United States v. Gustavo Dominguez

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 31, 2011

No. 07-13405

JOHN LEY

________________________

CLERK

D.C. Docket No. 05-10009-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUSTAVO DOMINGUEZ,

a.k.a. Gus,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(October 31, 2011)

Before TJOFLAT, COX and BLACK, Circuit Judges.

COX, Circuit Judge:

Gustavo Dominguez, a professional sports agent, was convicted of smuggling

five Cuban baseball players into the United States, transporting the players from

Miami to Los Angeles, and harboring them there until they applied for asylum. See

8 U.S.C. § 1324(a)(2), (a)(1)(A)(ii), and (a)(1)(A)(iii) (criminalizing the bringing in,

transporting, and harboring of unauthorized aliens). The theory of prosecution was

that Dominguez, and several codefendants not parties to this appeal, conspired to

bring, unsuccessfully attempted to bring, and then successfully brought five Cuban

baseball players to the United States so that the players could pursue professional

baseball careers. And, the prosecution’s theory was that Dominguez had a role in

transporting and harboring the players after their arrival in the United States.

Dominguez anticipated that, after the players arrived, he would represent them as

their agent, negotiate any potential baseball contract, and collect a percentage of their

earnings as a fee. The indictment alleged, and the jury found, that Dominguez

smuggled the players for the purpose of commercial advantage or private financial

gain. Based on this finding, the district court imposed a five-year mandatory

minimum sentence under 8 U.S.C. § 1324(a)(2)(B)(ii).

Dominguez now appeals, challenging his convictions and sentences on various

grounds. He argues, among other things, that the evidence did not support any of his

convictions.

We conclude that the evidence does not support Dominguez’s convictions of

transporting and harboring aliens (Counts 44 through 53). We reverse these

convictions and vacate their sentences. We conclude the evidence supports

2

Dominguez’s convictions of conspiracy to smuggle, aiding and abetting an attempted

smuggle, and aiding and abetting a smuggle (Counts 1, 5, 6, 10, 13, 19, 28, 29, 33,

35, 40). We affirm these convictions and sentences. We find Dominguez’s other

assertions of error to be without merit.

I. BACKGROUND & PROCEDURAL HISTORY

A. Facts

Gustavo Dominguez is a native of Cuba and a naturalized United States

citizen.1 He works as a sports agent, and through his company, Total Sports

International (“TSI”), he has represented over 100 baseball players, many of whom

played for Major League baseball teams. Some of these baseball players were Cuban

nationals who came to the United States without official documents authorizing their

presence in the United States. This criminal case involves Dominguez’s role in

helping five Cuban nationals come to the United States in order to pursue

professional baseball careers.

The smuggling venture at issue in this case began with Dominguez’s

relationship with Ysbel Medina-Santos (“Medina”). Medina has lived a life of crime;

he has numerous prior convictions for drug trafficking, smuggling, insurance fraud,

1

Because we must determine whether the evidence is sufficient to support Dominguez’s

convictions, we state the evidence in the light most favorable to the Government. United States

v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007).

3

and money laundering. When he faced a lengthy prison sentence for drug smuggling,

he agreed, in exchange for a potentially reduced sentence, to testify against

Dominguez about his role in the smuggling of these Cuban baseball players.

According to Medina, he and Dominguez agreed in November 2003 to smuggle

two Cuban players, Yuniesky Betancourt and Saydel Beltran, to the United States.2

In exchange for Medina’s assistance in smuggling the players into the United States,

Dominguez promised that the players would pay Medina 5% of any Major League

baseball contract that they might sign. Dominguez anticipated that he would

represent the players as their agent, negotiate any potential baseball contract, and

collect a percentage of their earnings as a fee. The smuggle was successful and, with

the help of Dominguez’s representation, Betancourt signed a Major League contract

for $2.8 million with the Seattle Mariners. Medina then asked Dominguez for 5% of

the contract ($140,000). After Betancourt failed to pay the $140,000, Medina held

Dominguez responsible for the money.

In July 2004, about eight months after the Betancourt-Beltran smuggle,

Dominguez contacted Medina about smuggling more Cuban players into the United

2

The indictment does not charge Dominguez with any crimes regarding the

Betancourt-Beltran smuggle. The district court admitted evidence of this prior smuggle under

Federal Rule of Evidence 404(b), concluding that the evidence was relevant to establish

Dominguez’s intent to commit the smuggling offenses at issue in this case.

4

States. Dominguez and Medina agreed to bring five Cuban players to the United

States: Francisely Bueno-Trueba, Osbek Castillo-Perez, Allen Guevara-Perez,

Osmany Masso-Arredondo, and Yoankis Turino-Montalno. Medina told Dominguez,

however, that he would not attempt to bring these players to the United States until

he was paid at least $100,000 of the $140,000 that he was still owed for the

Betancourt-Beltran smuggle. Dominguez then made two $50,000 transfers from an

account he managed for another athlete client and wired the money to Medina,

without the client’s knowledge.

After Medina received the $100,000, he agreed to smuggle these five Cuban

players. One of Medina’s contacts called the players in Cuba, asked if they wanted

to leave, and told them when and where they should meet the “fast boat.” Medina

hired Geoffrey Rodrigues to drive the fast boat from Cuba to the United States.3

This July 2004 smuggling attempt failed. The United States Coast Guard

intercepted the fast boat about ten miles south of Key West, Florida. When

Rodrigues attempted to flee, the Coast Guard shot the engine of the boat to get it to

stop. The five players were detained and returned to Cuba.

After the first attempt failed, Dominguez asked Medina about a follow-up

smuggle. Medina agreed to the follow-up. Because Rodrigues had been caught,

3

Rodrigues pled guilty to a single smuggling conspiracy charge in this case.

5

Medina hired Roberto Yosvany Hernandez to bring the players to the United States

in exchange for $100,000.4 The smuggle was successful. The five players, along

with over a dozen other Cubans, were dropped off in the water off Deer Key, Florida

on August 22, 2004, around 5:00 a.m. All five players testified that they had no

papers authorizing their entry into the United States when they arrived.

In exchange for smuggling the five players into the United States, Medina

wanted $150,000. Dominguez had no problem sending the money, but he warned

Medina not to continue using his same bank account and instead to have the money

directed into a friend’s account. After the players arrived on August 22, 2004, and

continuing into September 2004, Dominguez transferred $125,000 into the accounts

of two of Medina’s friends, his father, and his sister. These individuals then paid

Medina. Dominguez still owed Medina $25,000.

After the players arrived in the Florida Keys, Medina brought them to the

Miami home of Andy Morales, who is a former Major League player and former

Dominguez client. The players were given clothes, food, and shelter. Medina

informed Dominguez that the players had arrived, and Dominguez asked Medina to

4

The jury acquitted Hernandez of all charges in this case. Despite Dominguez’s

suggestion to the contrary, this acquittal is irrelevant to the sufficiency of the evidence supporting

Dominguez’s convictions. See United States v. Mitchell, 146 F.3d 1338, 1344-45 (11th Cir.

1998) (stating that jury verdicts are “insulated from review” on the ground that they are

inconsistent (citing United States v. Powell, 469 U.S. 57, 68-69, 105 S. Ct. 471, 478-79 (1984))

(alterations omitted)).

6

drive the players to Los Angles with Ramon Batista.5 Medina, Batista, and the

players left Miami on August 23 and arrived in Los Angeles on August 26.

When the players arrived in Los Angeles, Dominguez met them at a restaurant.

He told them about his past successful representation of Cuban baseball players and

that he could represent the players in similar fashion. All five players signed agency

contracts with TSI. In addition to the contracts that the players signed with TSI,

Dominguez had the players sign contracts obligating them to pay Medina a

percentage of their baseball earnings. Dominguez and Medina intended for this

arrangement to pay off the $25,000 balance that Dominguez owed Medina for the

smuggle.

Shortly after the players arrived in Los Angeles, Dominguez arranged for

Humberto Gray, an experienced immigration attorney who has done immigration

work for TSI since the late 1990s, to process the players through immigration. By

October, Gray had interviewed the players and was doing whatever was necessary to

process them, including having them undergo examinations by physicians approved

by United States Citizenship and Immigration Services (USCIS). Gray told

Dominguez that he had set up an “initial appointment” for the players at the USCIS

Los Angeles office sometime toward the end of October. Gray had the appointment

5

Batista pled guilty to a transporting charge in this case.

