US v. F. Tydingco, No. 17-10023 (11-27-18) & US v. L. Tydingco, No. 17-10024 (11-27-18)(Graber w/Thomas & Lasnik).

The defendants were convicted of “harboring” an alien and “aiding and abetting” the harboring in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The defendants, residents of Saipan, brought a 10-year-old Chinese boy over from China to attend school.  He did so for 2 years; but this violated the 45-day “parole” rule for visitors.  The defendant Lili argued she did not know of the rule. 

The 9^th held that the instruction defining “harbor” was erroneous as it did not require the jury to find that the defendants intended to violate the law.  This error was not harmless. The 9^th harmonizes two precedents in tension: Acosta, 531 F.2d 428 (9^th Cir. 1976)(harboring to prevent detention) and You, 382 F.3d 958 (9^th Cir. 2004)(intending to violate the law). The key is intent: You requires intent; Acosta held that harbor does not require an intent to avoid detention. The distinction is one can harbor to make a political point, and not seek to avoid detention.

The 9^th also found that the instruction defining “reckless disregard” was likewise erroneous.  It did not require the jury to find subjective intent; that is, Lili drew an inference that the alien was actually an alien and was in the United States unlawfully.  There were acts that she was confused.  The review was for plain error, and it was found to be prejudicial as the jury could have acquitted on an invalid legal theory.

At the outset of the opinion, the 9^th had found that there was sufficient evidence to convict the defendants when viewed in the light most favorable to the prosecution.  The jury instructions require a remand for a new trial.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/27/17-10023.pdf