United States v. Hsieh Hui Mei Chen and Tsang-Chi Chen

TANG, Circuit Judge,

concurring.

It is with sadness that I join this decision.

I concur because the government has technically proven its case. The jury has found no entrapment; nevertheless, although not technically induced by the government, these offenses were certainly governmentally encouraged.

Mrs. Chen’s efforts to curry official favor from a United States border patrolman were indeed improper. Once approached, however, Patrolman Nordmark could have as easily indicated that whatever the customs elsewhere such solicitation is completely unacceptable in this country. That would have ended the incident. Instead, the government mindlessly donned its blinders and pursued the Chens with a zeal and commitment of resources more befitting an undercover investigation aimed at breaking up an elaborate smuggling operation. At what cost was this done? Were the Chens such a threat to the integrity of our law enforcement establishment? With the agency’s enforcement resources already strained to capacity to handle expeditiously the agency’s regular immigration duties, it is questionable whether this diversion to investigate, involve and transform into felons otherwise lawful but misguided aliens represented a wise allocation of scarce resources. The consequent involvement of prosecutorial and judicial machinery only served to spread this misallocation of resources to other levels within the justice system.

The government has won a victory, but it rings hollow. Technically the Chens were not entrapped but these violations could have been easily prevented with a simple “No”. Does the price of their misguidance demand five years’ incarceration and then deportation? Isn’t there a sufficiency of criminal offenses without the government contributing to their manufacture? This total exercise leads any critical observer to be skeptical and to ponder whether justice has been served.