7

changed to November because Dominguez had a conflict and would be unable to

accompany the players to the USCIS office in October.

Meanwhile, TSI had the five players housed in an apartment complex. Every

weekday, and on some Saturdays, they trained and played games at the Pierce College

baseball facility in Woodland Hills. They were free to come and go as they pleased.

They went out with friends, to restaurants, and to watch professional baseball games.

The players were also featured in a documentary film that sought to portray the

progression of Cuban baseball players in the United States. On November 12, TSI

had the players tryout in front of scouts from almost all of the Major League clubs.

The tryout was successful, as three of the five players signed Minor League contracts.

On November 19, Gray and Dominguez accompanied the five Cubans to the

USCIS to apply for asylum and parole. They were paroled. Gray thereafter

represented them before the USCIS. Turino and Guevara stayed in the United States.

Bueno, Castillo, and Masso went to the Dominican Republic; Dominguez had

arranged for them to play baseball in the Dominican Republic where they could be

showcased before Major League scouts.

Dominguez testified at trial. “Dominguez’s defense was based on testimony

he was unaware the players were smuggled from Cuba and only found out they were

8

in Miami after their arrival.” (Appellant’s Brief at 55.) He denied having entered

into an agreement with Medina to have them brought from Cuba to the United States.

B. Procedural History

1. The Indictment

In October 2006, a Southern District of Florida grand jury returned a fifty-three

count indictment against Dominguez and others who are not parties to this appeal.

The Government dismissed most of these counts prior to trial. Dominguez proceeded

to trial on twenty-one counts: Count 1 charges Dominguez with conspiring to bring

aliens to the United States, transport aliens within the United States, and conceal,

harbor, and shield aliens within the United States, all for the purpose of commercial

advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(2) and

(a)(2)(B)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i), 8 U.S.C. §

1324(a)(1)(A)(iii) and (a)(1)(B)(i), and 18 U.S.C. § 371. Counts 5, 6, 10, 13, and 19

charge Dominguez with aiding and abetting the attempt to bring in aliens to the

United States for the purpose of commercial advantage and private financial gain, in

violation of 8 U.S.C. § 1324(a)(2), (a)(2)(B)(ii), and 18 U.S.C. § 2. Counts 28, 29,

33, 35, and 40 charge Dominguez with aiding and abetting the bringing of aliens to

the United States for the purpose of commercial advantage and private financial gain,

in violation of 8 U.S.C. § 1324(a)(2), (a)(2)(B)(ii), and 18 U.S.C. § 2. Counts 44

9

through 48 charge Dominguez with transporting aliens within the United States, in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(ii). And Counts 49 through

53 charge Dominguez with concealing, harboring, and shielding aliens from

detection, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(ii). Dominguez

pled not guilty to all counts.

For the sake of clarity and brevity, our opinion groups Dominguez’s

convictions into three categories based on the nature of the charges. We refer to his

convictions of conspiracy to smuggle (Count 1), the attempt to smuggle, (Counts 5,

6, 10, 13, 19), and smuggling (Counts 28, 29, 33, 35, 40) as the smuggling

convictions. We refer to his convictions of transporting aliens (Counts 44 through

48) as the transporting convictions. And, we refer to his convictions of concealing,

harboring, and shielding aliens from detection (Counts 49 through 53) as the

harboring convictions.

2. Motion in Limine

Prior to trial, the Government filed a motion in limine seeking to preclude

Dominguez from referring to “Legislative and Executive Branch immigration

policies” that apply specifically to Cubans–namely, the Cuban Adjustment Act

(“CAA”), 8 U.S.C. § 1255, and the “Wet-Foot / Dry-Foot” policy. In response,

Dominguez’s counsel argued that Dominguez reasonably believed the CAA and the

10

Wet-Foot / Dry-Foot policy gave the Cuban players eligibility to remain in the United

States. See Appellant’s Brief at 23 (“[Dominguez] understood [the players’] arrival

to and presence in the U.S. was lawful.”); id. at 35 (“The jury should have considered

whether it was reasonable for the defendant to believe the Cubans were not illegally

in the U.S. . . . .”); R.1-176-1 at 9 (“[A] Cuban national who arrives on dry land is

eligible to remain in the United States, because that Cuban national’s status in the

United States is not in violation of the law.”). He thus contended that the CAA and

the Wet-Foot / Dry-Foot policy were relevant to the issue of intent to violate the law.

The district court rejected this argument and granted the Government’s motion in

limine. The court found that Dominguez’s beliefs about the CAA and the Wet-Foot

/ Dry-Foot policy were irrelevant to his intent to commit the charged offenses. The

court therefore prohibited Dominguez from making any argument regarding the CAA

and the Wet-Foot / Dry-Foot policy at trial.

3. Motion for Judgment of Acquittal

After the Government’s case-in-chief, Dominguez moved the district court for

a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). He argued,

among other things, that the Government had not established that he knew the five

Cuban players had not received “prior official authorization”; that he transported the

Cubans “in furtherance” of their illegal status; or that he concealed, harbored, and

11

shielded them to avoid detection. The court denied the motion. Dominguez renewed

the motion at the close of all the evidence. That motion was denied as well.

4. Sentencing

After a seven-day trial, the jury convicted Dominguez on all twenty-one counts.

The court sentenced Dominguez to a five-year mandatory minimum term for each of

the twenty-one counts of conviction, with each term to be served concurrently.

Dominguez received the five-year mandatory minimum under 8 U.S.C. §

1324(a)(2)(B)(ii) because he was convicted of smuggling three or more aliens for

commercial advantage or private financial gain.6

II. ISSUES ON APPEAL

Dominguez raises the following issues on appeal: (1) whether the district court

erred in denying his motion for judgment of acquittal because the evidence does not

support any of his convictions; (2) whether the court erred in excluding evidence of

the Wet-Foot / Dry-Foot policy and the Cuban Adjustment Act; (3) whether the court

erred in precluding the testimony of an expert immigration witness; (4) whether the

court erred in precluding evidence of the Major League baseball free agency rules;

6

Section 1324(a)(2)(B)(ii) states that where a “[§ 1324(a)(2) smuggling] offense [is]

done for the purpose of commercial advantage or private financial gain” the defendant shall “be

fined under Title 18 and shall be imprisoned . . . in the case of a first or second violation of

subparagraph . . . (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not

less than 5 nor more than 15 years.”

12

(5) whether the court erred in admitting evidence of the Betancourt-Beltran smuggle

under Federal Rule of Evidence 404(b); and (6) whether the court erred in denying

his requested jury instructions.7

III. DISCUSSION

A. Sufficiency of the Evidence

Dominguez contends that the evidence at trial was insufficient to support his

convictions for smuggling, transporting, and harboring aliens. We review challenges

to the sufficiency of the evidence in criminal cases de novo, viewing the evidence in

the light most favorable to the government. United States v. Williams, 527 F.3d 1235,

1244 (11th Cir. 2008) (citation omitted). “[E]vidence is sufficient to support a

conviction if a reasonable trier of fact could find that the evidence established guilt

7

Dominguez also raises other issues on appeal: (1) whether the court erred in granting

the Government’s motion for a continuance on the day of trial; (2) whether the court erred in

denying Dominguez’s request for specific voir dire questions; and (3) whether the cumulative

effect of multiple errors denied the defendant a fair trial.

As to issue one, we conclude that the court did not abuse its substantial discretion in

granting the Government’s motion for a continuance following the hospitalization of the

Government’s sole trial lawyer in this case. The record does not support Dominguez’s assertion

that the motion was a deliberate act designed to gain an advantage, and Dominguez has not

shown that he suffered significant prejudice as a result of the continuance. See United States v.

Key, 76 F.3d 350, 354 (11th Cir. 1996).

As to issue two, we conclude that the court did not abuse its wide discretion in limiting

voir dire of the prospective juror panel. The voir dire questioning as a whole complied with “the

essential demands of fairness” and “gave reasonable assurance to the parties that any prejudice of

the potential jurors would be discovered.” United States v. Nash, 910 F.2d 749, 753 (11th Cir.

1990) (citation omitted) (internal quotation marks omitted).

