USA v. Ho Kim, Docket No. 98-1706

• Citation: 193 F.3d 567
• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1706
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. MYUNG HO KIM, also known as Roberto, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 567

193 F.3d 567 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. MYUNG HO KIM, also known as Roberto, Defendant-Appellant.

Docket No. 98-1706

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 26, 1999

Decided: October 08, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York, Jed S. Rakoff, Judge, convicting defendant of harboring an illegal alien, 8U.S.C. 1324(a)(1)(A).

Affirmed.

[Copyrighted Material Omitted] PAUL B. RADVANY, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Jamie L. Kogan, Assistant United States Attorney, New York, New York, on the brief), for Appellee.

MARANDA E. FRITZ, Fritz & Miller, New York, New York, for Defendant-Appellant.

Before: KEARSE, MINER, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Myung Ho Kim appeals from an amended judgment entered in the United States District Court for the Southern District of New York following a jury trial before Jed S. Rakoff, Judge, convicting him on one count of knowingly harboring an alien who was unlawfully present in the United States, in violation of 8U.S.C. 1324(a)(1)(A)(iii) (1994). Departing downward from the sentence prescribed by the 1995 version of the Sentencing Guidelines ("Guidelines" or "1995 Guidelines"), which was applicable to Kim, the court sentenced Kim principally to a three-month term of imprisonment, to be followed by a two-year term of supervised release. On appeal, Kim challenges his conviction on the grounds, inter alia, that 1324 was improperly applied to him because the trial evidence showed at most that he knowingly employed an alien who possessed no proper documentation, and that such conduct does not constitute harboring within the meaning of 1324. Kim contends also that his Guidelines-recommended sentence was improperly calculated. Finding no basis for reversal, we affirm.

I. BACKGROUND

Beginning in late 1995, Kim owned Sewing Masters, Inc. ("Sewing Masters"), a New York City garment-manufacturing business. The present prosecution arose out of investigations conducted by the United States Immigration and Naturalization Service ("INS") of Sewing Masters and its predecessor company in 1995-1997. As a result of those investigations, Kim was charged with three counts of concealing, harboring, or shielding from detection three illegal aliens, including Wilson Mendez and Nancy Farfan, from January 1996 through April 1997, knowing that they lacked legal alien status. Kim was convicted only of harboring Farfan. The government's proof at trial, as it related principally to the charge of harboring Farfan, was presented primarily through the testimony of Mendez, Farfan, and several INS agents. Taken in the light most favorable to the government, the evidence included the following.

Mendez testified that he entered the United States illegally in 1988 and remained in unlawful status until December 1997. Prior to 1995, he was employed by the predecessor of Sewing Masters as a machine operator. When Kim became the owner of the business, he promoted Mendez to a managerial position and instructed him to consult an attorney, paid for by Kim, to "find a way to make [his] papers." (Trial Transcript ("Tr.") 56.) Mendez obtained work authorization in December 1997. In the meantime, Kim paid him "[o]ff the books." (Tr. 67.)

In late 1995 or early 1996, Kim showed Mendez a list of other alien employees who reportedly lacked work authorization, and he instructed Mendez to fire each person on the list. Mendez relayed the terminations, but some of the fired employees nonetheless continued to report to work. As to those illegal aliens who continued to work, Kim instructed Mendez to "tell them if they want to stay, tell them to bring new papers, ... papers with different name[s] on [them]." (Tr. 61.) Kim added, "don't you ever tell them I told you to tell them that, because if Immigration finds out I can go to jail." (Tr. 61-62.) One of the employees to whom Mendez relayed those instructions was Farfan.

In May 1996, Kim showed Mendez a letter from the INS indicating that several Sewing Masters employees, including Mendez, had submitted invalid documents in connection with their employment (the "1996 suspect-document list"). Kim did not fire Mendez but instructed Mendez to fire the other employees whose names appeared on the list. After Mendez relayed those terminations, again some of the fired employees continued to report to work. As to those who stayed, Kim told Mendez that they should "change their names again." (Tr. 64.) Mendez relayed the message to several workers, among them Farfan.

