UNITED STATES OF AMERICA, Appellee v. DAJER CUEVAS-REYES, Appellant, 52 V.I. 1011

OPINION OF THE COURT (July 10, 2009) HARDIMAN, Circuit Judge Dajer Cuevas-Reyes appeals his conviction for shielding illegal aliens. Because we find that Cuevas-Reyes’s actions are insufficient as a matter of law to support a conviction under 8 U.S.C. § 1324, we will reverse. I. On November 20, 2007, United States Customs and Border Patrol Agent William Santiago observed two individuals boarding a small plane at the north ramp of Cyril E. King International Airport in St. Thomas, United States Virgin Islands.

Santiago, who had been alerted by his superiors that a pilot was trying to take illegal aliens out of the Virgin Islands by private aircraft, radioed tower control to return the plane to the general aviation area. Upon its return, Santiago confirmed that the plane had six passengers: the pilot, Eliud Gomez-Garcia; Cuevas-Reyes, who Was seated in the co-pilot seat; and four women from the Dominican Republic.

The women, who were illegal aliens, later testified that they were trying to leave the United States by private plane because of their immigration status and that they had paid Cuevas-Reyes between $600 and $1,300 to arrange their flight to the Dominican Republic. The Government charged Cuevas-Reyes with shielding illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and aiding and abetting Gomez-Garcia in the shielding of illegal aliens in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(II). The case was tried to verdict in February 2008.

Following the Government’s case-in-chief and again after all the evidence had been submitted, Cuevas-Reyes moved for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The District Court denied both motions and the jury found Cuevas-Reyes guilty on both counts. Following the verdict, Cuevas-Reyes moved again for judgment of acquittal, which the District Court again denied. The District Court later sentenced Cuevas-Reyes to 10 months imprisonment and three years of supervised release. Cuevas-Reyes appeals, asserting that the evidence was insufficient to sustain his convictions.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294. Cuevas-Reyes must overcome a “very heavy burden” to overturn the jury’s verdict for insufficiency of the evidence. United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). We will sustain a defendant’s conviction if, viewing the evidence in the light most favorable to the Government, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).

The elements of the crime of “bringing in and harboring certain aliens” are set forth, in relevant part, in 8 U.S.C. § 1324: 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 . . . shall be punished according to [the penalties outlined in this section], 8 U.S.C. § 1324(a)(l)(A)(iii).

To convict Cuevas-Reyes under the statute, the Government was required to prove: (1) the alien entered or remained in the United States in violation of the law; (2) the defendant concealed, harbored, or sheltered the alien in the United States; (3) the defendant knew, or recklessly disregarded the fact that the alien entered or remained in the United States in violation of the law; and (4) the defendant’s conduct tended to substantially facilitate the alien remaining in the United States. United States v. De Jesus-Batres, 410 F.3d 154, 160 (5th Cir. 2005); accord United States v.

Silveus, 542 F.3d 993, 1002, 50 V.I. 1101 (3d Cir. 2008) (discussing similar test for illegally transporting an alien under 8 U.S.C. § 1324(a)(l)(A)(ii)). The first and third elements of this test are easily satisfied in the present case. The women testified that they were in the United States illegally and that Cuevas-Reyes knew about it. The analysis of the second and fourth prongs is more difficult. We recently considered the question of what conduct constitutes shielding, harboring, or concealing an illegal immigrant within the meaning of § 1324. See United States v.

Ozcelik, 527 F.3d 88, 97-101 (3d Cir. 2008). Finding that the goal of § 1324 was to prevent aliens from entering or remaining in the United States illegally, we held that shielding an alien ordinarily includes affirmative conduct — such as providing shelter, transportation, direction about how to obtain false documentation, or warnings about impending investigations — that facilitates an alien’s continuing illegal presence in the United States. Id. at 99.

In doing so, we adopted the test of our sister circuits: “harboring, within the meaning of § 1324, encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.” Id. (quoting United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999)) (emphasis in original). Applying this test, as our precedent requires, there is no evidence from which a reasonable juror could infer that Cuevas-Reyes’s actions constituted substantial facilitation of the women’s remaining in the United States illegally.

