764 F.2d 266 | 5th Cir. | 1985
Lead Opinion
A jury instruction that an accused charged with transporting illegal aliens should be found guilty if she had the intention of taking the aliens to an immigration office and knew that the Immigration Service had a closer office to which the aliens might report misstates the elements of the offense.
A jury found Stacey Lynn Merkt guilty of conspiring to transport and move, and transporting and moving, two illegal aliens within the United States in violation of 18 U.S.C. §§ 2, 371 and 8 U.S.C. § 1324(a)(2). On appeal, Merkt contends that her conviction was based on improper jury instructions regarding the intent elements of the crimes charged, improper jury instructions regarding the legal status of the aliens transported, and improperly admitted evidence, including hearsay testimony regarding statements coerced from the aliens and evidence obtained as a result of an illegal stop and search by Border Patrol agents. Because the district court improperly charged the jury on the issue of whether Merkt intended to transport the illegal aliens “in furtherance of” their violation of the law, we reverse her conviction and remand to the district court for a new trial. With respect to the other issues raised on appeal, all likely to be raised again in a new trial, we affirm the district court’s rulings.
I.
Stacey Merkt worked at the Casa Oscar Romero in San Benito, Texas. The Casa, which is supported by the Diocese of Brownsville and other church groups in the Rio Grande Valley, offers food and housing to Central American refugees regardless of the manner in which they entered the United States. Merkt taught English, helped refugees to communicate with their families, and ran errands.
In February, 1984, Merkt drove Brenda Elizabeth Sanchez-Galan and Mauricio Valle, two illegal aliens from El Salvador, in her car from the Casa to a farmhouse near McAllen, Texas so that they could meet with a newspaper reporter. Merkt
Although there was evidence from which a jury might have inferred that the aliens did not plan to report to an Immigration and Naturalization Service (INS) office, Merkt testified that Sanchez-Galan and Valle wanted to go to San Antonio in order to file claims for political asylum at the district office of the INS located in that city. San Antonio is approximately 230 miles from the Casa. The INS also has a district office in Harlingen, Texas, located only ten miles from the Casa. Two attorneys who specialize in immigration law testified, however, that in Harlingen, a person from El Salvador who filed an asylum claim would be arrested, issued an order to show cause that initiated deportation proceedings, and often placed under a bond that could not be obtained, and, therefore, would be detained in custody. Both attorneys testified that, in contrast, at the San Antonio office, an alien from El Salvador seeking political asylum would be given a receipt, scheduled for an interview, and released. The alien would not be classified as a deportable alien, arrested, detained, or put under bond unless he had been involved in drugs or other serious criminal activity. Only if the San Antonio district director rejected the alien’s application would an order to show cause for a deportation hearing be issued, at which time the alien’s asylum claim could be renewed before an immigration judge. Merkt’s defense included evidence that, because both Sanchez-Galan and Valle were aware of the discrepancy in treatment between the two offices, they decided that they should seek asylum in San Antonio.
The car left the farmhouse at 3:00 a.m. heading north on Highway 649, the only thoroughfare out of the Valley that does not have an INS checkpoint. The district court found that Highway 649 is frequently used to transport illegal aliens into this country. Independent of this finding, there is evidence in the record indicating that Merkt and Sister Muhlenkamp specifically selected this route because it is a secluded backroad and, by using it, they hoped to avoid Border Patrol agents.
Despite these efforts, Border Patrol agents observed the car proceeding north on Highway 649. The agents noted that the license plates on the car indicated that it was not from the immediate area and that the five people in the car did not appear to be either a family or a group of oil workers travelling to work such as riggers, the type of worker in this area who usually worked unusual hours. When the agents stopped the car, they noticed that all of the occupants appeared to be nervous, and that Merkt was talking and gesturing to the others. After an identification check, the agents determined that both Sanchez-Galan and Valle were illegal aliens.
The agents advised Merkt, Muhlenkamp, and the reporter of their Miranda
A jury convicted Merkt, and the court sentenced her to ninety days in custody. The court suspended execution of her sen
II.
To establish a violation of 8 U.S.C. § 1324(a)(2),
Merkt admits that she transported Sanchez-Galan and Valle within the United States and knew them to be aliens who had entered the United States illegally within the last three years. The crux of her defense is that she possessed neither the knowledge nor the intent required to violate Section 1324(a)(2): that she did not know that the aliens were “in the United States in violation of law,” but that instead she believed them to be political refugees entitled to be in the United States under the provisions of the 1980 Refugee Act.
