United States v. Yun Zheng
| Docket Number | 22-5516 |
| Decision Date | 28 November 2023 |
| Parties | United States of America, Plaintiff-Appellee, v. Yun Zheng aka Wendy Zheng; Yan Qiu Wu aka Jason Wu, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Argued: October 18, 2023
Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:21-cr-00051-David L Bunning, District Judge.
ARGUED:
Riddhi Dasgupta, TAFT STETTINIUS &HOLLISTER LLP, Washington D.C., for Appellant.
Javier A. Sinha, UNITED STATES DEPARTMENT OF JUSTICE, Washington D.C., for Appellee.
ON BRIEF:
Robert K. McBride, TAFT STETTINIUS &HOLLISTER LLP, Covington, Kentucky, Sarah C. Larcade, MCKINNEY &NAMEI CO., LPA, Cincinnati, Ohio, for Appellants.
Javier A. Sinha, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Kyle M. Winslow, UNITED STATES ATTORNEY'S OFFICE, Ft. Mitchell, Kentucky, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: CLAY, KETHLEDGE, and MATHIS, Circuit Judges.
A jury convicted Yun Zheng and Yan Qiu Wu on four counts of harboring illegal noncitizens for commercial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(A)(v)(II).[1] Zheng and Wu now appeal, challenging the district court's jury instructions. Specifically, they argue that the district court: (1) erred in instructing the jury on the meaning of "harboring" by not including a requirement that Zheng and Wu had acted intentionally and knowingly in shielding the illegal noncitizens from law enforcement; and (2) invaded the province of the jury by giving examples of "harboring" in the jury instructions. Finding no error, we affirm.
Zheng and Wu owned and operated Tokyo Dragon Buffet, Inc., a Chinese restaurant in Alexandria, Kentucky. In 2017, Homeland Security Investigations ("HSI") began investigating Tokyo Dragon after receiving a tip from a nurse who suspected that Zheng and Wu were trafficking an individual. On September 9, 2021, a federal grand jury indicted Zheng and Wu on four counts of harboring illegal noncitizens for commercial gain and one count of conspiracy for the same.
The trial evidence showed that Zheng and Wu employed individuals of Chinese descent and four Hispanic men at Tokyo Dragon. The Hispanic men were noncitizens who lived and worked in the United States illegally. They lived in the basement of Zheng and Wu's home. Zheng and Wu transported the men to and from work every day and to the grocery store once a week. Zheng and Wu always paid them in cash, but did not file any paperwork with the State of Kentucky or the federal government regarding their employment. For other employees, however, Zheng and Wu paid them by check and paid their unemployment taxes.
One of the noncitizens, Mexican citizen Fidelino Francisco-Pedro, began working as a cook at Tokyo Dragon in February 2015. Francisco-Pedro, who generally worked six or seven days a week for eleven to twelve hours per day, testified that Zheng and Wu did not allow him to sit in the dining room where the customers would sit, relegating him and the other noncitizens to the kitchen, which was not visible from the dining room. Francisco-Pedro did not interact with customers at all, though he and the other noncitizens would sometimes fill the buffet located in the dining room. As for the noncitizens' activities at Zheng and Wu's home, Francisco-Pedro testified that Zheng instructed the noncitizens that they "should not go outside and . . . should not make any noise," R. 51, PageID 230, or else they could be deported.
On November 2, 2017, HSI executed a search warrant at Tokyo Dragon. During the search, HSI recovered federal tax forms and payroll records for some of Tokyo Dragon's employees but none for the noncitizens. Further investigation revealed that from 2014 to 2017, Tokyo Dragon filed quarterly wage reports with the Kentucky Office of Unemployment Insurance, but none of the reports listed the noncitizens. Zheng testified that neither she nor Wu reported the noncitizens' wages to the unemployment insurance office.
After a four-day trial, the jury returned guilty verdicts against Zheng and Wu on the four harboring counts and not guilty verdicts on the conspiracy count. After the court sentenced Zheng and Wu, they timely appealed their convictions.
