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United States v. Tydingco

United States Court of Appeals, Ninth Circuit

November 27, 2018

United States of America, Plaintiff-Appellee,
v.
Francisco Muna Tydingco, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Lili Zhang Tydingco, Defendant-Appellant.

          Argued and Submitted October 16, 2018 San Francisco, California

          Appeals from the United States District Court No. 1:15-cr-00018-RVM-2, 1:15-cr-00018-RVM-1 for the District of the Northern Mariana Islands Ramona V. Manglona, Chief Judge, Presiding

          Steven P. Pixley (argued), Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant Francisco Muna Tydingco.

          Bruce Berline (argued), Berline & Associates LLC, Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant Lili Zhang Tydingco.

          Garth R. Backe (argued), Assistant United States Attorney; Shawn N. Anderson, United States Attorney; United States Attorney's Office, Saipan, Commonwealth of the Northern Mariana Islands; for Plaintiff-Appellee.

          Before: Sidney R. Thomas, Chief Judge, Susan P. Graber, Circuit Judge, and Robert S. Lasnik, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel reversed Lili Tydingco's conviction for harboring an illegal alien, reversed Francisco (Frank) Tydingco's conviction for aiding and abetting the harboring, and remanded for a new trial.

         The panel held that the evidence-viewed in the light most favorable to the government-is sufficient for a rational trier of fact to find that Lili harbored an illegal alien and that Frank had the specific intent to facilitate Lili's commission of that crime.

         The panel held that the instruction defining "harbor" was erroneous because it did not require the jury to find that the defendants intended to violate the law, and the error was not harmless.

         The panel held that the instruction defining "reckless disregard" was plainly erroneous because it did not require the jury to find that Lili 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 defendants on an invalid legal theory.

          OPINION

          GRABER, Circuit Judge.

         Defendants Lili and Francisco ("Frank") Tydingco stand convicted, respectively, of harboring an illegal alien and of aiding and abetting the harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). On appeal they argue, first, that the evidence was insufficient to support their convictions. We disagree and, therefore, reach their additional arguments concerning trial error. We hold: (1) the instruction defining "harbor" was erroneous because it did not require the jury to find that Defendants intended to violate the law, and the error was not harmless; and (2) the instruction defining "reckless disregard" was plainly erroneous because it did not require the jury to find that Lili subjectively drew an inference that the alien was, in fact, an alien and was in the United States unlawfully; 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 Defendants on an invalid legal theory. Accordingly, we reverse and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         In September 2013, Defendants traveled from their home on Saipan in the Commonwealth of the Northern Mariana Islands ("CNMI") to China, Lili's native country, with their two children. Lili is a legal permanent resident of the United States through her marriage to Frank. While in China, Defendants met X.N.'s father, who asked Defendants to take 10-year-old X.N., a Chinese national, home with them to attend school in the United States. Lili contacted a friend of hers who knew someone who had brought a child to the United States to study in the past, and the friend told Lili that it was possible to bring X.N. to the United States.

         Defendants returned to the CNMI with X.N. on September 26, 2013. The CNMI has a "parole" program designed to support its tourism industry. Pursuant to this program, Chinese and Russian nationals may enter the CNMI without a visa and stay for up to 45 days. United States Customs and Border Protection ("CBP") requires proof of a ticket booked on a return ...


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