Yu Tian Li v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1231

Y U T IAN L I,

Petitioner-Appellant,

v.

U NITED S TATES OF A MERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-C-810—William C. Griesbach, Judge.

S UBMITTED JUNE 21, 2011 1—D ECIDED A UGUST 4, 2011

1

Pursuant to Seventh Circuit Internal Operating Procedure

6(b), this appeal was submitted to the panel of judges that

disposed of Li’s direct appeal of his conviction and sentence.

See United States v. Yu Tian Li, 615 F.3d 752 (7th Cir. 2010).

Neither party has included in its brief a statement indicating

that oral argument is necessary, see Fed. R. App. P. 34(a)(1) and

Circuit Rule 34(f), and upon review of the briefs and the

record and consideration of the standards set forth in Fed.

R. App. 34(a)(2), the panel has determined that oral argument

is unnecessary to the resolution of this appeal. The appeal

was therefore submitted on the briefs and the record.

2 No. 11-1231

Before E ASTERBROOK, Chief Judge, and R OVNER and

T INDER, Circuit Judges.

R OVNER, Circuit Judge. Yu Tian Li owned and operated

a restaurant in DePere, Wisconsin. An anonymous tip

led the FBI to conduct surveillance of Li, whom they

observed regularly transporting about four people back

and forth between his home and the restaurant. When

Li consented to a search of his home, authorities de-

tained three people who were illegally present in the

United States. They also found what looked like a make-

shift dormitory in Li’s basement and garage, with mat-

tresses on the floor and coin-operated laundry machines

in the basement.

A jury convicted Li of two of three counts of illegally

harboring or shielding illegal aliens in violation of 8 U.S.C.

§ 1324(a)(1)(A)(iii). The district court sentenced Li to

fifteen months of imprisonment on each count, to be

served concurrently, and two years of supervised release.

The court also ordered that he pay $10,000 in fines and

forfeit his house. This Court affirmed the conviction

on appeal. United States v. Yu Tian Li, 615 F.3d 752 (7th

Cir. 2010).

Li filed a motion in district court to vacate his convic-

tion pursuant to 28 U.S.C. § 2255, arguing that his counsel

was ineffective in the following four ways: by proposing

an incorrect jury instruction; by failing to object to video-

taped testimony of the witnesses against Li; by failing

to ensure that a language barrier did not prevent him

from communicating with Li; and finally, by preventing

Li from testifying on his own behalf. The district court

rejected each of these arguments and Li appeals.

No. 11-1231 3

When a district court denies a petition under § 2255,

we review fact findings for clear error and issues of law

de novo. Bethel v. United States, 458 F.3d 711, 716 (7th

Cir. 2006). To succeed on a claim for ineffective assis-

tance of counsel, Li must show both that “his attorney’s

performance was objectively deficient—in other words,

that it fell outside the wide range of competent repre-

sentation—and that he was prejudiced by the subpar

representation.” United States v. Jones, 635 F.3d 909, 915

(7th Cir. 2011) (citing Strickland v. Washington, 466 U.S.

668, 687-96 (1984)). In order to establish prejudice, he

must show that there is a reasonable probability that

but for his counsel’s mistakes, the result of the pro-

ceedings below would have been different, such that

the proceedings were fundamentally unfair or unreli-

able. Strickland, 466 U.S. at 694. To reflect the wide range

of competent legal strategies and to avoid the pitfalls

of review in hindsight, our review of an attorney’s per-

formance is highly deferential and reflects a strong pre-

sumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. Id. at 689.

“The defendant must overcome the presumption that,

under the circumstances, the challenged action might

be considered sound trial strategy.” Koons v. United States,

639 F.3d 348, 351 (7th Cir. 2011). So long as an attorney

articulates a strategic reason for a decision that was

sound at the time it was made, the decision generally

cannot support a claim of ineffective assistance of coun-

sel. United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir.

2005). See also United States v. Lathrop, 634 F.3d 931, 937-38

(7th Cir. 2011), petition for cert. filed, (U.S. June 13, 2011)

4 No. 11-1231

(Nos. 10-11044, 10A1145) (noting that, provided counsel’s

reasons for not questioning further were not “so far off the

wall that we can refuse the usual deference that we give

tactical decisions by counsel, his performance will not

qualify as deficient.”).

We consider first Li’s argument that his counsel

should have proposed a specific intent instruction.

Because there was no controlling case law nor pattern

jury instruction for alien-harboring in the Seventh

Circuit, Li’s trial counsel proposed a jury instruction

modeled after one used in the Eleventh Circuit. See (R. 63,

p. 17 & R. 75, p. 7).2 Using a variation of the Eleventh

Circuit’s pattern, the district court instructed:

To sustain each charge of harboring an illegal alien

for purpose of commercial advantage or private

financial gain in violation of 8 U.S.C. § 1324(a)(l)(B),

the government must prove the following four ele-

ments beyond a reasonable doubt:

First, that the alien named in the indictment entered

or remained in the United States in violation of the law;

Second, that the defendant knowingly concealed,

harbored, or sheltered from detection the named

alien within the United States;

Third, that the defendant either knew or acted in

reckless disregard of the fact that the named alien

entered or remained in the United States in violation

of the law; and

2

Record citations are to the district court case in this matter,

No. 10-C-810.

