United States v. Anaya , 509 F. Supp. 289 ( 1980 )

EATON, District Judge,

specially concurring:

I agree with the majority of the members of the panel that the criminal indictments lodged against these defendants should be dismissed. However, I approach the matter from a somewhat different perspective.

The majority construes the “brings into” language of Section 1324(a)(1) of Title 8, U.S.C., to require a technical “entry” into this country by a smuggled alien before the smuggler can be convicted under the statute. Relying upon the parties’ stipulation, the majority holds that because no “entry” has been made by any alien, the defendants have committed no crime. I cannot join in an interpretation that narrows the plain meaning of Congress’ chosen words. The case law and legislative history on the point are far from conclusive, and neither the authority cited by the majority nor accepted principles of statutory construction dictate such an interpretation. This court should reject any interpretation of the section “which would unduly limit its intended breadth.” United States v. Washington, 471 F.2d 402, 405 (5th Cir. 1973), cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1973).¹

I focus not upon the fate of the transported alien, but upon the state of mind of the individual defendant. Clearly, guilty knowledge and criminal intent are essential elements of the crime proscribed by § 1324(a)(1). Bland v. United States, 299 F.2d 105 (5th Cir. 1962); United States v. Boerner, 508 F.2d 1064 (5th Cir. 1975), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975); United States v. Bunker, 532 F.2d 1262 (9th Cir. 1976). Indeed criminal intent is an essential element of every “serious” crime. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Had a defendant acted with the requisite criminal intent to violate the statute under which he is charged, neither the alien’s state of mind nor the alien’s subsequent treatment at the hands of immigration officials should be of consequence.²

The defendants did indeed bring undocumented aliens into the United States. The crime would have been complete had an undocumented alien been brought into the U. S. by a defendant possessed of the requisite criminal intent.

To define the requisite criminal intent, one must ascertain Congress’ basic aim and purpose in passing § 1324 and its predecessors. It being a penal statute, § 1324 must be strictly construed. From its language, history and treatment, it is clear that § 1324(a)(1) is an anti-smuggling statute, aimed at preventing the surreptitious or fraudulent introduction of aliens into this country. The section has been consistently characterized as such by Congress, the courts and the Commentators. See, e. g., S.Rep. No. 352, 64th Cong., 1st Sess. (1916); H.R.Rep. No. 1377, 82d Cong., 2d Sess., reprinted in [1952] U.S.Code Cong. & Ad. News, p. 1358; United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1949); United States v. Lopez, 521 F.2d 437 (2nd Cir. 1975), cert. denied, 423 U.S. 995, 96 S.Ct. 421, 46 L.Ed.2d 368 (1975); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure §§ 9.23a, 9.23b (Rev.Ed.1980).³

Prior to the year 1917, section 1324’s predecessors outlawed the “landing” or “bringing in” of undocumented, unentitled aliens. “Landing” (as used elsewhere in the immigration statutes) generally meant the act of setting or placing on the shore. Taylor v. United States, 207 U.S. 120, 28 S.Ct. 53, 52 L.Ed. 130 (1907); Niven v. United States, 169 F. 782 (9th Cir. 1909). Congress added the broader, more comprehensive words “brings into” to “punish violations of the immigration laws in cases where an actual landing or placing of aliens on shore could not be shown.” Middleton v. United States, 32 F.2d 239,240 (5th Cir. 1929). The “brings into” language, in effect, pushed the protected threshold off-shore and out to the three-mile limit.

In 1917, Congress pursued violators inland when it amended the statute to proscribe harboring and concealing illegal entrants. Sec. 8, Act of Feb. 5, 1917, 39 Stat. 880; see S.Rep. No. 352, 64th Cong., 1st Sess. (1916). Then, in 1952, Congress prohibited the knowing transportation of aliens who are in the United States in violation of law. 8 U.S.C. § 1324(a)(2). By adding the offense of “encouraging or inducing” illegal entry, 8 U.S.C. § 1324(a)(4), Congress completed its statutory scheme by legislating against those whose conduct is not so active as to fall within the prohibitions of § 1324(a)(1). Thus a comprehensive and broad-ranging anti-smuggling statute which tracks the smuggling offense from its earliest manifestations through to its consequences and accompaniments has been enacted.

