United States v. Vargas-Cordon

11-5165-cr
United States v. Vargas-Cordon
1 United States Court of Appeals
2 FOR THE SECOND CIRCUIT
3
4 August Term 2012
5
6 (Argued: December 13, 2012 Decided: August 12, 2013)
7
8 No. 11-5165-cr
9 _____________________________________
10
11 UNITED STATES,
12 Appellee,
13
14 -v.-
15
16 MIGUEL ANGEL VARGAS-CORDON,
17 Defendant-Appellant.
18 _____________________________________
19
20 Before: POOLER, LEVAL, and LIVINGSTON, Circuit Judges.
21
22 Defendant-Appellant Miguel Angel Vargas-Cordon (“Vargas-Cordon”)
23 appeals from a judgment of conviction entered by the United States District
24 Court for the Eastern District of New York (Glasser, J.), for one count of
25 transporting a minor for illegal sexual purposes in violation of 18 U.S.C.
26 § 2423(a), one count of transporting an unlawfully present alien in violation of
27 8 U.S.C. § 1324(a)(1)(A)(ii), and one count of harboring an unlawfully present
28 alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Vargas-Cordon argues on
29 appeal that there was insufficient evidence to convict him of transporting a
30 minor for illegal sexual purposes, that the district court’s Allen charge, see Allen
31 v. United States, 164 U.S. 492 (1896), was unduly coercive, that the district court
32 erred in its instruction of what constitutes “harboring” under 8 U.S.C.
33 § 1324(a)(1)(A)(iii), and that the district court violated his due process rights by
34 limiting cross-examination of the victim at trial. We conclude that Vargas-
35 Cordon’s claims are without merit. We accordingly AFFIRM the judgment of the
36 district court.
37
1 Amy Busa, Soumya Dayanada, on behalf of
2 Loretta E. Lynch, United States Attorney for
3 the Eastern District of New York, Brooklyn,
4 N.Y., for Appellee.
5
6 Thomas H. Nooter, Freeman Nooter &
7 Ginsberg, New York, N.Y., for Defendant-
8 Appellant.
9
10 DEBRA ANN LIVINGSTON, Circuit Judge:
11 Defendant-Appellant Miguel Angel Vargas-Cordon (“Vargas-Cordon”)
12 appeals from a judgment of the United States District Court for the Eastern
13 District of New York (Glasser, J.), entered November 29, 2011, convicting him
14 after a jury trial of one count of transporting a minor for illegal sexual purposes
15 in violation of 18 U.S.C. § 2423(a), one count of transporting an unlawfully
16 present alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and one count of
17 harboring an unlawfully present alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).
18 Vargas-Cordon challenges his convictions on four grounds: (1) that there was
19 insufficient evidence to support his conviction under 18 U.S.C. § 2423(a); (2) that
20 a supplemental jury charge, which quoted from the Supreme Court’s decision in
21 Allen v. United States, 164 U.S. 492 (1896), was unduly coercive; (3) that the
22 district court incorrectly instructed the jury on the meaning of “harbors” under
23 8 U.S.C. § 1324(a)(1)(A)(iii); and (4) that the district court impermissibly limited
24 his cross-examination at trial of the victim. For the reasons stated below, we
2
1 conclude that his arguments lack merit. Accordingly, we affirm the judgment
2 of the district court.
3 BACKGROUND
4
5 I. The Offense Conduct
6 Vargas-Cordon is a thirty-seven-year-old citizen of Guatemala who resides
7 in the United States. In 2008, while visiting family in Guatemala, Vargas-
8 Cordon began a sexual relationship with his then fifteen-year-old niece, referred
9 to at trial as “Jaire” or “Jane Doe.” Before Vargas-Cordon returned to the
10 United States in April 2009, Jaire, who had a troubled home life, asked if she
11 could accompany him. Though Vargas-Cordon initially refused, returning alone,
12 he eventually made arrangements with a smuggler, or “coyote,” to bring Jaire
13 into the United States, paying $6000 for her transport. Supplied with a fake
14 passport, Jaire left Guatemala a few months later for Vargas-Cordon’s residence
15 in Lakewood, New Jersey.
16 Jaire did not immediately reach her destination. Customs and Border
17 Protection apprehended her at the California-Mexico border on August 28, 2009.
18 Because Jaire stated that she did not have any family in Guatemala to whom
19 she could return, federal authorities transferred her to an Office of Refugee
3
1 Resettlement (“ORR”) facility in California.1 In December 2009, ORR relocated
2 Jaire to a foster home in Crewe, Virginia, a small town southwest of Richmond.
3 Throughout all this time, Jaire remained in frequent telephone contact with
4 Vargas-Cordon. (Indeed, telephone records admitted at trial reflected a total of
5 189 calls.) According to Jaire’s foster mother, Jaire appeared “disappointed”
6 upon arrival in Virginia that she had not been transferred to her uncle’s care.
7 Jaire asked Vargas-Cordon to come down to Virginia and take her back
8 with him to New Jersey. Vargas-Cordon initially refused, explaining to Jaire
9 that he would “get into problems . . . with the police.” He soon changed his mind,
10 however, and on December 19, 2009, Vargas-Cordon and a coworker, Tom
11 Grande (“Grande”), made the six-hour drive from Lakewood to Jaire’s foster
12 home in Crewe. Jaire attempted to meet them the following morning, but was
13 intercepted by her foster mother. Vargas-Cordon called the foster mother later
14 in the day and offered to take Jaire, to which the foster mother responded that
15 he was not permitted to do so. Jaire successfully snuck out of her foster home
1
ORR, located within the Department of Health and Human Services, is
responsible for the care of unaccompanied minors who enter or attempt to enter the
United States. See 6 U.S.C. § 279. Minors in ORR will typically first be placed into an
ORR-run facility. They may later be transferred into foster care, often arranged
through a non-profit organization. Any removal proceedings against the minor remain
pending while he or she is in ORR custody. See Olga Bryne & Elise Miller, Ctr. on
Immigration & Justice, The Flow of Unaccompanied Children Through the
Immigration System: A Resource for Practitioners, Policy Makers, and Researchers,
(2012), available at http://www.vera.org/sites/default/files/resources/downloads/ the-
flow-of-unaccompanied-children-through-the-immigration-system.pdf.
4
1 that evening, and met with Vargas-Cordon and Grande. The three then drove
2 back to New Jersey.