On appeal, Zheng and Wu challenge the district court's jury instructions about what the government needed to prove for the jury to convict them of harboring illegal noncitizens for commercial gain. Before addressing the merits of Zheng and Wu's arguments, we begin with a review of some immigration restrictions that Congress has imposed over the years, culminating with the current version of the statute at issue.
Congress first tried to limit immigration with the Alien Act of 1798, which authorized the President to expel any noncitizen he deemed dangerous. RICHARD D. STEEL, STEEL ON IMMIGRATION LAW § 1:1 (2022-2023 ed.). In 1882, Congress enacted the first significant restriction on immigration into the United States with the passage of the Chinese Exclusion Act, 22 Stat. 58, which prohibited all immigration of Chinese laborers for ten years. See STEEL, supra, at § 1:1. Nearly a decade later, the Immigration Act of 1891, 26 Stat. 1084, expanded the categories of individuals that Congress barred from immigrating to the United States. The act also imposed criminal liability on those that aided illegal immigration and vested the federal courts with jurisdiction over criminal actions arising under the act. 26 Stat. at 1084-86.
Congress then passed the Immigration Act of February 20, 1907, 34 Stat. 898. Section 8 of that law prohibited any person from unlawfully bringing noncitizens into the United States. 34 Stat. at 900-01; United States v. Lopez, 521 F.2d 437, 439 (2d Cir. 1975). After World War I gave rise to xenophobia in the United States, Congress responded by enacting the Immigration Act of February 5, 1917, 39 Stat. 874, which significantly revised immigration laws. See STEEL, supra, at § 1:1. The 1917 law expanded Section 8 of the Immigration Act of February 20, 1907, to prohibit harboring and concealing noncitizens in addition to barring persons from bringing noncitizens into the country. Specifically, Section 8 of the 1917 law made it a misdemeanor offense for:
[A]ny person . . . who shall bring into or land in the United States, by vessel or otherwise, . . . or shall conceal or harbor, or attempt to conceal or harbor, or assist or abet another to conceal or harbor in any place . . . any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States under the terms of this Act[.]
8 U.S.C. § 144 (repealed 1952). Section 8 authorized a sentence of up to five years' imprisonment "for each and every alien so landed or brought in or attempted to be landed or brought in." Id.
Section 8 came under fire after a grand jury indicted a defendant for concealing and harboring illegal noncitizens. United States v. Evans, 333 U.S. 483, 484 (1948). Section 8 housed two different offenses: (1) unlawfully bringing illegal noncitizens into the United States, and (2) unlawfully concealing or harboring illegal noncitizens. Id. But it only authorized punishment for the first offense. Id. The Supreme Court upheld the dismissal of the criminal charges against the defendant because Congress failed to prescribe a penalty for concealing and harboring illegal noncitizens. Id. at 495.
In 1952, Congress repealed the 1917 law and passed the Immigration and Nationality Act of 1952, 66 Stat. 163. As part of that law, it became a felony offense for:
Any person . . . who . . . willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, . . . any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this Act[.]
8 U.S.C. § 1324(a)(3) (1953). Although the act did not define "harbor," it stated that employing a noncitizen did not constitute harboring. Id.
In 1986, Congress amended 8 U.S.C. § 1324 as part of the Immigration Reform and Control Act of 1986, 100 Stat. 3359. The primary change Congress made to the statute was to the scienter requirement necessary to violate the statute. The statutory provision at issue now makes it a felony offense for:
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, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place . . . for the purpose of commercial advantage or private financial gain[.]
8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(i). Congress also eliminated the employment exemption. See id.
On appeal, Zheng and Wu argue that the district court erred by refusing to instruct the jury that the government must prove they intentionally harbored or concealed the noncitizens from law enforcement. They also argue that the trial court's "harboring" instruction invaded the province of the jury by providing examples of conduct-housing and employment-which they allege made up "the entirety of the government's case." We address each argument in turn.
We first consider whether the district court properly instructed the jury about "harboring." Zheng and Wu proposed that the district court instruct the jury that "'harboring' encompasses conduct with the intent to substantially facilitate an alien remaining in the United States illegally and to prevent government authorities from detecting his or...
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