Yu Tian Li v. United States, 11-1231

• Decision Date: 04 August 2011
• Docket Number: No. 11-1231,11-1231
• Parties: YU TIAN LI, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

YU TIAN LI, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

No. 11-1231

United States Court of Appeals For the Seventh Circuit

Submitted June 21, 2011¹

Decided August 4, 2011

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-C-810—William C. Griesbach, Judge.

Before EASTERBROOK, Chief Judge, and ROVNER and TINDER, Circuit Judges.

ROVNER, Circuit Judge. Yu Tian Li owned and operated a restaurant in DePere, Wisconsin. An anonymous tip led the FBI to conduct surveillance of Li, whom they observed regularly transporting about four people back and forth between his home and the restaurant. When Li consented to a search of his home, authorities detained three people who were illegally present in the United States. They also found what looked like a make-shift dormitory in Li's basement and garage, with mattresses on the floor and coin-operated laundry machines in the basement.

A jury convicted Li of two of three counts of illegally harboring or shielding illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The district court sentenced Li to fifteen months of imprisonment on each count, to be served concurrently, and two years of supervised release. The court also ordered that he pay $10,000 in fines and forfeit his house. This Court affirmed the conviction on appeal. United States v. Yu Tian Li, 615 F.3d 752 (7th Cir. 2010).

Li filed a motion in district court to vacate his conviction pursuant to 28 U.S.C. § 2255, arguing that his counsel was ineffective in the following four ways: by proposing an incorrect jury instruction; by failing to object to videotaped testimony of the witnesses against Li; by failing to ensure that a language barrier did not prevent him from communicating with Li; and finally, by preventing Li from testifying on his own behalf. The district court rejected each of these arguments and Li appeals.

When a district court denies a petition under § 2255, we review fact findings for clear error and issues of law de novo. Bethel v. United States, 458 F.3d 711, 716 (7th Cir. 2006). To succeed on a claim for ineffective assistance of counsel, Li must show both that "his attorney's performance was objectively deficient—in other words, that it fell outside the wide range of competent representation—and that he was prejudiced by the subpar representation." United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)). In order to establish prejudice, he must show that there is a reasonable probability that but for his counsel's mistakes, the result of the proceedings below would have been different, such that the proceedings were fundamentally unfair or unreliable. Strickland, 466 U.S. at 694. To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, our review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. "The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). So long as an attorney articulates a strategic reason for a decision that was sound at the time it was made, the decision generally cannot support a claim of ineffective assistance of counsel. United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). See also United States v. Lathrop, 634 F.3d 931, 937-38 (7th Cir. 2011), petition for cert. filed, (U.S. June 13, 2011)(Nos. 10-11044, 10A1145) (noting that, provided counsel's reasons for not questioning further were not "so far off the wall that we can refuse the usual deference that we give tactical decisions by counsel, his performance will not qualify as deficient.").

We consider first Li's argument that his counsel should have proposed a specific intent instruction. Because there was no controlling case law nor pattern jury instruction for alien-harboring in the Seventh Circuit, Li's trial counsel proposed a jury instruction modeled after one used in the Eleventh Circuit. See (R. 63, p. 17 & R. 75, p. 7).² Using a variation of the Eleventh Circuit's pattern, the district court instructed:

To sustain each charge of harboring an illegal alien for purpose of commercial advantage or private financial gain in violation of 8 U.S.C. § 1324(a)(l)(B), the government must prove the following four elements beyond a reasonable doubt:

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

Second, that the defendant knowingly concealed, harbored, or sheltered from detection the named alien within the United States;

Third, that the defendant either knew or acted in reckless disregard of the fact that the named alien entered or remained in the United States in violation of the law; andFourth, that the defendant committed such offense for the purpose of commercial advantage or private financial gain.

(R. 75, p. 7). This language reflects the statute itself which defines the criminal act as:

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, including any building or any means of transportation;

8 U.S.C.A. § 1324 (a)(1)(A)(iii).

Li's brief states that counsel should have requested a "specific intent" instruction, but fails to specify what additional language the jury instruction should have contained or how requiring intent would have changed the nature of this case at all.

Under the Strickland standard, we certainly cannot say that it was outside the realm of reasonable professional assistance for Li's counsel to propose a jury instruction similar to that used by the Eleventh Circuit and reflecting the general intent requirement in several other circuits, where there was no controlling law in this Circuit. See, e.g., United States v. Khanani, 502 F.3d 1281, 1287 (11th Cir. 2007) (jury only instructed that it must find that defendant knowingly harbored aliens and that defendant knew or acted in reckless disregard of thealien's status)³; United States v. Dejesus-Batres, 410 F.3d 154, 162 (5th Cir. 2005) (specific intent to violate the immigration laws is not required to prove alien harboring); see also United States v. Deguzman, 133 Fed. Appx. 501, 506 (10th Cir. 2005) (noting, in a non-precedential opinion, that specific intent is not necessary to prove illegal harboring charge).

Li argues that had his trial counsel done better research, he would have uncovered cases which supported a specific intent instruction. The cases he cites, however, both involve a specific intent instruction in cases involving the transportation or importing of illegal aliens. United States v. Parmlee, 42 F.3d 387, 391 (7th Cir. 1994), United States v. Nguyen, 73 F.3d 887 (9th Cir. 1995). In those cases the courts expressed concern about various hypothetical situations in which someone like a taxi driver or boat operator might transport an alien without any intent to violate the law. For example, in Nguyen, the court expressed concern about exposure to punishment for a boat operator who departed from a coastal port with permanent-resident aliens on board,entered international waters and then returned to shore at a location other than a designated port of entry. Nguyen, 73 F.3d at 893. The Parmelee court expressed concern about a cab driver who, in a routine commercial transaction, transported an individual who announced his illegal status during the course of the ride. Parmelee, 42 F.3d at 391, 393. Without saying so, both courts were expressing concern about the unique nature of transportation—that it involves a transient situation in which the transporter could learn about the illegal status in media res, and have no way to complete the innocent transport without violating the law. It is more difficult to imagine a situation in which one could knowingly harbor a known illegal alien without an intent to violate the law. If there were such a situation, the evidence in this case does not reflect it. At trial, the jurors heard evidence that one of the illegal aliens who lived at Li's house for several months divulged his status as an illegal alien to Li. They also heard how he shuttled his tenant/employees back and forth between the garage and the restaurant, how the curtains of the house remained closed at all times, how the defendant refused to tell investigating agents the names of his employees, and that the illegal employees were not asked to complete any paperwork, nor were they listed on any wage or employment records submitted to the state.

Certainly there is room to argue that Li's counsel should have requested a specific intent instruction. The cases on transporting were close enough to support an argument and, had he looked further, he may have found some even closer. See, e.g., United States v. You, 382 F.3d 958,966 (9th Cir. 2004) (in a harboring case, the court instructed the jury that it must find that appellants had acted with "the purpose of avoiding [the aliens'] detection by immigration authorities—an instruction synonymous with having acted with necessary intent as required in Nguyen.") Even were it error for Li's counsel not to ask for a different instruction, however, Li has not demonstrated that the proposed instruction had any adverse effect on Li's defense. As we noted above, the evidence clearly indicated that Li's covert acts were taken in a purposeful attempt to violate the law. The jury was already instructed that the defendant had to knowingly conceal the aliens from detection and that he had to know or act in reckless disregard of their illegal status. Had the jury been explicitly...