Farfan, a native of Ecuador, testified that she entered the United States illegally in 1993 and was never granted work authorization. She was hired by Sewing Masters's predecessor after submitting false immigration documents, which listed her true name and a false social security number. Before Kim became the owner of the business, Farfan's responsibilities had included collecting other employees' immigration and work documents and filling out their Employment Eligibility Verification forms ("I9" forms). Farfan retained those job functions after Kim became the owner.

In late 1995 or early 1996, shortly after Mendez's first efforts to fire certain employees, Farfan observed Mendez engage in a discussion with Kim, at the conclusion of which Mendez instructed Farfan to collect "green cards and Social Security cards for everybody, including those who were going to use a different name." (Tr. 185-86.) Farfan collected the documents, copied them, and submitted them to Kim, who reviewed the copies with her. At Kim's direction, Farfan then completed new I9 forms for all workers who had submitted documents bearing new names, including herself. She also indicated on an internal document how the new names corresponded to the old. Farfan's own new documents were made out in the name "Nancy Ortiz." Farfan informed Kim that Ortiz was her husband's name when Kim asked why she had chosen that name.

In April 1996 Farfan also completed, at Kim's direction, an INS-supplied "Employer Eligibility Verification Form Investigative Inspection Worksheet" (the "INS worksheet") for 83 employees, which would thereafter be submitted to the INS. Kim instructed Farfan to indicate on the worksheet that "Nancy Farfan no longer existed there." (Tr. 203.) Accordingly, Farfan listed "Nancy Ortiz," social security number 142101145, as having been hired on January 8, 1996, and listed "Nancy Farfan," social security number 152908342, as having been terminated on January 12, 1996.

A week after that INS worksheet was submitted to the INS, Kim received from the INS the 1996 suspect-document list, and he informed Farfan that the name "Nancy Ortiz" was on it. Farfan testified that Kim then asked her "why didn't I try to get my papers in order." (Tr. 207.) When she asked for Kim's assistance in doing so, he replied that he would help her after helping Mendez but that in the interim she could no longer work under the name "Nancy Ortiz". Farfan inquired whether she would "have to change [her] name all over again," and Kim suggested that she get her papers "fixed." (Tr. 208.) When Farfan pursued the question of whether she would "have to use another name," Kim replied, "it's possible" (id.) and eventually nodded affirmatively (Tr. 209).

Farfan then worked with Kim and Mendez to collect and copy new documents from all of the employees who continued to work at Sewing Masters despite being on the 1996 suspect-document list. Farfan purchased new counterfeit documents for herself in the name "Blanca Ortiz" and filled out a new I9 form in that name. She was thereafter paid as "Blanca Ortiz".

INS agents testified to their investigations of Sewing Masters and its predecessor. Special Agent Paul Scrivanich testified that he had prepared the 1996 suspect-document list and served it on Kim; that list indicated Scrivanich's findings that the identification numbers provided for Mendez, Farfan, and "Nancy Ortiz," among others, were invalid. Kim was required to pay a civil fine of $1,857 for employing the persons listed on the 1996 suspect-document list.

Special Agent Ernst Florvil described an April 1997 "reinspection" of Sewing Masters during which Kim was asked to produce, inter alia, I9 forms for all employees who had worked at Sewing Masters at any time since April 1996. (Tr. 468.) The materials submitted by Kim did not include a form in the name of Nancy Farfan; they included a form for "Blanca Ortiz."

In his defense case, Kim called as a witness a well-known attorney with a long history of government service, who testified that he had been retained by a garment industry businessman to bring some of the latter's suppliers, including Sewing Masters, "into compliance with the immigration law." (Tr. 609.) In connection with that mission, the attorney met Kim in 1997 and found Kim to be cooperative.

Three counts charging Kim with concealing, harboring, or shielding from detection Farfan, Mendez, and one other employee, knowing that they lacked legal alien status, were submitted to the jury, which deliberated for two days and then reported that it was unable to reach a unanimous verdict. After being given an Allen charge (Allen v. United States, 164 U.S. 492, 501-02 (1896)), the jury found Kim guilty of harboring Farfan and found him not guilty on the other two counts.

Calculating Kim's sentence in accordance with the 1995 Guidelines, as described in greater detail in Part II.C. below, the district court found that the prescribed imprisonment range for his offense was 8-14 months. The court departed downward from that range and sentenced Kim to three months of imprisonment, to be followed by two years of supervised release.

II. DISCUSSION

On appeal, Kim contends principally (1) that the government...