As to issue three, to the extent any evidentiary or instructional errors occurred, the

cumulative effect of any such errors did not deny Dominguez a fair trial.

13

beyond a reasonable doubt.” Id. (citation omitted) (internal quotation marks omitted).

“We assume that the jury made all credibility choices in support of the verdict” and

“accept all reasonable inferences that tend to support the government’s case.” Id.

(citation omitted).

1. Transporting (Counts 44-48)

Dominguez contends that the evidence is insufficient to support his conviction

for transporting aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). That statute

punishes:

Any person who . . . 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 . . . .

Id.

14

Dominguez argues that the evidence failed to prove that he transported the

Cuban players within the United States to further the players’ unlawful presence.8

We agree.

The evidence at trial showed that Dominguez sent Ramon Batista to pick up

the five players in Miami and take them to Los Angeles. They arrived in Los Angeles

on August 26, 2004. Shortly after the players arrived, they were taken to Humberto

Gray, an experienced immigration attorney–who has done immigration work for TSI

players since the late 1990s–to process the players through immigration. By October,

Gray had interviewed the players and was doing whatever was necessary, including

having them undergo examinations by physicians approved by USCIS, to process

them. Gray told Dominguez that he had set up an “initial appointment” for the

players at the USCIS Los Angeles office sometime toward the end of October. Gray

had the appointment changed to November because Dominguez had a conflict and

8

Dominguez also argues that the evidence failed to prove that the Cuban players entered

or remained in the United States “in violation of law.” According to Dominguez, under the CAA

and the Wet-Foot / Dry-Foot policy, the Cuban players were legally present as soon as they

touched dry land. The Government’s position, which the district court accepted, is that a Cuban

who reaches United States soil remains “in violation of law” until they are inspected and

admitted or paroled under 8 U.S.C. § 1255. In this case, the players arrived in Miami on August

23, 2004 and were not paroled until November 19, 2004. So, under the Government’s theory, the

players were present in violation of law from August 23, 2004 to November 19, 2004.

We need not address whether the Government’s legal interpretation is correct because the

transporting convictions must be reversed for reasons independent of whether the Cubans were

present “in violation of law” from August 23, 2004 to November 19, 2004.

15

would be unable to accompany the players to the USCIS office in October. On

November 19, 2004, Gray and Dominguez accompanied the five Cubans to the

USCIS to apply for asylum and parole. They were paroled.

The evidence further showed that, from the time the players arrived on August

23, 2004 to the time they were paroled on November 19, 2004, the players lived

freely and openly. They played baseball, went out with friends, ate at restaurants, and

watched professional baseball games. On November 12, 2004, the players were

“showcased” in front of scouts from almost every Major League team.

Based on this evidence, a reasonable jury could not find beyond a reasonable

doubt that Dominguez transported the Cuban players from Miami to Los Angeles in

order to further their illegal status. To the contrary, the players were taken to an

experienced immigration attorney shortly after arriving in Los Angeles for the

purpose of processing the players through immigration, and the players were paroled

three months later. During that three month period, the players lived freely, openly,

and in no way acted in a manner suggesting they were avoiding immigration officials.

We therefore conclude that the evidence was insufficient to support Dominguez’s

conviction for transporting under § 1324(a)(1)(A)(ii) and the district court erred in

denying Dominguez’s motion for judgment of acquittal on these counts.

16

In arguing that the evidence is sufficient to prove that Dominguez acted to

further the illegal status of the Cuban players, the Government relies on the fact that

Dominguez waited about three months before taking the players to immigration

officials. The Government does not, however, point to any statute or regulation with

a specific time requirement for presenting Cubans to immigration officials.

Considering that the immigration process started shortly after the players arrived, as

well as the circumstances surrounding the purpose of the trip to Los Angeles, we

cannot say that the three-month delay in reporting to immigration authorities supports

the conclusion that Dominguez intended to transport the players in order to further

their illegal immigration status.9

2. Harboring (Counts 49-53)

Dominguez contends that the evidence is insufficient to support his conviction

of harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). That statute

punishes:

9

As the Tenth Circuit has noted, the relevant evidence in establishing that a defendant

acted in furtherance of an alien’s illegal status will vary from case to case. See United States v.

Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir. 1999) (en banc). The circumstances of this case

are unique. Our reversal of Dominguez’s convictions for transporting aliens should not be read

as endorsing the idea that undocumented Cubans are free to wander indefinitely around the

United States, or that they should not report to immigration officials as soon as possible. We

simply hold that, under the facts of this case, the Government failed to prove that Dominguez

transported the aliens to further their purported illegal status.

17

Any person who . . . 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 . . . .

Id.

Dominguez argues that the evidence did not establish that he “knowingly

concealed, harbored, or shielded from detection” the five Cuban players from United

States immigration officials.10 We agree.

The jury was given the following instruction defining the phrase “conceal,

harbor or shield from detection”: “To ‘conceal, harbor or shield from detection’

includes any knowing conduct by the defendant tending to substantially facilitate an

alien’s escaping detection thereby remaining in the United States illegally.” (R.14 at

1383; Dkt. 217 at 22.) The evidence does not support the conclusion that Dominguez

substantially facilitated the Cuban players’ escaping detection from immigration

officials. As noted in discussing the transporting convictions, Dominguez took the

players to experienced immigration counsel shortly after they arrived to process them

through immigration, and the players in no way engaged in conduct suggesting that

10

Dominguez also argues, as he does for the transporting convictions, that the evidence

failed to prove that the Cuban players entered or remained in the United States “in violation of

law.” We need not address this argument because the harboring convictions, like the

transporting convictions, are reversed on other grounds.

18

they were hiding from or otherwise avoiding immigration officials. We therefore

conclude that the evidence was insufficient to support Dominguez’s convictions

under § 1324(a)(1)(A)(iii) and the district court erred in denying Dominguez’s motion

for judgment of acquittal on these counts.

3. Smuggling Convictions: Conspiracy to Smuggle, Aiding and

Abetting the Attempt to Smuggle, and Aiding and Abetting an

Actual Smuggle

a. Conspiracy to Smuggle (Count 1)

Dominguez contends that the evidence was insufficient to support his

conviction of conspiring, in violation of 18 U.S.C. § 371,11 to bring aliens to the

United States in violation of 8 U.S.C. § 1324(a)(2). That statute punishes:

Any person who, knowing or in reckless disregard of the fact that an

alien has not received prior official authorization to come to, enter, or

reside in the United States, brings to or attempts to bring to the United

States in any manner whatsoever, such alien, regardless of any official

action which may later be taken with respect to such alien . . . .

Id.

Thus, the elements of smuggling aliens in violation of 8 U.S.C. § 1324(a)(2) are (1)

that the defendant knowingly brought an alien to the United States; and (2) that the

11

18 U.S.C. § 371 states:

If two or more persons conspire either to commit any offense against the

United States, or to defraud the United States, or any agency thereof in any

manner or for any purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined under this title or

imprisoned not more than five years, or both.

19

defendant knew or was in reckless disregard of the fact that the alien had not received

prior official authorization to come to or enter the United States. To establish a

criminal conspiracy under 18 U.S.C. § 371, “the Government must prove (1) that an

agreement existed between two or more persons to commit a crime; (2) that the

defendant knowingly and voluntarily joined or participated in the conspiracy; and (3)

a conspirator performed an overt act in furtherance of the agreement.” United States

v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006) (citation omitted). The court also

instructed the jury that the Government had to prove Dominguez willfully joined the

conspiracy knowing its unlawful purpose. The crime of conspiracy is complete upon

the commission of an overt act. See United States v. Arias, 431 F.3d 1327, 1340 n.18

(11th Cir. 2005).

Dominguez argues that the evidence did not establish that he and Medina

conspired to bring the five Cuban players to the United States without prior official

authorization and that he knowingly participated in the conspiracy. Dominguez

points out that, while Medina testified that Dominguez requested the five Cuban

players, Medina did not testify that Dominguez knew they would arrive in the United

States without prior official authorization.

