Specific intent instruction should be requested; 7th Circuit upholds conviction.

Byline: David Ziemer, david.ziemer@wislawjournal.com

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...