Therefore, to successfully prosecute under § 1324(a)(1), proof that the defendant intended to smuggle aliens into the United States is essential.

Ordinarily, criminal intent is an open evidentiary question which may not be determined in a Rule 12(b) proceeding. Here it is not. The parties’ stipulation establishes defendants’ intent so as to close the matter.

The parties have stipulated that: Defendants presented [the imported] Cuban nationals to Immigration and Naturalization Service officials at Key West, Florida, so that these Cuban nationals could seek political asylum or some other status which would permit them to come into the United States and remain.

The stipulated fact that Cuban nationals were presented to INS officials would not, without more, eliminate the possibility that defendants intended to smuggle the aliens, for one may intend to smuggle an alien into the United States even though the smuggling scheme includes the initial presentation of that alien to immigration officials.⁴ But the parties have stipulated more than the fact that defendants presented Cuban nationals to INS officials; they have stipulated that defendants presented the aliens “so that these Cuban nationals could seek political asylum or some other status which would permit them to come into the United States and remain.”

From the parties’ memoranda and from the government’s oral argument on the motions, I am satisfied that the above stipulation was meant to make clear not only that the defendants acted as stipulated, but that they specifically intended so to act, without guilty knowledge, without design to accomplish the surreptitious or fraudulent introduction of undocumented aliens into this country.⁵ The parties’ stipulation thus rules out an essential element of the offense proscribed by Section 1324(a)(1) of Title 8, U.S.C., — criminal intent.

Trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense that the defendants did not intend to smuggle undocumented aliens into the United States. There is one straightforward issue of law to be decided here, and it is this:

Does a person violate 8 U.S.C. § 1324(a)(1) by bringing an alien into the United States, knowing that the alien is not, at that time, lawfully entitled to enter or reside here, when that person’s intent is to present the alien directly to Immigration and Naturalization Service officials for processing according to law?

The answer, in my judgment, is no. If these defendants violated some provision of the United States immigration laws, it was not the criminal anti-smuggling statute under which they were charged.

Accordingly, the motions to dismiss must be granted.

1 . At first reading, McFarland v. United States, 19 F.2d 805 (6th Cir. 1927), appears to lend support to the Court’s “brings into/entry” thesis. However, upon close examination, McFarlands precedential value on the point evaporates. The Sixth Circuit there, like the Fifth Circuit in Washington, 471 F.2d 930, was more concerned with the quality of defendant’s conduct (was it active enough to be characterized as a “bringing”?) than it was with whether the alien actually made a technical “entry.”

Neither Washington’s aliens nor McFarland’s alien made a technical “entry,” although it was clearly the defendants’ intent in both cases that the alien make a fraudulent entry. Washington was convicted and McFarland was not, because the nature of Washington’s participation in the scheme was deemed to be more active than was McFarland’s. Neither case actually turned on the “brings into/entry” construction fashioned by the majority members of the panel.

2 . I have no difficulty with the notion that for purposes of criminal prosecution under § 1324(a)(1), the alien is considered to have been brought “into” the U. S., while for other limited purposes (specific to the alien’s conduct, rights and privileges) in the administration of the immigration laws, the alien himself has no operative presence in the United States.

3 . It is revealing that the government which contends here that these defendants need not have smuggled Cuban nationals in order to have violated § 1324(a)(1), refers to its own enforcement efforts in the aftermath of the “Mariel boatlift” as the “Cuban Anti-Smuggling Program.” Civil forfeiture files of this Court, containing complaints against vessels allegedly involved in the “Mariel boatlift,” contain special instructions, given to the United States Marshal by the Office of the United States Attorney, to contact the Chief of the “Cuban Anti-Smuggling Program.” The complaints allege that the use of the defendant vessel was in violation of 8 U.S.C. § 1324(a)(1).

4 . “Although section 1324(a)(1) prosecutions are commonly based on smuggling of the usual sort, there has never been any indication that more subtle kinds of smuggling were not also within its reach.” United States v. Bunker, 532 F.2d 1262 (9th Cir. 1976).

5 . By entering into the stipulation and agreeing to the propriety of this Rule 12(b) proceeding, the parties necessarily acknowledge that their stipulation presents and establishes ail the factual issues material to the resolution of the legal issue before this Court.