The evidence was sufficient to prove that Dominguez willfully conspired to

bring aliens to the United States in violation of 8 U.S.C. § 1324(a)(2). The principle

20

is well-established that a conspiratorial agreement “may be proven by circumstantial

evidence, including ‘inferences from the conduct of the alleged participants or from

circumstantial evidence of a scheme.’” United States v. Silvestri, 409 F.3d 1311,

1328 (11th Cir. 2005) (citation omitted). Here, the totality of the circumstantial

evidence supports the jury’s conclusion that Dominguez willfully conspired with

Medina to bring the five Cuban players to the United States and that Dominguez

knew or recklessly disregarded the fact that the Cuban players did not have prior

official authorization to come to the United States.

Medina testified that he had an extensive and ongoing smuggling relationship

with Dominguez. The relationship started in 2003 when Medina and Dominguez

agreed to smuggle Betancourt and Beltran to the United States so they could pursue

professional baseball careers. This prior smuggle involved the same conduct as the

charged smuggling offenses and occurred less than a year prior to the charged

smuggling offenses. Further, Dominguez paid Medina $125,000 in order to fund the

smuggling of the five Cuban players. Dominguez sent the payments to the accounts

of Medina’s friends and family who then paid Medina. And, to pay off the $25,000

balance that Dominguez owed Medina for the smuggle, Dominguez had the players

sign contracts obligating them to pay a percentage of their baseball earnings to

Medina. Finally, the players arrived in the United States in a speed boat and were

21

dropped off in the water off Deer Key, Florida, around 5 a.m. Based on the totality

of the evidence, a reasonable jury could find that Dominguez knew or recklessly

disregarded the fact that the five Cuban players did not have prior official

authorization to come to the United States; that Dominguez willfully conspired with

Medina–that is, acted with the specific intent to do something the law forbids; and

that Medina knowingly brought the players to the United States in violation of

§ 1324(a)(2).

The conspiracy count in the indictment, Count 1, also charged a conspiracy to

transport aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and a conspiracy to

harbor aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). “[W]here an indictment

alleges a conspiracy to commit several offenses against the United States, the charge

is sustained by adequate pleadings and proof of conspiracy to commit any one of the

offenses.” United States v. Johnson, 713 F.2d 633, 646 (11th Cir. 1983) (citation

omitted). The jury’s verdict form clearly indicates that they found that Dominguez

conspired to commit each of the substantive offenses: smuggling, transporting, and

harboring. (R.2-223.) Because the evidence is sufficient to support the conviction

for conspiracy to commit alien smuggling, we affirm the conspiracy conviction on

Count 1.

22

b. Aiding and Abetting the Attempt to Smuggle (Counts 5, 6,

10, 13, 19)

Dominguez contends that the evidence was insufficient to support his

convictions of aiding and abetting, in violation 18 U.S.C. § 2,12 the attempt to bring

aliens to the United States in violation of 8 U.S.C. § 1324(a)(2). These convictions

were based on Dominguez’s conduct with respect to the unsuccessful smuggle of the

five Cuban players in July 2004, about a month prior to the successful smuggle.

Section 1324(a)(2), cited above, prohibits any person from knowingly bringing

or attempting to bring to the United States an alien who does not have prior official

authorization to enter the United States. See 8 U.S.C. § 1324(a)(2). “To convict for

attempt, the government must prove: (1) the defendant was acting with the kind of

culpability otherwise required for the commission of the crime for which he is

charged with attempting; and (2) the defendant was engaged in conduct that

constitutes a substantial step toward the commission of the crime. United States v.

12

18 U.S.C. § 2 states:

(a) Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as

a principal.

(b) Whoever willfully causes an act to be done which if directly performed

by him or another would be an offense against the United States, is

punishable as a principal.

23

Carothers, 121 F.3d 659, 661 (11th Cir. 1997) (citing United States v. Mandujano,

499 F.2d 370, 376 (5th Cir. 1974)).

To prove a substantive alien-smuggling offense under a theory of aiding and

abetting, pursuant to 18 U.S.C. § 2, the evidence must establish that “(1) the

substantive offense was committed by someone; (2) the defendant committed an act

which contributed to and furthered the offense; and (3) the defendant intended to aid

in its commission.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000)

(citation omitted).

The evidence was sufficient to prove that Dominguez aided and abetted the

attempt to bring aliens to the United States in violation of 8 U.S.C. § 1324(a)(2).

First, the attempted smuggling offense under § 1324(a)(2) was committed in July

2004 when Medina hired Geoffrey Rodrigues to bring the five Cuban baseball players

to the United States, and Rodrigues was caught bringing the players to the United

States. Second, Dominguez contributed to and furthered that offense by paying

Medina $100,000; Medina testified that he would not attempt the July 2004 smuggle

without the $100,000 payment for the previous Betancourt-Beltran smuggle. Third,

the amount of this payment and the irregular manner of payment support the jury’s

conclusion that Dominguez intended to aid the commission of the July 2004 smuggle.

See United States v. Lopez, 484 F.3d 1186, 1199 (9th Cir. 2007) (en banc) (“A

24

financier who organizes and funds a smuggling operation, . . . whether located in or

outside of the United States, may be said to have ‘associated himself with the venture,

participated in it as in something he wished to bring about, and sought by his action

to make it succeed.’” (alterations omitted) (citation omitted)). We therefore reject

Dominguez’s challenge to the sufficiency of the evidence for his conviction of aiding

and abetting the attempted smuggling of the five players in July 2004.

c. Alien Smuggling (Counts 28, 29, 33, 35, 40)

Dominguez contends that the evidence was insufficient to support his

conviction of aiding and abetting the bringing of aliens to the United States in

violation of 8 U.S.C. § 1324(a)(2). These convictions were based on Dominguez’s

conduct with respect to the successful smuggle of the Cuban players in August 2004.

The evidence was sufficient to prove that Dominguez aided and abetted the

bringing of aliens to the United States in violation of 8 U.S.C. § 1324(a)(2). As noted

in the context of the other convictions, Dominguez’s role in the prior

Betancourt-Beltran smuggle; the substantial amount of payment to Medina both

before and after the players’ arrival; the contracts that Dominguez had the players

sign with Medina to pay off the smuggling debt; and the time, location, and manner

in which the players arrived support the conclusion that Dominguez aided and abetted

the smuggling of the five Cuban players in August 2004.

25

d. Enhanced Sentence Under 8 U.S.C. § 1324(a)(2)(B)(ii)

Dominguez also challenges the sufficiency of the evidence with respect to the

jury’s finding that he participated in the smuggling operation, in violation of 8 U.S.C.

§ 1324(a)(2), for the purpose of commercial advantage or financial gain. The

punishment under § 1324(a)(2) is enhanced if the smuggling offense is done “for the

purpose of commercial advantage or private financial gain.” 8 U.S.C.

§ 1324(a)(2)(B)(ii).13 Dominguez argues that the evidence did not establish that he

smuggled the Cuban players “for the purpose of commercial advantage or private

financial gain” because he actually lost money after the players arrived in the United

States. He stresses that none of the five players signed Major League contracts, and

the three players who signed Minor League contracts did not sign for enough money

to trigger a substantial fee. We reject this argument. The enhanced punishment under

§ 1324(a)(2)(B)(ii) does not turn on the financial success of the smuggling venture.

As the Second and Ninth Circuits have pointed out, the statute “does not require

evidence of an ‘actual payment or even an agreement to pay’ but merely requires that

the defendant acted ‘for the purpose of financial gain.’” United States v. Kim, 435

13

The challenge to the financial-gain enhancement relates only to the smuggling

convictions. The counts of conviction for transporting aliens, under 8 U.S.C. § 1324(a)(1)(A)(ii),

and harboring aliens, under 8 U.S.C. § 1324(a)(1)(A)(iii), did not allege that those offenses were

committed for commercial advantage or financial gain. See 8 U.S.C. § 1324(a)(1)(B)(ii).

26

F.3d 182, 185 (2d Cir. 2006) (quoting United States v. Angwin, 271 F.3d 786, 805

(9th Cir. 2001)). The evidence at trial supported the jury’s conclusion that

Dominguez conspired to commit, and aided and abetted, the smuggling of the Cuban

players to the United States so that he could sign them up as clients and collect a fee

based on a percentage of their future earnings. Dominguez, moreover, paid a lot of

money, around $125,000, to finance the players’ smuggle, which supports the

inference that Dominguez expected a return on his investment. We therefore reject

Dominguez’s challenge to the sufficiency of the evidence supporting the

financial-gain enhancement under § 1324(a)(2)(B)(ii).14

e. Arguments Pertaining to the Cuban Adjustment Act and

the Wet-Foot / Dry-Foot Policy

Dominguez contends that he reasonably believed the Cuban Adjustment Act

(“CAA”) and the Wet-Foot / Dry-Foot policy gave the players legal status in the

United States. Thus, he argues, he lacked the intent required to support his

convictions for smuggling under 8 U.S.C. § 1324(a)(2).15 We reject this argument.

