuant to
The evidence was sufficient to prove that Dominguez aided and abetted the
attempt to bring aliens to the United States in violation of
c.
Alien Smuggling (Counts 28, 29, 33, 35, 40)
Dominguez contends that the evidence was insufficient to support his
conviction of aiding and abetting the bringing of aliens to the United States in
violation of
The evidence was sufficient to prove that Dominguez aided and abetted the
bringing of aliens to the United States in violation of
d.
Enhanced Sentence Under
e.
Arguments Pertaining to the Cuban Adjustment Act and
the Wet-Foot / Dry-Foot Policy
Dominguez contends that he reasonably believed the Cuban Adjustment Act
(“CAA”) and the Wet-Foot / Dry-Foot policy gave the players legal status in the
United States. Thus, he argues, he lacked the intent required to support his
convictions for smuggling under
United States immigration law and policy afford special treatment to Cuban nationals who come to the United States. Under the Cuban Adjustment Act, a native or citizen of Cuba, who has been inspected and admitted or paroled into the United States and has been physically present in the United States for at least two years, can apply for permanent residency in the United States. By taking advantage of the [16]
CAA, Cuban nationals, who have no documents authorizing their presence in the United States, can remain in the United States without demonstrating that they suffered persecution or proving refugee status. The benefits of the CAA, however, [17]
can only apply to those Cubans who reach United States soil (those with “dry feet”) while Cubans who are interdicted at sea (those with “wet feet”) are repatriated to does not support these convictions and they must be reversed. We therefore need not address whether the CAA and the Wet-Foot / Dry-Foot policy had any bearing on the transporting and harboring convictions. See Cuban Adjustment Act, Pub. L. No. 89-732, § 1, 80 Stat. 1161 (1966) (codified as
amended at
[T]he status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney General . . . to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
Id.
For procedures governing asylum and proving refugee status, see generally
Cuba. This rule is commonly referred to as the “Wet-Foot / Dry-Foot” policy. Under the Department of Immigration and Naturalization Service’s Meissner
Memorandum, the Wet-Foot / Dry-Foot policy applies to Cubans regardless of
whether they entered the United States at a designated port-of entry. Memorandum
from Doris Meissner, Comm’r, Immigration & Naturalization Serv., Eligibility for
Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at
a Place Other than a Designated Port-of-Entry (Apr. 19, 1999) [hereinafter Meissner
Memorandum]. Dominguez claims that knowledge of this policy precludes a finding
he possessed an intent to violate the law. This obliges us to decide what level of
mental culpability
However, a specific intent to violate the law is not required. As an initial
matter, “courts obviously must follow Congress’ intent as to the required level of
mental culpability for any particular offense.”
United States v. Bailey
,
Requiring willful conduct in this instance is contrary to the plain language of
the statute and its legislative history (discussed in more detail below), and would
functionally eliminate the “reckless disregard” language Congress included in the
statute. Congress was not silent as to mental culpability in
Our interpretation of
Following our decision in
Zayas-Morales
, in 1986, Congress substantially
rewrote
chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs . . . .
the United States an alien while knowing or recklessly disregarding the fact that the
alien has not received “prior official authorization to come to, enter, or reside in the
United States.” The statute explicitly states the offense occurs “regardless of any
official action which may later be taken with respect to such alien.”
In
United States v. Barajas-Montiel
,
Because willful behavior is not required, the special status afforded Cubans
under the CAA and the Wet-Foot / Dry-Foot policy is not relevant to the state of mind
required to commit smuggling in violation of
Two of these smuggling offenses–the conspiracy and attempt offenses–were complete prior to the time the Cuban players arrived in the United States. And, the smuggling offense was complete upon their arrival.
B. Jury Instructions
Dominguez argues that the district court erred in failing to give his requested
jury instructions. We review a district court’s refusal to submit a defendant’s
requested jury instruction for an abuse of discretion.
United States v. Morris
, 20 F.3d
1111, 1114 (11th Cir. 1994) (citation omitted). In determining whether the district
court abused its discretion by refusing to give a requested jury instruction, we
consider three factors: “(1) whether the requested instruction is a substantially correct
*37
statement of the law; (2) whether the jury charge given addressed the requested
instruction; and (3) whether the failure to give the requested instruction seriously
impaired the defendant’s ability to present an effective defense.”
United States v.
Chirinos
,
Dominguez argues that the court erred in refusing to instruct the jury that a Cuban national arriving in the United States from Cuba is not required to arrive at a designated port of entry, but is permitted to arrive at any place and thereafter be processed by immigration authorities for inspection and adjustment. The instruction relates to the special treatment afforded Cubans under the CAA, Meissner Memorandum, and the Wet-Foot / Dry-Foot policy. As discussed above, this special treatment has no bearing on the knowledge a defendant must have to commit the smuggling offenses because those policies pertain to later official action taken with *38 respect to the alien. We therefore conclude that the denial of this instruction did not impair Dominguez’s ability to defend against the smuggling charges.
Dominguez contends that the court erred in refusing to instruct the jury that he is entitled to rely in good faith on the advice of counsel concerning the players’ immigration status. The timing and nature of Dominguez’s conversations with counsel are not entirely clear from the record. To the extent Dominguez received advice from counsel only after the players arrived in the United States, the advice-of-counsel instruction has no relevance to Dominguez’s smuggling convictions. Furthermore, no evidence suggested Dominguez fully disclosed the nature of the smuggling plan to an attorney, an important component of the good faith defense. The denial of this instruction did not impair Dominguez’s ability to defend against the smuggling charges.
Dominguez argues that the court erred in refusing to instruct the jury that
specific intent–that the Dominguez acted willfully–is an element of the smuggling
charges. Similarly, he argues that the court erred in refusing to instruct the jury that
a mistake of fact is a complete defense to the smuggling charges. The jury
instructions regarding the
The district court instructed the jury, in accord with a plain reading of the statute, that in order to convict for alien smuggling the Government had to prove beyond a reasonable doubt:
First : That the defendant knowingly brought an alien to the United States;
Second : That the defendant knew or was in reckless disregard of the fact that the alien had not received prior official authorization to come to or enter the United States; and Third : That the offense was done for the purpose of commercial advantage or private financial gain.
(R. 14 at 1380-81; Dkt. 217 at 19.)
The jury was instructed that “knowingly” means “that the act was done
voluntarily and intentionally and not because of mistake or accident.” (R. 14 at 1384-
85; Dkt. 217 at 24.) As we have said,
Dominguez also contends that the court’s instruction should only include
“knowing” or “reckless disregard” but not both states of mind. This argument is
meritless.
The jury was also instructed that Dominguez had to willfully join the
conspiracy. (R. 14 at 1376; Dkt. 217 at 13.) The court also correctly defined
“willfully” as an act “committed voluntarily and purposely, with the specific intent
to do something the law forbids; that is with bad purpose to either disobey or
disregard the law.” (R. 14 at 1385; Dkt. 217 at 24.) It is not clear from the
Appellant’s Brief that Dominguez objects to the conspiracy charge; if he does, we do
not know the substance of the objection. The objection is therefore waived.
See
Greenbriar, Ltd. v. City of Alabaster
,
The instructions also adequately covered Dominguez’s defense theory. Dominguez appears to recast his proposed instructions regarding good faith reliance on counsel, specific intent, mistake of fact, and the status of a Cuban national arriving at other than a designated port of entry as theory of defense instructions. As we have already stated, the district court did not abuse its discretion by refusing to give these instructions. The court’s theory of defense instruction told the jurors it was Dominguez’s theory of the case that he “never entered or intended to enter into any *41 conspiracy to bring aliens into the United States illegally, . . . nor did he knowingly engage in illegal alien smuggling or attempt to illegally smuggle aliens.” (R. 14 at 1386; Dkt. 217 at 26.) This instruction adequately covered Dominguez’s theory of defense–that he was unaware the players were smuggled from Cuba.
Dominguez argues that the court erred in refusing to revise its instruction on
prior-bad-acts evidence admitted under
C. Evidentiary Issues
1.
