11-1231 Li v. U.S.

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Criminal Procedure
Ineffective assistance

It was not ineffective assistance of counsel for the attorney not to request a specific intent instruction where the defendant was charged with harboring illegal aliens.

“Certainly there is room to argue that Li’s counsel should have requested a specific intent instruction. The cases on transporting were close enough to support an argument and, had he looked further, he may have found some even closer. See, e.g., United States v. You, 382 F.3d 958, 966 (9th Cir. 2004) (in a harboring case, the court instructed the jury that it must find that appellants had acted with ‘the purpose of avoiding [the aliens’] detection by immigration authorities—an instruction synonymous with having acted with necessary intent as required in Nguyen.’) Even were it error for Li’s counsel not to ask for a different instruction, however, Li has not demonstrated that the proposed instruction had any adverse effect on Li’s defense. As we noted above, the evidence clearly indicated that Li’s covert acts were taken in a purposeful attempt to violate the law. The jury was already instructed that the defendant had to knowingly conceal the aliens from detection and that he had to know or act in reckless disregard of their illegal status. Had the jury been explicitly instructed that it had to find that the defendant specifically intended to engage in the proscribed action, the result of the trial would have been the same.”

Affirmed.

11-1231 Li v. U.S.

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Rovner, J.

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