Specific intent instruction should be requested

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Although there are no standard jury instructions in the 7th Circuit for harboring illegal aliens, an Aug. 4 opinion provides support for defendants to request a specific intent instruction.

Nevertheless, it upheld the defendant’s conviction, concluding that he would have been found guilty, even if such an instruction had been given.

Yu Tian Li was charged with three counts of illegally harboring or shielding illegal aliens in violation of 8 U.S.C. 1324(a)(1)(A)(iii), after three aliens were discovered in a make-shift dormitory in his garage. The aliens also worked in Li’s restaurant in De Pere.

He was convicted of two of the counts and his convictions were affirmed on direct appeal. Li then filed a motion in district court to vacate his convictions. Among other claims, Li argued his counsel was ineffective for proposing an incorrect jury instruction.

The district court rejected the argument and the 7th Circuit affirmed in an opinion by Judge Ilana Diamond Rovner.

In the absence of a standard 7th Circuit instruction, Li’s counsel proposed an instruction based on the one used in the 11th Circuit.

Li argued that his counsel should have requested a specific intent instruction, rather than one that required only general intent.

But the court held that counsel was not deficient for failing to do so. The court explained, “we certainly cannot say that it was outside the realm of reasonable professional assistance for Li’s counsel to propose a jury instruction similar to that used by the Eleventh Circuit and reflecting the general intent requirement in several other circuits, where there was no controlling law in this Circuit.”

Li further argued that, had his trial counsel done better research, he would have uncovered cases which require a specific intent instruction.

However, both of the cases he cited involve the transportation or importing of illegal aliens, rather than harboring them. U.S. v. Parmlee, 42 F.3d 387, 391 (7th Cir. 1994); U.S. v. Nguyen, 73 F.3d 887 (9th Cir. 1995).

The court noted that in those cases, the courts were concerned about the possible prosecution of a taxi driver or boat operator, who might transport an alien without any intent to violate the law. But it found those concerns were less pressing when the charge is harboring or shielding an alien.

Nevertheless, it agreed with Li that the cases on transporting were similar enough to support a request for a specific intent instruction.

Going further, the court identified a case not cited by Li, in which the 9th Circuit held that the jury must find, in a harboring case, that the defendant acted with the purpose of avoiding the aliens’ detection by immigration authorities. U.S. v. You, 382 F.3d 958, 966 (9th Cir. 2004).

But the court found that, even if it was deficient for Li’s trial counsel not to have requested an instruction to this effect, the deficiency would not have prejudiced Li’s case.

At trial, the government presented the following evidence: one of the illegal aliens who lived at Li’s house divulged his status as an illegal alien to Li; Li shuttled his tenant/employees back and forth between the garage and his restaurant; the curtains of Li’s house remained closed at all times; Li refused to tell investigating agents the names of his employees; and the illegal employees were not asked to complete any paperwork, nor were they listed on any wage or employment records submitted to the state.

Given this evidence, the court held that the jury would have found Li guilty, even if the jury had been explicitly instructed that it had to find that Li specifically intended to shield aliens from immigration authorities.

What the Court Held

Case: Li v. U.S., No. 11-1231

Issue: In a prosecution for harboring illegal aliens, was it ineffective assistance of counsel not to request a specific intent instruction?

Holding: No. In the absence of standard instructions in this circuit, it was not deficient to request instructions based on those in a different circuit that do not require specific intent.

David Ziemer can be reached at [email protected]