Admission of Evidence of Betancourt-Beltran Smuggle Under
Dominguez argues that the district court abused its discretion in admitting
testimony regarding his involvement with the smuggling of Betancourt and Beltran,
two other baseball players. The district court permitted Medina to testify that, eight
months before the smuggling of the players in this case, he and Dominguez conspired
to smuggle Betancourt and Beltran to the United States. The district court admitted
the testimony under
“
Applying this test, we conclude that the district court did not abuse its discretion in admitting testimony of the Betancourt-Beltran smuggle. First, evidence of the Betancourt-Beltran smuggle was relevant to establish Dominguez’s intent with respect to the conspiracy smuggling offense and the substantive alien-smuggling counts. By Dominguez’s argument–that he did not know or recklessly disregard the fact that the Cuban players did not have prior authorization to enter the United States–Dominguez made intent an issue in the case, making the evidence of the *43 Betancourt-Beltran smuggle relevant for non-propensity purposes. See Perez , 443 F.3d at 779-80. Second, Medina’s testimony provided a sufficient basis for the jury to find that Dominguez conspired with Medina to commit the Betancourt-Beltran smuggle. Third, the district court did not abuse its discretion when it determined the probative value of the Betancourt-Beltran smuggle, which involved the same conduct as the charged conspiracy and substantive smuggling offenses and occurred less than a year prior to the smuggle in this case, outweighed its prejudicial effect. See id. at 780. We therefore conclude that the district court did not abuse its discretion in admitting evidence of the Betancourt-Beltran smuggle as 404(b) evidence.
2. Exclusion of the CAA, Wet-Foot / Dry-Foot Policy, and Expert Immigration Testimony
Dominguez contends that the district court erred in excluding evidence
pertaining to the CAA and the Wet-Foot / Dry-Foot policy, and in excluding the
testimony of an immigration judge regarding the status of Cuban nationals under
United States immigration law. He claims that this evidence was crucial in
determining whether he had the required intent to smuggle, transport, and harbor the
Cuban players. We review determinations of the admissibility of evidence for abuse
of discretion.
United States v. Miles
,
In section III.A, we discuss the sufficiency of the evidence for the smuggling
convictions and explain why the CAA and the Wet-Foot / Dry-Foot policy have no
relevance to the sufficiency of the evidence to support these smuggling convictions.
For the same reasons, they have no relevance to Dominguez’s defense to the
smuggling charges. In fact, Dominguez did not contend in the district court that the
immigration judge’s testimony about these policies would have assisted his defense
to the smuggling charges. While arguing for the admission of testimony by the
immigration judge, Dominguez’s counsel proffered that the expert would testify that
“[y]ou can’t put a foreign national on a boat and bring them to the United States
without permission. That’s just not allowed, doesn’t matter, Cuban national or
anybody else, you can’t do that.” (R.11 at 897.) Because the immigration judge’s
testimony on the smuggling counts would have been detrimental to Dominguez, the
immigration judge’s testimony could not have changed the jury’s verdict on the
smuggling counts. This excerpt regarding the immigration judge’s testimony
highlights that the CAA and the Wet-Foot / Dry-Foot policy are not relevant to the
smuggling convictions we are affirming in this case. As we have said, two of these
smuggling offenses–the conspiracy and attempt offenses–were complete prior to the
*45
time the Cuban players arrived in the United States. At least as to these two offenses,
it is hard to imagine the relevance of policies that address Cubans’ immigration status
after
their arrival in this country. The exclusion of evidence about them did not, as
to the smuggling convictions, affect Dominguez’s substantial rights.
See
To the extent evidence of the CAA and the Wet-Foot / Dry-Foot policy relate
to Dominguez’s convictions of transporting and harboring aliens, we need not address
these purported errors because we reverse those convictions for insufficiency of the
evidence.
See United States v. Law
,
3. Exclusion of Major League Baseball Free Agency Rules Dominguez contends that the district court erred in excluding evidence pertaining to the Major League Baseball free agency rules. He argues the evidence was necessary to respond to the Government’s theory that he delayed the players’ immigration processing in order to manipulate the free agency system.
To the extent the exclusion of the Major League baseball rules relates to Dominguez’s convictions for transporting and harboring the players, we need not *46 address these purported errors because we reverse those convictions for insufficiency of the evidence. Id.
To the extent the free agency rules are relevant to the smuggling convictions,
we conclude that any error in excluding this evidence, if there was error, was
harmless.
See Frazier
,
IV. CONCLUSION
Count 1 charges Dominguez with conspiring to bring aliens to the United
States for the purpose of commercial gain or financial advantage, in violation of
Counts 5, 6, 10, 13, and 19 charge Dominguez with aiding and abetting the
attempt to bring in aliens to the United States for the purpose of commercial
advantage and private financial gain, in violation of
Counts 28, 29, 33, 35, and 40 charge Dominguez with aiding and abetting the
bringing of aliens to the United States for the purpose of commercial advantage and
private financial gain, in violation of
We reverse Dominguez’s convictions on all other counts and vacate his sentences on these other counts.
AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART. *48 TJOFLAT, Circuit Judge, concurring in part, dissenting in part:
I concur in the court’s judgment reversing Dominguez’s convictions for the
U.S.C.
*49
My disagreement with the court primarily rests on four grounds. First, because
I conclude that proof of general criminal intent is a required element of the
a
In essence, the district court denied Dominguez a fair trial by depriving him of the opportunity to present his mens rea defense to Counts 1, 5, 6, 10, 13, 19, 28, 29, 33, 35, and 40 —that he brought the Cuban baseball players to the United States for [6]
a lawful purpose, so they could be granted asylum and paroled in accordance with the
*51
federal immigration policy governing the status of Cuban refugees, as expressed in
the Cuban Adjustment Act,
To demonstrate these errors, I explain, in part I, the United States immigration
policy governing the treatment of Cuban refugees and how the Government
implemented that policy in this case. Part II sets out the court’s holding that all of
this is irrelevant. Part III explains why that holding is erroneous—that general
*52
criminal intent is the appropriate level of mens rea of the counts alleging a violation
of
I.
This part traces the origins of the Wet-Foot/Dry-Foot policy in light of established United States’ immigration policy toward Cubans.
A.
*53 1. The Immigration and Nationality Act (the “INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952) (enacted as amended in scattered sections of 8 U.S.C.), declares, as a general rule, that an alien who arrives in the United States “at any time or place other than as designated by the Attorney General,” or who lacks a “valid entry document,” is inadmissible and immediately removable. In either case, a removable alien may [11]
apply for asylum as a refugee,
any person who is outside any country of such person's nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.
Cuban aliens, however, occupy a unique position. A Cuban who arrives in the United States is presumed to be a refugee, and therefore entitled to asylum. This [15] presumption is based on the political and economic repression Cuban citizens have been suffering at the hands of the Castro government since it came to power in 1959. In the early years after Castro took over, the United States government welcomed Cuban refugees with open arms. Indeed, between 1965 and 1971, the United States government itself airlifted approximately two hundred-sixty thousand refugees out of Cuba and into the United States under the so-called “Freedom Flights” program. [16]
Political favor for Cuban refugees achieved official status in 1966, with the passage of the Cuban Adjustment Act (the “CAA”). That act granted special status to Cubans coming to the United States. It provided, in pertinent part,
the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney
General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (1966).
As explained by the House Judiciary Committee, in order to grant Cubans this special status, Congress had to except them from the prohibition then present within § 245(c) of the INA, which provided that “natives of any country of the Western Hemisphere, or of any adjacent island named in section 101(b)(5) of the Immigration and Nationality Act” were ordinarily “precluded from applying for adjustment to permanent resident status while in the United States.” H.R. Rep. No. 89-1978, at 1 (1966), reprinted in 1966 U.S.C.C.A.N. 3792, 3793. Congress separated Cubans from other natives of the Western Hemisphere because, as the House Judiciary Committee explained,
[t]he only recourse available to a refugee from Cuba under existing law in order to change to immigrant status is the awkward procedure of leaving the United States for an indefinite period of time in order to secure an immigrant visa at a U.S. consular office abroad and then reentering as a permanent resident.
*57 H.R. Rep. No. 89-1978, at 2, 1966 U.S.C.C.A.N at 3794.
In addition to avoiding this awkward procedure, the CAA would “aid in [Cuban refugees’] resettlement by enhancing their opportunity to qualify for employment in all areas of the Nation.” Id. Moreover, it would afford Cubans the
same sort of opportunities that other immigrants might have: “The fact should not be overlooked that the beneficiaries of this legislation could have come to the United States as immigrants had diplomatic relations been maintained between the United States and Cuba.” Id.
Despite the existence of the CAA, the days of clear political preference for Cuban refugees would come to an end. The massive 1980 “boatlift” from the port of Mariel, Cuba, marked a new crisis point in the United States’s expressed policy of “open heart, open arms” towards Cuban refugees. In the aftermath of a riot at the Peruvian Embassy in Havana, Castro announced that the port of Mariel was “open” to all who wanted to leave Cuba. Soon, American vessels were picking up refugees from Mariel and transporting them to United States shores. According to United *58 States Coast Guard statistics, nearly one hundred twenty-five thousand Cubans fled to the United States in what became known as the “Freedom Flotilla.”
2.