Merkt, therefore, requested a jury instruction that the government had to prove beyond a reasonable doubt that she knew that the aliens “were not lawfully entitled to reside within the United States under the terms of any law of the United States, including the Refugee Act of 1980.” Merkt also requested an instruction that the government had to prove that she transported the two aliens with the specific intent “to further their presence in the United States in violation of law; that is, to substantially prolong their presence in the United States in violation of law.” Finally, she requested an instruction that she should be acquitted if the jury found that she was transporting the aliens “to the nearest viable Immigration and Naturalization Service office for the purpose of allowing them to file applications for asylum.”
The district court, however, stated that it was “going to tell [the jurors] just the opposite.” The court instructed the jury that a person who comes to this country for the purpose of filing an asylum petition does not have legal status until the application is filed. The belief, the court continued, that a person who has not yet applied for asylum, even though genuinely qualified to seek that aid, has legal status here
The court also instructed the jury, however, that the government had to prove beyond a reasonable doubt that Merkt transported the aliens willfully, or with the specific intent “to further the alien’s [sic] illegal presence in the United States.” The court then added that the fact that Merkt was taking the aliens to an immigration office was no defense if she knew that there was a closer INS office available.
We will address the propriety of each instruction in turn.
III.
A. “Intent" Instruction
This circuit has never directly examined the requirement that the defendant act willfully “in furtherance of the alien’s violation of law.”
The court based its analysis on two grounds. First, the court recognized that Section 1324(a)(2) is a penal statute, and, as such, must be strictly construed.
The district court properly instructed the jury that the government must prove that Merkt transported the aliens willfully in furtherance of their violation of the law. The court further instructed the jury, however,
that if the defendant knew that the closest Immigration office was in Harlingen, regardless of the consequences of what had taken place there, if the aliens had been taken to Harlingen that would be a defense. If she knew that the closest office was in Harlingen but that notwithstanding, regardless of the consequences, they went to San Antonio, even if they were going there to the Immigration office, that is not a defense.
This amounts to an instruction that, if Merkt intended to take the aliens to any INS office other than the nearest one, they were to find that she had acted with the requisite intent to support a conviction under Section 1324(a)(2). This is an improper instruction.
For the government to show that Merkt transported the aliens willfully “in furtherance of [their] violation of law,” as the statute requires, it must show “a direct and substantial relationship between that transportation and its furtherance of the
Because the statute condemns such conduct only when it is willful, Merkt is entitled to have the jury consider her intentions in moving the aliens to San Antonio. Determining a criminal defendant’s intent is a question of fact that the jury must resolve under the totality of the circumstances and after evaluating all of the evidence.
The government argues that we must affirm the district court’s instruction because, if the jury is permitted to consider a defendant’s intent in transporting an alien within the United States to some destination other than the nearest INS office, there will be no way to limit this defense, and the statute will become a nullity. This argument asserts, in essence, that it is difficult to establish that a defendant acted with the specific intent necessary to establish a violation of this section. The statute, however, punishes only an intentional act. No matter how difficult it may be to establish the defendant’s state of mind, the government must prove this portion of its case, like every other element of the alleged crime, beyond a reasonable doubt. The government’s problems of proof do not warrant an instruction that removes one of the essential elements of the offense from the jury’s consideration.
Given that the jury must ultimately determine Merkt’s intent, it should be instructed to consider all of the evidence it finds credible about her intentions, direct as well as circumstantial, such as the mode of transportation used, the time of travel, the route chosen, the difference in distance between the Casa and the two INS offices, and the distance from the border at the time of apprehension. If the jury should find as a fact that Merkt intended to present the aliens to the proper officials so that they could seek legal status in this country, it should find that she did not have the requisite criminal intent necessary for a conviction under § 1324.
B. The “Nearest Office” Instruction
Although regulations adopted pursuant to the immigration laws vest jurisdiction over an application for asylum with the District Director having jurisdiction over the applicant’s place of residence,
Our holding does not imply our endorsement of the jury instruction Merkt tendered to the effect that it would constitute a defense if she intended to transport the aliens “to the nearest viable Immigration and Naturalization Service office for the purpose of allowing them to file applications for asylum.” This proposed instruction has no basis in law, and is too ambiguous to serve as a proper guide for directing a jury.