3 After returning to New Jersey, Vargas-Cordon had Jaire stay with him in
4 the home he shared with Grande, several other male construction workers, and
5 one adult woman. Vargas-Cordon and Jaire shared a room together and had sex
6 while in New Jersey. Vargas-Cordon did not enroll Jaire in school. Jaire soon
7 began accompanying Vargas-Cordon and Grande to a home in Brooklyn where
8 the two men had a job renovating a basement. Vargas-Cordon and Grande
9 obtained the owner’s permission to stay in the home while renovating it, in order
10 to avoid daily travel between New York and New Jersey. Jaire thereafter stayed
11 in Brooklyn with Vargas-Cordon, as well as Grande, returning with them to New
12 Jersey on the weekends.2
13 While in Brooklyn, Grande saw Jaire and Vargas-Cordon enter various
14 rooms and heard them having sex. The couple shared a bedroom, according to
15 Grande, and he saw them kiss and shower together. Grande also witnessed
16 Jaire and Vargas-Cordon purchase a pregnancy test and heard Vargas-Cordon
17 discuss a potential pregnancy. Alarmed by the relationship, Grande contacted
18 the organization that ran Jaire’s foster care program, which in turn contacted
2
Vargas-Cordon told the home’s owner that he wanted to keep Jaire with him
while he was working in New York because he did not trust anyone who lived in the
New Jersey house.
5
1 the authorities. On January 21, 2010, an agent from the Department of
2 Homeland Security (“DHS”) entered the Brooklyn home and found Jaire in one
3 of the bedrooms. Vargas-Cordon was arrested and, in subsequent questioning,
4 admitted that he had sex with Jaire two days prior.
5 II. Procedural History
6 A grand jury indicted Vargas-Cordon on three counts. Count One alleged
7 that Vargas-Cordon had transported a minor for illegal sexual activity in
8 violation of 18 U.S.C. § 2423(a).3 Specifically, the count alleged that
9 Vargas-Cordon transported Jaire from Guatemala to New York, in interstate
10 and foreign commerce, with intent to commit both rape in the third degree and
11 endangering the welfare of a child, in respective violation of New York Penal
12 Law §§ 130.25(2)4 and 260.10(1).5 Count Two alleged that Vargas-Cordon
3
18 U.S.C. § 2423(a) provides that:
A person who knowingly transports an individual who has not
attained the age of 18 years in interstate or foreign commerce, or
in any commonwealth, territory or possession of the United States,
with intent that the individual engage in prostitution, or in any
sexual activity for which any person can be charged with a
criminal offense, shall be fined under this title and imprisoned not
less than 10 years or for life.
4
New York Penal Law § 130.25(2) provides:
A person is guilty of rape in the third degree when:
....
2. Being twenty-one years old or more, he or she engages in sexual
6
1 knowingly and intentionally transported an unlawfully present alien within the
2 United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(ii). Count
3 Three alleged that Vargas-Cordon concealed and harbored an unlawfully present
4 alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(B)(ii).6
intercourse with another person less than seventeen years old . . . .
5
New York Penal Law § 260.10 provides:
A person is guilty of endangering the welfare of a child when:
....
1. He or she knowingly acts in a manner likely to be injurious to
the physical, mental or moral welfare of a child less than
seventeen years old or directs or authorizes such child to engage in
an occupation involving substantial risk of danger to his or her life
or health . . . .
6
8 U.S.C. § 1324(a)(1)(A) provides in relevant part:
Any person who—
....
(ii) knowing or in reckless disregard of the fact that an alien has
come to, entered, or remains in the United States in violation of
law, transports, or moves or attempts to transport or move such
alien within the United States by means of transportation or
otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has
come to, entered, or remains in the United States in violation of
law, conceals, harbors, or shields from detection, or attempts to
conceal, harbor, or shield from detection, such alien in any place,
including any building or any means of transportation;
....
shall be punished as provided in subparagraph (B).
7
1 Vargas-Cordon pled not guilty to all three counts.
2 Trial commenced on March 21, 2011. The prosecution rested its case on
3 March 22, and Vargas-Cordon moved for a judgment of acquittal, which the
4 district court denied. At the ensuing charge conference, Vargas-Cordon raised
5 objections to the proposed jury charge concerning, inter alia, Count Three. With
6 respect to that count—for harboring an unlawfully present alien—defense
7 counsel objected to the instruction that Vargas-Cordon could “harbor” an alien
8 simply by providing her with shelter “in reckless disregard of her status” without
9 requiring proof that he acted to conceal her from authorities. The district court
10 overruled the objection, noting that any act that “facilitate[es] the person to
11 remain alive by remaining where she is” constitutes “harboring” under the
12 statute.
13 The district court charged the jury the following day. With respect to
14 Count Three, the district court modified the instruction as discussed at
Section 1324(a)(1)(B) provides in relevant part that:
A person who violates subparagraph (A) shall, for each alien in
respect to whom such a violation occurs—
....
(ii) in the case of a violation of subparagraph (A)(ii) [or] (iii) . . . be
fined under title 18, imprisoned not more than 5 years, or both
....
8
1 conference, adding that, to find Vargas-Cordon guilty of harboring, the jury must
2 find that he intended to substantially facilitate Jaire remaining in the country
3 illegally:
4 With respect to the third element, the
5 Government has to prove that the defendant harbored
6 or concealed or shielded from detection [Jaire] who
7 entered[,] who came or remained in the United States
8 illegally.
9 The statute prohibits this conduct which tends to
10 directly substantially facilitate an alien remaining in
11 the United States illegally. “Harboring” simply means
12 to shelter, to afford shelter to. “Shield from detection”
13 means to act in a way that prevents the authorities
14 from learning of the fact that the alien is in the United
15 States illegally. You don't have to find that the
16 defendant acted secretly, that harboring the alien was
17 done.
18 To find based upon the evidence in this case that
19 the Government proved that the defendant harbored,
20 afforded shelter to, [Jaire] in a way intended to
21 substantially facilit[ate] her remaining here illegally[,]
22 that element has been . . . satisfied.
23
24 Trial Tr. at 449–50 (emphasis added).
25 After one hour of deliberation, the jury submitted a note stating, “[w]e, the
26 jurors, disagree on Count One without hopes of a unanimous decision.” Over
27 defense counsel's objection, the district court summoned the jury and read what
28 it described as a “modified Allen charge”:
29 I’m going to suggest that you continue your
30 deliberations. You have, I think, been deliberating for
31 just about an hour. It’s normal for jurors to have
32 differences of opinion initially, that’s quite common.