This set the stage for this court’s decision in United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982). Zayas-Morales involved the prosecution of the
owners and captains of American vessels, and those assisting them, who, as part of the Freedom Flotilla, picked up thousands of refugees from Mariel Harbor and brought them to Key West, Florida over the strong objection of the United States government. Id. at 1274. The Zayas-Morales court described the Government’s objection:
The first group of aliens arrived in the United States on April 21, 1980. Two days later, the United States Coast Guard initiated warnings by means of radio broadcasts alerting all listeners to the possibility of arrests and seizure of vessels for transporting undocumented aliens to the United States. By that time many of the vessels had left the United States for Mariel Harbor. At approximately the same time, the United States Customs Service began issuing written notices requiring customs clearance prior to departure from United States ports and warning that transportation of undocumented aliens was illegal. Dissatisfied with the results of the initial efforts to halt the mass influx of aliens, on May 14, 1980, the President imposed an embargo on boats attempting to leave
our territorial waters and ordered a return of United States vessels from Mariel Harbor. So ended the Freedom Flotilla.
To indicate how condemnable it considered the defendants’ conduct, the
Government indicted 336 of those involved in the Freedom Flotilla under
. . . .
any alien . . . not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs.
Id. at 1274 n.1 (quoting
The district court dismissed the indictment on the ground that the defendants did not commit a “crime in presenting the Cubans at the border checkpoint.” We *60 affirmed the dismissal on the ground that the Government failed to prove that the defendants acted with criminal intent, the mens rea element that the district court, at the Government’s urging, ruled irrelevant in Dominguez’s case. Id. at 1273–74. The defendants lacked the requisite mens rea because they clearly intended to submit the aliens to proper immigration officials in full compliance with the law:
[N]ot only had the defendants presented the aliens to the proper officials, but . . . their intention in doing so was to allow the aliens to seek legal status in this country. . . . Such an intention neutralizes any government theory that the defendants possessed the criminal intent necessary for a conviction under8 U.S.C. § 1324(a)(1) .
Id. at 1277.
The defendants’ lawful intent to retrieve Cubans without visas and deliver them to U.S. immigration officials was effective the moment the boats left Mariel Harbor and remained effective until delivery into the United States. See id. at 1274 (discussing stipulations made by the parties). Therefore, what the defendants intended to do with the aliens after their arrival in the United States was relevant to their intent to disobey the law. Id. at 1276–77.
surreptitious means. By admission and stipulation of the parties, no entry of aliens was effectuated by the defendants’ actions in these boatlift cases. As stated above, the defendants committed no crime in presenting the aliens at the border checkpoint.
United States v. Anaya,
We affirmed on a rationale not relied upon by the district court.
3.
In light of several concerns arising, in part, out of our decision in Zayas-
Morales, Congress revised
First, Congress split the “bring into” provision of
*62
than ten years for each alien brought to the United States at such place. The second
[23]
provision,
version of
In drafting
committed, is punishable by a fine and imprisonment for a maximum term of ten or fifteen years. The presentence report prepared by the district court’s Probation [26]
*63 Office for Dominguez’s case recommended imprisonment for a minimum term of three years and a maximum term of ten years for Counts 5, 6, 28, and 29 and a minimum term of five years and a maximum term of fifteen years for Counts 10, 13, 19, 33, 35, and 40. [27]
4.
Eight years after Congress revised
(i) . . . committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year, (ii) . . . done for the purpose of commercial advantage or private financial gain, or (iii) an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry, [the violator shall] be fined under Title 18 and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years. The§ 1324(a)(2) offenses of which Dominguez was convicted were “done for the
purpose of commercial advantage or private financial gain.” See
Cuba-United States: Joint Statement on Normalization of Migration, Building on the Agreement of September 9, 1994, 35 I.L.M. 327, 329.
In return, Cuba agreed to “prevent unsafe departures using mainly persuasive methods.” Id. The United States further committed “through other provisions of United States law, to authorize and facilitate additional lawful migration to the United States,” establishing that a “minimum of 20,000 Cubans each year” would be allowed to legally migrate. Id. at 330.
The Joint Statement, issued on May 2, 1995, declared that “Cuban migrants intercepted at sea by the United States and attempting to enter the United States will be taken to Cuba,” rather than Guantanamo Bay or, presumably, other safe havens as contemplated in the Joint Communique. Id. at 328. The Migrant Accords laid the
foundation for what came to be known as the Wet-Foot/Dry-Foot policy, whereby those Cubans who arrived on United States soil could seek asylum, parole, and delivered by Fidel Castro, subsequent riots in the capital city of Havana, and a decree by the Castro regime that future attempts to go to the United States would not be contested, the Cuban flight to the United States reached nearly 40,000 in number in 1994—the highest level since the Marielito exodus of 1980. Id.
*65 adjustment of status under the CAA, and those interdicted at sea would be returned to Cuba.
The specific contours of the Wet-Foot/Dry-Foot policy were largely established by a series of decisions made by the Department of Justice’s Office of Legal Counsel and instructions issued by the INS and its successor agency, the United States Citizenship and Immigration Services (“USCIS”). On its own terms, the Joint Communique of 1994 would appear to cast doubt upon the ability of Cubans who entered the United States in “irregular ways” to gain parole or seek protection under the CAA. As the Communique states, “the United States has discontinued its practice of granting parole to all Cuban migrants who reach U.S. territory in irregular ways.” Id. 329.
Deputy Attorney General Richard L. Shiffrin, however, stated in one key memorandum that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the “IIRIRA”), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified as amended in scattered sections 8 U.S.C. and 18 U.S.C.), “substantially amended” the INA, changing the terms by which aliens could be denied legal process in the United States:
[T]he Reform Act has created the new category of “Aliens Treated as Applicants for Admission” under section 235 of the INA. An alien’s classification within that category will now determine whether he must receive inspection, screening, and other attendant procedures . . . in *66 contrast to aliens who may be summarily repulsed or returned without any INA screening and procedural requirements.
Memorandum from Richard L. Shiffrin, Deputy Assistant Att’y Gen., U.S. Dep’t. of
Justice, to David A. Martin, Gen. Counsel, INS), Rights of Aliens Found in U.S.
Internal Waters,
Thus, while “aliens treated as applicants for admission” under the INA (as amended by the IIRIRA) include any
alien present in the United States who has not been admitted or who
arrives in the United States (whether or not at a designated port of
arrival and including an alien who is brought to the United States after
having been interdicted in international or United States waters[.]
unlanded aliens interdicted on internal waters do not constitute [29] “applicants for admission,” and therefore need not be inspected or screened [. I]t necessarily follows that such aliens are not entitled to removal proceedings (i.e., the amended INA’s substitute for deportation proceedings) under section 240. [30]
If a Cuban who physically arrives in the United States—i.e., has “dry feet”—is
thus to be treated as an “applicant for admission,” the question becomes one of the
process he is due under United States law and policy. There was once a point of
confusion among Immigration officers about the meaning of the word “admissible”
in the language of the CAA quoted supra. It appeared that Cubans who arrived in
the United States at a place other than a designated Port-of-Entry could be
inadmissible. This is because, under
To ensure that Cubans would not be deprived of CAA adjustment on this
ground, then–INS Commissioner Doris Meissner announced that the “policy of the
[INS/USCIS] is that the inadmissibility ground that is based on an alien’s having
arrived at a place other than a port-of-entry does not apply to CAA applicants.”
Meissner Memorandum at 1 (emphasis in original). Otherwise, “the purpose of the
CAA would have been defeated.” Id. at 2. Nonetheless, the Meissner Memorandum
makes clear that this INS/USCIS “policy does not relieve the applicant of the
obligation to meet all other eligibility requirements. In particular, [CAA] adjustment
is available only to applicants who have been ‘inspected and admitted or paroled into
the United States.’” Id. (citation omitted). A Cuban “present without inspection,
therefore, would not be eligible for CAA adjustment unless the [Cuban] first
surrendered himself . . . into [INS/USCIS] custody and the [INS/USCIS] released the
alien from custody pending a final determination of . . . admissibility.” Id.
As Meissner noted, simply being “admissible” to the United States is not
enough for a Cuban to qualify for adjustment of status under the CAA; the Cuban
must, in the words of the CAA, also be “physically present in the United States” for
at least one year. CAA, Pub. L. No. 89-732, § 1,
A native or citizen of Cuba who is present in the United States without having been inspected and admitted is eligible to apply for an initial parole at the USCIS field office having jurisdiction over the applicant’s place of residence. Natives or citizens of Cuba need parole documentation in order to become eligible for benefits under the Cuban Adjustment Act . . . .
. . . .
The validity period of the initial parole must be one (1) year. This will allow natives or citizens of Cuba who have been physically present in the United States for at least one year to apply for adjustment of status under the CAA and seek employment authorization as an applicant for permanent residence while the adjustment of status application is pending.