No. 11-1231 5

Fourth, that the defendant committed such offense

for the purpose of commercial advantage or private

financial gain.

(R. 75, p. 7). This language reflects the statute itself

which defines the criminal act as:

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;

8 U.S.C.A. § 1324 (a)(1)(A)(iii).

Li’s brief states that counsel should have requested

a “specific intent” instruction, but fails to specify what

additional language the jury instruction should have

contained or how requiring intent would have changed

the nature of this case at all.

Under the Strickland standard, we certainly cannot say

that it was outside the realm of reasonable professional

assistance for Li’s counsel to propose a jury instruction

similar to that used by the Eleventh Circuit and

reflecting the general intent requirement in several other

circuits, where there was no controlling law in this

Circuit. See, e.g., United States v. Khanani, 502 F.3d 1281,

1287 (11th Cir. 2007) (jury only instructed that it must

find that defendant knowingly harbored aliens and that

defendant knew or acted in reckless disregard of the

6 No. 11-1231

alien’s status)3 ; United States v. Dejesus-Batres, 410 F.3d

154, 162 (5th Cir. 2005) (specific intent to violate the

immigration laws is not required to prove alien har-

boring); see also United States v. Deguzman, 133 Fed. Appx.

501, 506 (10th Cir. 2005) (noting, in a non-precedential

opinion, that specific intent is not necessary to prove

illegal harboring charge).

Li argues that had his trial counsel done better

research, he would have uncovered cases which sup-

ported a specific intent instruction. The cases he cites,

however, both involve a specific intent instruction in

cases involving the transportation or importing of illegal

aliens. United States v. Parmlee, 42 F.3d 387, 391 (7th Cir.

1994), United States v. Nguyen, 73 F.3d 887 (9th Cir. 1995).

In those cases the courts expressed concern about

various hypothetical situations in which someone like

a taxi driver or boat operator might transport an alien

without any intent to violate the law. For example, in

Nguyen, the court expressed concern about exposure

to punishment for a boat operator who departed from

a coastal port with permanent-resident aliens on board,

3

The jury instructions in this case included an explanation

that “[t]he word willfully, as that term is used in the indict-

ment or in these instructions, means that the act was com-

mitted voluntarily and purposely, with the specific intent to do

something the law forbids, that is, with bad purpose either

to disobey or disregard the law.” The instructions for the

alien harboring count included in the jury instructions, how-

ever, spoke only of “knowingly” and did not include the

term “willfully.” Khanani, 502 F.3d at 1287.

No. 11-1231 7

entered international waters and then returned to shore

at a location other than a designated port of entry. Nguyen,

73 F.3d at 893. The Parmelee court expressed concern

about a cab driver who, in a routine commercial trans-

action, transported an individual who announced his

illegal status during the course of the ride. Parmelee,

42 F.3d at 391, 393. Without saying so, both courts

were expressing concern about the unique nature of

transportation—that it involves a transient situation in

which the transporter could learn about the illegal status

in media res, and have no way to complete the innocent

transport without violating the law. It is more difficult

to imagine a situation in which one could knowingly

harbor a known illegal alien without an intent to

violate the law. If there were such a situation, the evi-

dence in this case does not reflect it. At trial, the jurors

heard evidence that one of the illegal aliens who lived at

Li’s house for several months divulged his status as an

illegal alien to Li. They also heard how he shuttled his

tenant/employees back and forth between the garage

and the restaurant, how the curtains of the house

remained closed at all times, how the defendant re-

fused to tell investigating agents the names of his em-

ployees, and that the illegal employees were not asked

to complete any paperwork, nor were they listed on

any wage or employment records submitted to the state.

Certainly there is room to argue that Li’s counsel should

have requested a specific intent instruction. The cases on

transporting were close enough to support an argument

and, had he looked further, he may have found some

even closer. See, e.g., United States v. You, 382 F.3d 958,

8 No. 11-1231

966 (9th Cir. 2004) (in a harboring case, the court in-

structed the jury that it must find that appellants had

acted with “the purpose of avoiding [the aliens’]

detection by immigration authorities—an instruction

synonymous with having acted with necessary intent

as required in Nguyen.”) Even were it error for Li’s

counsel not to ask for a different instruction, however,

Li has not demonstrated that the proposed instruction

had any adverse effect on Li’s defense. As we noted

above, the evidence clearly indicated that Li’s covert

acts were taken in a purposeful attempt to violate the

law. The jury was already instructed that the defendant

had to knowingly conceal the aliens from detection and

that he had to know or act in reckless disregard of

their illegal status. Had the jury been explicitly

instructed that it had to find that the defendant

specifically intended to engage in the proscribed action,

the result of the trial would have been the same.

