9th Circuit reverses couple’s convictions

The U.S. Court of Appeals for the Ninth Circuit has reversed the conviction of a woman for harboring an illegal alien and the conviction of her husband for aiding and abetting the crime, saying the judge’s instruction to the jury was erroneous and may have affected the outcome of the trial.

The Ninth Circuit judges held that the evidence—viewed in light most favorable to the U.S. government—was enough to establish that Lili Zhang Tydingco harbored an illegal alien and that Francisco Muna Tydingco helped Lili Tydingco commit crime.

However, the Ninth Circuit judges held that U.S. District Court for the NMI Chief Judge Ramona V. Manglona’s instruction defining “harbor” was erroneous because it did not require the jury to find that the Tydingcos intended to violate the law, and the error was not harmless.

The judges said the District Court’s instruction defining “reckless disregard” was erroneous because it did not require the jury to find that Lili Tydingco subjectively drew an inference that the alien was, in fact, an alien and was in the United States unlawfully.

The panel held that the instruction may have affected the outcome of the trial, and the error constitutes a miscarriage of justice, warranting a new trial, because the jury could have convicted the couple on an invalid legal theory.

With the reversal of the convictions, the Ninth Circuit remanded the case to the District Court for a new trial.

Circuit Judge Susan P. Graber issued the opinion. Chief Judge Sidney R. Thomas and U.S. District Judge for the Western District of Washington Robert S. Lasnik, who was sitting in the panel by designation, agreed with the ruling.

A federal grand jury indicted the couple for allegedly receiving money to harbor two illegal Chinese aliens, including a child they enrolled at a public school.

In June 2016, a federal court jury rendered a unanimous guilty verdict finding Lili Tydingco guilty of one count of harboring an alien and Francisco Tydingco guilty of aiding and abetting the harboring.

On Dec. 9, 2016, Manglona sentenced Lili Tydingco to 10 months in prison, with credit for time served. She sentenced Francisco Tydingco to 21 months in prison, with credit for time served.

The Tydingcos, through their counsel Steven Pixley and Bruce Berline, appealed.

Manglona has granted the couple’s motions to remain free pending their appeal.

According to Homeland Security Investigations Task Force officer Jesse Dubrall, the child’s purported uncle, Rongxue Liu, stated in an interview that he paid Lili Tydingco $7,000 in exchange for helping him enter into a fake marriage and obtain a green card.

Dubrall said the parents of the child admitted that they agreed to pay Lili Tydingco between $15,000 and $20,000 to take their child to Saipan and get her a green card.

In September 2013, the Tydingco couple traveled from Saipan to China, Lili Tydingco’s native country, with their two children.

Lili Tydingco is a legal permanent resident of the U.S. through her marriage to Francisco Tydingco.

While in China, the Tydingco couple met a man, who asked them to take his 10-year-old child X.N., a Chinese national, to Saipan to attend school in the U.S.

Lili Tydingco contacted a friend of hers who knew someone who had brought a child to the U.S. to study in the past and her friend told her that it was possible to bring X.N. to the U.S.

The defendants returned to the CNMI with X.N. on Sept. 26, 2013.

At the Saipan airport, Custom Border Protection sent Lili Tydingco and X.N. to “secondary processing” for a more thorough investigation because the child was a minor travelling without her parents.

Lili Tydingco presented a notarized letter of authorization from X.N.’s guardians. She also told the CBP officer that they were going to “see how it would work out having X.N. stay with [us] and go to school.”

The CBP officer told Lili Tydingco to get the authorization letter stamped at the Department of Public Safety, but said nothing about X.N.’s attending school on Saipan.

During processing, Lili Tydingco showed proof that X.N. had a return flight to China booked for Oct. 28, 2013.

The parole program allows a seven-day buffer from the date of a return ticket to account for problems that might prevent a flight from departing as scheduled, so the officer stamped the I-94—a paper record of entry and departure dates—in X.N.’s passport with “Nov. 4 2013” to indicate that X.N. had to leave the CNMI by Nov. 4.