Memorandum from Tracy Renaud, Chief, Office of Field Operations, USCIS, to Field Leadership, File No. HQ 70/10.10, Processing of Initial Parole Requests Presented by Natives or Citizens of Cuba to USCIS Field Offices 1, 2 (Mar. 4, 2008), available at http://www.uscis.gov/files/pressrelease/CubanParole_4Mar08.pdf (citation omitted).
As stated supra, parole is to be granted to an alien on the basis of “urgent
humanitarian reasons” or a “significant public benefit.”
In the absence of a disqualifying criminal record or other factors that would bar CAA adjustment, however, the on-going difficulty in actually removing aliens to Cuba and the availability of CAA adjustment should ordinarily weigh heavily in favor of a grant of parole. The [USCIS] may properly consider the avoidance of detention costs with respect to an alien whose actual removal is unlikely as a factor in determining, as a matter of discretion, that parole would yield “a significant public benefit.” In similar fashion, the [USCIS] may properly consider the availability of CAA adjustment as a factor in determining, as a matter of discretion, that an “urgent humanitarian reason” justifies a grant of parole.
Meissner Memorandum 2–3 (citation omitted).
B.
Gustavo Dominguez is a native of Cuba and a naturalized United States citizen. At the time of the events that led to the indictment in this case, Dominguez was a sports agent. Through his company, Total Sports International (“TSI”), he had represented over 100 baseball players, many of whom played for Major League Baseball teams. This case involves five Cuban baseball players: Francisely Bueno- Trueba, Osbek Castillo-Perez, Allen Guevara-Perez, Osmany Masso-Arredondo, and Yoankis Turino-Montalno.
On August 22, 2004, they were brought from Cuba to the Florida Keys by boat and taken to the residence of a former Major League player, a Cuban national, in *71 Miami. Dominguez was informed of the players’ arrival, agreed to represent the players, and arranged for their transportation to California.
Throughout this process, Dominguez retained the assistance of an experienced immigration law attorney. Shortly after the players arrived in California, Stephen Schneider, Dominguez’s TSI partner and a lawyer, arranged for Humberto Gray, an immigration attorney, to process the players through immigration. Gray told Dominguez that he set up an appointment for the players at the USCIS Los Angeles office. On November 19th, Gray and Dominguez accompanied the players to the USCIS office to apply for asylum and “to get their paroles.” They were paroled. Gray thereafter represented them before the USCIS.
Because the players were presumptive refugees, all of this happened precisely
as set out by the CAA, the Wet-Foot/Dry-Foot policy, and the Meissner
Memorandum; to wit, the Cuban aliens arrived in the United States at a location other
*72
than a designated port of entry, made their way to immigration authorities, and were
then paroled. These events, however, gave rise to the current prosecution for
conspiracy to smuggle, attempted smuggling, smuggling in violation of
C.
Anticipating that Dominguez would frame a defense to those charges based on “Legislative and Executive Branch immigration policies” that apply specifically to Cubans, namely the CAA, the Wet-Foot/Dry-Foot policy, and the Meissner Memorandum, the Government moved the district court in limine to bar Dominguez from referring to these policies in the presence of the jury at trial. In response, Dominguez argued that, if these policies did not preclude his conviction, they were at least relevant to the mens rea element of the charged offenses.
According to Dominguez, the policies the Government sought to exclude enable undocumented Cubans who enter the United States at a location not designated as a “Port-of-Entry” by the Attorney General and without valid entry documents to apply for permanent residence status. Dominguez represented that he was aware of these policies when he had the five players transported to California, trained, observed by Major League baseball scouts, and presented to the federal *73 immigration authorities. In this light, he contended, he lacked the requisite criminal intent to violate the law.
The district court granted the Government’s motion. The court rejected the
notion that the Wet-Foot/Dry-Foot policy and the CAA provided a legal defense to
any of the pending charges against Dominguez, holding that the policy and the CAA
were “irrelevant” for such purpose. As for Dominguez’s mens rea argument, the
court held that Dominguez’s beliefs about the law were “irrelevant to his intent” to
violate
The district court’s order governed the conduct of Dominguez’s trial. That is, the order precluded Dominguez from (1) testifying that he arranged to have the players brought to California for what he thought was a lawful purpose, to enable them to attain asylum and parole in conformance with the immigration policy established by the CAA, Wet-Foot/Dry-Foot policy, and Meissner Memorandum; and (2) presenting the expert testimony of a retired Immigration Judge to explain that immigration policy. The jury received the case without hearing a word about the policy from the witness stand or the court’s instructions on the law. Moreover, the instructions the court actually did give on the elements of the smuggling offenses did not contain an instruction on criminal intent.
II.
I now turn to the court’s affirmance of the district court’s treatment of the mens
rea defense Dominguez attempted to present in countering the charges that he
conspired to violate and violated
[A] court may treat the mens rea Congress provided in the statute as modifying each element that follows it. Thus, we decide a defendant must knowingly bring an alien to the United States.
*76 Ante (emphasis added)
To support its conclusion that the statutory language it highlighted rendered Dominguez’s criminal intent irrelevant, the court points to the legislative history of the revisions Congress made to the statute in the wake of Zayas-Morales, finding that the legislative history explains that Congress intended to overrule Zayas-Morales and “expand the scope of activities proscribed by federal law to reach the conduct of those participating in such operations as the Mariel boatlift.” Ante at 32–33.
The court also highlights the opinions from three cases to establish that
Congress intended to omit criminal intent as an element of the
Second, the court discusses United States v. Nguyen,
Finally, the court points to a concurring opinion in United States v.
Garcia-Cordero,
In sum, no opinion cited by the court states that criminal intent is not an
element of the
III.
I must respectfully disagree with the court’s reasoning and conclusion that the
A.
1.
The analysis of the mens rea issue appropriately begins with the language of
the statute,
knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to the United States in any manner whatsoever, such alien regardless of any official action which may later be taken with respect to such alien.
Considered in light of legislative history, the court concludes that Congress
intended to omit criminal intent as an element of the
words, an evil mind, is required to convict a defendant of a crime, such as smuggling, which has its origin in the common law, United States v. U.S. Gypsum Co., 438 [41]
U.S. 422, 437, 98 S. Ct. 2864, 2873, 57 L. Ed. 2d. 854 (1978) (“Although Blackstone's requisite “vicious will” has been replaced by more sophisticated and less colorful characterizations of the mental state required to support criminality intent generally remains an indispensable element of a criminal offense.” (internal citation omitted)), for each element of the offense, United States v. X-Citement Video, Inc., [42]
*81
In Dennis, decided a year before Morissette, the Court observed that “[t]he
existence of a mens rea is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.”
As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law.
The Court tacitly, if not expressly, approved this practice again in 1985 in
Liparota v. United States, reiterating the fundamental principle that criminal offenses
without a mens rea element are “generally disfavored.”
2.
Congress did not overcome this presumption for three reasons: (1) the text and legislative history are not sufficiently clear to infer any implied intent to eliminate criminal intent, (2) the specific language Congress chose to use in the 1986 revision mirrors language that courts have overwhelmingly held to include a criminal intent mens rea, and (3) the potential penalties imposed for a violation under this provision are severe enough to indicate that Congress intended to retain the requirement to show proof of criminal intent.
First, the statutory language itself is unclear, as Congress simply omitted any
mens rea element in reference to the “brings to or attempts to bring to” element.
Also, nothing in the legislative history is clear enough to overcome the presumption
that criminal intent is an element under § 1324(a)(2)(B). The court essentially hinges
its interpretation of the statute on one portion of the legislative history. Ante at
31–34. After reviewing the holdings of the district court in United States v. Anaya,
The Committee is convinced that this gap in current law must be closed. Without the threat of criminal prosecution, there is no effective way to deter potential transporters from inundating U.S. ports of entry with undocumented aliens. As happened during the Mariel episode, the United States would be forced to expend extraordinary amounts of money and human resources in processing, monitoring, caring for and giving hearings to exorbitant numbers of people.
H.R. Rep. No. 99-682(I) at 20 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5670. I am not convinced that Congress authorized the courts to read the statute as eliminating proof of an evil mind for a felony conviction under § 1324(a)(2)(B).
*84 The unexplained “gap” referred to in the legislative history is ambiguous at best. While I do not doubt that the statutory revisions made in 1986 were intended to “expand the scope of activities proscribed,” 1986 U.S.C.C.A.N. at 5670, the “gap” could focus on any number of issues raised by the decisions of the district court and this court. This bare assertion alone is not sufficient. My reading of the statute is in accord with the other courts who have interpreted the legislative history. See part III.A.3, infra.
