United States v. Terry Chand

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12296
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20451-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY CHAND,
a.k.a. Chico,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 12, 2015)
Before JILL PRYOR, EDMONDSON, and BLACK, Circuit Judges.
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PER CURIAM:
Terry Chand appeals his sentence and convictions for conspiracy to
encourage and induce aliens to enter the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I); encouraging and inducing aliens to enter the United States,
in violation of § 1324(a)(1)(A)(iv); bringing aliens into the United States for
commercial advantage and private gain, in violation of § 1324(a)(2)(B)(ii); and
aiding or assisting certain aliens to enter the United States, in violation of 8 U.S.C.
§ 1327. First, Chand argues that the district court erred in instructing the jury on
the meaning of the term “encourage” for purposes of §§ 1324(a)(1)(A)(iv), (v)(1);
he says the court’s definition was too broad. Next, he argues that two of his
convictions under § 1324(a)(2)(B)(ii) should be vacated and that the case should be
remanded for resentencing because insufficient evidence failed to establish that he
brought two of the aliens -- Singh and Brown -- to the United States for
commercial advantage and private financial gain. Then, he argues that his
convictions under § 1327 should be vacated and remanded for dismissal because
the government failed to prove that he aided or assisted two of the aliens --
Sappleton and James -- in attempting to reenter the United States.
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I.
We review jury instructions de novo to determine whether the instructions
“misstated the law or misled the jury to the prejudice of the objecting party.”
United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009). We will not reverse
due to an erroneous instruction unless we are left “with a substantial and
ineradicable doubt as to whether the jury was properly guided in its deliberations.”
Id. at 1342-43 (quotation omitted). Undefined statutory terms are given their
ordinary meaning or common usage, and courts will often use dictionary
definitions for guidance in ascertaining a word’s ordinary meaning. United States
v. Lopez, 590 F.3d. 1238, 1248 (11th Cir. 2009) (quotation omitted). In Lopez, we
concluded that the district court did not err in using dictionary definitions to define
“encourage” in § 1324(a)(1)(A)(iv) and that including “to help” in the definition
did not “render superfluous” the other two subsections of § 1324. Id. at 1250
The district court did not err in defining “encourage” for the jury: the
definition did not misstate the law or mislead the jury in finding Chand guilty of
conspiracy and encouraging and inducing aliens to enter the United States. Based
on our prior precedent, evidence that Chand helped the aliens and made their trip
more likely to happen was enough for purposes of finding encouragement under
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§ 1324(a)(1)(A)(iv) and “encourage” did not require something different or more,
such as spurring or motivating someone to violate immigration laws.
II.
Chand argues that two of his convictions under § 1324(a)(2)(B)(ii) should be
vacated because insufficient evidence was presented that he brought two of the
aliens to the United States for commercial gain or private financial gain. As in
this case, when the defendant did not move for a judgment of acquittal at the close
of the evidence, we will set aside the conviction only if we find a manifest
miscarriage of justice: that is, “if the evidence on a key element of the offense is so
tenuous that a conviction would be shocking.” United States v. Edwards, 526 F.3d
747, 755-56 (11th Cir. 2008) (quotation omitted). To make this determination, we
will consider all the evidence presented at trial and draw all reasonable inferences
in favor of the jury’s verdict. United States v. Perez, 661 F.3d 568, 574 (11th Cir.
2011).
We have defined “commercial advantage” as “a profit or gain in money
obtained through business activity” and “private financial gain” as “an additional
profit specifically for a particular person or group.” United States v. Zheng, 306
F.3d 1080, 1086 (11th Cir. 2002). No evidence of actual payment or of an
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agreement for defendant to be paid is needed; evidence that the defendant acted for
the purpose of financial gain is sufficient. See United States v. Dominguez, 661
F.3d 1051, 1066 (11th Cir. 2011) (holding that “punishment under
§ 1324(a)(2)(B)(ii) does not turn on the financial success of the smuggling
venture”). We have upheld a conviction under § 1324(a)(2)(B)(ii) where the
evidence did not show specifically that the alien in question paid the defendant to
be smuggled, but the defendant had admitted that he had agreed to smuggle other
aliens on his boat for a fee. United States v. Kendrick, 682 F.3d 974, 985 (11th
Cir. 2012).
It was not a manifest miscarriage of justice for the jury to convict Chand of
bringing the pertinent two aliens into the United States for commercial advantage
when evidence was presented that Chand, in a general sense, was in the business of
smuggling aliens for the purpose of financial gain. In addition, even though there
was no specific evidence from two of the aliens that they paid Chand or had some
connection with him, there was evidence that he received a profit for the entire
group of five aliens.
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III.
Chand argues that his convictions under § 1327 should be vacated because
the government failed to prove he aided or assisted two of the aliens in attempting
to reenter the United States. A defendant is guilty of violating § 1327 if that
person (1) knowingly aided or assisted an alien to enter the United States; (2) knew
that the alien was inadmissible; and (3) the alien was inadmissible under 8 U.S.C. §
1182(a)(2) for having been convicted of an aggravated felony. 8 U.S.C. § 1327;
Lopez, 590 F.3d at 1254. For purposes of element two, the government must prove
only that the defendant knew that the alien was inadmissible and need not prove
that the alien was inadmissible under § 1182(a)(2). Lopez, 590 F.3d at 1254.
In United States v. Castro, the former Fifth Circuit said the requirements for
finding that a defendant “aid[ed] or assist[ed]” the escape of a prisoner, under 18
U.S.C. § 752(a), are the same as those for “aiding and abetting” under 18 U.S.C. §
2 and require more than the defendant’s “mere presence” at the escape. 621 F.2d
127, 129 (5th Cir. 1980). To “aid or abet” another in the commission of a crime,
within the meaning of § 2, requires that the defendant somehow “associate himself
with the venture, that he participate in it as in something that he wishes to bring
about, [or] that he seek by his action to make it succeed.” Nye & Nissen v. United
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States, 336 U.S. 613, 619, 69 S.Ct.766, 770, 93 L.Ed. 919 (1949) (quotation
omitted).
It was no manifest miscarriage of justice for the jury to convict Chand of
aiding or assisting two of the aliens to enter the United States: Chand received
money for the role he played in smuggling the aliens to the United States and was
not just a “mere presence” on the day that the two aliens boarded the boat for
Florida. In addition, evidence was presented that Chand knew the two persons
were inadmissible aliens; and the parties stipulated to the fact that the two aliens
previously were convicted of aggravated felonies.
AFFIRMED.
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