Wednesday, November 19, 2014

Providing Services To Illegal Aliens Gets A Little Less Risky

The following summary is from Andrew McGowan, an Assistant Federal Defender in Topeka, and it is about this recent decision from the Seventh Circuit (a case, incidentally, that the Court reversed the day it was argued and, in an even more unusual move, ordered the release of the defendants on bond). Enjoy! 
Prosecutors in Indiana indicted the defendants for conspiracy to encourage illegal aliens to reside in the United States and to shield them from detection by providing a service that allowed illegal aliens to title vehicles and obtain license plates in Indiana. A second count charged conspiracy to commit mail and wire fraud because the defendants deprived the state of Indiana of “money and property.” The Court found serious, reversible problems with both counts.
On the first count, the defendants provided paperwork (for $350) to customers who did not have, and who usually could not obtain, a Social Security number, so that these customers could obtain an employer identification number (EIN) for their new Limited Liability Company (LLC). Under Indiana law, the EIN allowed vehicles to be titled in the name of the LLC, which allowed illegal aliens (some of the "customers") to legally own cars. To create the LLC and obtain the EIN number, the illegal aliens hid nothing: they used their own names and addresses, and everything that they did was perfectly legal. One of the problems with the government’s evidence was that it did not prove that it was just illegal aliens who would or could use the service. It could also help legal aliens who could not work because of restricted visas, as well as citizens who did not want to use their Social Security number to title a car. The defendants were convicted and sentenced from 2-to-7 years' imprisonment.
The Seventh Circuit vacated the convictions because, among other things, the government could not sufficiently distinguish what the defendants did from what a grocer who sold goods to an alien the grocer knew to be an illegal alien did or what a doctor who treated a person the doctor knew to be an illegal alien did. The Court noted that the defendants did not shield their clients from detection because they supplied the state with their correct names and addresses. The Court had other problems with the convictions, including that under the government’s theory Indiana itself might be criminally responsible. Because of these concerns and others (which are fun to read), the Court held that the portion of the statute that the government relied on did not apply to “the provision of goods and services that are attractive to unauthorized aliens, legally residing aliens, and citizens alike.” With any luck, this also shields lawyers who represent illegal aliens from being prosecuted.
On the second count, the government provided two different theories: 1) that false statements on the application to transfer title of the cost of the vehicle (some reported sales were for $100 or $200) reduced the amount of tax revenue to Indiana and 2) the defendants caused the state to have to retitle the licenses, even if it did not suffer any financial loss. A conviction on the first basis might have been okay if the second basis had been a crime. But it was not a crime because documents were not “property” (see this case and this case).
At trial, neither party (nor the judge) noticed this problem, so none of the defense attorneys objected to the jury instruction that allowed the jury to convict on this basis. Also, there was no unanimity instruction (in the Tenth Circuit, 1.24 of the Criminal Instructions) that required the jury to further explain the basis of the conviction. One practice note, the Court almost found that the issue was waived because there had been no objection to the jury instruction. But, fortunately, the defendants made a motion for judgment of acquittal that allowed the Court to address the problem because the Rule 29 motion essentially questioned the legality of the conviction. The problem was that there were two possible bases for the jury verdict, one legal and the other not. So, the conviction could have been based on either a proper or an improper basis. Had the question been only one of insufficiency of the evidence on either basis, then the verdict would have been upheld
But, because the basis for the conviction could have been legally insufficient, the Court remanded the case for a possible retrial. This case is another reminder that just because the government charges something doesn’t mean it’s a crime.

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