Next, we consider Li’s argument that his counsel’s

representation fell short when he failed to object to the

use of videotaped testimony of the witnesses against

him. Although the Sixth Amendment guarantees a defen-

dant the right to confront witnesses against him, the use

of pre-recorded deposition testimony does not violate

that right where the witness is unavailable for trial and

the defendant had a prior opportunity for cross-examina-

tion. Crawford v. Washington, 541 U.S. 36, 68 (2004), United

States v. McGowan, 590 F.3d 446, 453 (7th Cir. 2009). In

this case, the government anticipated that the three

witnesses against Li—the restaurant workers found

living in Li’s house—would be unavailable at the time

No. 11-1231 9

of trial. All three were in the United States illegally and

at the time of the pre-trial conference, one had already

been removed and the government anticipated that the

other two would follow suit shortly. 4 In anticipation of

their unavailability at trial, the government deposed

each of the three potential witnesses. The defendant

attended each deposition with his attorney who had

ample opportunity to question and cross-examine the

witnesses.

Initially Li’s attorney had objected to the depositions,

but then informed the court that he had a “180 degree

change in my position,” and that for strategic reasons

he thought it best for his client that the videotaped deposi-

tion testimony be presented in lieu of live testimony.

(R. 109, p. 7). Counsel’s theory was that the witnesses

had not testified to anything particularly incriminating,

and therefore Li was better off with their testimony

locked in as is, rather than having them re-examined

in front of the jury after the government had time to

4

It is not at all clear whether these witnesses could be

deemed unavailable for Confrontation Clause purposes pursu-

ant to Crawford. Such a determination would be based on the

specific facts surrounding their removal and the govern-

ment’s attempts to secure their testimony. See, e.g., United

States v. Tirado-Tirado, 563 F.3d 117, 123-24 (5th Cir. 2009);

United States v. Yida, 498 F.3d 945, 954-55 (9th Cir. 2007);

United States v. Gonzales, 436 F.3d 560, 577-79 (5th Cir.

2006). In any event we need not make this determination as

Li waived his right to confront the witnesses and had the right

to do so. United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001).

10 No. 11-1231

assess Li’s theory of the case. Li’s counsel further ex-

plained his strategy as follows: “I think it is unfair to my

client to have these witnesses called live when the gov-

ernment has seen the opportunity—has seen how I am

going to handle them . . . [and] knows essentially what my

argument is or at least they may be able to figure out by

looking at the transcript.” Id. Specifically, counsel ex-

plained, “[t]here were questions I didn’t ask because

the witness testified in a way that I thought was advanta-

geous to my client. So I stopped. I didn’t cross.” Id. at 12.

Li’s counsel objected to particular portions of the tran-

scripts and, after rulings by the district court judge,

some portions were redacted for trial. In short, based

on counsel’s reasoned strategy, Li agreed to waive his

right to confront the witnesses provided that the gov-

ernment would not call any of the three deponents to

the stand at trial. Li’s counsel articulated a reasonable

strategy to which a court must give deference. Li does not

argue that his counsel did not have ample opportunity

to question and cross-examine each witness in the

presence of the defense.

Furthermore, the district court conducted an extensive

examination of Li to assure that his waiver of his con-

frontation right was knowing and voluntary. Id. at pp. 23-

39. The district court judge engaged in this colloquy

directly with Li despite the fact that in this Circuit

a “defendant’s attorney can waive his client’s Sixth

Amendment confrontation right so long as the defendant

does not dissent from his attorney’s decision, and so long

as it can be said that the attorney’s decision was a legiti-

mate trial tactic or part of a prudent trial strategy.” Cooper,

No. 11-1231 11

243 F.3d at 418. Li’s rights were well protected and we

cannot say that his attorney was ineffective for adopting

his articulated strategy.

On a related matter, Li claims that his attorney

was ineffective for failing to object to a reading of the

tail end of one videotaped deposition. As agreed to at

the pre-trial conference, at trial the government played

the videotaped deposition testimony of three witnesses.

The first two proceeded unremarkably. The videotape

of the final witness, however, malfunctioned shortly

before the end of the tape. The district court judge sug-

gested that defendant’s counsel simply read the re-

mainder of his questions on cross-examination while

the judge read the witness’ answers. The prosecutor

read his few questions of re-direct at the end. In all, the

portion of the testimony read to the jury represented six

or seven pages of a thirty-page deposition. Li’s counsel

explained on the record, that he had not objected for

strategic reasons as he felt the jury had seen the most

important portion of the deposition and that he did

not want the jury to see him object to something that

was not important. The district court judge gave the

defendant the opportunity to recall the jury and play

the remainder of the tape (past the portion of the mal-

function), but the defendant, after consulting his coun-

sel, declined.

