United States v. Hamdan
| Decision Date | 12 June 2020 |
| Docket Number | CRIMINAL ACTION NO. 19-60-WBV-KWR SECTION: D (4) |
| Parties | UNITED STATES OF AMERICA v. IMAD FAIEZ HAMDAN, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is a Motion to Dismiss Count 1 of the Indictment, filed by defendants, Imad Faiez Hamdan ("Hamdan") and Ziad Odea Mousa ("Mousa") (collectively, "Defendants").1 The Government opposes the Motion,2 and Defendants have filed a Reply.3 After careful consideration of the parties' memoranda and the applicable law, the Motion to Dismiss is DENIED.
The defendants in this case, Hamdan and Mousa, owned and operated more than 30 food stores, convenience stores, and gas stations that operated under the name "Brothers Food Mart" in the State of Louisiana.4 Defendants operated all of the locations of Brothers Food Mart under a central management system.5 On October 10, 2019, the Government filed a 74-Count Superseding Indictment against Defendants.6 Pertinent to the instant Motion, Defendants are charged in Count 1with "Conspiracy to Harbor and Encourage and Induce Illegal Aliens."7 Specifically, Count 1 charges Defendants with conspiracy to conceal, harbor and shield from detection, and attempt to conceal, harbor and shield from detection, illegal aliens by providing them with a means of financial support through employment at Brothers Food Mart stores in the Eastern District of Louisiana, in order to obtain a commercial advantage, all in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (v)(I) & § 1324(a)(1)(B)(i).8
On November 19, 2019, Defendants filed the instant Motion to Dismiss Count 1 of the Indictment for failure to state an offense under Federal Rule of Criminal Procedure 12(b).9 The thrust of Defendants' argument is that Count 1 must be dismissed because: (1) the portion of 8 U.S.C. § 1324 criminalizing "encouraging and inducing" illegal aliens has been declared unconstitutional; and (2) allegations that Defendants knowingly employed illegal aliens is insufficient to state an offense for harboring illegal aliens. Defendants first argue that Count 1 must be dismissed because it charges Defendants with conspiracy to encourage and induce illegal aliens under 8 U.S.C. § 1324(a)(1)(A)(iv), and on December 4, 2018, just four months before the return of the Superseding Indictment, the Ninth Circuit Court of Appeals declared that portion of the statute unconstitutionally overbroad in violation of the First Amendment.10 Defendants argue that the Government's error in charging themwith that crime cannot be cured by striking the "Encourage and Induce" language from the Superseding Indictment because the inclusion of that language makes clear that the grand jury was improperly instructed on the applicable law and were instructed that it is a crime to encourage and induce an illegal alien to enter or reside in the United States.11 Because the Superseding Indictment unconstitutionally charges Defendants with conspiring "to Harbor and Encourage and Induce Illegal Aliens," Defendants argue Count 1 must be dismissed.12
Defendants next argue that knowing employment of illegal aliens, as alleged in the Superseding Indictment, does not constitute "harboring" under 8 U.S.C. § 1324(a)(1)(A)(iii).13 Defendants claim that Count 1 of the Superseding Indictment alleges that Defendants concealed, harbored, or sheltered aliens "by providing said aliens with a means of financial support through employment at Brothers Food Marts in the Eastern District of Louisiana."14 While conceding that Count 1 tracks the statutory language of 8 U.S.C. § 1324(a), Defendants assert that an indictment that tracts the statutory language is nonetheless invalid when "the statute omits an essential element of the offense."15 Defendants assert that there are four essential elements of harboring illegal aliens: (1) the alien entered or remained in the United States in violation of the law; (2) the defendant concealed, harbored, or sheltered thealien in the United States; (3) the defendant knew or recklessly disregarded that the alien entered or remained in the United States in violation of the law; and (4) the defendant's conduct tended to substantially facilitate the alien remaining in the United States illegally.16 Defendants claim that the Fifth Circuit "interpret[s] the statutory phrase 'harbor, shield, or conceal' to imply that 'something is being hidden from detection.'"17 Defendants also rely upon Fifth Circuit precedent for the proposition that the offense of harboring aliens requires a level of knowledge and intent beyond the mere employment of illegal aliens.18 Thus, Defendants seem to suggest that the Superseding Indictment, while tracking the language of 8 U.S.C. § 1324(a)(1)(A)(iii), fails to allege that the Defendants actively concealed illegal aliens.