As a preliminary matter, we note that Cuevas-Reyes’s actions were undertaken for the purpose of removing the women from the United States rather than helping them remain here. The women testified that they paid Cuevas-Reyes to take them to Santo Domingo, Dominican Republic, and that he refunded their money at the airport when it became apparent he would not deliver them.

Because the goal of § 1324 is to prevent aliens from entering or remaining in the United States illegally by punishing those who shield or harbor them, see Ozcelik, 537 F.3d at 98, punishing Cuevas-Reyes for helping illegal aliens leave the country is contrary to that goal. Secondly, the Government argues that Cuevas-Reyes may be found guilty because he did not inform the women that they were required to pass inspection by Immigration and Customs Enforcement officials at the airport despite having been aware of their illegal status.

In so doing, the Government asserts, Cuevas-Reyes failed to follow procedures set by the federal government, thereby concealing the illegal immigrants from detection while in the United States. This argument fails in light of Ozcelik, where we declined to hold that there was substantial facilitation. There, an INS official advised an illegal immigrant to “lay low,” not draw attention to himself, and avoid the address that the INS had on file for him. Ozcelik, 537 F.3d at 99.

We held that this did not constitute substantial assistance because the official had only provided “obvious information that any fugitive would know.” Id. at 99. Likewise, in Silveus we acknowledged that mere cohabitation with an illegal alien or “reasonable control of the premises” does not constitute “harboring” within the meaning of the statute. 542 F.3d at 1003.

Rather, the Government must “prove that [the defendant’s] ‘conduct tend[ed] substantially to facilitate [the alien’s] remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.’ ” Id. at 1004 (quoting Ozcelik, 527 F.3d at 99). The Government cannot make such a showing in this case. There is no evidence in the record that Cuevas-Reyes helped the aliens remain in the United States; he merely told the women to meet him directly at the plane.

To the extent Cuevas-Reyes’s advice helped the departing women avoid detection by Immigration and Customs Enforcement, this too facilitated their removal from the country because they presumably would have been detained in the United States and remained even longer had they been apprehended. The Government’s position would impose an affirmative obligation on citizens to advise illegal aliens to turn themselves in or to comply with immigration laws; § 1324 imposes no such duty.

Finally, we note that Cuevas-Reyes’s actions fall well short of the measures taken by defendants in cases from our sister circuits where “substantial facilitation” was found. See, e.g., Kim, 193 F.3d at 574-75 (employer who required his illegal alien employee to obtain false documentation in order to mislead the INS and gave him detailed instructions regarding how to report falsely that he had been terminated from his job was guilty of substantial facilitation); United States v.

Sanchez, 963 F.2d 152, 154-55 (8th Cir. 1992) (providing illegal aliens with apartments and immigration papers justified a conviction for shielding, harboring, or concealing); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1072-73 (5th Cir. 1982) (upholding conviction for a foreman who had warned his illegal alien employees that INS agents were on site by speaking loudly and making gestures toward the INS agents to encourage the employees to flee the work facility). III.

Despite the heavy burden he bears on appeal, we hold that CuevasReyes’s conduct, when viewed in the light most favorable to the Government, does not meet the second or fourth requirements of the test we established in Ozcelik. Accordingly, we will reverse the denial of Cuevas-Reyes’s Rule 29 motion, and vacate his convictions for both shielding illegal aliens and aiding and abetting. In addition to the substantive offense, subsection (a)(l)(A)(v)(II) prohibits aiding or abetting another person in the commission of the act described above.

Our dissenting colleague rightly notes that the fourth prong of the test originally articulated by the Fifth Circuit in DeJesus-Batres and embraced by our Court in Silveus — which requires that the Government prove the defendant’s conduct “tended to substantially facilitate the alien remaining in the United States” — is not found in the statutory language. It is equally clear, however, that our decision in Ozcelik read that prong into the statute; indeed, it was that case’s central holding. Because we are bound by Ozcelik, it would be inappropriate for this panel to revisit that issue.