D. The “Knowledge” Instruction
One of Merkt’s defenses at trial was that she did not know Sanchez-Galan and Valle were in the United States in violation of the law because she believed them to be bona fide political refugees and, as such, entitled to reside in this country under the terms of the 1980 Refugee Act. Merkt and others testified as to the sincerity of this belief, and the defense requested an instruction that she be acquitted unless the jury found that she knew that the Act did not entitle the aliens lawfully to reside in the United States. The trial court refused, and instead, instructed the jury that a person who enters this country for the purpose of filing an application for asylum does not have legal status until the application is filed. In addition, the court instructed the jury that Merkt’s belief that the aliens’ genuine qualifications for political asylum entitled them to “legal status” pri- or to such filing was based on a mistake of law, and could not constitute a defense of the charged crime.
A majority of this panel agrees that the district court correctly instructed the jury on this point. We hold that the district court properly based its instruction on the well-established rule that a citizen is presumed to know the law, and that “ignorance of the law will not excuse.”
IV.
During its case in chief, the government called Valle and Sanchez-Galan to the stand. Asserting “claims of conscience,” both refused to testify against Merkt. The court incarcerated both aliens, and held them in contempt. The government then sought to introduce statements taken from the aliens during their post-arrest interrogation. The prosecution argued that the statements were not inadmissible hearsay because the two witnesses were “unavailable” within the meaning of Federal Rule of Evidence 804 due to their refusal to testify.
After a hearing held outside the presence of the jury, the district court ruled that Merkt had established that the statements were taken illegally, and that, “in the ordinary case,” they would be excluded. Finding, however, that the government had granted immunity to the aliens and that the evidence would not be used against them, the court ruled that Border Patrol agents might relate the information received during their interrogation of the aliens. After the prosecution rested, the defense called the ¡two aliens to the stand and both then testified fully on direct and cross-examination.
Merkt is correct that she has standing to assert that admission of the aliens’ statements violated her own fifth
The government’s reliance on United States v. Fredericks
Our conclusion that Merkt has standing to raise this objection, however, is not a determination of the merits of her claim. The violation of a witness’s due process rights by failing to give the witness Miranda warnings is not per se a violation of the rights of a defendant against whom that witness’s statement is adduced. Neither Miranda nor any case in the line of decisions it generated has ever so held. To establish that the admission of the aliens’ statements taken without Miranda warnings violates her own due process rights, Merkt must establish that “the government's investigation methods resulted in a fundamentally unfair trial.”
The government introduced the aliens’ statements as part of its case in chief. The aliens themselves later testified during the presentation of the defendant’s case, and responded to the government’s cross-examination. Although there appear to be some factual inconsistencies between the aliens’ out-of-court statements, as reported by the Border Patrol agents, and the aliens’ subsequent in-court testimony, Merkt points to no substantial contradictions between the two recitations.
Merkt has not established how the Border Patrol agents’ testimony deprived her of a fair trial. She has neither asserted that the aliens would not have testified on her behalf had their statements not been adduced as part of the prosecution case, nor has she contended that the agents’ version of the statements was distorted, even though there were minor inconsistencies between the agents’ accounts and the aliens’ testimony. She has not even alleged that the use of the testimony violated her sixth amendment right to confront the witnesses against her. We, therefore, find no error in the district court’s decision to allow these statements into evidence. Given that the aliens’ admittedly unlawfully-obtained statements merely recited, in large part, what the aliens themselves later testified to, and that Merkt can point to no fundamental unfairness to her that resulted from the use of the statements, we affirm the district court’s decision to admit this evidence.
Even assuming the correctness of the aliens’ account of the treatment they said they received while initially confined by the INS agents, the testimony was admissible.
V.
Finally, Merkt contends that, because the Border Patrol’s stop and search of Sister Muhlenkamp’s car violated the fourth amendment’s prohibition against unreasonable searches and seizures, the district court erred in admitting evidence obtained as a result of that stop. The district court held a hearing on Merkt’s motion to suppress, and found that, “a reasonable suspicion was aroused in the Border Patrol Officers which was based upon particularized and objective articulable factors such that the stop of the vehicle in which Miss Merkt was a passenger did not violate the Fourth Amendment to the United States Constitution.” The court based this holding on separately entered findings of fact and conclusions of law. Because Merkt has not demonstrated that any of the district court’s factual findings are clearly erroneous, or that the court erred in applying the appropriate legal standard to these facts, we find no reason to overturn the district court’s decision denying Merkt’s motion to suppress.