14

Our reversal of Dominguez’s convictions for transporting and harboring aliens does

not affect the five-year mandatory minimum sentence under 8 U.S.C. § 1324(a)(2)(B)(ii).

Dominguez’s conspiracy conviction (Count 1), five attempted smuggling convictions (Counts 5,

6, 10, 13, 19) and five smuggling convictions (Counts 28, 29, 33, 35, 40) support the five-year

statutory mandatory minimum sentence.

15

Dominguez also argues that the CAA and the Wet-Foot / Dry-Foot policy show that he

did not have the intent necessary to support his convictions for transporting and harboring aliens.

As we explain above, independent of the CAA and the Wet-Foot / Dry-Foot policy, the evidence

27

United States immigration law and policy afford special treatment to Cuban

nationals who come to the United States. Under the Cuban Adjustment Act, a native

or citizen of Cuba, who has been inspected and admitted or paroled into the United

States and has been physically present in the United States for at least two years, can

apply for permanent residency in the United States.16 By taking advantage of the

CAA, Cuban nationals, who have no documents authorizing their presence in the

United States, can remain in the United States without demonstrating that they

suffered persecution or proving refugee status.17 The benefits of the CAA, however,

can only apply to those Cubans who reach United States soil (those with “dry feet”)

while Cubans who are interdicted at sea (those with “wet feet”) are repatriated to

does not support these convictions and they must be reversed. We therefore need not address

whether the CAA and the Wet-Foot / Dry-Foot policy had any bearing on the transporting and

harboring convictions.

16

See Cuban Adjustment Act, Pub. L. No. 89-732, § 1, 80 Stat. 1161 (1966) (codified as

amended at 8 U.S.C. § 1255 (2006)). The Act states:

[T]he status of any alien who is a native or citizen of Cuba and who has been

inspected and admitted or paroled into the United States subsequent to January

1, 1959 and has been physically present in the United States for at least two

years, may be adjusted by the Attorney General . . . to that of an alien lawfully

admitted for permanent residence if the alien makes an application for such

adjustment, and the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence.

Id.

17

For procedures governing asylum and proving refugee status, see generally 8 U.S.C. §

1158.

28

Cuba. This rule is commonly referred to as the “Wet-Foot / Dry-Foot” policy.18

Under the Department of Immigration and Naturalization Service’s Meissner

Memorandum, the Wet-Foot / Dry-Foot policy applies to Cubans regardless of

whether they entered the United States at a designated port-of entry. Memorandum

from Doris Meissner, Comm’r, Immigration & Naturalization Serv., Eligibility for

Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at

a Place Other than a Designated Port-of-Entry (Apr. 19, 1999) [hereinafter Meissner

Memorandum]. Dominguez claims that knowledge of this policy precludes a finding

he possessed an intent to violate the law. This obliges us to decide what level of

mental culpability 8 U.S.C. § 1324(a)(2) requires.

Section 1324(a)(2) requires proof of a defendant’s mental state in two ways.

First, the statute explicitly commands that a defendant know or recklessly disregard

“the fact that an alien has not received prior official authorization to come to, enter,

or reside in the United States.” 8 U.S.C. § 1324(a)(2). Furthermore, a smuggling

offense occurs “regardless of any official action which may later be taken with

respect to such alien.” Id. Second, a defendant must knowingly bring or attempt to

18

The policy has its foundation in a bilateral migration agreement signed in 1994

between the United States and Cuba, often called the “Joint Communique.” See Cuba-United

States: Joint Statement on Normalization of Migration, Building on the Agreement of September

9, 1994, 35 I.L.M. 327, 329 (stating that “migrants rescued at sea attempting to enter the United

States will not be permitted to enter the United States, but instead will be taken to safe haven

facilities outside the United States”).

29

bring an alien to the United States. Id. Although the statutory language omits a

mens-rea requirement as to this second element, a presumption exists in favor of a

mens-rea requirement for each element of an offense. United States v. X-Citement

Video, Inc., 513 U.S. 64, 72, 115 S. Ct. 464, 469 (1994). Moreover, a court may treat

the mens rea Congress provided in the statute as modifying each element that follows

it. See id. at 79, 115 S. Ct. at 472 (Stevens, J., concurring). Thus, we decide a

defendant must knowingly bring an alien to the United States.

However, a specific intent to violate the law is not required. As an initial

matter, “courts obviously must follow Congress’ intent as to the required level of

mental culpability for any particular offense.” United States v. Bailey, 444 U.S. 394,

406, 100 S. Ct. 624, 632 (1980); see also Liparota v. United States, 471 U.S. 419,

424, 105 S. Ct. 2084, 2087 (1985) (“The definition of the elements of a criminal

offense is entrusted to the legislature, particularly in the case of federal crimes, which

are solely creatures of statute.” (citation omitted)). The Supreme Court has also said

that “unless the text of the statute dictates a different result, the term ‘knowingly’

merely requires proof of knowledge of the facts that constitute the offense.” Bryan

v. United States, 524 U.S. 184, 193, 118 S. Ct. 1939, 1946 (1998); see also Staples

v. United States, 511 U.S. 600, 622 n.3, 114 S. Ct. 1793, 1805 (1994) (Ginsburg, J.,

concurring) (“The mens rea presumption requires knowledge only of the facts that

30

make the defendant’s conduct illegal . . . .” (citations omitted)); United States v.

Freed, 401 U.S. 601, 612, 91 S. Ct. 1112, 1119 (1971) (Brennan, J., concurring) (“If

the ancient maxim that ‘ignorance of the law is no excuse’ has any residual validity,

it indicates that the ordinary intent requirement–mens rea–of the criminal law does

not require knowledge that an act is illegal, wrong, or blameworthy.”). When a

statute proscribes conduct done “willfully,” then the “jury must find that the

defendant acted . . . with knowledge that his conduct was unlawful.” Bryan, 524 U.S.

at 193, 118 S. Ct. at 1946.

Requiring willful conduct in this instance is contrary to the plain language of

the statute and its legislative history (discussed in more detail below), and would

functionally eliminate the “reckless disregard” language Congress included in the

statute. Congress was not silent as to mental culpability in § 1324(a)(2). The statute

explicitly prohibits conduct done “knowing[ly].” Had Congress desired to punish

only “willful” conduct, Congress could have drafted the statute to say as much. The

statute’s prohibition on bringing an alien in “reckless disregard” of the alien’s

unauthorized status furthers our conclusion that Congress has spoken clearly to the

mens-rea element of the § 1324(a)(2) offense. “Reckless disregard,” standing alone,

may satisfy the mens-rea element of an offense. See United States v. Mussaleen, 35

F.3d 692, 698 (2d Cir. 1994). We decline to adopt a mens rea different than the one

31

chosen by Congress. We hold that willful conduct is not required to violate 8 U.S.C.

§ 1324(a)(2).

Our interpretation of 8 U.S.C. § 1324(a)(2) is strongly supported by its

statutory history. That history, as pertinent to this case, begins with our decision in

United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982). Zayas-Morales

involved the criminal prosecution of over 300 American vessel owners, captains, and

crew members responsible for transporting over 125,000 undocumented Cubans from

Mariel Harbor, Cuba to Key West, Florida (a designated port-of-entry) in 1980, in

what has been called the “Freedom Flotilla.” Id. at 1273-74. The defendants were

indicted under 8 U.S.C. § 1324(a)(1) (1976), the predecessor to the version of the

statute, 8 U.S.C. 1324(a)(2), involved in this case. Id. at 1273. The government

charged the defendants with “bring[ing] into” the United States any alien “not duly

admitted by an immigration officer or not lawfully entitled to enter or reside within

the United States.”19 See id. at 1274 & n.1 (quoting 8 U.S.C. § 1324(a)(1) (1976),

19

The statute at issue in Zayas-Morales, 8 U.S.C. 1324(a)(1) (1976), stated in pertinent

part:

Any person, including the owner, operator, pilot, master, commanding

officer, agent, or consignee of any means of transportation who–(1) brings

into or lands in the United States, by any means of transportation or

otherwise, or attempts, by himself or through another, to bring into or land

in the United States, by any means of transportation or otherwise;

....

any alien . . . not duly admitted by an immigration officer or not lawfully

entitled to enter or reside within the United States under the terms of this

32

amended by 8 U.S.C. § 1324(a)(1) & 1324(a)(2) (1986)). For purposes of deciding

the defendants’ motion to dismiss the indictments, the government and the defendants

stipulated that the defendants presented the Cuban aliens to immigration officials at

Key West and that the defendants’ intention in doing so was to allow the aliens to

seek legal status in the United States. Id. at 1274, 1277. Based on these stipulated

facts, we affirmed the dismissal of the indictments. Id. at 1278. We held that where

the defendants were bringing in aliens with the intention of submitting those aliens

to the proper officials so that the aliens might seek legal status in the United States,

the defendants lacked the general intent necessary to violate 8 U.S.C. § 1324(a)(1)

(1976). Id.