Second, § 1324(a)(2)(B) should be read as requiring a criminal intent mens rea
element because Congress intentionally chose to use language in the 1986 revisions
that federal courts have consistently interpreted to include criminal intent. The
Supreme Court has held that “Congress will be presumed to have legislated against
the background of our traditional legal concepts which render intent a critical factor,”
and “absence of contrary direction [will] be taken as satisfaction with widely accepted
definitions, not as a departure from them.” U.S. Gypsum,
ambiguous legislative history. See Polycarpe v. E&S Landscaping Service, Inc.,
The Supreme Court’s decision in Liparota, is one illustration of this point. Liparota involved a “food stamps” prosecution. The defendant was charged with
acquiring and possessing food stamps in violation of
The Government’s case consisted of the testimony of an undercover agent of
the Department of Agriculture who had gone to the defendant’s sandwich shop and,
on three occasions, had purchased a total of $1,195 of food stamps for $800. The
defendant argued that this testimony, standing alone, was insufficient to establish that
he had violated
the Government had to prove that the Defendant acquired and possessed food stamp coupons for cash in a manner not authorized by federal statute or regulations and that the Defendant knowingly and wilfully (sic) acquired the food stamps.
*86
Liparota,
The defendant was convicted, and, on appeal, the Seventh Circuit affirmed. Id.
The Supreme Court granted certiorari to determine “whether in a prosecution under
[
[T]he Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations. This holding does not put an unduly heavy burden on the Government in prosecuting violators of§ 2024(b)(1) . To prove that petitioner knew that his acquisition or possession of food stamps was unauthorized, for example, the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession. Nor must the Government introduce any extraordinary evidence that would conclusively demonstrate petitioner’s
state of mind. Rather, as in any other criminal prosecution requiring mens rea, the Government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was unauthorized or illegal.
Id. at 433–34,
Moreover, several of our sister circuits have read this type of statutory
language and structure to include “willfully” to modify the verb in
Thus, it is fair to conclude that when Congress chose the particular language
of
Finally, a third factor that weighs in favor of reading a criminal intent element
into
*91
The severity of the penalties authorized under
Here, Congress authorized more severe punishments under
than it did for violations under the current version of
*92
cites, ante at 33–34, the Ninth Circuit’s holding depended in part on the severity of
the penalties for violating
In short, the greater the penalty, the more Congress is aware that, if it intends
to eliminate criminal intent, it must do so clearly. If the district court decided to run
Dominguez’s sentences consecutively, the total sentence could have been as low as
forty-seven years and as high as one hundred thirty-five years. The potential penalty
[54]
authorized by Congress under
punishments in concluding that
These figures include five years on the conspiracy count,
Finally, I note that in instances where there is ambiguity concerning the scope
of a criminal statute, courts traditionally apply the longstanding rule of lenity. See
Barajas-Montiel,
3.
The approach I endorse is confirmed by a clear majority of circuits that have considered whether criminal intent is an element of the §§ 1324(a)(1) and 1324(a)(2) offenses. My research reveals that only the Ninth Circuit has answered the question regarding the § 1324(a)(2) offenses. Other courts have addressed the question regarding the § 1324(a)(1) offenses; as a whole, their holdings support my interpretation.
The Ninth Circuit in Barajas-Montiel confronted the § 1324(a)(2)(B) issue and
concluded that criminal intent is an element of the offense. Barajas-Montiel, 185
*95
F.3d at 952. In that case, the court drew on its decision in Nguyen, see id. (reviewing
the text and legislative history of § 1324 to conclude that there was insufficient proof
Congress intended to dispose of the mens rea requirement for common law offenses,
noting that “[c]ertainly there is nothing in the legislative history suggesting a desire
to do so.”) (quoting Nguyen,
Although not precisely on point, other circuits have almost uniformly
interpreted other § 1324(a)(1) provisions by reading in an element of criminal intent.
As noted above, the Ninth Circuit has held that the § 1324(a)(1)(A)(i) “bringing in”
felony offense includes an element of criminal intent. See Nguyen,
B.
Applying the tools courts use in determining whether a criminal statute requires criminal intent and considering the decision-making reflected in the case law, I am *97 lead to the conclusion that § 1324(a)(2)(B) must contain an element of criminal intent. The court, however, arrives at a different conclusion, believing instead that to require proof of criminal intent is contrary to the plain language and legislative history of the statute and functionally eliminates the “reckless disregard” language. Ante at 31. While initially appealing, the court’s analysis withers under close scrutiny.
As an initial matter, the statutory language is silent as to what the requisite mens rea is for the “bring” or “attempt to bring” element; we cannot merely read the “plain language” of the statute because Congress omitted any mens rea for the second element entirely. The question is not how to define the phrase “knowingly or in reckless disregard” but rather, in the absence of any mens rea for the second element, should we merely require proof of knowledge or should we require proof that the alleged smuggler acted with an evil mind, i.e., that the Government show proof of general criminal intent?
The mens rea established by Congress for the first element is “knowingly or in reckless disregard.” The court, on the other hand, would read in “knowing” to the second element of § 1324(a)(2), but would discard the “or in reckless disregard” language; without question, the court does not merely apply the mens rea Congress chose in an even-handed manner to each element of the statute. To read in one level *98 of mens rea—knowing—yet omitting the second level of mens rea—in reckless disregard— when considering the second element of the offense is hardly adhering to the “plain language” of Congress. In fact, it is fair to say that the court’s reading does far more to “functionally eliminate” the “or in reckless disregard” language than does my interpretation. And the legislative history is equally unclear for the reasons mentioned supra.
Instead we are left to conduct a full analysis, using the tools described by Supreme Court precedent, to determine whether Congress made a showing sufficient to overcome the presumption of criminal intent. After considering the text, structure, and penalties authorized for felony offenses under § 1324(a)(2), the answer is clear—Congress did not eliminate criminal intent from the § 1324(a)(2) felony offenses, or at a bare minimum, the issue is sufficiently unclear such that the interpretive presumption cannot be rebutted.
Moreover, for proof that my interpretation would not lead to the results claimed by the court, we need look no further than the numerous decisions of our sister circuits. These decisions are persuasive regardless of whether they interpret § 1324(a)(1) or § 1324(a)(2) because the same structure and language is present in both provisions; to wit, both sections contain the “knowing or in reckless disregard” introduction relating to the status of the alien, followed by some verb that does not *99 contain any explicit mens rea element specified by the statutory language. When evaluating any of these provisions, courts are faced with the question of adopting an approach similar to the one taken by the court today, applying the “knowing or in reckless disregard” to each element, or to follow the approach I advocate.
Because the language and structure found in § 1324(a)(1) and § 1324(a)(2) is virtually identical, how our sister circuits answered this question of statutory interpretation is highly persuasive, and yet largely ignored by the court’s opinion. In short, three important lessons are readily apparent after comparing the approach taken by our sister circuits with the approach adopted by the court today: first, the court’s approach to the interpretation of § 1324 is the first of its kind—none of the courts cited in the court’s opinion or my opinion that have addressed this issue applied the “knowing or in reckless disregard” mens rea to each element; second, a clear majority *100 of courts have concluded, as I do, that Congress intended that criminal intent remain an essential element, as these courts read in “willfully” to apply to the second element—modifying the verb—in this statute; and third, for over twenty years courts have read this type of statute to include “knowing or in reckless disregard” as the mens rea for the alien’s status and “willful” as the mens rea for the defendant’s act (bringing, transporting, or harboring) without impacting, much less functionally eliminating, any other language in the statute.
Quite simply, for the reasons discussed supra, neither the text of the statute nor the legislative history indicates that Congress intended to do away with the requirement that a defendant act with an evil mind. That smuggling was a crime at common law, that Congress deliberately chose to use a statutory structure and language that courts have traditionally read to include a criminal intent element, and that Congress prescribed imprisonment for up to fifteen years for a violation are all strong indications that some criminal intent requirement must be read in to the statute. If, by chance, any question remains as to Congress’s intent, the rule of lenity requires that we construe the statute to include an evil-mind element.
Accordingly, I respectfully disagree with the court’s holding that proof of criminal intent is not required for § 1324(a)(2)(B) offenses. Like our decision in Zayas-Morales and the decisions of our sister circuits, I would hold that in addition *101 to proving that Dominguez knew or acted in reckless disregard of the fact that the players had not received receive prior official authorization to enter, the Government had to prove that Dominguez acted with general criminal intent. In other words, that he acted “willfully.”
C.
