UNITED STATES of America, Plaintiff-Appellee, v. Evelyn Rivera BORRERO, et al., Defendants-Appellants.
Nos. 13-3430, 13-3517, 13-3468, 13-3559, 13-3516
United States Court of Appeals, Seventh Circuit
Argued and Decided Oct. 27, 2014. Nov. 12, 2014.
771 F.3d 973
The rule of lenity, which counsels that hopelessly ambiguous statutes are to be construed in favor of defendants, is not applicable here because the ACCA is insufficiently vague. “In evaluating whether a statute is ambiguous for rule-of-lenity purposes, it is not enough for the plain language to be unclear; only when the plain language, structure, and legislative history provide no guidance will we apply the rule of lenity.” United States v. King, 516 F.3d 425, 432 (6th Cir.2008) (quoting United States v. Wagner, 382 F.3d 598, 610 (6th Cir.2004)).
IX.
The final issue concerns notice. Ball complains that the government failed to alert him prior to his plea colloquy that it planned to seek an ACCA sentence enhancement. He admits he failed to preserve this claim, so we may review it only for plain error. See United States v. Brock, 501 F.3d 762, 773 (6th Cir.2007).
There is no error here, plain or otherwise, because the government is not required to provide notice of an ACCA sentence enhancement. United States v. Mauldin, 109 F.3d 1159, 1163 (6th Cir. 1997). Ball relies on
AFFIRMED.
Harold S. Ansell, III, Indianapolis, IN, for Defendant-Appellant.
Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge.
Indiana’s Bureau of Motor Vehicles will not register or transfer title to a car or other motor vehicle unless the buyer furnishes information that includes a Social Security number.
Omar Duran Lagunes and four colleagues established a business to help people without Social Security numbers navigate the process of titling vehicles in Indiana and obtaining license plates. For each client, Duran’s service used a client’s individual taxpayer identification number to obtain an employer identification number, registered a limited liability company named after the client (so John Doe received “John Doe LLC”), and submitted in the LLC’s name the required paperwork and fees. The service used clients’ real names and addresses. Each client paid about $350, which included the fees remitted to the Bureau of Motor Vehicles. Indiana issued the titles and licenses as requested; the state has never suggested that holding title to a personal vehicle through an LLC violates any rule of state law. Nor has the Internal Revenue Service stated that it is improper to obtain an employer identification number for use by an entity that will own property but not generate income.
But the United States Attorney for the Northern District of Indiana procured an indictment charging Duran and colleagues with two federal crimes. Count One alleges that defendants conspired, in violation of
The charge of fraud could have been a simple one. Indiana taxes the sale of motor vehicles. An application for transfer of title must report the price at which the sale occurred and include the appropriate tax. Duran and the other defendants inserted false prices, such as $100 or $200, into the forms and remitted sales tax less than state law required—or so the indictment charged. Defendants used the means of interstate commerce (including the Internet) to acquire tax identifiers and create LLCs, and Indiana used the mails to send registration papers and license plates, so a financial fraud comes within the scope of the mail-fraud statute. See Schmuck v. United States, 489 U.S. 705, 109 S. Ct. 1443, 103 L. Ed. 2d 734 (1989).
But at trial the prosecutor did not emphasize Indiana’s financial loss. To convict of mail or wire fraud, the jury must find that false statements injured a victim by depriving it of “money or property”. See
The United States’ appellate brief concedes that treating titles and licenses as “property” is a legal error. Cleveland v. United States, 531 U.S. 12, 121 S. Ct. 365, 148 L. Ed. 2d 221 (2000), holds that state and municipal licenses, and similar documents, are not “property” in the hands of the public agency. This circuit had reached a similar conclusion in Toulabi v. United States, 875 F.2d 122, 125 (7th Cir. 1989). Until the case reached this court no one—not the prosecutor, not the judge, and not defense counsel—recognized that the principal theory on which the mail fraud count was indicted, and the jury was instructed, was legally defective. But the defendants’ appellate brief relied on Cleveland, and the prosecutor acknowledged the error.
The United States has asked us to affirm the fraud convictions anyway, observing that the record contains evidence from which a jury could have found that the defendants defrauded Indiana out of “money”—the tax it could have collected had the selling prices been reported honestly. Moreover, the prosecutor observes that counsel for three of the five defendants approved the jury instructions. Yet although waiver blocks these three defendants from using the error in the instructions as a reason to reverse (for the other two, plain-error review is available), all five defendants requested a judgment of acquittal under
Whether they have been so convicted is uncertain. The instructions permitted the jury to convict on the theory that title papers and licenses are “property” from Indiana’s perspective, with which the state parted because of false statements about insurance. If that was the jury’s sole ground of conviction, then defendants are entitled to acquittal. But the instructions also permitted the jury to convict on the theory that by misstating the selling prices defendants defrauded Indiana out of money that should have been paid as sales tax. If that was the jury’s ground of conviction, then the judgments should be affirmed.
