U.S. v. Boerner

• Decision Date: 27 February 1975
• Docket Number: No. 74-2468,74-2468
• Citation: 508 F.2d 1064
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Betty Simpson BOERNER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1064

508 F.2d 1064

UNITED STATES of America, Plaintiff-Appellee, v. Betty Simpson BOERNER et al., Defendants-Appellants.

No. 74-2468.

United States Court of Appeals, Fifth Circuit.

Feb. 27, 1975.

Valentine Gabaldon, West Palm Beach, Fla. (Court-appointed), for Betty Boerner.

Andrew I. Friedrich, West Palm Beach, Fla. (Court-appointed), for Paul Boerner.

Daniel S. Pearson, Miami, Fla. (Court-appointed), for James Beauford.

Robert W. Rust, U.S. Atty., Don R. Boswell, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before BELL, ALNSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

James William Beauford, Betty Simpson Boerner and her son, Paul Winston Boerner, appeal form convictions following a jury verdict of guilty of violations in connection with the immigration laws of the United States. The indictment charged appellants with wilfully and knowingly conspiring to bring into the United States by means of a vessel a number of aliens not lawfully entitled to enter the United States, in violation of 8 U.S.C. 1324. Beauford was additionally charged with twenty-two substantive offenses, in violation of 8 U.S.C. 1324(a)(1), relating to the actual transportation of the aliens on October 17 1973 and December 3, 1973, nine of which counts were subsequently dismissed by the Government. The jury found all defendants guilty of conspiracy and further found Beauford guilty of the substantive offenses. Betty Boerner was sentenced to eighteen months' probation; Paul Boerner to two years' probation; and Beauford to five years on the conspiracy count and three years each on the thirteen substantive counts, his sentences to run concurrently.

Appellants filed separate appeals, alleging numerous errors, all of which we find without merit.

The Government called as its witnesses three United States Border Patrol Agents, two of appellants' coconspirators (Richard Schupp, Jr. and James Fowler) ¹ and ten of the aliens ² who had been transported from Nassau to the United States aboard a vessel owned and operated by Beauford. The following facts were established:

In the summer of 1973 at Miami, Florida, Beauford employed Schupp as an extra crewman to assist him in transporting Haitians from Nassau to the United States aboard his yacht ECHO, also known as MINK, QUEEN B and CGULL. Beauford took Schupp to the vessel where Schupp first met Betty Boerner. Approximately a month later Schupp introduced Fowler to Beauford who offered Fowler similar employment. Fowler's duties also consisted of painting and carpentry work aboard the vessel for the purpose of camouflaging its appearance. The vessel subsequently departed from Miami for Nassau.

On October 16, 1973, after sunset, Schupp, Fowler and the three defendants began loading Haitians aboard the vessel at Nassau. Paul Boerner assisted in transporting the Haitians to the yacht in a car rented by Betty Boerner. As the passengers boarded the vessel, Beauford and Betty Boerner collected approximately $350 to $400 from each for their passage. After the money was counted by Beauford and the two Boerners, the passengers were issued a ticket and led out of sight below deck. The money was placed in Betty Boerner's purse and she and Paul left the vessel. Between 10 and 11 p.m., after having been loaded with approximately sixty-seven aliens, the vessel with Beauford, Schupp and Fowler aboard, departed for the United States. It reached port the following night after dark ³ and docked in the intracoastal canal at Boca Raton, Florida, alongside a house abutting the canal, where Paul and Betty Boerner were waiting. After taking precautions to assure they were not observed, the three defendants, Schupp and Fowler helped disembark the passengers and directed them to the house, from which they were later placed in the back of a U-Haul truck, rented by Betty Boerner, for the purpose of driving the aliens to Miami, Florida. Schupp drove the truck, with Fowler and Betty Boerner occupying the cab seat, and with approximately sixty-seven aliens concealed in the rear. Schupp was stopped and arrested in Miami for a traffic violation and later supplied information to the United States Border Patrol Agents concerning the venture. The vessel was thereafter kept under surveillance. It was ovserved the following month on November 30 by a United States Border Patrol Agent stationed at Nassau, who saw Beauford and Betty Boerner transporting people to the vessel periodically throughout that night up until December 2 when the vessel again departed the area. The Border Patrol at Miami was informed of the departure of the vessel and advised to start preparations to intercept it. The following day the vessel was sighted at a marina at Jupiter, Florida. Agents boarded the vessel and arrested Beauford. Twenty-seven aliens were found aboard. Paul Boerner was arrested at the parking lot of the marina.

Appellants contend that 8 U.S.C. 1324(a)(1) violates the due process clause of the United States Constitution because it fails to require that the offense of bringing in aliens within the United States be committed with knowledge that such alien was not lawfully entitled to enter or reside within the United States.

The literal text of subsection (1) of section 1324(a) does not specify as a requisite for the offense that a person act knowingly, whereas the remaining subsections of the statute, (2), (3) and (4), expressly make such a requirement. ⁴ We noted this anomaly in Bland v. United States, 5 Cir., 1962, 299 F.2d 105, 106 n. 1. In Bland defendants were charged and convicted under the same subsection of the statute which we are considering here. As in the instant case, both the indictment and the instructions of the trial court charged knowledge as an element of the offense. After retiring to deliberate, the jury in Bland requested the trial judge to repeat the reading of the trial judge to repeat the reading of the statute. The judge complied with a literal reading of the subsection, but failed to repeat to the jury the requirement of guilty knowledge. In considering the constitutionality of the subsection, we said:

In his original charge the District Judge had correctly taken the position that guilty knowledge was a material element of the offense, since the indictment charged it, and for the further reason that the statute would be unconstitutional if construed so as to permit a finding of guilt without such knowledge. But upon request for further charges he failed and refused to remind the jury of this requisite matter of proof, upon the stated ground that the statute was all that the jury had requested to hear.

299 F.2d at 108. We reversed the convictions because of the prejudice to the rights of appellants resulting form the failure of the trial judge to do more than reread the statute involved. Unlike Bland, appellants in the present case suffered no prejudice. knowledge was essential to the offense and so charged the jury.

We follow, as we must, the wellestablished rule that statutes must be construed, wherever fairly possible, to avoid constitutional infirmities. United States ex rel. Atty. Gen. v. Delaware & H. Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).

As we said in Bland, supra, a reasonable construction of section 1324(a)(1) requires guilty knowledge in order to sustain the constitutional validity of the statute. Absurd results would follow if we were to construe the statute as requiring knowledge as a prerequisite for conviction in subsections 2, 3 and 4 of section 1324(a) and elimination that requirement in subsection 1. It would be unreasonable to believe that Congress so intended.

The further contention made by Beauford that the indictment failed to charge guilty knowledge is not supported by the record. The conspiracy and the substantive charges in the indictment are explicitly predicated on Beauford acting 'knowingly and wilfully.' We decline to accept appellant's strained interpretation that the indictment fails sufficiently to allege an...