9
1 But after some extended discussion, jurors frequently
2 find that a point of view which they originally
3 entertained and they believe to represent the fair,
4 considered judgment may change after some extended
5 discussion and exchange of views.
6 I want to emphasize, however, that a juror
7 mustn’t vote for any verdict if after a full and complete
8 discussion, the juror feels quite strongly about his or
9 her view.
10 But I should tell you that if you fail to agree upon
11 a verdict in a case which is important to the
12 Government as it is important to the defendant. It
13 leaves one count completely open, the possibility it may
14 have to be tried again, no reason to believe that the
15 case will be tried any better or more exhaustively at a
16 future time and tried to a jury more intelligent or more
17 conscientious than you.
18 Many, many years ago, the Supreme Court of the
19 United States had occasion to address a problem which
20 arises when, as in this case, after very brief
21 deliberation, you’ve only been deliberating for an hour,
22 the jury returns a note and says it disagreed.
23 Let me read to you what the Supreme Court of
24 the United States had [to] say in this regard:
25 “Although the verdict must be the verdict of each
26 individual juror, they should listen with a disposition to
27 be convinced of each other’s argument. If the much
28 larger number is more convinced [then] a dissenting
29 juror should consider whether his or her doubt was a
30 reasonable one which made no impression on the minds
31 of the other jurors equally honest and equally
32 intelligent as herself or himself.
33 But if, on the other hand, the majority was for
34 acquittal, the minority ought to ask themselves
35 whether they might reasonably doubt the correctness of
36 a judgment which was not considered by the majority.”
37 What the Supreme Court is saying is that jurors
38 should conscientiously discuss the case among
39 themselves, deliberate with a predisposition to listen to
40 each other with an open mind, but in no event should
10
1 you surrender an honest conviction which you have
2 about the case one way or the other and so I'll ask you
3 to continue your deliberation.
4
5 Trial Tr. at 463–65.
6
7 The next day, the jury sent another note, asking: (1) “If only one of the
8 counts cannot be decided does only this issue get ever retried or the entire case,
9 meaning all three counts?” and (2) “What is the maximum amount of time given
10 to jurors to deliberate?” The district court informed the jury that there is no
11 maximum amount of time afforded for deliberations, and that should they choose
12 to return a partial verdict, that partial verdict would be final. The district court
13 reminded the jurors that it is their “duty to discuss the case for the purpose of
14 reaching a verdict, if you can do so conscientiously. Each of you must decide the
15 case for yourself, but do so only after considering all the evidence, listening to
16 the views of your fellow jurors, discussing it fully.” The district court warned the
17 jury not to “surrender an honest conviction as to the weight and effect of the
18 evidence simply to arrive at a verdict.”
19 The jury deliberated for four hours after receiving the first supplemental
20 charge (for a total of five hours of deliberation). The jury returned a verdict of
21 guilty on all three counts on March 24.
22 Vargas-Cordon moved for a judgment of acquittal under Federal Rule of
23 Criminal Procedure 29(c). Vargas-Cordon made three arguments relevant here:
11
1 (1) as to Count One, that there was insufficient evidence to convict him of
2 transporting a minor with intent that an illegal sexual act take place because
3 there was no direct evidence that he had this intent when transporting Jaire;7
4 (2) that his conviction for “harboring” an unlawfully present alien as charged in
5 Count Three was not supported by the evidence because “harboring” should not
6 mean the simple provision of shelter, and there was no proof that he knew Jaire
7 was in the United States illegally; and (3) that the district court's Allen charge
8 was unduly coercive.
9 The district court denied Vargas-Cordon's motion. As to Count One, the
10 court rejected Vargas-Cordon’s argument that direct evidence of his intent was
11 required, noting that “[i]t would surely be an immodest display of superfluous
12 research to cite what must be a limitless number of cases for the principle that
13 a jury’s verdict may rest entirely on circumstantial evidence.” The court
14 similarly dismissed the argument that the evidence of Vargas-Cordon’s
15 knowledge that Jaire was in the country illegally was insufficient, observing that
16 “knowingly, unlawfully, and intentionally remov[ing] [Jaire] from the custody
17 of the foster home and transport[ing] her from Virginia to Brooklyn was plainly
18 acting in furtherance of [Vargas-Cordon’s] bringing and keeping her here in
7
Vargas-Cordon also argued as to Count Two that there was insufficient
evidence to convict him of transporting an unlawfully present alien because there was
no evidence that he knew Jaire was in the country illegally at the time he took her
from Virginia to New York. He does not pursue this argument on appeal.
12
1 violation of the law.” Specifically as to Count Three, the court recited the jury
2 instruction and asserted that “a more precisely fitting application of the statute
3 to the facts that were established beyond any doubt, would be difficult to
4 construct.” The court finally concluded that its supplemental jury charge was
5 not unduly coercive.
6 On November 29, 2011, the district court sentenced Vargas-Cordon to 120
7 months’ imprisonment on Count One and 60 months’ imprisonment each for
8 Counts Two and Three, all sentences to run concurrently. Vargas-Cordon timely
9 appealed.
10 DISCUSSION
11 I. Transportation of Minor with Intent to Engage in Criminal
12 Sexual Activity
13
14 Vargas-Cordon first contests the district court’s determination that there
15 was sufficient evidence to support his conviction under 18 U.S.C. § 2423(a). We
16 review a district court’s determination of a sufficiency challenge de novo. United
17 States v. Miller, 626 F.3d 682, 690–91 (2d Cir. 2010). A defendant bringing such
18 a challenge “bears a heavy burden.” Id. We must “view the evidence in the light
19 most favorable to the government, crediting every inference that could have been
20 drawn in the government’s favor, and deferring to the jury’s assessment of
21 witness credibility, and its assessment of the weight of the evidence.” United
22 States v. Robinson, 702 F.3d 22, 35 (2d Cir. 2012) (internal quotation marks
13
1 omitted). We will uphold the jury’s verdict if “any rational trier of fact could
2 have found the essential elements of the crime beyond a reasonable doubt.”