Defendants further argue that the allegations in the Superseding Indictment, that Defendants conspired to conceal, harbor or shelter illegal aliens by providing them with a means of financial support though employment at Brothers Food Mart stores, conflate the second and fourth elements of the offense under 8 U.S.C. § 1324(a)(1)(A)(iii).19 Defendants claim that while mere employment can satisfy the fourth element of "substantially facilitating" the alien remaining in the United States,20 it does not satisfy the second element of "concealed, harbored, or sheltered the alien in the United States" because mere employment does not hide an alien fromdetection by the government.21 Defendants argue that the manner and means of committing the conspiracy, as alleged in the Superseding Indictment, are nothing more than the steps taken by Defendants to employ illegal aliens.22 Defendants assert that the Superseding Indictment does not allege that Defendants created immigration documents, provided housing or transportation for illegal alien employees or warned illegal aliens of impending immigration inspections or law enforcement presence because Defendants did not do those things. Defendants contend that such affirmative concealing conduct is the hallmark of harboring cases, and that the Superseding Indictment is devoid of any allegations of knowledge and intent beyond acts incidental to mere employment.23 Defendants then list all of the facts alleged in Count 1,24 and assert that none of the allegations constitute concealing, harboring, or sheltering an illegal alien, which requires "something more than the acts incidental to mere employment."25 Because the Government does not allege, and cannot prove, any acts of concealing, harboring or sheltering an illegal alien, Defendants argue that the Superseding Indictment fails to state an offense for conspiracy to harbor illegal aliens and that Count 1 must be dismissed.
The Government opposes the Motion, arguing first that Count 1 of the Superseding Indictment does not allege a violation of 8 U.S.C. § 1324(a)(1)(A)(iv), theportion of the statute that the Ninth Circuit has declared unconstitutional.26 The Government asserts that Defendants' claim that the statute with which they have been charged is unconstitutional is a bold misstatement of the law, since Defendants were charged with violating 8 U.S.C. § 1324(a)(1)(A)(iii), which was not at issue in the Ninth Circuit case.27 The Government further argues that the reasoning in that case does not extend to the statutory provision at issue in this case, since the Ninth Circuit found that § 1324(a)(1)(A)(iv) was facially unconstitutional because it criminalized a substantial amount of protected expression.28 The Government asserts that concealing, harboring or shielding an alien from detention does not encompass protected speech, and that the Defendants' actions, as alleged in the Superseding Indictment, constituted more than speech.29 The Government further argues that Defendants' only complaint with the Superseding Indictment is the title of Count One, "Conspiracy to Harbor and Encourage and Induce Illegal Aliens."30 The Government claims the title is merely a descriptive phrase that refers to 8 U.S.C. § 1324, emphasizing that nowhere in the charging language itself does the Superseding Indictment refer to encouraging or inducing aliens to remain in the United States. Thus, the Government argues that there is no support for Defendants' speculation that it is "clear" the grand jury was instructed improperly.31
The Government further asserts that the Superseding Indictment sufficiently alleges all of the elements of the offense charged under 8 U.S.C. § 1324(a)(1)(A)(iii). The Government claims that the elements of harboring an illegal alien in violation of 8 U.S.C. § 1324 are: (1) the alien entered or remained in the United States in violation of the law; (2) the defendant concealed, harbored or sheltered the alien in the United States; (3) the defendant knew or recklessly disregarded that the alien entered or remained in the United States in violation of the law; and (4) the defendant's conduct tended to substantially facilitate the alien remaining in the United States illegally.32 The Government claims that the Superseding Indictment addresses all of these elements and mirrors the elements outlined by the Fifth Circuit, with the exception of not specifically using the term "substantially facilitate."33 Nonetheless, the Government claims that, as Defendants admit, knowing employment constitutes substantial facilitation of an unlawful alien to remain in the United States.34
The Government disagrees with Defendants' claim that the Superseding Indictment conflates the second and fourth elements of the offense, asserting that employment and employment-related conduct can constitute concealing, harboring, or shielding illegal aliens.35 The Government asserts that the Superseding Indictment alleges acts of concealing, harboring and sheltering undocumented workers beyond solely employing them, including failing to complete requiredgovernment forms to verify employees' work authorization status, paying...
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