U.S. v. Parmelee

• Decision Date: 27 January 1995
• Docket Number: Nos. 92-3479,92-3559 and 93-1265,92-3500,92-3487,s. 92-3479
• Citation: 42 F.3d 387
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allan PARMELEE, Ewa Brozek-Lukaszuk, Alojzy Sandrzyk, Tadeusz Sobiecki, and Lester Lukaszuk, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 387

42 F.3d 387

UNITED STATES of America, Plaintiff-Appellee, v. Allan PARMELEE, Ewa Brozek-Lukaszuk, Alojzy Sandrzyk,

Tadeusz Sobiecki, and Lester Lukaszuk,

Defendants-Appellants.

Nos. 92-3479, 92-3487, 92-3500, 92-3559 and 93-1265.

United States Court of Appeals,

Seventh Circuit.

Argued April 14, 1994.

Decided Dec. 9, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

27, 1995 in Nos. 92-3479, 92-3500, 92-3559, 93-1265.

Madeleine S. Murphy, Asst. State's Atty., Crim. Div. (argued), Chicago, IL, Barry Rand Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

Kathleen T. Zellner, Michael Hemstreet (argued), Zellner & Associates, Naperville, IL, for Allan Parmelee.

Kent R. Carlson (argued), Jerry B. Kurz, Kathryn Hall, Hall & Kurz, Chicago, IL, for Ewa Brozek-Lukaszuk.

Joseph J. Cavanaugh, Soso & Cavanaugh, Chicago, IL (argued), for Alojzy Sandrzyk.

Michael P. Mullen, Mullen, Raleigh & Cahill, Chicago, IL (argued), for Tadeusz Sobiecki.

Before POSNER, Chief Judge, and COFFEY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This case arose out of an investigation initiated by the Royal Canadian Mounted Police into suspicious activity at Grimsby Airpark, a small, rural airstrip located approximately one hour southwest of Toronto, Ontario, just north of the Canada-United States international border. Several individuals reported seeing a small Piper Cherokee plane landing on numerous occasions when the airpark was closed, taking on passengers, and departing after being on the ground a short time. Once it was determined that the plane was based at the DuPage County Airport in West Chicago, Illinois, agents of the United States Immigration and Naturalization Service arranged for dual surveillance of the plane's activities at Grimsby Airpark and DuPage Airport. Largely as a result of this surveillance, the investigation revealed eight instances between February 12, and April 21, 1991, in which illegal Polish aliens were smuggled into this country. On each occasion, the aliens, who were carrying luggage, were driven by car in prearranged rides to Grimsby Airpark. There, the aliens were met by pilot Allan Parmelee, who flew them to DuPage Airport where they arrived late at night. From the airport, Parmelee drove the aliens to a prearranged rendezvous point in Chicago, usually a gas station, where Parmelee delivered the aliens to Tadeusz Sobiecki. After taking delivery of the aliens, Sobiecki drove them by car either to their final destinations in Chicago or to other locations where he transferred the aliens to Ewa Brozek-Lukaszuk, her husband Lester Lukaszuk, and Alojzy Sandrzyk, among others, for further transport.

A grand jury returned a seventeen-count superseding indictment against Parmelee, Sobiecki, Brozek-Lukaszuk, Lukaszuk, and Sandrzyk. Count One charged all five defendants with conspiring to transport illegal aliens within the United States in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324(a)(1)(B). ¹ Counts Two, Four, Six, Eight, Ten, Twelve, Fourteen, and Sixteen charged Parmelee with knowingly bringing aliens into the United States at a place other than a designated port of entry in violation of 8 U.S.C. Sec. 1324(a)(1)(A). ² The remaining counts charged the various defendants with substantive violations of 8 U.S.C. Sec. 1324(a)(1)(B).

The defendants pleaded not guilty, and the case went to trial before a jury. In the midst of trial, Parmelee withdrew his plea of not guilty and entered a plea of guilty to all seventeen counts of the indictment. The trial continued against the remaining defendants whom the jury found guilty as charged in the indictment. The district court sentenced the defendants to the following terms of imprisonment: Parmelee, twenty-one months; Sobiecki, thirty-six months; Brozek-Lukaszuk, six months; and Sandrzyk, twelve months. Lukaszuk was sentenced to three years of probation, with the special condition that he serve the first sixty days in custody.