3 Jackson v. Virginia, 443 U.S. 307, 319 (1979).
4 18 U.S.C. § 2423(a) provides:
5 (a) Transportation With Intent To Engage in
6 Criminal Sexual Activity.— A person who knowingly
7 transports an individual who has not attained the age
8 of 18 years in interstate or foreign commerce, or in any
9 commonwealth, territory or possession of the United
10 States, with intent that the individual engage in
11 prostitution, or in any sexual activity for which any
12 person can be charged with a criminal offense, shall be
13 fined under this title and imprisoned not less than 10
14 years or for life.
15
16 To secure a conviction under § 2423(a), the government thus must prove beyond
17 a reasonable doubt that the defendant: (1) knowingly transported a minor across
18 state lines and (2) with the intent that the minor engage in sexual activity for
19 which some person could be criminally charged. The government need not
20 prove, however, that the unlawful sexual activity actually took place: Ҥ 2423(a)
21 is a crime of intent, and a conviction is entirely sustainable even if no underlying
22 criminal sexual act ever occurs.” United States v. Broxmeyer, 616 F.3d 120, 129
23 n.8 (2d Cir. 2010). What is required is “that the mens rea of intent coincide with
24 the actus reus of crossing state lines.” Id. at 129.
25 In addition, the contemplated unlawful sexual activity need not be the
26 defendant’s sole purpose for transporting a minor in interstate or foreign
14
1 commerce. Rather, it must only be a “dominant purpose” of the transportation.
2 See United States v. Miller, 148 F.3d 207, 212–13 (2d Cir. 1998). This can
3 include being one of multiple dominant purposes. As we have explained in
4 connection with an analogous statute, a jury need only find “that illegal sexual
5 activity . . . was one of the dominant motives for the interstate transportation of
6 the minors, and not merely an incident of the transportation.” United States v.
7 Sirois, 87 F.3d 34, 39 (2d Cir. 1996) (affirming a conviction under 18 U.S.C.
8 § 2251 for transporting a minor in interstate commerce with intent to produce
9 child pornography).
10 Vargas-Cordon claims that there was insufficient evidence to prove either
11 that he had the requisite intent to engage in unlawful sexual activity with Jaire
12 when he transported her into New York or that unlawful sexual activity was a
13 dominant purpose of his bringing Jaire into New York. We are not persuaded.
14 First, we agree with the district court that there was ample circumstantial
15 evidence from which a reasonable factfinder could conclude that Vargas-Cordon
16 intended to have sex with Jaire when he arranged to have her brought into the
17 country and when he thereafter personally transported her from Virginia to New
18 Jersey and then repeatedly into New York. As Jaire testified at trial, after
19 initiating a sexual relationship with her in Guatemala, Vargas-Cordon arranged
20 for Jaire to be smuggled into the United States, where their sexual relationship
15
1 immediately recommenced once the pair was reunited. Jaire testified that she
2 had sexual relations with Vargas-Cordon in both New Jersey and in New York.
3 Vargas-Cordon himself, in a post-arrest interview with Special Agent Michael
4 Ortiz of DHS, admitted that he had intercourse with Jaire in Guatemala, that
5 he had sexual relations with her again within a day of picking her up in
6 Virginia, and that they had sexual relations on four occasions in Brooklyn,
7 including two days prior to his arrest on January 21, 2010.
8 Vargas-Cordon argues that the government never presented evidence
9 about precisely when the trips into New York occurred relative to the unlawful
10 sexual activity, precluding a reasonable jury from finding that a dominant
11 motive for these trips was to engage in unlawful sexual activity.8 We disagree.
12 The record is replete with evidence from which a reasonable jury could infer that
13 sexual access to Jaire was a dominant purpose of Vargas-Cordon’s repeated
14 transport of her from his New Jersey home into Brooklyn. Vargas-Cordon, after
15 paying a large sum to smuggle Jaire into the country, spirited her from her
16 Virginia foster home even though he acknowledged that doing so would “get
8
Vargas-Cordon argues that only the trips from New Jersey to Brooklyn “have
any nexus to the New York offenses charged in the indictment,” and so only these
incidents of interstate and foreign transportation may be considered in determining
whether the evidence of his intent in transporting Jaire was sufficient to support
conviction under § 2423(a). Appellant’s Br. at 26. We need not address this argument,
however, inasmuch as we conclude, for the reasons stated in the text, that the evidence
was more than sufficient for a reasonable jury to conclude that Vargas-Cordon had the
requisite unlawful intent in transporting Jaire into New York.
16
1 [him] into trouble.” The evidence, moreover, including the testimony of Jaire
2 and Grande, as well as Vargas-Cordon’s admissions to Agent Ortiz,
3 demonstrates that the couple was engaged in an ongoing sexual relationship
4 from the day Vargas-Cordon picked up his niece in Virginia until he was
5 arrested in New York just over a month later. Vargas-Cordon asserts that “the
6 overwhelming purpose” of his travel into New York during this period “was that
7 [he] could work at his place of employment” in Brooklyn. Appellant’s Br. at 27.
8 Even assuming this is true, however, it is irrelevant. Section 2423(a) is
9 concerned not with why a defendant travels, but rather with the question why
10 he transports a minor. A reasonable jury had ample basis here to conclude that
11 a predominant reason – if not the dominant reason – for Jaire’s repeated
12 transport to New York was to facilitate the couple’s ongoing sexual relations.
13 We accordingly affirm Vargas-Cordon’s conviction for transporting a minor in
14 interstate commerce with intent to commit unlawful sexual activity in violation
15 of 18 U.S.C. § 2423(a).
16 II. Allen Charge
17 Vargas-Cordon next contests the district court’s supplemental charge to
18 the jury upon receipt of its first note, which the court described as a “modified
19 Allen charge.” “It has long been established that when a trial court receives
20 notice that the jury is deadlocked it may give a charge, commonly referred to as
17
1 an ‘Allen’ charge, that urges the jurors to continue deliberations in order to reach
2 a verdict.” Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999). We review a
3 district court’s decision to give an Allen charge for abuse of discretion. United
4 States v. Crispo, 306 F.3d 71, 77 (2d Cir. 2002).
5 Whether an Allen charge is appropriate given the circumstances of a
6 particular case “hinges on whether it tends to coerce undecided jurors into
7 reaching a verdict”—that is, whether the charge encourages jurors “to abandon,
8 without any principled reason, doubts that any juror conscientiously holds as to
9 a defendant’s guilt.” United States v. Melendez, 60 F.3d 41, 51 (2d Cir. 1995),
10 vacated on other grounds by Colon v. United States, 516 U.S. 1105 (1996). We
11 evaluate a charge’s coerciveness “in its context and under all the circumstances.”