Assuming that criminal intent is an element of the § 1324(a)(2)(B)(ii) offense, the district court erred in prohibiting Dominguez from going forward with his defense that he lacked the criminal intent necessary for conviction. The prohibition was sweeping: the jury was not to hear a word about the CAA, Wet-Foot/Dry-Foot policy, the Meissner Memorandum, whether it would come from Dominguez’s testimony or the testimony of the retired Immigration Judge Dominguez attempted to call as an expert witness to explain the operation of the Government’s immigration policy as it related to Cuban refugees. True, Dominguez was able to testify on redirect examination that Cubans are entitled to stay in the United States “regardless of how they got to the United States,” but only because the prosecutor, on cross-examination, opened the door. Dominguez’s statement fell on deaf ears; the court’s prohibition prevented Dominguez from testifying at length about how the immigration authorities *102 handle dry-foot Cubans and from buttressing his testimony with that of the retired Immigration Judge he proffered.
In instructing the jury at the close of the case, the district court rejected Dominguez’s requested mens rea instructions. Dominguez’s Theory of Defense Instruction No. 2 read:
It is the defense in this case that Gustavo “Gus” Dominguez did not intentionally engage in illegal alien smuggling or attempt to illegally smuggle aliens, and that he did not illegally transport aliens or harbor illegal. At all times, Gus Dominguez was a legitimate Major League Baseball player agent who acted lawfully and in the best interests of his clients.
I instruct you that if you find Defendant Dominguez in fact did not intentionally engage in smuggling, transporting, or harboring illegal aliens, you may consider this as evidence of the lack of criminal intent by Defendant Dominguez.
(emphasis added). The court sustained the Government’s objection to Instruction No. 2, and gave the following instruction, instead:
It is Gustavo "Gus" Dominguez's theory of the case that he never entered or intended to enter into any conspiracy to bring aliens into the United States illegally, to transport illegal aliens within the United States, or to harbor illegal aliens in the United States, nor did he knowingly engage in illegal alien smuggling or attempt to illegally smuggle aliens, and that the did not illegally transport aliens or harbor aliens.
*103 (emphasis added). The instruction was wrong because, for the reasons I state in part III.A., supra, the Government needed to show that Dominguez acted willfully, with the general criminal intent to disobey the law. To find that Dominguez willfully engaged in illegal smuggling, the jury had to be fully informed as to his state of mind. They were not informed because the district court barred the information on which Dominguez acted. That Dominguez honestly believed that he was acting lawfully, in reliance on official pronouncements such as the Meissner Memorandum, and that he intended to present the Cubans to immigration authorities makes this case identical to that in Zayas-Morales; in Dominguez’s case as in Zalas-Morales, the defendant’s state of mind is critical.
In sum, the district court committed reversible error in failing to instruct the jury that criminal intent was an element of the § 1324(a)(2)(B)(ii) offenses and from *104 precluding the jury from hearing about the CAA, the Wet-Foot/Dry-Foot policy, the Meissner Memorandum, and, from Dominguez’s proffered Immigration Judge, the Government’s implementation of that policy. These errors require reversal of the conspiracy, attempt, and smuggling convictions.
IV.
Even if the court somehow concluded general criminal intent is not an element of § 1324(a)(2)(B)(ii), all of the above-discussed evidence was, at a minimum, relevant to the conspiracy charge under Count 1. The indictment prepared by the Government, the Government’s requested jury instructions, and the district court’s actual instructions to the jury required the jury to find that Dominguez acted “willfully,” thereby squarely putting Dominguez’s intent at issue. Thus, the district court erred in excluding the CAA, the Meissner Memorandum, the Wet-Foot/Dry- Foot policy, and the testimony from the Immigration Judge.
Dominguez’s intent was at issue for the Count 1 conspiracy charge under
First: That two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment; and
Second: That the Defendant, knowing the unlawful purpose of the plan, willfully joined in it;
Third: That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the methods (or “overt acts”) described in the indictment; and
Fourth: That such “overt act” was knowingly committed at or about the time alleged in an effort to carry out or accomplish some object of the conspiracy.
For a definition of “willfully” the Government requested the following: “The word ‘willfully[,]’ as that term is used in the indictment or in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is with bad purpose to either disobey or disregard the law.” The district court, when instructing the jury, accepted the Government’s requested instructions and gave the instructions to the jury exactly as *106 written above. The Government has never maintained, before the district court or this court, that the indictment, requested instructions, and actual jury instructions contained any mistakes. We therefore take the “willfully” language and the definition of “willfully” to be what the Government contends is an accurate statement of the law for the conspiracy charge.
Without question, then, criminal intent was an essential element to the conspiracy conviction. For the reasons described in part III.C., the jury had to be informed as to the legal status of the aliens under Cuban-specific immigration policy through reference to the CAA, the Wet-Foot/Dry-Foot policy, the Meissner Memorandum, and the Government’s implementation of that policy. Without this evidence, the jury was simply unable to make a finding that Dominguez acted with the criminal intent required for a conviction.
Thus, regardless of whether criminal intent was an element of the substantive offenses, there is no question that criminal intent was an element of the conspiracy charge in Count 1. Exclusion of evidence essential to the jury’s determination of whether Dominguez acted with lawful or unlawful intent was reversible error.
V.
Finally, although less compelling, even if the court somehow found that the evidence was properly excluded despite both the grounds explained above, there are *107 additional reasons why Dominguez’s conspiracy and smuggling convictions still have to be reversed and a new trial granted. Dominguez’s knowledge of the government’s policy of treating undocumented Cubans as presumptive refugees entitled to apply for permanent residence status under the CAA was relevant to the question of whether Dominguez knew that the “prior official authorization” phrase of § 1324(a)(2) applied to the players.
Recall that to obtain a conviction under § 1324(a)(2), the Government must prove that the defendant knew that the alien he was bringing to the United States “ha[d] not received prior official authorization to come to, enter, or reside in the United States.” As to the attempt to smuggle and smuggling counts, the district court instructed the jury on the elements of § 1324(a)(2)(B)(ii) as follows: Regarding the attempt to smuggle counts, the elements were:
First: That the defendant knowingly attempted to bring an alien to the United States;
Second: That the defendant knew such person was an alien; Third: That the offense was done for the purpose of commercial advantage or financial gain.
As for the smuggling counts, the elements were:
First: That the defendant knowingly brought an alien to the United States;
Second: That the defendant knew or was in reckless disregard of the fact that the alien had not received prior official authorization to come to or enter the United States; and
Third: That the offense was done for the purpose of commercial advantage or financial gain.
The court obviously erred in the attempt to smuggle instruction by omitting the “prior official authorization” phrase, and thus caused an attentive juror to have difficulty reconciling the attempt to and smuggle instructions. I need not pause to consider whether the omission constitutes reversible error because the district court erred in precluding Dominguez from testifying in full as to his state of mind throughout his involvement with the players. The jury needed to know what Dominguez knew about the application of the “prior official authorization” phrase as it applied specifically to Cuban refugees. Put another way, what did Dominguez know about the law?
*109
A defendant is presumed to know the law. See Dimenski v. I.N.S., 275 F.3d
574, 578 (7th Cir. 2001) (“In immigration law, as in tax law – and criminal law, too,
where knowledge of the law is presumed – the Constitution permits the government
to leave people to their own research.” (citation omitted)); Edwards v. United States,
have known?
We start with
*110 to enter the United States without valid entry documents, and to remain here—even absent “prior official authorization.” Then, after the passage of a specified period of time, the USCIS entertained, in accordance with the CAA and the Meissner Memorandum, the refugees’ applications for adjustment of status to that of permanent residency regardless of how they entered the United States.
Finally, Dominguez is presumed to have known of the federal court decisions
interpreting
presented to an appropriate immigration officer at a designated port of entry *111 The baseball players stood in the same shoes as the Zayas-Morales refugees; they were not lawfully entitled to come to the United States. And Dominguez stood in the same shoes as the Zayas-Morales defendants; he brought the players here so they could seek political asylum and remain in the United States—to play baseball.
Zayas-Morales implicitly held that, in light of the trier of fact’s finding (albeit a stipulated finding) that the defendants’ purpose in bringing the Cuban refugees to the United States was to enable the refugees to obtain political asylum, the words of the statute, “not lawfully entitled to enter or reside within the United States,” had no legal effect. The district court was bound to follow Zayas-Morales, including this implicit holding—unless it was able to engage in the analysis this court engages in here. From all I have been able to gather from the trial court record, including the district court’s order granting the Government’s motion in limine, the district court engaged in no such analysis; rather, it simply ruled irrelevant the immigration policy regarding Cubans. Although the district court was unable to explain why the policy was irrelevant, this court, in affirming the district court’s ruling today, attempts to provide an explanation.
