In United States v. Tydingco, --- F.3d ---, No. 17-10023 (9th Cir. 2018), the Court vacated the defendants' convictions for harboring an illegal alien and aiding and abetting the harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).
The case arose from the defendants bringing a friend's child from China to attend school in the U.S.
On appeal, the Court found the jury instructions erroneous in two respects.
First, the instruction defining "harbor" was
erroneous because it did not require the jury to find the
defendants intended to violate the law. On this point, the Court explained: "the jury instructions were legally deficient
by not requiring the jury to find that Defendants intended to
violate the law. The omitted instruction was not harmless
beyond a reasonable doubt, because it went to the heart of
Lili’s primary defense—that she did not understand the
immigration laws and did not act with the intent to violate the
law. Indeed, the government expressly concedes that, if the
harboring instruction was erroneous, the error was not
harmless."
Second, the Court held the district court plainly erred in instructing the jury that "reckless
disregard" means "being aware of facts which, if considered
and weighted in a reasonable manner, indicate a substantial
and unjustifiable risk that the person harbored was in fact an
alien and was in the United States unlawfully." Instead, under controlling precedent, "reckless disregard
requires that the defendant herself must be aware of facts from which an inference of risk could be drawn and the
defendant must actually draw that inference."
As to prejudice, the Court explained, "Defendants bear the burden of showing
prejudice, which requires some intermediate level of proof
that the error affected the outcome at trial: more than a mere
possibility, but less than a preponderance of the
evidence." The Court determined the defendants met their burden. Further, the jury’s possible reliance on a
legally invalid theory constitutes a miscarriage of justice
which would seriously affect ‘the fairness, integrity or public reputation of judicial proceedings." Thus, a new trial was warranted.