12 Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quoting Jenkins v. United States,
13 380 U.S. 445, 446 (1965) (per curiam)). Our case law has accordingly considered
14 a number of different factors when determining a charge’s coercive effect. While
15 some factors may be more important than others, none is, by itself, dispositive.
16 For example, although we have stressed the importance of reminding jurors in
17 an Allen charge not to abandon their conscientiously held views, see Smalls, 191
18 F.3d at 279, we have also upheld instructions that lacked such a warning, see
19 Spears v. Greiner, 459 F.3d 200, 206 (2d Cir. 2006).
20
18
1 Under this standard, the most salient feature of the charge given in
2 Vargas-Cordon’s trial is its suggestion, quoting from Allen itself, that minority
3 jurors consider the correctness of their view in light of the majority’s position.
4 Although the district court described its instruction as a “modified Allen charge,”
5 the instruction in fact contained the defining feature of a “traditional” Allen
6 charge: the request that minority jurors—but not majority jurors—reconsider
7 their views.9 See Spears, 459 F.3d at 204 n.4. We have previously recognized
8 the “potential coercive effect on jurors in the minority” of the traditional charge,
9 have noted the modern tendency to use a modified charge that does not contrast
10 the majority and minority positions, and have strongly suggested that the
11 traditional charge should be used sparingly, and with caution. Id. at 204–05 n.4
12 (quoting United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971)).
13 Still, precedent forecloses the conclusion that a traditional Allen charge is
14 automatically coercive. The Supreme Court has reaffirmed the “continuing
15 validity” of its observations in Allen regarding minority jurors and has noted
16 that supplemental charges are to be reviewed in context and considering all the
17 relevant circumstances. Lowenfield, 484 U.S. at 237–38. We ourselves,
9
The focus on minority jurors makes an Allen charge “traditional” because the
exact charge approved in Allen did the same. See Allen, 164 U.S. at 501–02. However,
“[i]n more recent times, courts have tended to use ‘modified’ Allen charges that do not
contrast the majority and minority positions.” Spears, 459 F.3d at 204–05 n.4.
19
1 moreover, have declined to “take exception to the district court’s quoting directly
2 from Allen v. United States,” and have “never held that the trial court must
3 specifically inform the jury that the majority must consider the arguments and
4 the opinions of those in the minority,” even when Allen’s language is employed.
5 Melendez, 60 F.3d at 52. Indeed, perhaps most importantly, we have previously
6 upheld the use of traditional Allen charges nearly identical to the one used in
7 this case. See United States v. Hynes, 424 F.2d 754, 757 n.2 (2d Cir. 1970).
8 We therefore must consider the other circumstances surrounding the
9 district court’s instruction. These circumstances, on balance, do not indicate an
10 unacceptable risk of coercion. First, the district court repeatedly warned the
11 jurors not to surrender their conscientiously held beliefs, which is an instruction
12 we have previously held to mitigate greatly a charge’s potential coercive effect.
13 See United States v. Henry, 325 F.3d 93, 107 (2d Cir. 2003). Indeed, immediately
14 after quoting Allen’s language on the subject of minority jurors, the district court
15 specifically noted that:
16 What the Supreme Court is saying is that jurors should
17 conscientiously discuss the case among themselves, deliberate with
18 a predisposition to listen to each other with an open mind, but in no
19 event should you surrender an honest conviction which you have
20 about the case one way or the other . . . .
21
22
23
20
1 Trial Tr. at 465. The jury deliberated for some four hours after receiving this
2 instruction—four times as long as it deliberated before receiving it. Such
3 lengthy post-instruction discussion “strongly indicates” a lack of coercion.
4 Spears, 459 F.3d at 207 (quoting United States v. Fermin, 32 F.3d 674, 680 (2d
5 Cir. 1994)).
6 The other factors cited by Vargas-Cordon do not alter our conclusion.
7 While Vargas-Cordon argues that the emotionally charged nature of his alleged
8 conduct compounded any pressure felt by jurors to convict, we do not think his
9 offenses are any more sensational than those in previous cases where the use of
10 a traditional Allen charge has been upheld. See, e.g., Allen, 164 U.S. at 501
11 (murder); Crispo, 306 F.3d at 75 (threatened kidnaping of two-year-old child).
12 Similarly, both the given instruction’s failure to remind jurors that the
13 government bears the ultimate burden of proof and Vargas-Cordon’s objection
14 to the instruction after it was given, while relevant, are not enough to overcome
15 the circumstances suggesting an absence of coercion.
16 Vargas-Cordon also objects to the giving of the Allen charge after only one
17 hour of jury deliberation. We have previously held, however, that “[n]o fixed
18 period of time must necessarily elapse before the charge may properly be given.”
19 United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977) (en banc); see also
20 Hynes, 424 F.2d at 757–58. The district court did not abuse its discretion in
21
1 deciding to give the charge when it did. Importantly, the district court did not
2 deliver its instruction sua sponte, but only after the jurors reported that they
3 were “without hopes of a unanimous decision.” This report, moreover, although
4 early in the jury’s deliberations, was in the context of a trial that was not
5 exceptionally long and involved neither a large number of separate counts, nor
6 particularly complex factual issues.
7 Although we affirm its use in this case, we reiterate that a traditional
8 Allen charge is a powerful tool that should be deployed only with great caution.
9 See Spears, 459 F.3d at 205 n.4. While it remains within the district court’s
10 discretion, giving a traditional Allen charge heightens the risk that a juror will
11 feel coerced. The circumstances of this case strongly indicate a dearth of such
12 coercion, and we find no abuse of discretion in the district court’s instruction
13 here. But, as the Supreme Court suggested in Lowenfield, a defendant’s claim
14 that jurors have been coerced by the mere suggestion that they listen with
15 deference to the arguments of others (it being, “[t]he very object of the jury
16 system . . . to secure unanimity by a comparison of views”) has considerably less
17 force “where the charge given, in contrast to the so-called ‘traditional Allen
18 charge,’ does not speak specifically to the minority jurors.” 484 U.S. at 237–38.
