U.S. v. Nguyen

• Decision Date: 19 December 1995
• Docket Number: No. 94-10268,94-10268
• Citation: 73 F.3d 887
• Parties: 95 Cal. Daily Op. Serv. 9664, 95 Daily Journal D.A.R. 16,819 UNITED STATES of America, Plaintiff-Appellee, v. Lung Van NGUYEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 887

73 F.3d 887

95 Cal. Daily Op. Serv. 9664, 95 Daily Journal

D.A.R. 16,819

UNITED STATES of America, Plaintiff-Appellee, v. Lung Van NGUYEN, Defendant-Appellant.

No. 94-10268.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 17, 1995.

Decided Dec. 19, 1995.

Diane Marie Amann, San Francisco, California, for defendant-appellant.

Steven F. Gruel, Assistant United States Attorney, San Francisco, California, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: FLETCHER, REINHARDT, and NOONAN, Circuit Judges.

FLETCHER, Circuit Judge:

Lung Van Nguyen appeals his conviction for bringing aliens into the United States at a location other than a designated port of entry, in violation of 8 U.S.C. Sec. 1324(a)(1)(A). We have jurisdiction, and we reverse because

the district court failed to instruct the jury regarding an essential element of the offense.

I

Nguyen's arrest resulted from a federal investigation of a suspected large-scale alien smuggling scheme. Based on their surveillance of the harbor at Moss Landing, California, law enforcement agents suspected that two fishing vessels, the "Angel" and the "Pelican," were being used in an elaborate scheme to smuggle Chinese nationals into the United States and then employ them until the aliens had paid through their labor the smugglers' fees for transporting the aliens into the United States.

On May 28, 1993, the Angel and the Pelican departed together from Moss Landing, headed west. Air surveillance by the United States Coast Guard during the next few days showed that the boats were traveling parallel, about ten miles apart. The two boats eventually rendezvoused with a larger "mother ship" carrying approximately 280 Chinese nationals. The aliens were moved from the mother ship onto the Angel and Pelican and taken to the United States. The Angel arrived in Moss Landing on June 2, 1993, and a few hours later, the Pelican arrived at Pillar Point Harbor in Half Moon Bay, approximately sixty miles north of Moss Landing. After the Angel's return to Moss Landing, Coast Guard agents searched the vessel and discovered more than one hundred aliens on board. Nguyen and two other men were found sleeping in the Angel's engine room. When interviewed by an INS agent, Nguyen stated that he was the Angel's mechanic and that he "drove" the boat. The Coast Guard's search of the Pelican at Pillar Point Harbor revealed more than one hundred aliens on board that vessel.

A federal grand jury returned a five-count indictment charging Nguyen and four codefendants with various alien smuggling offenses. The indictment charged Nguyen with conspiring to smuggle illegal aliens into the United States, in violation of 18 U.S.C. Sec. 371, and with bringing aliens into the United States at a location other than a designated port of entry, in violation of 8 U.S.C. Sec. 1324(a)(1)(A).

At his jury trial, Nguyen's defense was that he had no idea that his venture on the Angel was part of an alien-smuggling scheme until it was too late either to prevent the smuggling or to refrain from participating in it. According to Nguyen, he had come to California from Philadelphia only for a short visit, looking for work as a squid fisherman. A man whom Nguyen met in the Vietnamese community introduced Nguyen to a Chinese man who said he had just purchased the Angel and required assistance moving it to Long Beach. Nguyen accepted the job, and the Angel left from Moss Landing.

Nguyen testified that a man named Danny was in charge of steering the Angel and that, although Nguyen did steer the boat during the course of the trip, he did so only at Danny's direction. According to Nguyen, he was following the navigation course to Long Beach when he suddenly was instructed to change course. Approximately five hours later, the Angel met the mother ship, and aliens were off-loaded onto the Angel. Danny then instructed Nguyen to return the Angel to Moss Landing.

Nguyen testified that he suspected that the people who boarded the Angel were illegal aliens, but that he did not try to stop them from boarding because some of the crew were armed. Nguyen testified that, although no one explicitly threatened him, he feared that he would be shot, dropped in the ocean, or in some other way harmed if he tried to stop the smuggling. To support his claim that he was less than a willing participant in the smuggling, Nguyen testified that he tried more than five times to call the Coast Guard for help on the Angel's radio, but that no one answered. A Coast Guard agent testified that the Angel's radios were short range and could not have been used to contact the Coast Guard.

Nguyen requested the district court to instruct the jury that it could convict Nguyen of violating 8 U.S.C. Sec. 1324(a)(1)(A) only if it found that Nguyen had brought the aliens into the United States at a place other than a designated port of entry with the intent to evade the INS. The court rejected Nguyen's request and instead instructed the jury that

it could convict Nguyen if he brought persons into the country knowing that they were illegal aliens. The jury acquitted Nguyen of conspiring to smuggle illegal aliens, but convicted him of the substantive offense of bringing aliens into the United States in violation of 8 U.S.C. Sec. 1324(a)(1)(A).

II

Section 1324(a) provides a criminal penalty of up to five years imprisonment per alien for:

(1)(A) Any person who--

(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.

Read literally, then, the statute criminalizes bringing, purposefully or otherwise, any alien, illegal or otherwise, into the country other than at a designated port of entry. Nguyen contends that a literal reading of section 1324(a)(1)(A) lacks a mens rea requirement and, accordingly, the district court should have read into the statute the requirement of criminal intent. We agree.

A

We start from the basic premise that "[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434 (1985). Thus, in determining what mental state is required to prove a violation of section 1324(a)(1)(A), the focus of our inquiry is the intent of Congress. See id. at 423-24, 105 S.Ct. at 2087-88; United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922).

Of course, in determining the intent of Congress, we look first to the language of the statute. The language of section 1324(a)(1)(A) is silent regarding the necessary mental element associated with the actual "bringing" of the alien into the United States. It does not, for instance, explicitly require the government to prove that the defendant intended to evade the INS by avoiding official ports of entry, or that the defendant even intended to bring the alien into the United States. The offense read literally simply requires that the defendant bring a person into the United States at a place other than a designated port of entry, knowing that the person is an alien.

However, the statute's "silence [regarding the required mental element of the offense] by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element." Staples v. United States, --- U.S. ----, ----, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994); accord United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854 (1978) ("Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement."). Rather, we construe the statute in light of the fundamental principle that a person is not criminally responsible unless "an evil-meaning mind" accompanies "an evil-doing hand." See Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952).

"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id. at 250, 72 S.Ct. at 243; see also Staples, --- U.S. at ----, 114 S.Ct. at 1797 (at common law, "the requirement of some mens rea for a crime is firmly embedded"); Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951) ("The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence."). Accordingly, criminal offenses requiring no mens rea have a "generally disfavored status," If after examining the statutory language and the legislative history we perceive any ambiguity regarding Congress's intent to require a showing of criminal intent, we will resolve the ambiguity by implying a mens rea element. See Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971) ("[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity."). "Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability." Liparota, 471 U.S. at 427, 105 S.Ct. at 2089.

Liparota, 471 U.S. at 426, 105...