Following our decision in Zayas-Morales, in 1986, Congress substantially

rewrote 8 U.S.C. § 1324(a). Pertinent to this case, Congress added § 1324(a)(2).

Unlike the statute we interpreted in Zayas-Morales which did not contain a mental

state element, in the amended statute at § 1324(a)(2), Congress required that the

defendant act knowingly. Compare 8 U.S.C. § 1324(a)(1) (1976), with 8 U.S.C. §

1324(a)(2). Section 1324(a)(2) now punishes any person who knowingly brings to

chapter or any other law relating to the immigration or expulsion of aliens,

shall be guilty of a felony, and upon conviction thereof shall be punished

by a fine not exceeding $2,000 or by imprisonment for a term not

exceeding five years, or both, for each alien in respect to whom any

violation of this subsection occurs . . . .

33

the United States an alien while knowing or recklessly disregarding the fact that the

alien has not received “prior official authorization to come to, enter, or reside in the

United States.” The statute explicitly states the offense occurs “regardless of any

official action which may later be taken with respect to such alien.” 8 U.S.C.

§ 1324(a)(2). The legislative history explains that Congress intended to “expand the

scope of activities proscribed by federal law to reach the conduct of those

participating in such operations as the Mariel boatlift.” United States v. Nguyen, 73

F.3d 887, 892 (9th Cir. 1995) (citation omitted) (internal quotation marks omitted);

see also United States v. Garcia-Cordero, 610 F.3d 613, 619 (11th Cir. 2010)

(Korman, J., concurring) (noting that Congress enacted 8 U.S.C. § 1324(a)(2) to

punish the type of conduct at issue in the Mariel “Freedom Flotilla” cases). Given

that Congress’s goal in amending § 1324 was to expand the number of activities

prohibited by that section, and Congress redrafted the provision to dictate the mental

state necessary to violate the statute, we are not bound by our decision in Zayas-

Morales.

In United States v. Barajas-Montiel, 185 F.3d 947, 951-53 (9th Cir. 1999), the

Ninth Circuit held that specific “criminal intent is required for conviction of the

34

felony offenses of 8 U.S.C. § 1324(a)(2)(B).”20 We do not find the Barajas-Montiel

opinion persuasive. The Barajas-Montiel court correctly recognized that the

language of the statute does not require that the defendant specifically intend to

violate the law. Id. at 951. It then decided the § 1324(a)(2)(B) felony offenses must

contain a specific criminal intent element lest the statute run afoul of the mens-rea

presumption of the criminal law. Id. at 952-53. But, as we have said, conduct done

knowingly or with reckless disregard is sufficient to satisfy the mens-rea

presumption. Under these circumstances, we decline to add a specific criminal intent

element when Congress has chosen not to do so.

Because willful behavior is not required, the special status afforded Cubans

under the CAA and the Wet-Foot / Dry-Foot policy is not relevant to the state of mind

required to commit smuggling in violation of 8 U.S.C. § 1324(a)(2). The CAA and

the Wet-Foot / Dry-Foot policy do not provide “prior official authorization” for an

undocumented Cuban to come to the United States because an undocumented Cuban

must still be paroled, a process that “reclassif[ies] an alien from one who is illegally

remaining in the United States to one who is legally remaining in the United States

20

A number of circuits have interpreted 8 U.S.C. 1324(a)(1)(A)(ii) as requiring that the

defendant knowingly transport an alien to further a violation of the immigration law, or act

“willfully in furtherance of the alien’s violation of the law.” See, e.g., United States v. Parmelee,

42 F.3d 387, 390-91 & n.5 (7th Cir. 1994). That interpretation of § 1324(a)(1)(A)(ii) does not

demand that § 1324(a)(2) contain a willful element.

35

regardless of how entry into the United States was effected.” United States v.

Medina-Garcia, 918 F.2d 4, 8 (1st Cir. 1990). Thus, the CAA and the Wet-Foot /

Dry-Foot policy instead pertain to “official action which may later be taken with

respect to” the five Cuban players. See 8 U.S.C. § 1324(a)(2). By the plain language

of the statute, the effect of the CAA and the Wet-Foot / Dry-Foot policy on the

players’ immigration status after they arrive in the United States is not relevant to a

conviction for smuggling Cubans into the United States under § 1324(a)(2). And

Dominguez’s knowledge of these policies (if he had such knowledge) does not make

the evidence supporting his smuggling convictions insufficient.

Two of these smuggling offenses–the conspiracy and attempt offenses–were

complete prior to the time the Cuban players arrived in the United States. And, the

smuggling offense was complete upon their arrival.

B. Jury Instructions

Dominguez argues that the district court erred in failing to give his requested

jury instructions. We review a district court’s refusal to submit a defendant’s

requested jury instruction for an abuse of discretion. United States v. Morris, 20 F.3d

1111, 1114 (11th Cir. 1994) (citation omitted). In determining whether the district

court abused its discretion by refusing to give a requested jury instruction, we

consider three factors: “(1) whether the requested instruction is a substantially correct

36

statement of the law; (2) whether the jury charge given addressed the requested

instruction; and (3) whether the failure to give the requested instruction seriously

impaired the defendant’s ability to present an effective defense.” United States v.

Chirinos, 112 F.3d 1089, 1101 (11th Cir. 1997) (citation omitted). In this case, we

reverse Dominguez’s counts of conviction for transporting aliens and harboring

aliens, so we need not address whether the refusal to give a jury instruction pertaining

to these counts was error. See United States v. Siegelman, 640 F.3d 1159, 1177 n.26

(11th Cir. 2011) (declining to address challenge to jury instruction pertaining to a

count of conviction that has been reversed). We only address whether the refusal to

give certain instructions affected the smuggling convictions.

Dominguez argues that the court erred in refusing to instruct the jury that a

Cuban national arriving in the United States from Cuba is not required to arrive at a

designated port of entry, but is permitted to arrive at any place and thereafter be

processed by immigration authorities for inspection and adjustment. The instruction

relates to the special treatment afforded Cubans under the CAA, Meissner

Memorandum, and the Wet-Foot / Dry-Foot policy. As discussed above, this special

treatment has no bearing on the knowledge a defendant must have to commit the

smuggling offenses because those policies pertain to later official action taken with

37

respect to the alien. We therefore conclude that the denial of this instruction did not

impair Dominguez’s ability to defend against the smuggling charges.

Dominguez contends that the court erred in refusing to instruct the jury that he

is entitled to rely in good faith on the advice of counsel concerning the players’

immigration status. The timing and nature of Dominguez’s conversations with

counsel are not entirely clear from the record. To the extent Dominguez received

advice from counsel only after the players arrived in the United States, the

advice-of-counsel instruction has no relevance to Dominguez’s smuggling

convictions. Furthermore, no evidence suggested Dominguez fully disclosed the

nature of the smuggling plan to an attorney, an important component of the good faith

defense. The denial of this instruction did not impair Dominguez’s ability to defend

against the smuggling charges.

Dominguez argues that the court erred in refusing to instruct the jury that

specific intent–that the Dominguez acted willfully–is an element of the smuggling

charges. Similarly, he argues that the court erred in refusing to instruct the jury that

a mistake of fact is a complete defense to the smuggling charges. The jury

instructions regarding the § 1324(a)(2) smuggling offenses correctly addressed all

elements of the offenses.