19 III. “Harboring” aliens under 8 U.S.C. § 1324(a)(1)(A)(iii)
20 Vargas-Cordon next argues that the district court’s jury instruction on
21 Count Three—harboring an unlawfully present alien in violation of 8 U.S.C.
22
1 § 1324(a)(1)(A)(iii)—was erroneous. We review a claim of error in jury
2 instructions de novo, reviewing the charge as a whole “to see if the entire charge
3 delivered a correct interpretation of the law.” United States v. Quattrone, 441
4 F.3d 153, 177 (2d Cir. 2006) (internal quotation marks omitted). We will
5 reverse, however, only when the error was prejudicial. Id.6 Section 1324(a)(1)(A)(iii) establishes criminal penalties for any person
7 who:
8 knowing or in reckless disregard of the fact that an
9 alien has come to, entered, or remains in the United
10 States in violation of law, conceals, harbors, or shields
11 from detection, or attempts to conceal, harbor, or shield
12 from detection, such alien in any place, including any
13 building or any means of transportation.
14
15 8 U.S.C. § 1324(a)(1)(A)(iii). This statute originates from the Immigration Act
16 of 1907, which criminalized the smuggling and transport of aliens into the
17 United States. Pub. L. No. 59-96, 34 Stat. 898, 900–01 (repealed). Congress
18 added prohibitions of concealing and harboring aliens ten years later. See
19 Immigration Act of February 5, 1917, Pub. L. No. 64-301, 39 Stat. 874, 880
20 (repealed). Thirty years after that, the Supreme Court ruled in United States v.
21 Evans that the statute did not provide any sort of penalty for its prohibition of
22 concealing and harboring aliens. 333 U.S. 483, 495 (1948). Congress responded
23 by adding an explicit penalty for any individual who “willfully or knowingly
24 conceals, harbors, or shields from detection” an unlawfully present alien.
23
1 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, Title IV, § 274(a),
2 66 Stat. 163, 228–29. Congress did not define the term “harbors,” however. In
3 1986 Congress changed § 1324(a)(1)(A)(iii) to its current form, though keeping
4 the phrase “conceals, harbors, or shields from detection.” See Immigration
5 Reform and Control Act of 1986, Pub. L. No. 99-603, Title I, Part B, § 112(a), 100
6 Stat. 3359, 3381–82.
7 Vargas-Cordon contends that the district court instructed the jury that
8 “harbors” under § 1324(a)(1)(A)(iii) “simply means to shelter, to afford shelter
9 to,” and that this was error. He argues we should follow the Seventh Circuit’s
10 recent decision in United States v. Costello, 666 F.3d 1040 (7th Cir. 2012), and
11 conclude that to “harbor” under § 1324 requires some element of preventing
12 detection by the authorities. The government counters that, although “one
13 sentence in the district court’s charge defined ‘harboring’ simply as ‘sheltering,’”
14 the charge also instructed the jury that the government had to prove that
15 Vargas-Cordon intended to substantially facilitate Jaire remaining in the
16 country illegally. Appellee’s Br. at 32. According to the government, the totality
17 of the district court’s instruction was therefore consistent with Second Circuit
18 precedent.
19 We note first that there is no precedent binding us to a particular
20 interpretation of “harbors” under § 1324(a)(1)(A)(iii). Our case law has been
21 inconsistent in describing the minimum conduct necessary to sustain a
24
1 harboring conviction under § 1324. Our initial decisions on the topic, written in
2 the 1940s, interpreted “harbor” to connote an element of evading detection. See
3 United States v. Smith, 112 F.2d 83, 85 (2d Cir. 1940); see also United States v.
4 Mack, 112 F.2d 290, 291 (2d Cir. 1940) (L. Hand, J.) (“[T]he statute is very
5 plainly directed against those who abet evaders of the law against unlawful
6 entry, as the collocation of ‘conceal’ and ‘harbor’ shows. Indeed, the word ‘harbor’
7 alone often connotes surreptitious concealment.”). Yet, we stated in two opinions
8 thirty years later that harboring under § 1324 “was intended to encompass
9 conduct tending substantially to facilitate an alien’s remaining in the United
10 States illegally.” United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975)
11 (internal quotation marks omitted); see also United States v. Herrera, 584 F.2d
12 1137, 1144 (2d Cir. 1978). While this definition could conceivably be consistent
13 with Smith and Mack, in Lopez we concluded that the defendant had violated
14 § 1324(a)(1)(A)(iii) simply because he had “engaged in providing shelter and
15 other services in order to facilitate the continued unlawful presence” of certain
16 aliens in the United States. 521 F.2d at 441. In United States v. Kim, 193 F.3d
17 567 (2d Cir. 1999), however, our most recent decision involving
18 § 1324(a)(1)(A)(iii), we changed direction yet again. Kim, reverting to language
19 consistent with our original discussions of the meaning of “harbors” as used in
20 § 1324, affirms that harboring encompasses conduct which is intended to
21 facilitate an alien’s remaining in the United States illegally and “to prevent
25
1 government authorities from detecting [the alien’s] unlawful presence.” Id. at
2 574.
3 We note, moreover, that in our decisions arguably applying a broader
4 conception of “harboring” that does not require that a defendant aim to assist an
5 alien in remaining undetected by authorities, the defendants did more than
6 merely provide shelter. In Herrera, the defendants had taken clear steps to
7 prevent the detection of the unlawfully present aliens who worked in their
8 brothel, including the installment of a video surveillance and alarm system
9 designed to alert their employees whenever immigration officials approached the
10 building. 584 F.2d at 1141–42. The defendant in Lopez, meanwhile, arranged
11 sham marriages for some of the aliens to whom he rented homes. 521 F.2d at12 439. In short, while some language from these opinions—now contradicted by
13 our more recent statements in Kim—may suggest that mere sheltering is enough
14 for a conviction under § 1324(a)(1)(A)(iii), there is no holding that compels us to
15 so conclude.
16 Absent a binding interpretation of “harbor,” we look to the statute’s text.
17 “As with any question of statutory interpretation,” our first task is “to determine
18 whether the language at issue has a plain and unambiguous meaning.” Louis
19 Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir. 2012). “[P]lain
20 meaning can best be understood by looking to the statutory scheme as a whole
21 and placing the particular provision within the context of that statute.” Saks v.
