9th Circuit: Prosecutors’ tactics in human smuggling case highly questionable

U.S. Court of Appeals for the Ninth Circuit Judge Milan Smith Jr. has expressed concern with the tactics used by federal prosecutors which he described as highly questionable in the case against a group of Chinese nationals who attempted to sneak into Guam from Rota using two inflatable boats to seek asylum.

“This is a disturbing case,” said Smith, referring to the prosecution of defendants Pingping Zhang, Shixu Huang, Lihua Yi, Zhanshan Zhang, and Jingfan Zhang.

Smith reluctantly concurred with two other Ninth Circuit judges in their decision that affirmed the U.S. District Court for the NMI’s convictions of the four defendants for conspiracy to defraud the U.S.

Smith said the prosecutors tactics arguably frustrate Congress’ purpose in enacting 18 U.S.C. § 371 (conspiracy to defraud the U.S.), and also undermine the U.S. Sentencing Commission’s judgment in establishing a range of reasonable sentences.

“Moreover, they are more consistent with an approach of seeking to obtain a conviction with the longest possible sentence than seeing that justice is done, an approach which is in tension with prosecutors’ role as public fiduciaries,” Smith said.

Authorities arrested the five defendants in the early morning of Jan. 30, 2010, as they were about to leave the West Harbor dock on Rota for Guam.

The U.S. government initially charged each defendant with one count of attempting to enter the U.S.

Later, the U.S. government obtained an indictment charging each defendant with one count of conspiracy to commit offenses and to defraud the U.S., eluding examination and inspection, and attempted improper entry by an alien.

Defendant Jingfan Zhang, agreed to cooperate with the U.S. government and pled guilty to one count of eluding examination and inspection, a misdemeanor carrying a maximum six-month jail term.

In June 2010, a federal court jury found the four defendants guilty of conspiring to defraud the U.S. The four appealed.

In his concurring order, Smith said the prosecution, however, became aware that an appeal, United States v. Li, which addressed the question of whether defendants performing similar conduct had violated the crime of attempted improper entry by an alien, was pending before the 9th Circuit.

The prosecution, Smith said, preemptively moved just before the trial began to dismiss all charges against each remaining defendant other than the conspiracy to commit offenses and to defraud the U.S.

Smith said during argument, the U.S. government conceded that its fear of the outcome in Li was the reason why it had dropped the attempted improper entry by an alien charges.

The U.S. District Court for the NMI granted the U.S. government’s motion, and the case proceeded to trial on the defendants’ conspiracy to commit offenses and to defraud the U.S.

In the footnote of his order, Smith said the U.S. government’s fear was well founded as the 9th Circuit in Li’s case held that the defendants did not violate the offense of attempted improper entry by an alien by attempting to travel by boat from the CNMI to Guam because both places are part of the United States.

Smith said that 9th Circuit holding and reasoning would have required a reversal of any conviction against the defendants in this case for violation of § 1325 (a)(1) (attempted improper entry by an alien).

Smith said at trial, the defendants were all convicted of conspiracy to commit offenses and to defraud the U.S.

Smith noted that even Judge William Alsup was troubled enough about the prosecution’s approach to the case.

Smith said although the U.S. government established the necessary elements in this case under the case law, the outcome is very troubling.

Smith said the outcome allows prosecutors to resort to the vaguer provisions of § 371 (conspiracy to commit offenses and to defraud the U.S.) to evade Congress’ choice of punishing the conduct described in § 1325(a) as a misdemeanor and the U.S. Sentencing Commission’s choices in establishing a sentencing range for §1325(a) violations.

“It also allows prosecutors to evade the will of Congress by prosecuting a conspiracy to violate §1325(a) which would be a misdemeanor,” Smith said.

Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.

“Nevertheless, I pause to inquire whether Congress intended for prosecutors to use the defraud clause of §371 as they did in this case. I question whether it did,” Smith said.