38

The district court instructed the jury, in accord with a plain reading of the

statute, that in order to convict for alien smuggling the Government had to prove

beyond a reasonable doubt:

First: That the defendant knowingly brought an alien to the

United States;

Second: That the defendant knew or was in reckless disregard of the

fact that the alien had not received prior official

authorization to come to or enter the United States; and

Third: That the offense was done for the purpose of commercial

advantage or private financial gain.

(R. 14 at 1380-81; Dkt. 217 at 19.)

The jury was instructed that “knowingly” means “that the act was done

voluntarily and intentionally and not because of mistake or accident.” (R. 14 at 1384-

85; Dkt. 217 at 24.) As we have said, 8 U.S.C. § 1324(a)(2) does not contain a

“willful” element. Because the instructions given by the district court were correct

statements of the law, we find no abuse of discretion in the refusal to give a separate

instruction on specific intent and mistake of fact.

Dominguez also contends that the court’s instruction should only include

“knowing” or “reckless disregard” but not both states of mind. This argument is

meritless. Section 1324(a)(2) includes both knowledge and reckless disregard as

alternative states of mind. See 8 U.S.C. § 1324(a)(2) (“Any person who, knowing or

in reckless disregard of the fact that an alien has not received prior official

39

authorization to come to, enter, or reside in the United States . . . .” (emphasis

added)). And, both states of mind were properly charged in the indictment and

supported by the evidence. We find no abuse of discretion in giving the reckless

disregard instruction.

The jury was also instructed that Dominguez had to willfully join the

conspiracy. (R. 14 at 1376; Dkt. 217 at 13.) The court also correctly defined

“willfully” as an act “committed voluntarily and purposely, with the specific intent

to do something the law forbids; that is with bad purpose to either disobey or

disregard the law.” (R. 14 at 1385; Dkt. 217 at 24.) It is not clear from the

Appellant’s Brief that Dominguez objects to the conspiracy charge; if he does, we do

not know the substance of the objection. The objection is therefore waived. See

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

The instructions also adequately covered Dominguez’s defense theory.

Dominguez appears to recast his proposed instructions regarding good faith reliance

on counsel, specific intent, mistake of fact, and the status of a Cuban national arriving

at other than a designated port of entry as theory of defense instructions. As we have

already stated, the district court did not abuse its discretion by refusing to give these

instructions. The court’s theory of defense instruction told the jurors it was

Dominguez’s theory of the case that he “never entered or intended to enter into any

40

conspiracy to bring aliens into the United States illegally, . . . nor did he knowingly

engage in illegal alien smuggling or attempt to illegally smuggle aliens.” (R. 14 at

1386; Dkt. 217 at 26.) This instruction adequately covered Dominguez’s theory of

defense–that he was unaware the players were smuggled from Cuba.

Dominguez argues that the court erred in refusing to revise its instruction on

prior-bad-acts evidence admitted under Federal Rule of Evidence 404(b). This

challenge is vague and without merit. The district court gave the pattern instruction

on similar act evidence and did not abuse its discretion in refusing to revise this

instruction.

C. Evidentiary Issues

1. Admission of Evidence of Betancourt-Beltran Smuggle Under

Rule 404(b)

Dominguez argues that the district court abused its discretion in admitting

testimony regarding his involvement with the smuggling of Betancourt and Beltran,

two other baseball players. The district court permitted Medina to testify that, eight

months before the smuggling of the players in this case, he and Dominguez conspired

to smuggle Betancourt and Beltran to the United States. The district court admitted

the testimony under Federal Rule of Evidence 404(b), concluding that the

Betancourt-Beltran smuggle was relevant to Dominguez’s intent to commit the

41

smuggling charges in the indictment. We review for abuse of discretion a district

court’s ruling on the admissibility of evidence of uncharged conduct under Rule

404(b). United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006) (citation omitted).

“Rule 404(b) permits the admission of prior-bad-acts evidence to show motive,

preparation, knowledge, and intent, as well as an ongoing scheme or plan.” Id. at 779

(citation omitted). We apply a three-part test to evaluate the admissibility of evidence

under Rule 404(b): “(1) the evidence must be relevant to an issue other than the

defendant’s character; (2) there must be sufficient proof so that the factfinder could

find that the defendant committed the extrinsic act; and (3) the evidence must possess

probative value that is not substantially outweighed by undue prejudice.” Id. (citation

omitted); see also United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en

banc) (outlining same test).

Applying this test, we conclude that the district court did not abuse its

discretion in admitting testimony of the Betancourt-Beltran smuggle. First, evidence

of the Betancourt-Beltran smuggle was relevant to establish Dominguez’s intent with

respect to the conspiracy smuggling offense and the substantive alien-smuggling

counts. By Dominguez’s argument–that he did not know or recklessly disregard the

fact that the Cuban players did not have prior authorization to enter the United

States–Dominguez made intent an issue in the case, making the evidence of the

42

Betancourt-Beltran smuggle relevant for non-propensity purposes. See Perez, 443

F.3d at 779-80. Second, Medina’s testimony provided a sufficient basis for the jury

to find that Dominguez conspired with Medina to commit the Betancourt-Beltran

smuggle. Third, the district court did not abuse its discretion when it determined the

probative value of the Betancourt-Beltran smuggle, which involved the same conduct

as the charged conspiracy and substantive smuggling offenses and occurred less than

a year prior to the smuggle in this case, outweighed its prejudicial effect. See id. at

780. We therefore conclude that the district court did not abuse its discretion in

admitting evidence of the Betancourt-Beltran smuggle as 404(b) evidence.

2. Exclusion of the CAA, Wet-Foot / Dry-Foot Policy, and Expert

Immigration Testimony

Dominguez contends that the district court erred in excluding evidence

pertaining to the CAA and the Wet-Foot / Dry-Foot policy, and in excluding the

testimony of an immigration judge regarding the status of Cuban nationals under

United States immigration law. He claims that this evidence was crucial in

determining whether he had the required intent to smuggle, transport, and harbor the

Cuban players. We review determinations of the admissibility of evidence for abuse

of discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (citation

omitted). We likewise review for abuse of discretion the district court’s decisions

43

regarding the admissibility of expert testimony. United States v. Frazier, 387 F.3d

1244, 1258 (11th Cir. 2004) (en banc) (citation omitted).

In section III.A, we discuss the sufficiency of the evidence for the smuggling

convictions and explain why the CAA and the Wet-Foot / Dry-Foot policy have no

relevance to the sufficiency of the evidence to support these smuggling convictions.

For the same reasons, they have no relevance to Dominguez’s defense to the

smuggling charges. In fact, Dominguez did not contend in the district court that the

immigration judge’s testimony about these policies would have assisted his defense

to the smuggling charges. While arguing for the admission of testimony by the

immigration judge, Dominguez’s counsel proffered that the expert would testify that

“[y]ou can’t put a foreign national on a boat and bring them to the United States

without permission. That’s just not allowed, doesn’t matter, Cuban national or

anybody else, you can’t do that.” (R.11 at 897.) Because the immigration judge’s

testimony on the smuggling counts would have been detrimental to Dominguez, the

immigration judge’s testimony could not have changed the jury’s verdict on the

smuggling counts. This excerpt regarding the immigration judge’s testimony

highlights that the CAA and the Wet-Foot / Dry-Foot policy are not relevant to the

smuggling convictions we are affirming in this case. As we have said, two of these

smuggling offenses–the conspiracy and attempt offenses–were complete prior to the

44

time the Cuban players arrived in the United States. At least as to these two offenses,

it is hard to imagine the relevance of policies that address Cubans’ immigration status

after their arrival in this country. The exclusion of evidence about them did not, as

to the smuggling convictions, affect Dominguez’s substantial rights. See Fed. R.

Crim. P. 52(a).

To the extent evidence of the CAA and the Wet-Foot / Dry-Foot policy relate

to Dominguez’s convictions of transporting and harboring aliens, we need not address

these purported errors because we reverse those convictions for insufficiency of the

evidence. See United States v. Law, 528 F.3d 888, 898-99 (D.C. Cir. 2008) (declining

to address evidentiary errors relating to counts of conviction reversed on other

grounds).