26
1 Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). We thus begin by
2 “review[ing] the statutory text, considering the ordinary or natural meaning of
3 the words chosen by Congress, as well as the placement and purpose of those
4 words in the statutory scheme.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707
5 F.3d 144, 155 (2d Cir. 2013) (internal quotation marks omitted).
6 We do not think the ordinary meaning of “harbors,” at least with respect
7 to whether it entails avoiding detection, is unambiguous. While “harbor” may
8 sometimes be synonymous with “shelter,” many of its most common uses—for
9 example, “harboring a fugitive”—also connote concealment. Dictionaries, either
10 from the early twentieth century or today, do not consistently define “harbor” as
11 containing or lacking an element of concealment. Compare, e.g., Black’s Law
12 Dictionary 784 (9th ed. 2004) (defining “harboring” as “[t]he act of affording
13 lodging, shelter, or refuge to a person) with Black’s Law Dictionary 561 (2d ed.
14 1910) (defining “to harbor” as “[t]o receive clandestinely and without lawful
15 authority a person for the purpose of so concealing him that another having a
16 right to the lawful custody of such person shall be deprived of the same”); see
17 also Webster’s Third New Int’l Dictionary 1031 (1961) (defining “harbor” as “(1)
18 to give shelter or refuge to: to take in [and] (2) to receive clandestinely and
19 conceal (a fugitive from justice)”). Given this lack of uniformity, we hesitate to
20 derive a singular meaning of “harbor” either from its common use or from
21 particular dictionary definitions.
27
1 The placement of “harbors” in 8 U.S.C § 1324(a)(1)(A)(iii), however, does
2 indeed suggest that the term is intended to encompass an element of
3 concealment. Specifically, “harbors” appears in subparagraph (A)(iii) as part of
4 a list of three proscribed actions: “conceals, harbors, or shields from detection.”
5 The other two terms—“conceals” and “shields from detection”—both carry an
6 obvious connotation of secrecy and hiding. The canon of noscitur a sociis would
7 thus suggest that “harbors,” as the third and only other term in subparagraph
8 (A)(iii), also shares this connotation, which easily fits into its ordinary meaning.
9 See Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (“[A] word is known by the
10 company it keeps.”). Indeed, this is the same reasoning we used over seventy
11 years ago to first conclude that “harbors” in § 1324(a)(1)(A)(iii) contained an
12 element of concealment. See Mack, 112 F.2d at 291.
13 The broader structure of § 1324(a) further supports reading “conceals,
14 harbors, or shields from detection” as sharing a common “core of meaning”
15 centered around evading detection. See Graham Cnty. Soil & Water
16 Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1403 n.7
17 (2010). Subsection 1324(a)(1)(A) is divided into four subparts, each of which
18 proscribes a particular type of action. The first reaches anyone who brings an
19 alien into the United States outside of a specified entry point. 8 U.S.C. §
20 1324(a)(1)(A)(i). The second applies to anyone who “transports, or moves” an
21 unlawfully present alien in furtherance of that alien’s violation of the law. Id.28
1 § 1324(a)(1)(A)(ii). The fourth applies to anyone who “encourages or induces” an
2 alien to enter the United States unlawfully. Id. § 1324(a)(1)(A)(iv). Each
3 subpart thus focuses on a single kind of act, and those that use different terms
4 to describe the act use near-synonyms with a clear overlap in meaning:
5 “transports” and “moves” for § 1324(a)(1)(A)(ii), or “encourages” and “induces”
6 for § 1324(a)(1)(A)(iv). We think it fair to infer from this structure that Congress
7 did not intend the inclusion of “harbors” in § 1324(a)(1)(A)(iii) to make that
8 subsection, and that subsection alone, simultaneously cover the two distinct acts
9 of keeping from the authorities an alien’s presence and simply offering the alien
10 a place to stay.
11 We accordingly hold that our description of harboring in Kim—conduct
12 which is intended to facilitate an alien’s remaining in the United States illegally
13 and to prevent detection by the authorities of the alien’s unlawful presence—is
14 the correct interpretation of that term as it is used in § 1324(a)(1)(A)(iii). 193
15 F.3d at 574. To “harbor” under § 1324, a defendant must engage in conduct that
16 is intended both to substantially help an unlawfully present alien remain in the
17 United States—such as by providing him with shelter, money, or other material
18 comfort—and also is intended to help prevent the detection of the alien by the
19 authorities. The mere act of providing shelter to an alien, when done without
20 intention to help prevent the alien’s detection by immigration authorities or
21 police, is thus not an offense under § 1324(a)(1)(A)(iii).
29
1 We therefore agree with Vargas-Cordon that if the district court had
2 instructed the jury that “harboring” under § 1324(a)(1)(A)(iii) “simply means to
3 shelter,” it would have erred. We conclude, however, that the district court did
4 not err because it properly instructed the jury on the elements of harboring.
5 While the court stated that “‘Harboring’ simply means to shelter, to afford
6 shelter to,” the entire charge taken as a whole conveyed to the jury that simply
7 providing shelter was insufficient to support a conviction under
8 § 1324(a)(1)(A)(iii). Rather, the very next sentence properly instructed the jury
9 that to find that Vargas-Cordon harbored Jaire, it must “find based on the
10 evidence in this case that the Government proved that the defendant . . .
11 afforded shelter to[] [Jaire] in a way intended to substantially facilit[ate] her
12 remaining here illegally.” J.A. at 95. Thus, the jury was properly apprised that
13 it needed to find not just that Vargas-Cardon had afforded Jaire shelter, but also
14 that he had done so with the intent to prevent her detection by the authorities.10
15 Moreover, the evidence presented at trial was sufficient for a rational jury to
16 convict Vargas-Cordon under this narrower definition of “harbors.” The reason
17 is simple: even if Vargas-Cordon’s conduct lacked the hallmarks of active, classic
10
While it would have preferable for the district court to explain that harboring
requires acting with an intent to prevent an alien’s detection, the instruction as a
whole, including its requirement that there be intent to substantially facilitate an alien
remaining in the United States illegally, “adequately communicated the essential ideas
to the jury,” and “adequately inform[ed] the jury of the law.” See United States v.
Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (citations omitted).
30
1 concealment, it nevertheless was intended to make Jaire’s detection by the
2 authorities substantially more difficult. Vargas-Cordon helped Jaire escape from
3 her foster home and then brought her to a new location in a different state
4 unknown to either her foster care provider or the federal government. This
5 undoubtedly diminished the government’s ability to locate and apprehend Jaire.
