U.S. v. Merkt, 84-2401

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore RUBIN, WILLIAMS, and DAVIS; PER CURIAM; ALVIN B. RUBIN
Citation764 F.2d 266
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Stacey Lynn MERKT, Defendant-Appellant.
Docket NumberNo. 84-2401,84-2401
Decision Date18 June 1985

Page 266

764 F.2d 266
UNITED STATES of America, Plaintiff-Appellee,
Stacey Lynn MERKT, Defendant-Appellant.
No. 84-2401.
United States Court of Appeals,
Fifth Circuit.
June 18, 1985.
Rehearing and Rehearing En Banc Denied Aug. 22, 1985.

Page 268

Dennis P. Riordan, Karen Leigh Snell, Morrison & Foerster, San Francisco, Cal., for defendant-appellant.

Kramer & Hall, San Francisco, Cal., for amicus curiae Mother Jones.

Daniel K. Hedges, Sp. Asst. U.S. Atty., Susan L. Yarbrough, James R. Gough, Michael K. Suarez, Asst. U.S. Attys., Houston Tex., for plaintiff-appellee.

Lawrence A. Gibbs, Sandra Ortiz, San Francisco, Cal., for defendant-appellant's amicus-Nat. Council of Churches, et al.

Karen Parker, San Francisco, Cal., for Federational Internationale & Human Rights.

Kathleen J. Purcell, San Francisco, Cal., for amicus-Unitarian Universalist Ass'n.

Michael J. Heilman, Atty., I.N.S., Washington, D.C., for plaintiff-appellee U.S.A.

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

Before RUBIN, WILLIAMS, and DAVIS, Circuit Judges.


A jury instruction that an accused charged with transporting illegal aliens should be found guilty if she had the intention of taking the aliens to an immigration office and knew that the Immigration Service had a closer office to which the aliens might report misstates the elements of the offense.

A jury found Stacey Lynn Merkt guilty of conspiring to transport and move, and transporting and moving, two illegal aliens within the United States in violation of 18 U.S.C. Secs. 2, 371 and 8 U.S.C. Sec. 1324(a)(2). On appeal, Merkt contends that her conviction was based on improper jury instructions regarding the intent elements of the crimes charged, improper jury instructions regarding the legal status of the aliens transported, and improperly admitted evidence, including hearsay testimony regarding statements coerced from the aliens and evidence obtained as a result of an illegal stop and search by Border Patrol agents. Because the district court improperly charged the jury on the issue of whether Merkt intended to transport the illegal aliens "in furtherance of" their violation of the law, we reverse her conviction and remand to the district court for a new trial. With respect to the other issues raised on appeal, all likely to be raised again in a new trial, we affirm the district court's rulings.


Stacey Merkt worked at the Casa Oscar Romero in San Benito, Texas. The Casa, which is supported by the Diocese of Brownsville and other church groups in the Rio Grande Valley, offers food and housing to Central American refugees regardless of the manner in which they entered the United States. Merkt taught English, helped refugees to communicate with their families, and ran errands.

In February, 1984, Merkt drove Brenda Elizabeth Sanchez-Galan and Mauricio Valle, two illegal aliens from El Salvador, in her car from the Casa to a farmhouse near McAllen, Texas so that they could meet with a newspaper reporter. Merkt

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testified that she had agreed to act as an interpreter for the interview. She also testified that the aliens planned to leave for San Antonio, Texas, with the reporter after the interview in a different car driven by a nun who worked in the Casa, Sister Diane Muhlenkamp. When the interview was not completed after several hours, however, Merkt testified that she agreed to accompany the others to San Antonio.

Although there was evidence from which a jury might have inferred that the aliens did not plan to report to an Immigration and Naturalization Service (INS) office, Merkt testified that Sanchez-Galan and Valle wanted to go to San Antonio in order to file claims for political asylum at the district office of the INS located in that city. San Antonio is approximately 230 miles from the Casa. The INS also has a district office in Harlingen, Texas, located only ten miles from the Casa. Two attorneys who specialize in immigration law testified, however, that in Harlingen, a person from El Salvador who filed an asylum claim would be arrested, issued an order to show cause that initiated deportation proceedings, and often placed under a bond that could not be obtained, and, therefore, would be detained in custody. Both attorneys testified that, in contrast, at the San Antonio office, an alien from El Salvador seeking political asylum would be given a receipt, scheduled for an interview, and released. The alien would not be classified as a deportable alien, arrested, detained, or put under bond unless he had been involved in drugs or other serious criminal activity. Only if the San Antonio district director rejected the alien's application would an order to show cause for a deportation hearing be issued, at which time the alien's asylum claim could be renewed before an immigration judge. Merkt's defense included evidence that, because both Sanchez-Galan and Valle were aware of the discrepancy in treatment between the two offices, they decided that they should seek asylum in San Antonio.

The car left the farmhouse at 3:00 a.m. heading north on Highway 649, the only thoroughfare out of the Valley that does not have an INS checkpoint. The district court found that Highway 649 is frequently used to transport illegal aliens into this country. Independent of this finding, there is evidence in the record indicating that Merkt and Sister Muhlenkamp specifically selected this route because it is a secluded backroad and, by using it, they hoped to avoid Border Patrol agents.

Despite these efforts, Border Patrol agents observed the car proceeding north on Highway 649. The agents noted that the license plates on the car indicated that it was not from the immediate area and that the five people in the car did not appear to be either a family or a group of oil workers travelling to work such as riggers, the type of worker in this area who usually worked unusual hours. When the agents stopped the car, they noticed that all of the occupants appeared to be nervous, and that Merkt was talking and gesturing to the others. After an identification check, the agents determined that both Sanchez-Galan and Valle were illegal aliens.

