United States v. Costello

• Decision Date: 31 January 2012
• Docket Number: No. 11–2917.,11–2917.
• Citation: 666 F.3d 1040
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Deanna L. COSTELLO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

666 F.3d 1040

UNITED STATES of America, Plaintiff–Appellee,

v.Deanna L. COSTELLO, Defendant–Appellant.

No. 11–2917.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 2011.Decided Jan. 31, 2012.

Ranley R. Killian (argued), Assistant U.S. Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff–Appellee.

Todd M. Schultz (argued), Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant–Appellant.

Before POSNER, MANION, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The defendant was charged with violating 8 U.S.C. § 1324(a)(1)(A)(iii), which provides that anyone 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, conceals, harbors or shields from detection [or attempts to do any of these things], such alien in any place, including any building or any means of transportation,” is punishable by a maximum prison term of 5 years and a maximum fine of $250,000. 8 U.S.C. § 1324(a)(1)(B)(ii); 18 U.S.C. § 3571(b)(3). The parties agreed to a bench trial on stipulated facts. The district judge found the defendant guilty and sentenced her to two years' probation and to pay a $200 fine.

The stipulated facts are sparse. The defendant is an American citizen who at the time of the alleged offense lived in a small Illinois town about five miles from St. Louis, named Cahokia. She had a romantic relationship with a Mexican whom she knew to be an illegal alien. He lived with her in Cahokia for about a year, which ended in July 2003 when he was arrested on a federal drug charge. He pleaded guilty, spent several years in prison, and upon completion of his sentence was removed to Mexico. He returned to the United States without authorization, and one day in March 2006 (we don't know how long that was after he'd returned to the United States), the defendant picked him up at the Greyhound bus terminal in St. Louis and drove him to her home in Cahokia, the same home in which they had lived together during his previous sojourn in this country. He lived there more or less continuously until his arrest in October 2006 on drug charges. He was prosecuted, and convicted both of marijuana offenses (conspiracy to distribute marijuana and possession with intent to distribute it), and of having returned to the United States illegally after having been removed, and was given a stiff prison sentence.

The defendant in this case was indicted for all three offenses specified in section 1324(a)(1)(A)(iii)—concealing, harboring, and shielding from detection an alien known to be in this country illegally. The judge determined, ostensibly on the basis of the stipulated facts, which were the entire record except for the transcript of a phone call (see below), that “her actions were designed, at least in part, to facilitate and conceal [the boyfriend's] return to the United States as an illegal alien, and to harbor him in this country and, therefore, that she acted knowingly.... [Her] actions, ... including picking the alien up at the Greyhound station, giving him shelter, and coming to his aide [ sic ] after he was arrested, amount to ‘substantial assistance’ because she made his illegal presence in the United States easier, and facilitated his avoidance of detection.”

There is no evidence that the defendant concealed her boyfriend or shielded him from detection, and the focus of the briefs and argument on appeal has therefore been on the harboring offense. The judge's reference to the defendant's “coming to [the boyfriend's] aid” is to the boyfriend's having called the defendant from his car as he was being chased by federal agents and her having responded by driving to the site of the arrest. There is nothing in the stipulated facts, or in the phone conversation, which was recorded and transcribed, to support the judge's characterization of her response. The boyfriend had not asked her for help, nor did she say anything to suggest she was coming to his aid. So far as appears, she was merely worried and anxious and preferred to see what had happened to her boyfriend rather than remain at home sitting on her hands. There is no indication of what if anything she did when she arrived at the scene.

The district judge seems to have thought that the defendant's having driven the boyfriend from the bus terminal to her home was significant. But the distance was so short—about six miles—that in a pinch he could have walked. And had he wanted to take public transportation he could have used the St. Louis metro transit system; the price of his ticket would have been $2.75. (That is the price today; it probably was lower in 2006.) There is nothing to suggest that the two of them had prearranged the pickup, or that, had she not picked him up, he would have returned to Mexico. (We don't know how long he had been in the United States.) She was not charged with the offense in the next subsection of section 1324(a)(1)(A) of “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” § 1324(a)(1)(A)(iv).

All that's left is “harboring,” which if defined broadly enough describes her action in having permitted the boyfriend to live with her. The government argues that “to harbor” just means to house a person, a meaning that it claims to derive from dictionaries that were in print in 1952 or today; surprisingly the government omits dictionaries that were current in 1917, when concealing and harboring aliens were added to the prohibition of smuggling aliens into this country. Immigration Act of February 5, 1917, Pub.L. No. 64–301, ch. 29, § 8, 39 Stat. 874, 880 (repealed). In the Immigration and Nationality Act of June 27, 1952, Pub.L. No. 82–411, Title IV, § 274(a), 66 Stat. 163, 228–29, Congress added penalties for the concealing and harboring offenses, in response to a Supreme Court decision, United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948), that had held that the 1917 Act had somehow failed to specify penalties for those offenses.

The actual definition of “to harbor” that the government has found in these dictionaries and urges us to adopt is “to shelter,” which is not synonymous with “to provide a place to stay.” “To shelter” has an aura of protectiveness, as in taking “shelter” from a storm. To shelter is to provide a refuge. “Sheltering” doesn't seem the right word for letting your boyfriend live with you. We have not scoured dictionaries current in 1917 or 1952, but note for what it's worth that the 1910 edition of Black's Law Dictionary defines “to harbor” as: “To receive clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person shall be deprived of the same. A distinction has been taken, in some decisions, between ‘harbor’ and ‘conceal.’ A person may be convicted of harboring a slave, although he may not have concealed her.” Henry Campbell Black, A Law Dictionary 561 (2d ed.1910) (citations omitted).

So the government's reliance on the dictionary definition of “harboring” is mistaken, though a point of greater general importance is that dictionaries must be used as sources of statutory meaning only with great caution. “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945) (L.Hand, J.). “[T]he choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” Frank H. Easterbrook, “Text, History, and Structure in Statutory Interpretation,” 17 Harv. J.L. & Public Policy 61, 67 (1994); see also A. Raymond Randolph, “Dictionaries, Plain Meaning, and Context in Statutory Interpretation,” 17 Harv. J.L. & Public Policy 71, 72 (1994). “[I]t makes no sense to declare a unitary meaning that ‘the dictionary’ assigns to a term. There are a wide variety of dictionaries from which to choose, and all of them usually provide several entries for each word. The selection of a particular dictionary and a particular definition is not obvious and must be defended on some other grounds of suitability. This fact is particularly troubling for those who seek to use dictionaries to determine ordinary meaning. If multiple definitions are available, which one best fits the way an ordinary person would interpret the term?” Note, “Looking It Up: Dictionaries and Statutory Interpretation,” 107 Harv. L.Rev. 1437, 1445 (1994) (footnote omitted).

Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings. In re Erickson, 815 F.2d 1090, 1092 (7th Cir.1987). A sign in a park that says “Keep off the grass” is not properly interpreted to forbid the grounds crew to cut the grass. “[O]ne can properly attribute to legislators the reasonable minimum intention ‘to say what one would ordinarily be understood as saying, given the circumstances in which it is said.’ This principle, it should be noted, does not direct interpreters to follow the literal or dictionary meaning of a word or phrase. To the contrary, it demands careful attention to the nuances and specialized connotations that speakers of the relevant language attach to...