About two weeks after returning to Saipan, the defendants enrolled X.N. in public school. Lili Tydingco stated that she did not apply for a student visa for X.N. because the school never asked for one. Lili Tydingco simply gave the school a copy of X.N.’s passport and the authorization letter.

Defendants also filled out other forms to enroll X.N. in school, including a consent to disclose the child’s directory information and a hand-drawn map depicting the location of their house.

X.N. lived with defendants until February 2015. After X.N. left her home, Lili Tydingco voluntarily spoke to an agent from Homeland Security and signed a written statement.

After Lili Tydingco’s interview with the agent, the U.S. government indicted her and Francisco Tydingco.

In reversing the convictions, the Ninth Circuit judges said Lili Tydingco admitted seeing X.N.’s I-94 and the mandatory departure date of Nov. 4, 2013, yet she kept the child in her house long after that mandatory departure date passed.

On this record, the Ninth Circuit judges said, a rational juror could have found that Lili Tydingco knew that X.N.’s continued presence in the U.S. was unlawful after Nov. 4, 2013, and that Lili Tydingcoo intended to violate immigration laws.

With respect to Francisco Tydingco, the judges said, the fact that he was named as a guardian in the Chinese letter of authorization from X.N.’s parents is circumstantial evidence tending to show that he actively participated in the plan to bring the child to the CNMI for a period longer than authorized by law.

A rational juror, the judges said, could conclude that Francisco Tydingco intended to give X.N. a place to live long after her parole period ended and that he had a financial motive for doing so: The defendants’ family had modest income and Francisco Tydingco was an active participant in what occurred.

Therefore, the judges said, defendants are not entitled to outright reversal of their convictions.

Turning to defendants’ claims of instructional error and their request for a new trial, the judges said the district court instructed the jury simply that the term “harbor” “means to afford shelter to.

The instructions, the Ninth Circuit judges said, did not include any requirement that the jury consider whether defendants intended to violate the law.

Defendants asked the court to instruct the jury that it had to find that they sheltered X.N. for the specific purpose of avoiding detection by immigration authorities.

The Ninth Circuit judges said Manglona declined to give that proposed instruction.

The judges hold that, although the district court properly rejected the defendants’ particular formulation, harboring instructions must require a finding that defendants intended to violate the law.

In summary, the judges said, the jury instructions were legally deficient by not requiring the jury to find that defendants intended to violate the law.

The omitted instruction, the judges said, was not harmless beyond a reasonable doubt, because it went to the heart of Mrs. Tydingco’s primary defense—that she did not understand the immigration laws and did not act with the intent to violate the law.

The judges said Mr. Tydingco’s conviction rises or falls with Mrs. Tydingco’s in this respect, because his conviction for aiding and abetting cannot stand without her conviction for the underlying offense of harboring.

The judges said the district court instructed the jury that “reckless disregard” means “being aware of facts which, if considered and weighted in a reasonable manner, indicate a substantial and unjustifiable risk that” the person harbored was in fact an alien and was in the U.S. unlawfully.

The government, the judges said, concedes that the instruction was plainly erroneous in light of a Ninth Circuit ruling in U.S. v. Rodriguez.

In the Rodriguez case, the court held that reckless disregard requires that the defendant herself must be aware of facts for which an inference of risk could be drawn and the defendant must actual draw that inference.

In sum, the judges said, Mrs. Tydingo has shown more than a mere possibility that the jury would have reached a different verdict if properly instructed on reckless disregard.

Here, the judges said, the jury might have relief on a legally invalid theory to convict Mrs. Tydingco: that she acted in reckless disregard because a reasonable person, aware of the facts that Mrs. Tydingco knew, would have understood the risk that X.N. remained in the country unlawfully—even if Mrs. Tydingco herself did not understand that risk.