This court’s explanation, however, does not address the fact that the Government had the burden of proving that Dominguez knew that the players lacked “prior official authorization” to enter—what Dominguez had in his mind while the *112 players were en route to the Florida Keys. Dominguez contends that he was free to say what was in his mind; he was helping the players obtain political asylum and permanent residence here. The district court said: No, the law was clear; what Dominguez had in his mind was irrelevant. Dominguez was mistaken about his view of the law, and “a mistake of law is no defense to criminal prosecution.” Order Granting Gov’t Mot. In Limine 2, Mar. 14, 2007.
The district court was stating, in effect, that Dominguez knew what this court
is saying today; that the “plain language of the statute” made it clear that the effect
of the CAA and the Wet-Foot/Dry-Foot policy on the players’ immigration status
after they arrive[d] in the United States [was] not relevant. Ante at 35.
Implicit in this court’s statement about the effect of the CAA and the Wet-
Foot/Dry policy on the players’ immigration status after their arrival is a holding that
the evidence the district court ruled irrelevant—the effect of such policy—was
relevant to Dominguez’s prosecution for violating
The impact of such evidence is relevant not only to Dominguez’s state of mind regarding the players’s immigration status after their arrival, but to their arrival as well. As I have shown, the policy provides Cuban refugees with unique authorization to arrive without documents at a location at a place other than a port of entry, an authorization aliens from other countries do not enjoy. I cannot understand how Dominguez could have harbored a mistake of law as to the players’ immigration status, i.e., the official authorization status.
The district court, in barring Dominguez from presenting evidence of the federal immigration policy as it pertains to Cuban refugees, instructed the jury as to his state of mind. Therefore, in barring this evidence, the court deprived Dominguez of his Sixth Amendment right to a trial by jury on a critical element of the § *114 1324(a)(2)(B)(ii) offense, whether he knew that the players lacked “prior official authorization to come to, enter, or reside in the United States.” The court today agrees that the players had the functional equivalent of “prior official authorization” to enter and reside; what they lacked was “prior official authorization” to come. This complex and unsettled distinction presents a procedural due process problem, a problem of notice. Dominguez would need a Philadelphia lawyer to explain how this could possibly be so.
VI.
Accordingly, I would reverse Dominguez’s convictions under the smuggling counts, including the convictions for conspiracy to smuggle, Count 1; attempt to smuggle, Counts 5, 6, 10, 13, and 19; and smuggling, Counts 28, 29, 33, 35, and 40. Otherwise, I concur in the judgment of the court reversing Dominguez’s convictions for the transporting counts, Counts 44 through 48; and the harboring counts, Counts 49 through 53.
Notes
[1] Because we must determine whether the evidence is sufficient to support Dominguez’s
convictions, we state the evidence in the light most favorable to the Government.
United States
v. Robertson
,
[2] The indictment does not charge Dominguez with any crimes regarding the
Betancourt-Beltran smuggle. The district court admitted evidence of this prior smuggle under
[3] Rodrigues pled guilty to a single smuggling conspiracy charge in this case.
[4] The jury acquitted Hernandez of all charges in this case. Despite Dominguez’s
suggestion to the contrary, this acquittal is irrelevant to the sufficiency of the evidence supporting
Dominguez’s convictions.
See United States v. Mitchell
,
[5] Batista pled guilty to a transporting charge in this case.
[6]
[7] Dominguez also raises other issues on appeal: (1) whether the court erred in granting
the Government’s motion for a continuance on the day of trial; (2) whether the court erred in
denying Dominguez’s request for specific voir dire questions; and (3) whether the cumulative
effect of multiple errors denied the defendant a fair trial.
As to issue one, we conclude that the court did not abuse its substantial discretion in
granting the Government’s motion for a continuance following the hospitalization of the
Government’s sole trial lawyer in this case. The record does not support Dominguez’s assertion
that the motion was a deliberate act designed to gain an advantage, and Dominguez has not
shown that he suffered significant prejudice as a result of the continuance.
See United States v.
Key
,
[8] Dominguez also argues that the evidence failed to prove that the Cuban players entered
or remained in the United States “in violation of law.” According to Dominguez, under the CAA
and the Wet-Foot / Dry-Foot policy, the Cuban players were legally present as soon as they
touched dry land. The Government’s position, which the district court accepted, is that a Cuban
who reaches United States soil remains “in violation of law” until they are inspected and
admitted or paroled under
[9] As the Tenth Circuit has noted, the relevant evidence in establishing that a defendant
acted in furtherance of an alien’s illegal status will vary from case to case.
See United States v.
Barajas-Chavez
,
[10] Dominguez also argues, as he does for the transporting convictions, that the evidence failed to prove that the Cuban players entered or remained in the United States “in violation of law.” We need not address this argument because the harboring convictions, like the transporting convictions, are reversed on other grounds.
[11]
[12]
[13] The challenge to the financial-gain enhancement relates only to the smuggling
convictions. The counts of conviction for transporting aliens, under
[14] Our reversal of Dominguez’s convictions for transporting and harboring aliens does
not affect the five-year mandatory minimum sentence under
[15] Dominguez also argues that the CAA and the Wet-Foot / Dry-Foot policy show that he did not have the intent necessary to support his convictions for transporting and harboring aliens. As we explain above, independent of the CAA and the Wet-Foot / Dry-Foot policy, the evidence
[18] The policy has its foundation in a bilateral migration agreement signed in 1994 between the United States and Cuba, often called the “Joint Communique.” See Cuba-United States: Joint Statement on Normalization of Migration, Building on the Agreement of September 9, 1994, 35 I.L.M. 327, 329 (stating that “migrants rescued at sea attempting to enter the United States will not be permitted to enter the United States, but instead will be taken to safe haven facilities outside the United States”).
[19] The statute at issue in Zayas-Morales , 8 U.S.C. 1324(a)(1) (1976), stated in pertinent part: Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who–(1) brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise; . . . . any alien . . . not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this
[20] A number of circuits have interpreted 8 U.S.C. 1324(a)(1)(A)(ii) as requiring that the
defendant knowingly transport an alien to further a violation of the immigration law, or act
“willfully in furtherance of the alien’s violation of the law.”
See, e.g.
,
United States v. Parmelee
,
[1]
[2]
[3]
[4] Both attempted smuggling and smuggling are violations of
[5] Eleventh Circuit Pattern Jury Instructions (Criminal) at 35, Basic Offense Instruction 9.1A (defining “willfully” to mean an act with a general, not specific, criminal intent, or in other words, requiring a finding that the defendant acted “purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law.”).
[6] The district court also denied Dominguez the opportunity to present the same mens rea defense to the charges contained in Counts 44 through 53. The error is of no moment, however, because we are reversing the convictions for those counts on other grounds.
[7]
[8] See Memorandum from Doris Meissner, Comm’r, INS, to all Regional Directors, all
District Directors, all Chief Patrol Agents, and all Officers-in-Charge, file No. HQCOU 120/17-
1, Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived
at a Place Other Than a Designated Port-of-Entry (April 19, 1999), available at
http://www.uscis.gov/files/pressrelease/CubanParole_4Mar08.pdf (“Attachment–A”) [hereinafter
the “Meissner Memorandum”]. The Meissner Memorandum instructs the officials of the United
States Citizenship and Immigration Services, a component of the Department of Homeland
Security, which succeeded the Immigration and Naturalization Service regarding Cuban refugee
applications for permanent residency. See
[9] “The so-called ‘Wet-foot/Dry-Foot’ policy . . . applies to Cuban refugees who reach
United States land. If they reach land, they are allowed to stay, apply for political asylum and
eventually residency.” Movimiento Democracia Inc. v. Chertoff,
[10] A place designated by the Attorney General is often referred to as a “Port-of-Entry.”
[11] See
[12]
[13] On applying for asylum, the alien may also apply for withholding of removal under
[14] In addition to applying for withholding of removal, the alien may seek relief under the
Convention Against Torture, executed by the Foreign Affairs Reform and Restructuring Act,
which states in pertinent part that,
[i]t shall be the policy of the United States not to expel, extradite, or otherwise
effect the involuntary return of any person to a country in which there are
substantial grounds for believing the person would be in danger of being subjected
to torture, regardless of whether the person is physically present in the United
States.
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, § 2242(a),
112 Stat. 2681-761, 2681-822 (codified at
[15] A Cuban, like other applicants for asylum, may be denied asylum under certain
extraordinary circumstances, including where “there are serious reasons for believing that the
[Cuban] has committed a serious nonpolitical crime outside the United States prior to the arrival
of the [Cuban] in the United States.”
[16] Cuba: Migration, U.S. Department of State, http://www.state.gov/www/regions/wha/cuba/migration.html (last visited September 12, 2011).