For these reasons, Merkt’s conviction on all three counts is REVERSED, and her case REMANDED to the district court for a new trial.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. 8 U.S.C. § 1324(a)(2) provides, in pertinent part:
(1) Any person ... who—
(2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;
****** any alien, including an alien crewman, 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 ____
. United States v. Shaddix, 693 F.2d 1135, 1137-38 (5th Cir.1982); United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1976). Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 884 n. 4, 102 S.Ct. 3440, 3455 n. 4, 73 L.Ed.2d 1193 (1982) (Brennan, J., dissenting) (citing this formulation of the elements of Section 1324(a)(2) with approval).
. 8 U.S.C. §§ 1101(a)(42)(A), 1158, 1253(h).
. But see United States v. Shaddix, supra, 693 F.2d at 1138-39.
. 561 F.2d 1321 (9th Cir.1977).
. Id. at 1323.
. Id. at 1322.
. Id. at 1323, citing, McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1930); United States v. Fruit Growers Co., 279 U.S. 363, 49 S.Ct. 374, 73 L.Ed. 739 (1928).
. United States v. Moreno, supra 561 F.2d at 1332.
. Id. at 1323.
. United States v. Shaddix, supra 693 F.2d at 1139; United States v. Perez-Gomez, 638 F.2d 215, 219 (10th Cir.1981); United States v. Salinas-Calderon, 585 F.Supp. 599, 601-02 (D.Kan. 1984). See also United States v. Tindall, 551 F.Supp. 161, 162 (W.D.Tex.1982).
. United States v. Moreno, supra 561 F.2d at 1323.
. United States v. Henry, 749 F.2d 203, 213 (5th Cir.1984); United States v. Johnson, 700 F.2d 163, 174 (5th Cir.), aff'd in part, rev’d in part, 718 F,2d 1317 (5th Cir.1983) (en banc).
. Sandstrom v. Montana, 442 U.S. 510, 522, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979), quoting Morissette v. United States, 342 U.S. 246, 274, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952). See Francis v. Franklin, — U.S.-,-, 105 S.Ct. 1965, 1968, 85 L.Ed.2d 344 (1985). Accord United States v. Canales, 744 F.2d 413, 434 (5th Cir. 1984); United States v. Fricke, 684 F.2d 1126, 1128-29 (5th Cir.1982), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 480 (1983).
. Cf. United States v. Pereira-Pineda, 721 F.2d 137, 140 (5th Cir.1983); United States v. Zayas-Morales, 685 F.2d 1272, 1277 (11th Cir.1982) (construing § 1324(a)(1)).
. 8 C.F.R. § 208(l)(a).
. Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1958). Accord United States v. Jones, 642 F.2d 909, 914 (5th Cir.1981).
. Fed.R.Evid. 804(a)(2) provides:
(a) Definition of Unavailability. "Unavailability as a witness” includes situations in which the declarant—
(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.
. See United States v. Fredericks, 586 F.2d 470, 481 (5th Cir.1978). Accord United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984); United States ex rel. Cunningham v. DeRobertis, 719 F.2d 892, 895-96 (7th Cir.1983); LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974); Bradford v. Johnson, 354 F.Supp. 1331, 1336-37 (E.D.Mich.1972), aff’d per curiam, 476 F.2d 66 (6th Cir. 1973).
. 586 F.2d 470 (5th Cir.1978).
. Id. at 480-81.
. United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir.1984).
Concurrence Opinion
concurring in the result, and dissenting in part from the opinion.
Although I concur in the result, I disagree with the view of the majority concerning the “knowledge instruction,” Part HID of the opinion. The aphorism that imputes knowledge of the law to all is not applicable if a mistaken belief concerning how the law would treat a situation negatives the existence of the mens rea essential to the crime charged.
Section 1324(a)(2) makes it criminal for a person to transport an alien, “knowing that he is in the United States in violation of law.” (Emphasis added.) The statute does not penalize the transportation of any alien who has not lawfully been admitted to the United States by a person who is not aware of the alien’s illegal status. The defendant’s knowledge of the alien’s illegal status is an essential element of the offense, which the government is required to prove.
. W. LaFave & A. Scott, Jr., Criminal Law § 47 (1972); Wharton’s Criminal Law § 77 (14th ed. 1977).
. United States v. Currier, 621 F.2d 7, 9 n. 1 (1st Cir.1980). See United States v. Freed, 401 U.S. 601, 610, 91 S.Ct. 1112, 1119, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring).
. See Liparota v. United States, — U.S. -, -, 105 S.Ct. 2084, 2092, 85 L.Ed.2d 434 (1985); United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir.1982), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983).
. Id. See also Bland v. United States, 299 F.2d 105, 107-08 (5th Cir.1962).