Unfortunately, the instructions did not require the jury to choose among theories of culpability. The jury may have relied exclusively on the registration-papers-as-property theory, exclusively on the sales tax theory, or on some mixture of frauds and understandings of “property”. We just don’t know. That makes it impossible for us to evaluate the sufficiency of the evidence, because the jury rather than the judge decides which evidence to believe. The jury might have believed the evidence about false statements concerning insurance, leading to a verdict that only the registration-papers-as-property theory could support, and disbelieved the evidence about false statements concerning purchase prices. Or the reverse. Or it could have accepted all of the prosecution’s evidence and all legal theories of culpability.
Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), holds that if the evidence is sufficient to convict on one theory, and insufficient to convict on another, then the conviction should be affirmed. The court must assume that the jury followed its instructions and discounted the theory unsupported by the evidence. But when the instructions allow a jury to convict on two theories, one of which is legally insufficient, then the court must remand for a new trial, because
As for Count One, which charged defendants with shielding unauthorized aliens and encouraging them to remain in the United States: there are multiple problems, not least of which is that the prosecutor did not prove that defendants knew their clients to be unauthorized aliens or recklessly disregarded that fact. At least four categories of persons could have found defendants’ service attractive: (1) aliens who are in the United States “in violation of law” (a qualification in each clause of
Assisting persons in categories 2, 3, and 4 does not violate
The United States contends that defendants either knew or recklessly disregarded (the two mental states specified by
Let us assume that the defendants were recklessly indifferent to the likelihood that some of their clients were aliens in the United States “in violation of law”. Conviction under clause (iii) still would be impossible, because defendants did not attempt to “shield from detection” any of their clients. Quite the contrary, they provided state officials with their clients’ real names and addresses. If as the prosecutor insists only an unauthorized alien would want to title a car through an LLC, then defendants were providing state officials with a list of aliens who should be removed, and the state had only to turn it over to federal officials (or federal officials could have asked for it). Putting the names and addresses of aliens into official files does not shield anyone from detection—nor does it conceal or harbor unauthorized aliens, the other two ways to violate clause (iii).
This leaves clause (iv), which we now quote in full. It says that any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” commits a felony. The prosecutor did not charge defendants with encouraging or inducing anyone to come to or enter the United States; the prosecution relies entirely on a contention that the defendants’ service encouraged or induced aliens to “reside in” the United States by making it easier for them to own cars. Of course it wasn’t defendants who offered the means for persons without Social Security numbers to own cars; Indiana did that. All defendants did was roll into one service a series of steps that anyone could have performed independently.
If making it easier to own a car by packaging multiple public services into a bundle is enough to induce or encourage an alien to “reside” in the United States, and thus violate
If the defendants’ bundles violate federal law, what of the titling service that Indiana offers? What, indeed, of drivers’ licenses and vehicle titles that some states, including Illinois, provide to self-declared unauthorized aliens? These states believe that, given their inability to remove aliens (only the national government can do that), it is best to provide documents so that drivers can be identified when they violate traffic laws or are involved in accidents, and so that mandatory-insurance requirements can be enforced. Has every legislator who voted for such a law, the governor who signed it, and every public employee who processes an unauthorized alien’s request for a driver’s license committed a federal felony? How about a desk clerk at the Chicago Transit Authority who sells a transit card, allowing an alien to use the bus and subway system (which like a car can facilitate holding a job that the alien cannot lawfully perform)? How about the dealer who sells an alien a car?
At oral argument counsel for the United States denied that any of these illustrations (sales of food, provision of drivers’ licenses to declared unauthorized aliens, and so on) violates federal law, but he could not draw a defensible line between defendants’ conduct and these illustrations. He observed, for example, that none of the illustrations entails use of an LLC. So what? Section
These convictions can be sustained only if the provision of any sufficiently valuable service—food, medicine, transportation—to an unauthorized alien is a felony because it helps the alien “reside” in the United States. That would take the statute beyond a sensible understanding; the Rule of Lenity, if nothing else, would forbid it.
Consider the one thing most likely to induce an unauthorized alien to reside in the United States: employment. It is unlawful to employ an alien whose visa does not authorize work.
The convictions on Count One are reversed, and the convictions on Count Two are vacated. We remand for entry of a judgment of acquittal on Count One. The United States Attorney must decide whether to reprosecute Count Two on a charge shorn of any allegation that title papers and licenses are “property” from Indiana’s perspective. Pending the new trial (if one occurs), all defendants are entitled to be released on bail. Some of them may already have served more time than would be appropriate following a conviction on Count Two alone. (That is why we entered a judgment of reversal on the day this case was argued, while telling the parties than an opinion would follow.)