6 This is true even if Vargas-Cordon did not actively hide Jaire from the
7 outside world. Vargas-Cordon knew that he was not permitted to take Jaire out
8 of foster care: he said as much to Jaire, Jaire’s foster mother told him so, and his
9 late-night rendezvous with Jaire in Virginia did not suggest anything to the
10 contrary. The subsequent sheltering of Jaire, therefore, was done with the
11 knowledge that Jaire was legally in the custody of another person, and that if
12 she were detected by police or other authorities she would likely be returned to
13 that person. Similarly, that Vargas-Cordon intended to live with Jaire even
14 before she was apprehended by the government does not change things. By the
15 time Jaire arrived in New Jersey, Vargas-Cordon’s motivations were both to
16 continue their relationship and to prevent authorities from returning her to
17 government-arranged foster care.
18 Indeed, Vargas-Cordon’s actions closely track the definition of “harboring”
19 given by this Circuit in Firpo v. United States, 261 F. 850 (2d Cir. 1919). Firpo
20 involved a precursor statute to 18 U.S.C. § 1831 that provided criminal penalties
21 for “whoever shall harbor, conceal, protect, or assist” a military deserter. Id. at
31
1 851. We explained that “[t]o harbor, as used, means to lodge, to care for, after
2 secreting the deserter.” Id. at 853. This is, of course, precisely what Vargas-
3 Cordon did: he secreted Jaire from her foster home, and then lodged and cared
4 for her until she was found by the authorities. While Firpo may have involved
5 a separate statute, its definition of “harboring” fits comfortably within Kim’s: one
6 who secretes an alien, at least from a location known to the government, will
7 almost always make detection of that alien more difficult.
8 Vargas-Cordon’s actions also distinguish his case from Costello. There the
9 defendant did little more than allow her boyfriend, who had previously been
10 arrested and deported, to come and stay at her home. 666 F.3d at 1042. As the
11 Seventh Circuit noted, the defendant was not trying to make her boyfriend’s
12 detection more difficult: her boyfriend had lived in the same town and at the
13 same address with her before he was arrested and lived openly and
14 conspicuously with her again upon his return. Id. at 1042–43, 1045. Vargas-
15 Cordon, meanwhile, spirited Jaire out of her foster home and then provided her
16 with shelter in a location unknown to any relevant authorities. In contrast to
17 Costello, his sheltering of Jaire substantially and successfully worked to help
18 prevent her return to government-arranged foster care.
19 IV. Limitation of Cross-Examination of Jaire
20 Vargas-Cordon argues, finally, that the district court committed non-
21 harmless error (indeed, that the court violated due process) by sustaining the
32
1 government’s objections to two questions during Jaire’s cross examination
2 concerning what Jaire told Vargas-Cordon about whether she had permission to
3 stay in the United States during the time she was in foster care. Specifically,
4 the district court sustained objections as follows:
5 [Defense]: Did you tell [your uncle] anything about what was
6 happening with your case in immigration court?
7 [Jaire]: No.
8 [Defense]: Did you tell [your uncle] that you were trying to
9 get papers in order to stay in the U.S.?
10 [Jaire]: Yes.
11 [Defense]: Did you have the help of an immigration lawyer?
12 [Government]: Your Honor, I would object to this line of
13 questioning.
14 [The Court]: Objection is sustained.
15 [Defense]: At the time you were living in Virginia, did you
16 believe you had permission to stay in the United States?
17 [Government]: Objection.
18 [The Court]: Sustained.
19 [Defense]: Did you tell your uncle you had permission to be in
20 the United States?
21 [Government]: Objection.
22 [District Court]: Sustained.
23
24 Trial Tr. at 119–20. Vargas-Cordon claims that the court erred in preventing
25 Jaire from answering the final two questions in this exchange. This error in
26 turn kept him from establishing that he believed Jaire was no longer in
27 immigration custody after her transfer to a foster home—a belief that, according
28 to him, meant he lacked mens rea in connection with Count Two’s charge that
29
30
33
1 he transported Jaire knowing or in reckless disregard of the fact that she had
2 come to, entered, or remained in the United States in violation of law.11
3 We will grant a retrial for improper evidentiary rulings only where these
4 rulings were “so clearly prejudicial to the outcome of the trial that we are
5 convinced that the jury has reached a seriously erroneous result or that the
6 verdict is a miscarriage of justice.” United States v. Bell, 584 F.3d 478, 486 (2d
7 Cir. 2009) (quoting Phillips v. Bowen, 278 F.3d 103, 111 (2d Cir. 2002)). Such
8 is not the case here. The first question at issue—whether Jaire personally
9 believed that she had permission to stay in the United States—has no bearing
10 on Vargas-Cordon’s mens rea under § 1324(a)(1)(A)(ii). Meanwhile, the second
11 question—whether Jaire told Vargas-Cordon that she had permission to be in
12 the United States—bears on Vargas-Cordon’s mens rea only if Jaire told him she
13 had (or lacked) such permission before he transported or harbored her. Yet
14 defense counsel – who made no offer of proof as to what Jaire would say – failed
15 even to specify any sort of time frame for the question, so that even an
16 affirmative response from Jaire would not necessarily have been relevant to
17 Vargas-Cordon’s culpability. Finally, we are to consider an evidentiary ruling’s
11
While the district court’s rulings could also be relevant to the mens rea
element of Vargas-Cordon’s conviction for harboring an unlawfully present alien under
8 U.S.C. § 1324(a)(1)(A)(iii), Vargas-Cordon does not make this argument on appeal.
See United States v. Colasuonno, 697 F.3d 164, 171 n.2 (2d Cir. 2012) (arguments not
made on appeal are waived).
34
1 potential prejudicial effect “in light of the record as a whole,” id. (quoting
2 Phillips, 278 F.3d at 111), and the record here provides scant evidence that
3 Vargas-Cordon had reason to think Jaire could lawfully stay with him in New
4 Jersey. In such circumstances, “we are hard-pressed to conclude that the
5 unpermitted questions had damaging potential.” Jones v. Berry, 880 F.2d 670,
6 675 (2d Cir. 1989). Accordingly, we decline to grant Vargas-Cordon a new trial
7 on Count Two.
8 CONCLUSION
9 We have considered Vargas-Cordon’s remaining arguments and find them
10 to be without merit. For the foregoing reasons, we AFFIRM the judgment of the
11 district court.
12
35