U.S. v. Lopez, s. 861

• Decision Date: 26 June 1975
• Docket Number: D,Nos. 861,953,s. 861
• Citation: 521 F.2d 437
• Parties: UNITED STATES of America, Appellee, v. Ernesto LOPEZ, Defendant-Appellant. ockets 75-1023, 75-1024.
• Court: U.S. Court of Appeals — Second Circuit

Page 437

521 F.2d 437

UNITED STATES of America, Appellee, v. Ernesto LOPEZ, Defendant-Appellant.

Nos. 861, 953, Dockets 75-1023, 75-1024.

United States Court of Appeals, Second Circuit.

Argued April 28, 1975.

Decided June 26, 1975.

Peter M. J. Reilly, Jr., Islip, N. Y., for defendant-appellant.

Paul F. Corcoran, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the Eastern District of New York, Paul B. Bergman, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Jack Wasserman, Washington, D. C. (Esther M. Kaufman, Atty., Washington, D. C., Donald L. Unger, San Francisco, Cal., amicus Committee), for amicus curiae Association of Immigration and Nationality Lawyers.

Before MOORE and MANSFIELD, Circuit Judges, and HOLDEN, District Judge. ^*

MANSFIELD, Circuit Judge:

For eight days Ernesto Lopez was tried in the Eastern District of New York before Judge Thomas C. Platt and a jury upon an indictment charging him in 20 counts with harboring aliens illegally present in the United States, in violation of Title 8 U.S.C. § 1324(a)(3). ¹ After the government rested its case the court denied Lopez's motions to dismiss the indictment on the grounds that his conduct as established by the government's proof did not constitute harboring within the meaning of § 1324(a)(3) and that the statute was unconstitutional. Thereupon Lopez pleaded guilty to a superseding information charging him with conspiracy to harbor illegal aliens in violation of § 1324(a) (3). In pleading guilty to the information Lopez reserved the right, with the court's permission, to appeal from its rulings on his motions. ² We affirm.

The proof introduced by the government at trial, which was not refuted by Lopez, revealed that he owned several In addition to providing lodging to large numbers of aliens with knowledge of their illegal entry, appellant had assisted many of them in other ways designed to facilitate their continued unlawful presence in the United States. He had helped some to obtain employment by personally filling out job applications on their behalf and by transporting them in vans to and from work. In return for payment to him of substantial sums of money by others Lopez, as a means of enabling them to assume the guise of an apparently lawful status in the United States, had arranged sham marriages, i. e., ceremonies for marriages that were not consummated, with the participants parting immediately after the ceremony.

single family houses in the Levittown-Westbury area of Nassau County, which appellant had operated as havens for aliens who had illegally entered the United States. Appellant admitted knowledge of the alienage of these individuals. Each alien paid him $15 per week for use of one of these refuges as living quarters. Before their illegal border crossings several of the aliens had been furnished with addresses of houses owned by Lopez and, upon making their illegal entry into the United States, had proceeded directly to appellant's houses, where they were received and lodged. Upon a search pursuant to a warrant of six of these houses on July 23, 1974, investigators of the Immigration and Naturalization Service (INS) found 27 illegal aliens residing on the premises.

DISCUSSION

The principal issue raised by this appeal is the construction of the word "harbor" as it is used in § 1324(a)(3), which provides that any person who "wilfully or knowingly conceals, harbors, or shields from detection or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation . . . any alien including an alien crewman not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter . . . shall be guilty of a felony . . . ."

Lopez contends that merely providing shelter to an alien with knowledge of his illegal presence in the United States is insufficient to constitute harboring within the meaning of § 1324(a)(3); in addition, he argues, the government must prove that the conduct is part of the process of smuggling of the aliens into the United States or directly connected with the alien's illegal entry. Such a nexus would presumably be established by showing that the shelter was provided clandestinely or for the purpose of concealing the alien from immigration authorities.

In support of his interpretation of § 1324 Lopez points to its legislative history. As originally enacted by Congress in 1907 that statute prohibited simply the smuggling or unlawful bringing of aliens into the United States. In 1917 it was amended by Congress to add as a crime the concealment or harboring of illegal aliens. See 39 Stat. 880. However, the penalty provisions applied only in terms of the crime of landing or bringing unauthorized aliens into the country, with no punishment attaching to the crime of concealing or harboring them. In United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948), the Supreme Court declined to remedy this defect by judicial construction, holding that congressional revision of the statute was required to punish the separate crime of concealing and harboring illegal aliens. The Court based its decision in part on the ground that the penalties to be imposed might vary according to the construction of the terms "concealing" and "harboring," which could be broadly interpreted to encompass more than the "chain of offenses consisting of successive stages of the smuggling process" and to include "offenses distinct and disconnected from smuggling operations," such as providing shelter to an alien lawfully admitted but unlawfully remaining within the country, 333 U.S. at 488, 68 S.Ct. at 637. Speaking for a unanimous Court Justice Rutledge pointed out that even if the statute has been designed to create offenses disconnected from the smuggling process, Congress might not have intended to extend the penalty for smuggling to such unconnected offenses. Refusing "to undertake extension of the penalty provision blindfold, without knowing in advance to what acts the penalties may be applied," the Court concluded:

"With both of the parties we agree that Congress meant to make criminal and to punish acts of concealing or harboring. But we do not know, we can only guess with too large a degree of uncertainty, which one of the several possible constructions Congress thought to apply. The uncertainty extends not only to the inconsistent penalties said to satisfy the section, either grammatically or substantively if not grammatically. It also includes within varying ranges at least possible, and we think substantial, doubt over the section's reach to bring in very different acts which conceivably might be held to be concealing or harboring. The latter ambiguity affects the former and their sum makes a task for us which at best could be only guesswork.

"This is a task outside the bounds of judicial interpretation. It is better for Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it would make." 333 U.S. at 495, 68 S.Ct. at 640.

Faced with its own legislative oversight, Congress in 1952 sought to remedy the deficiencies noted in Evans by adopting Public Law 283, Ch. 108, 82d Cong., 2d Sess. (66 Stat. 26) entitled "An act to assist in preventing aliens from entering or remaining in the United States illegally." Later the same year Public Law 283 was incorporated as § 274 in the Immigration and Nationality Act of 1952 (66 Stat. 228), which presently continues in effect as Title 8 U.S.C. § 1324. Although Congress did not define the term "harbor" as used in the newly enacted section, it did again state that the purpose of the Act was "to strengthen the law generally in preventing aliens from entering Or remaining in the United States illegally" (emphasis added). See H.Rep.No.1377, 82d Cong., 2d Sess. In debates with respect to the necessity of providing that the statutory prohibition would apply only to those who "wilfully and knowingly" conceal or harbor illegal aliens members of Congress appear to have assumed that one providing shelter with knowledge of the alien's illegal presence would violate the Act, and there was no suggestion that only conduct forming part of the smuggling process should be proscribed. ³

At least two provisions in the statute as finally enacted are inconsistent with an intent to limit the prohibition to conduct connected with the smuggling of the alien into the United States. The first is a proviso in § 1324(a)(2) to the effect that in order to be guilty of knowingly...