[17] The Attorney General subsequently prescribed a regulation authorizing an alien
meeting the eligibility requirements of the CAA to apply for adjustment of status to that of a
lawful permanent resident to the [INS, now United States Citizenship and Immigration Services]
director having jurisdiction over the alien’s place of residence. See
[18] Time magazine quoted President Jimmy Carter as stating that: Ours is a country of refugees. We’ll continue to provide an open heart and open arms to refugees seeking freedom from Communist domination and from the economic deprivation brought about by Fidel Castro and his government. Nation: Open Heart, Open Arms, Time, May 19, 1980, at 14.
[19] Mariel Boatlift, U.S. Coast Guard Alien Migrant Interdiction, Coast Guard Off. of L. Enforcement, http://www.uscg.mil/hq/cg5/cg531/AMIO/mariel.asp (last visited September 12, 2011) (describing U.S. Coast Guard activity during the so-called Mariel Boatlift, a.k.a. the Freedom Flotilla).
[20] The district court explained it in these words:
[22]
[23]
[24]
[25]
[26]
[29] “Internal waters” is obviously a reference to the territorial waters of the United States.
[30] Codified as amended at
[31] The confusion regarding the word “admissible” in the CAA was addressed by the Meissner Memorandum in 1999. It is not clear how long confusion or controversy surrounded this term.
[32] The CAA was amended by the Refugee Act of 1980, Pub. L. No. 96-212, § 203(i), 94 Stat. 102, 108. The 1980 Act reduced the “physical presence” requirement of the CAA from two years to one year.
[33] In this case, the Government presented no evidence to the effect that a “disqualifying criminal record or other factors” would bar any of the five Cuban players from obtaining CAA adjustment of status to lawful permanent residence.
[34] Testifying in the Government’s case, Schneider said that Gray had done immigration work for TSI players since the late 1990s. During that time, Dominguez, through TSI, had represented 30 to 40 Cuban players; “probably 15” of those eventually reached the Major Leagues. According to his firm’s website, Gray is “recognized as an expert on Immigration Law” and his firm, Humberto R. Gray, P.L.C., has represented many top foreign players playing in Major League Baseball. This esteemed list includes, [sic] Pedro Martinez, Ramon Martinez, Raul Mondesi, Andres Galarraga, Larry Walker, Jose Offerman, Ismael Valdez, Wilton Guerrero, Deivi Cruz, Ramiro Mendoza, Pedro Astacio and Mariano Rivera, to name a few. Gray Law, http://www.graylaw.com/index.html (last visited September 12, 2011).
[35] In granting the Government’s motion, the district court simultaneously denied Dominguez’s request for a hearing on the motion.
[36] Nor did the court’s instructions on the transporting and harboring offenses contain a criminal intent instruction.
[37] See supra note 4, for the text of
[38] The question facing the court is not an argument that “the evidence supporting [Dominguez’s] smuggling convictions [was] insufficient.” Rather, the argument is that the district court erred in ruling Dominguez’s mens rea defense irrelevant.
[39] In reaching its conclusion, the court expressly rejects inclusion of criminal intent, holding that “a specific intent to violate the law is not required.” Ante at 30. To be clear, I would not require proof of specific criminal intent. Rather, like our decision in Zayas-Morales, and the majority of decisions from other circuits who require mens rea, I would instead require proof of general criminal intent. This requires more than a showing that the defendant acted knowingly, see Eleventh Circuit Pattern Jury Instructions (Criminal) at 35, Basic Offense Instruction 9.1A (“The word ‘knowingly’ means that an act was done voluntarily and intentionally and not because of a mistake or by accident”), but less than acting with specific intent. The Eleventh Circuit Pattern Jury Instructions (Criminal) at 35, Basic Offense Instruction 9.1A, explains the meaning of general criminal intent: The word “willfully” means that the act was committed voluntarily and purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law. While a person must have acted with the intent to do something the law forbids before you can find that the person acted “willfully,” the person need not be aware of the specific law or rule that [his] [her] conduct may be violating. The Eleventh Circuit Pattern Jury Instructions (Criminal) at 37, Basic Offense Instruction 9.1B, also explains the instruction for more rigorous standard of specific intent, requiring proof that “the act was done voluntarily and purposely with the specific intent to violate a known legal duty, that is, with the intent to do something the law forbids.” The comments following Basic Offense
[41] Amongst his “Offences Against Public Trade,” Blackstone identified the crime of “Smuggling,” which he classified as a felony. See 4 William Blackstone, Commentaries *155–56 (describing the common law crime of smuggling).
[42] This presumption does not apply in prosecutions for public welfare or regulatory
offenses. See Staples v. United States,
[43] Morissette v. United States,
[44] Dennis v. United States,
[45] As the Ninth Circuit in Nguyen explained, “we cannot accept the government's leap
from this premise to the conclusion that Congress intended to dispense with the mens rea
requirement inferred by the Eleventh Circuit in Zayas-Morales.” Nguyen,
[47] There are numerous other illustrations of courts reading in a criminal intent mens rea
element to similar statutes. For another example, the statute in Morissette provided: “Whoever
embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . [a] thing of
value of the United States . . . .”
[48] Although the instruction contained the word willfully, it appears that it was not used in
this context to confer any criminal intent element given that the Court notes, “[p]etitioner
objected that this instruction required the jury to find merely that he knew that he was acquiring
or possessing food stamps; he argued that the statute should be construed instead to reach only
‘people who knew that they were acting unlawfully.’” Liparota,
[49] The Seventh Circuit specifically stated,
[w]e have no question that section 1324(a)(1)(B) implicitly requires the
government to prove beyond a reasonable doubt not only that the defendant knew
the alien he transported had entered this country in violation of immigration law,
but also that the defendant knowingly transported the alien to further that
violation, that is, acted willfully.
Parmelee,
[50] In Morissette, the Supreme Court specifically noted,
[a]nd where Congress borrows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it presumably knows and adopts the
cluster of ideas that were attached to each borrowed word in the body of learning
from which it was taken and the meaning its use will convey to the judicial mind
unless otherwise instructed.
Morissette,
[51] The district court sentenced Dominguez to concurrent prison terms of five years.
[52] See § 1324(a)(1)(B)(i) (describing punishment and, for all offenses other than those involving serious bodily injury, a threat to someone’s life, or the death of someone, noting that “in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under Title 18, imprisoned not more than 10 years, or both”); § 1324(a)(1) (1976) (stating that violators “shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this
[55] Today the court addresses this question under the § 1324(a)(2)(B)(ii) offenses, but
none of the cases it cites provides any significant analysis of this issue. See United States v.
Garcia-Cordero,
[56] Compare
[57] It requires no citation of authority to say that the district court’s order granting the Government’s motion in limine was so comprehensive in its scope that Dominguez was relieved of the necessity of proffering the evidence he would have presented in his defense.
[58] Defendant’s Requested Instructions Nos. 1, 2, 3, 17, 30, and 31.
[59] Dominguez was justified in reliance on an official Government policy, the Wet-
Foot/Dry-Foot policy, and the Meissner Memorandum, which was an official memorandum from
the Commissioner of the I.N.S. for his belief that Cuban immigrants have a unique status under
federal immigration policy. See United States v. Laub,
[60] I note in passing that the Government requested a hybrid between the general intent definition of “willfully” and the specific intent version of “willfully” by essentially giving the pattern jury instruction for general intent, but adding the word “specific.” See supra note 39 for a comparison between the two pattern instructions. For the sake of clarity we will refer to the required intent for the conspiracy conviction as specific criminal intent, but whether general or specific criminal intent was the mens rea for the conspiracy count is irrelevant to my conclusion.
[61] Or was “in reckless disregard of the fact that the alien has not received prior
authorization.”
[62] In Bonner v. City of Prichard,
[63] For example, there are two provisions of
[64] A sound argument can be made that whether Dominguez’s knew that the players lacked “prior official authorization,” i.e., whether he knew of the players’ immigration status, presented a question of fact, not of law. It is elementary that a person’s state of mind is a fact. Whether the players had “prior official authorization” is also a question of fact. The Government’s proof of such fact came solely from the players, whom the Government called to the stand in its case in chief. They said they lacked “papers” entitling them to come to the United States. The jury heard nothing else regarding official authorization. Under this question of fact theory, the evidence the district court precluded the jury from hearing was admissible.
[65] As the district court correctly observed in a colloquy with counsel out of the jury’s presence, the players, as Cuban refugees, were “entitled to be here under the policy. So be it. And that seems to me to be the end of it.” And again, “[o]nce they’re here, they’re here. They’re legally entitled to be here.” Having said this, I am at a loss as to why the court did not allow evidence of the players’s immigration status to come before the jury regarding Counts 44 through 53.
[66] A “Philadelphia lawyer” is a lawyer knowledgeable in the most minute aspects of the law. Merriam-Webster’s Collegiate Dictionary 872 (10th ed. 1993).