The agents advised Merkt, Muhlenkamp, and the reporter of their Miranda 1 rights in English, and repeated the warning to the aliens in Spanish. The agents then transported all five occupants of the car to the Border Patrol station in Rio Grande City. Upon arrival at the station, the agents separated the aliens from the others, and, after again giving Miranda warnings, questioned Sanchez-Galan and Valle about their nationality. Although there is conflicting testimony as to whether the aliens asked to consult with an attorney before answering any questions, it is uncontroverted that the agents prevented attorneys from seeing the aliens while the agents interrogated them.

A jury convicted Merkt, and the court sentenced her to ninety days in custody. The court suspended execution of her sentence,

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however, and placed her on supervised probation for two years.


To establish a violation of 8 U.S.C. Sec. 1324(a)(2), 2 the government must prove that: (1) the defendant transported or moved an alien within the United States; (2) the alien was in the United States in violation of the law; (3) the defendant knew this fact; (4) the defendant knew or had reasonable grounds to believe that the alien's last entry into the United States was within the last three years; and (5) the defendant acted willfully in furtherance of the alien's violation of the law. 3

Merkt admits that she transported Sanchez-Galan and Valle within the United States and knew them to be aliens who had entered the United States illegally within the last three years. The crux of her defense is that she possessed neither the knowledge nor the intent required to violate Section 1324(a)(2): that she did not know that the aliens were "in the United States in violation of law," but that instead she believed them to be political refugees entitled to be in the United States under the provisions of the 1980 Refugee Act. 4 In addition, Merkt asserts that she never intended to further the aliens' illegal presence in this country, but sought only to assist them in reaching San Antonio and in applying there for political asylum. Her intent, she alleges, was to comply with, not violate, the immigration laws. She does not contend that she has a first amendment claim to afford sanctuary to the persecuted as the briefs amicus curiae assert, but only that she sought to comply with the law as she understood it.

Merkt, therefore, requested a jury instruction that the government had to prove beyond a reasonable doubt that she knew that the aliens "were not lawfully entitled to reside within the United States under the terms of any law of the United States, including the Refugee Act of 1980." Merkt also requested an instruction that the government had to prove that she transported the two aliens with the specific intent "to further their presence in the United States in violation of law; that is, to substantially prolong their presence in the United States in violation of law." Finally, she requested an instruction that she should be acquitted if the jury found that she was transporting the aliens "to the nearest viable Immigration and Naturalization Service office for the purpose of allowing them to file applications for asylum."

The district court, however, stated that it was "going to tell [the jurors] just the opposite." The court instructed the jury that a person who comes to this country for the purpose of filing an asylum petition does not have legal status until the application is filed. The belief, the court continued, that a person who has not yet applied for asylum, even though genuinely qualified to seek that aid, has legal status here

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is based upon a mistake of law and does not constitute a defense.

The court also...

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61 practice notes
  • People v. Douglas, No. S004666
    • United States
    • United States State Supreme Court (California)
    • April 2, 1990
    ...suppression of trial testimony that was not itself shown to be unreliable or coerced. (See also United States v. Merkt (5th Cir.1985) 764 F.2d 266, 274 [recognizing distinction between suppressing reliable trial testimony following an earlier coerced statement, and suppressing only the coer......
  • People v. Badgett, No. S040500
    • United States
    • United States State Supreme Court (California)
    • June 8, 1995
    ...not offered at trial, no basis for relief even if statement aided in investigation]; see also United States v. Merkt (5th Cir.1985) 764 F.2d 266, 274 [distinguishing suppression of third party's coerced statement when offered in evidence at trial from effort to suppress third party testimon......
  • McMillian v. Johnson, No. CV-93-A-699-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • January 17, 1995
    ...v. Ford, 813 F.2d 1140, 1148 n. 13 (11th Cir.), cert. denied, 484 U.S. 925, 108 S.Ct. 287, 98 L.Ed.2d 247 (1987); United States v. Merkt, 764 F.2d 266, 274 (5th Cir.1985); Fredericks, 586 F.2d at 480. Thus, to the extent that Ikner and Benson base their Motion for Summary Judgment on the ar......
  • U.S. v. Parmelee, Nos. 92-3479
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 27, 1995
    ...F.2d 568, 569 (8th Cir.1990) (per curiam); United States v. Morales-Rosales, 838 F.2d 1359, 1360 (5th Cir.1988); United States v. Merkt, 764 F.2d 266, 270 (5th Cir.1985) (per curiam); United States v. Moreno, 561 F.2d 1321, 1322 (9th Cir.1977). Without a mens rea requirement, section 1324(a......
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  • System Management, Inc. v. Loiselle, No. Civ.A. 99-10744-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 9, 2000
    ...encompasses the "direct or substantial relationship" test but also focuses on the intent of the defendant. See United States v. Merkt, 764 F.2d 266, 271-72 (5th Cir.1985). The Seventh Circuit, mean-while, has adopted a general approach that proves "furtherance" by reference to the facts and......
  • U.S. v. Merkt, 85-2264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 17, 1986
    ...96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Each party may submit only one such affidavit. 28 U.S.C. Sec. 144. 10 See United States v. Merkt, 764 F.2d 266 (5th Cir.), reh'g denied, 772 F.2d 904 11 Both appellants also incorporate, by reference, the affidavits of other individuals in support of th......
  • United States v. Dominguez, 07–13405.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 31, 2011
    ...the transporting provision), overruled on other grounds by United States v. Longoria, 298 F.3d 367 (5th Cir.2002); United States v. Merkt, 764 F.2d 266, 272 (5th Cir.1985) (affirming a jury instruction that included a “willful” element for the transporting violation). But see United States ......
  • U.S. v. Basey, 86-1308
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 28, 1987
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