Federal Rule of Criminal Procedure 15 does not

require that depositions be videotaped and there is no

constitutional right to have a deposition videotaped.

Prior to the availability of videotape technology, reading

12 No. 11-1231

a deposition into the record was a common method of

entering deposition testimony of an unavailable witness

into the record. See, e.g., United States v. Knop, 701 F.2d

670, 675 (7th Cir. 1983). Li has failed to make a sufficient

showing of prejudice. The judge reasonably used his

discretion to keep the trial moving along, and defense

counsel did not object to the procedure. Finally, the

judge gave the precautionary instruction that “[n]othing

I say now, and nothing I said or did during the trial, is

meant to indicate any opinion on my part about what

the facts are or about what your verdict should be.” (R. 75,

p. 2). Jurors are presumed to follow limiting or curative

instructions unless they cannot be expected reasonably

to do so. United States v. Barnhart, 599 F.3d 737, 746 n.8

(7th Cir. 2010). Moreover, the court offered Li an oppor-

tunity to bring the jury back to replay the end of the

videotape, but he declined. Li has failed to demonstrate

that his counsel’s actions related to the video deposition

were deficient or prejudicial.

The defendant next argues that a language barrier led

to ineffective assistance of counsel. Subsumed within

this argument is defendant’s earlier separate claim that

he did not knowingly or intentionally abandon his right

to testify. The district court judge who presided over

several hearings and a two-day trial considered this

argument and concluded that no such communication

barrier existed. We do not find this conclusion to be

clearly erroneous. The court provided Li with a translator

in his native language. Li participated in the trial and

never notified the court of any problems understanding

the proceedings or his counsel. Gallo-Vasquez v. United

No. 11-1231 13

States, 402 F.3d 793, 799 n.1 (7th Cir. 2005) (noting

that a petitioner’s failure to complain about a commu-

nication problem calls into question whether such a

problem really existed). The district court also con-

sidered the fact that Li lived in the United States for

twenty years and, for six years, ran a restaurant in a

suburb of Green Bay, Wisconsin where he would have

had to communicate with patrons, employees and

vendors who are not Chinese. After Li expressed some

uncertainty about whether or not to testify, he was

given time to consult with his attorney and then engaged

in an extensive colloquy with the court:

MR. GEARY: Well, I think my client after dis-

cussing it with me has advised

me that he wishes to waive his

right to testify and move for-

ward with the trial.

THE COURT: Okay. Mr. Li, is that correct?

THE DEFENDANT: Correct.

THE COURT: Okay. In other words, you do

understand you have the right

to testify, but after giving it

thought and after listening to

your attorney, you’ve decided

not to; is that correct?

THE DEFENDANT: Correct. Correct.

THE COURT: Now, did anyone make any threats

against you to get you to give

up your right to testify in front

of this jury?

14 No. 11-1231

THE DEFENDANT: No.

THE COURT: And did anyone make any prom-

ises to you to get you to do so?

THE DEFENDANT: No.

THE COURT: Is this your own decision after

considering the advice of your

attorney? Is it your own deci-

sion then not to testify?

THE DEFENDANT: Yes.

THE COURT: Okay. And I can read to the jury

the instruction then that tells

them that you cannot be pun-

ished for not testifying, that it’s

not evidence for you got [sic] to

testify, and it’s not to be consid-

ered in any way. Would you

like me to read that instruction

to the jury?

THE DEFENDANT: Yes.

(R. 124, p. 225-26). We cannot find that the district court

erred in its factual finding that there was no language

barrier that would have prevented Li from the effective

assistance of counsel or from testifying.

Finally, Li argues that his motion under 28 U.S.C. § 2255

was improperly denied without a hearing. A district

court has discretion to “deny an evidentiary hearing

where the motion, files, and records of the case conclu-

sively show that the prisoner is entitled to no relief.” Koons

No. 11-1231 15

v. United States, 639 F.3d 348, 354-355 (7th Cir. 2011). The

judge who denied the motion was the same one who

presided over the case, reviewed the proposed jury in-

structions, admitted the taped depositions, and through

colloquies could assess the defendant’s understanding

of the English language and his understanding of the

proceedings as translated. He was in the best position

to conclude that an evidentiary hearing would not

provide any more information that could demonstrate

the viability of the defendant’s claim, and thus did not

abuse his discretion in denying a hearing.

As we have detected no unreasonable errors in assis-

tance, we cannot conclude that there was any cumulative

effect from these errors that would have amounted to

ineffective assistance of counsel as evaluated under the

Strickland parameters. The decision of the district court

is A FFIRMED.

8-4-11