U.S. v. Merkt

Decision Date17 July 1986
Docket NumberNo. 85-2264,85-2264
Citation794 F.2d 950
Parties21 Fed. R. Evid. Serv. 256 UNITED STATES of America, Plaintiff-Appellee, v. Stacey Lynn MERKT and John B. Elder, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Stephen Cooper, Michael E. Tigar, St. Paul, Minn., for defendants-appellants.

Steptoe & Johnson, Anthony J. LaRocca, Washington, D.C., for amicus curiae-Int'l Human Rights Law Group.

Paul L. Hoffman, ACLU Foundation of Southern Cal., Los Angeles, Cal., for amicus-Texas Civil Liberties Union & ACLU Cal.

Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C., James R. Gough, Jr., Susan L. Yarbrough, Asst. U.S. Attys., Houston, Tex., Mervyn Hamburg, Atty. Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WILLIAMS, GARWOOD, and JONES, Circuit Judges.


In August 1984, Jose Andres Mendez-Valle and Maria Calletano Rosales-Cruz, El Salvadoran citizens, along with three El Salvadoran juveniles (hereinafter collectively referred to as "illegal aliens" or "aliens") left El Salvador. 1 Having reached Saltillo, Mexico, by bus, Mendez-Valle contacted relatives in Washington, D.C., who instructed him to remain in Mexico until further notice. Several weeks later, two American women came and took the aliens to a church in Matamoros, Mexico, near the Rio Grande River. The aliens spent the night at the church and, the following morning, a man escorted them to the river and directed them to cross at a point where the appellant, John B. Elder, was waiting on the other side.

Once in the United States, Elder drove the illegal aliens to the self-styled sanctuary, Casa Oscar Romero, in San Benito, Texas, where they remained for approximately fifteen days. While at Casa Oscar Romero, Mendez-Valle occasionally saw Elder, who directed the house, and also became acquainted with the appellant, Stacey Lynn Merkt, a volunteer there, when Mendez-Valle gave her money to buy the aliens bus tickets to Houston.

In the early morning hours of November 21, Mendez-Valle was given five bus tickets. Merkt drove the aliens to the bus station in McAllen, Texas, where they were directed to the proper bus. Enroute to Houston, the bus stopped in Weslaco. There, U.S. Border Patrol agents boarded the bus to check for illegal aliens. Mendez-Valle, Rosales-Cruz, and the three juveniles were arrested, given Miranda warnings, and taken to the Border Patrol station in Mercedes, Texas. There, the agents learned that the aliens might have been smuggled into the United States. Accordingly, after initial processing, the aliens were sent to the Anti-Smuggling Unit in McAllen.

At the Border Patrol station in McAllen, Mendez-Valle generally described and later identified both Elder and Merkt. Rosales-Cruz was not able to identify either defendant from a photographic line-up.

Elder was indicted, charged, and convicted of two counts of conspiracy, two counts of bringing in and landing illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(1), and two counts of transporting illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(2). 2 Merkt, indicted

on one conspiracy count and two substantive transportation counts, was found guilty only of the conspiracy count. The appellants challenge their convictions on numerous grounds which we, after careful consideration, reject.


Appellants contend that their convictions are barred by their religiously motivated "sanctuary" activities for El Salvadorans, which give rise to first amendment immunity from punishment for violating 8 U.S.C. Sec. 1324.

American society extols its tradition as a haven for those to whom obligations of piety and conscience rank higher than the goods of this world. The tradition, at one level, was embodied in the "free exercise" clause of the Bill of Rights. While respecting the rights of citizens to adhere to different religions, however, it has never been doubted that the government's duty to all may, in some circumstances, encroach upon the practices of a few. Appellants Merkt and Elder seek sanctuary in the "free exercise" clause against their violation of national border control laws. This court, whose sanctuary power is rigidly controlled by precedent, cannot grant their request.

The Supreme Court in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), noted that the free exercise clause

embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

Id. at 303-04, 60 S.Ct. at 903, 84 L.Ed. at 1218 (footnote omitted). Following this dichotomy, a significant body of Supreme Court law has explained that legislation, religiously neutral on its face, may regulate the health, safety, and general welfare of the public, or certain activities within the purview of the federal government, even if individuals will thereby be penalized because the practice of their religious doctrine violates the law. See Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965, 970 (1963). See, e.g., Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (Sunday closing laws); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (child labor laws); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890) (voter registration laws); Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1878) (polygamy laws). In Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), the Supreme Court found unconvincing a "free exercise" claim to exemption from compulsory military service by petitioners who conscientiously objected only to the Vietnam war. The government held an overriding interest in raising armies, and the exemption was theologically neutral. Id. at 462, 91 S.Ct. at 842-43, 28 L.Ed.2d at 188. In Goldman v. Weinberger, --- U.S. ----, 106 S.Ct. 1310, 1314, 89 L.Ed.2d 478, 485 (1986), the Court, relying on the special needs of the armed forces for uniformity and discipline, upheld a religiously neutral Air Force regulation the effect of which was to forbid an orthodox Jewish serviceman to wear a yarmulke.

The lower federal courts have consistently refused to create free exercise havens from violation of the national criminal laws against use and sale of marijuana. See United States v. Rush, 738 F.2d 497, 511-13 (1st Cir.1984), cert. denied, --- U.S. --- Enforcement of 8 U.S.C. Sec. 1324 cannot, consistent with this authority, brook exceptions for those who claim to obey a higher authority. The prohibition on the landing and transport of illegal aliens represents but one facet of the comprehensive legal framework governing entry into the United States and admission to its citizenship. The importance of the prohibition is reflected in the criminalization of conduct, as opposed to milder enforcement sanctions. Control of one's borders and of the identity of one's citizens is an essential feature of national sovereignty. 3 Relinquish this control and it may fairly be said that there remains no territorial or social body which can be called a sovereign nation. The peace, order, and very existence of society are bound up in its border control laws as much as in its criminal and conscription laws. Although their scope and application may be justly criticized, there can be no doubt that, until Congress changes the border control laws, they must be uniformly obeyed. On this basis alone, the first amendment challenge of Merkt and Elder to their convictions fails.

                -, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985);  United States v. Middleton, 690 F.2d 820, 824-26 (11th Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983);  Leary v. United States, 383 F.2d 851, 859-61 (5th Cir.1967), rev'd in part and remanded on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).  Likewise, criminal laws prohibiting destruction of government property, United States v. Allen, 760 F.2d 447, 453 (2d Cir.1985), extortion, United States v. Starks, 515 F.2d 112, 124 (3d Cir.1975), aff'd in relevant part sub nom.  Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), racketeering, United States v. Dickens, 695 F.2d 765, 772-73 (3d Cir.1982), cert. denied, 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359 (1983), and refusal to testify before a grand jury, Smilow v. United States, 465 F.2d 802, 804-05 (2d Cir.), vacated and remanded on other grounds, 409 U.S. 944, 93 S.Ct. 268, 34 L.Ed.2d 215 (1972), have been enforced against pleas for preferment based on "free exercise".  The basis for these decisions was the conclusion that "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests."   Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15, 25 (1972)

The appellants urge us to apply the analysis of Wisconsin v. Yoder and United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) to their case, which would require examining the extent of the burden imposed on their religious practices, the interest of the government in uniform law enforcement, and the likelihood that the government could enforce its policy by other, less intrusive means. At the outset, we note that in Lee the government prevailed, even under this analysis, in requiring the Amish, against their religious dictates, to contribute to the federal Social Security system. Moreover,...

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