On appeal, the defendants raise a number of issues but only two require consideration: (1) the sufficiency of the instructions given to the jury for the section 1324(a)(1)(B) offense, and (2) the three-level enhancement of Parmelee's base sentencing level under U.S.S.G. Sec. 3B1.1(b) for his managerial or supervisory role in the offense. For the reasons set forth below, we affirm the convictions and sentences of Sobiecki, Brozek-Lukaszuk, Lukaszuk, and Sandrzyk, but remand the case to the district court for resentencing of Parmelee.

I.

Sobiecki, Brozek-Lukaszuk, Lukaszuk, and Sandrzyk ³ contend that their convictions for transporting illegal aliens in violation of section 1324(a)(1)(B) should be reversed because the district court erroneously failed to instruct the jury on an essential element of the offense--the defendants' willfulness in furthering the aliens' continued illegal presence in the United States. The district court instructed the jury as follows:

Counts 3, 5, 7, 9, 11, 13, 15, and 17 of the indictment charge one or more of the defendants with unlawfully transporting aliens within the United States in violation of Title 8, United States Code, Section 1324(a)(1)(B). That statute provides in relevant part:

'Any person who knowing or in reckless disregard of the fact that an alien has come to, entered or remains in the United States in violation of law, transports or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise in furtherance of such violation of law shall be guilty of an offense against the United States.'

You should refer to the indictment to determine which defendant is charged in each count.

In order to sustain a charge of unlawful transportation of an alien within the United States the government must prove each of the following propositions beyond a reasonable doubt:

First, that the alien had entered or remained in the United States in violation of law;

Second, that the defendant knew or recklessly disregarded the fact that the alien had entered or remained in the United States in violation of law; and

Third, that the defendant transported the alien in furtherance of the alien's unlawful entry to or presence in the United States.

* * * * * *

In order for transportation to be in furtherance of an alien's unlawful entry or presence, there must be a direct or substantial relationship between the defendant's act of transportation and the alien's unlawful entry to or presence in the United States. In other words, the act of transportation must not be merely indicental [sic] to a furtherance of the alien's violation of the law.

An act of transportation is in furtherance of the alien's unlawful entry of [sic] presence if such transportation brings the alien to his or her destination or place of refuge, or helps the alien remain in the country unlawfully, undetected by those responsible for enforcing the immigration laws.

A surreptitious or furtive transportation of an alien which inhibits the enforcement of immigration laws may be in furtherance of the alien's unlawful entry of [sic] presence.

(Tr. 2954-56). The defendants argue that these instructions allowed the jury to find them guilty simply for transporting illegal aliens even if they did not know they were furthering the aliens' violation of the law.

We have no question that section 1324(a)(1)(B) implicitly requires the government to prove beyond a reasonable doubt not only that the defendant knew the alien he transported had entered this country in violation of immigration law, but also that the defendant knowingly transported the alien to further that violation, that is, acted willfully. See, e.g., United States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir.1994); United States v. Diaz, 936 F.2d 786, 788 (5th Cir.1991); United States v. Medina-Garcia, 918 F.2d 4, 7 (1st Cir.1990); United States v. Hernandez, 913 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)(1)(B) could penalize purely innocent conduct. Staples v. United States, --- U.S. ----, ----, 114 S.Ct. 1793, 1799, 128 L.Ed.2d 608 (1994); Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985). For example, it could conceivably criminalize the actions of a cab driver who transports in a routine commercial transaction an individual who announces his illegal alien status during the course of the ride. We do not read section 1324(a)(1)(B) as enacting such sweeping liability. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981) (absurd results are to be avoided); United States v. Wilson, --- U.S. ----, ----, 112 S.Ct. 1351, 1354, 117 L.Ed.2d 593 (1992) (same); Matter of Udell, 18 F.3d 403, 410-12 (7th Cir.1994) (Flaum, J., concurring) (same). Rather, we hold that a defendant's guilty knowledge that his transportation activity furthers an alien's illegal presence in the United States is an essential element of the crime stated in section 1324(a)(1)(B). In so holding, we decline to adopt a special test for determining guilty knowledge. See United States v. 1982 Ford Pick-Up, 873 F.2d 947, 950-51 (6th Cir.1989) (comparing "direct or substantial relationship" and "intent-based" approaches). As in other criminal prosecutions that require mens rea, the government may prove the defendant's knowledge by reference to the facts and the circumstances surrounding the case. Liparota, 471 U.S. at 434, 105 S.Ct. at 2093. Relevant considerations bearing on this issue include whether the defendant received compensation for his transportation activity, whether the defendant took precautionary efforts to conceal the illegal aliens, and whether the illegal aliens were ...