3. Exclusion of Major League Baseball Free Agency Rules

Dominguez contends that the district court erred in excluding evidence

pertaining to the Major League Baseball free agency rules. He argues the evidence

was necessary to respond to the Government’s theory that he delayed the players’

immigration processing in order to manipulate the free agency system.

To the extent the exclusion of the Major League baseball rules relates to

Dominguez’s convictions for transporting and harboring the players, we need not

45

address these purported errors because we reverse those convictions for insufficiency

of the evidence. Id.

To the extent the free agency rules are relevant to the smuggling convictions,

we conclude that any error in excluding this evidence, if there was error, was

harmless. See Frazier, 387 F.3d at 1266 n.20 (requiring reversal in a criminal case

only if erroneous evidentiary decision “[had] a ‘substantial influence’ on the outcome

of a case or [left] ‘grave doubt’ as to whether they affected the outcome of a case”

(citation omitted)). Dominguez argues that the free agency rules were necessary to

rebut the Government’s theory regarding the three-month delay in the players’

immigration processing. That delay has no relevance to whether Dominguez

conspired to smuggle and assisted in smuggling the Cuban players to the United

States. Thus we are not left with a grave doubt that the exclusion of the free agency

rules affected the smuggling convictions.

IV. CONCLUSION

Count 1 charges Dominguez with conspiring to bring aliens to the United

States for the purpose of commercial gain or financial advantage, in violation of 8

U.S.C. § 1324(a)(2), (a)(2)(B)(ii), and 18 U.S.C. § 371. We affirm Dominguez’s

conviction and sentence on this count.

46

Counts 5, 6, 10, 13, and 19 charge Dominguez with aiding and abetting the

attempt to bring in aliens to the United States for the purpose of commercial

advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(2),

(a)(2)(B)(ii), and 18 U.S.C. § 2. We affirm Dominguez’s convictions and sentences

on these counts.

Counts 28, 29, 33, 35, and 40 charge Dominguez with aiding and abetting the

bringing of aliens to the United States for the purpose of commercial advantage and

private financial gain, in violation of 8 U.S.C. § 1324(a)(2), (a)(2)(B)(ii), and 18

U.S.C. § 2. We affirm Dominguez’s convictions and sentences on these counts.

We reverse Dominguez’s convictions on all other counts and vacate his

sentences on these other counts.

AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART.

47

TJOFLAT, Circuit Judge, concurring in part, dissenting in part:

I concur in the court’s judgment reversing Dominguez’s convictions for the 8

U.S.C. § 1324(a)(1)(A)(ii)1 transporting violations, Counts 44 through 48, and the 8

U.S.C. § 1324(a)(1)(A)(iii)2 harboring violations, Counts 49 through 53. I dissent,

however, from court’s affirmance of Dominguez’s convictions for conspiring, in

violation of 18 U.S.C. § 371,3 to commit those offenses and the smuggling offense,

1

8 U.S.C. § 1324(a)(1)(A)(ii) (2006) states, in relevant part:

(1)(A) 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 . . . such alien within

the United States by means of transportation or otherwise, in furtherance of such

violation of law;

....

shall be punished as provided in subparagraph (B).

2

8 U.S.C. § 1324(a)(1)(A)(iii) (2006) states, in relevant part:

(1)(A) Any person who—

....

(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, . . . harbors[] or shields from

detection . . . such alien in any place . . . ;

....

shall be punished as provided in subparagraph (B).

3

18 U.S.C. § 371 states:

If two or more persons conspire either to commit any offense against the United

States, or to defraud the United States, or any agency thereof in any manner or for

any purpose, and one or more of such persons do any act to effect the object of the

conspiracy, each shall be fined under this title or imprisoned not more than five

years, or both.

48

8 U.S.C. § 1324(a)(2)(B)(ii), Count 1; for attempted smuggling, in violation of 8

U.S.C. § 1324(a)(2)(B)(ii), Counts 5, 6, 10, 13, and 19; and for smuggling, in

violation of 8 U.S.C. § 1324(a)(2)(B)(ii), Counts 28, 29, 33, 35, and 40.4

My disagreement with the court primarily rests on four grounds. First, because

I conclude that proof of general criminal intent is a required element of the §

1324(a)(2)(B)(ii) offenses, I would reverse Dominguez’s convictions for those

offenses and the conspiracy offense, and remand for a new trial. The district court

committed reversible error in excluding evidence of the federal immigration policy

governing the status Cuban refugees and in preventing Dominguez from contending

that he did not intend to do something the law forbids—to act with criminal

intent—when he arranged to bring the players to the United States so they could be

granted asylum. The court then compounded the error when it failed to instruct the

4

Both attempted smuggling and smuggling are violations of 8 U.S.C. § 1324(a)(2),

which states:

Any person who, knowing or in reckless disregard of the fact that an alien has not

received prior official authorization to come to, enter, or reside in the United

States, brings to or attempts to bring to the United States in any manner

whatsoever, such alien, regardless of any official action which may later be taken

with respect to such alien shall, for each alien in respect to whom a violation of

this paragraph occurs [be subjected to a fine or imprisonment, or both].

Section 1324(a)(2)(B)(ii) states that “[if] an offense [is] done for the purpose of commercial

advantage or private financial gain,” the defendant shall “be fined under Title 18 and shall be

imprisoned, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less

than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15

years.”

49

jury that it could not find Dominguez guilty of the § 1324(a)(2)(B)(ii) offense unless

it found that he acted “willfully.”5 Second, even if criminal intent is not required for

a § 1324(a)(2)(B)(ii) conviction, it was required for the Count 1 § 371 conviction,

because the indictment, the Government’s requested jury instructions, and the

instructions the court gave all required the jury to find that Dominguez acted

“willfully,” thereby placing Dominguez’s intent—his mens rea defense—at issue.

Third, if the first two grounds are without merit, the evidence Dominguez wanted to

introduce was necessary to consider whether he knew or acted in reckless disregard

of the aliens’ status; hence, its exclusion constituted reversible error. Fourth, and by

no means the least important, is that the today’s criminal intent holding creates a

circuit split.

In essence, the district court denied Dominguez a fair trial by depriving him of

the opportunity to present his mens rea defense to Counts 1, 5, 6, 10, 13, 19, 28, 29,

33, 35, and 406—that he brought the Cuban baseball players to the United States for

a lawful purpose, so they could be granted asylum and paroled in accordance with the

5

Eleventh Circuit Pattern Jury Instructions (Criminal) at 35, Basic Offense Instruction

9.1A (defining “willfully” to mean an act with a general, not specific, criminal intent, or in other

words, requiring a finding that the defendant acted “purposely, with the intent to do something

the law forbids; that is, with the bad purpose to disobey or disregard the law.”).

6

The district court also denied Dominguez the opportunity to present the same mens rea

defense to the charges contained in Counts 44 through 53. The error is of no moment, however,

because we are reversing the convictions for those counts on other grounds.

50

federal immigration policy governing the status of Cuban refugees, as expressed in

the Cuban Adjustment Act, 8 U.S.C. § 1255,7 the Meissner Memorandum,8 and the

Wet-Foot/Dry-Foot policy.9

To demonstrate these errors, I explain, in part I, the United States immigration

policy governing the treatment of Cuban refugees and how the Government

implemented that policy in this case. Part II sets out the court’s holding that all of

this is irrelevant. Part III explains why that holding is erroneous—that general

7

8 U.S.C. § 1255(a) states:

[t]he status of an alien who was inspected and admitted or paroled into the United

States or the status of any other alien having an approved petition for

classification as a VAWA self-petitioner may be adjusted by the Attorney

General, in his discretion and under such regulations as he may prescribe, to that

of an alien lawfully admitted for permanent residence if (1) the alien makes an

application for such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent residence, and (3) an

immigrant visa is immediately available to him at the time his application is filed.

8

See Memorandum from Doris Meissner, Comm’r, INS, to all Regional Directors, all

District Directors, all Chief Patrol Agents, and all Officers-in-Charge, file No. HQCOU 120/17-

1, Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite having Arrived

at a Place Other than a Designated Port-of-Entry (April 19, 1999), available at

http://www.uscis.gov/files/pressrelease/CubanParole_4Mar08.pdf (“Attachment–A”) [hereinafter

the “Meissner Memorandum”]. The Meissner Memorandum instructs the officials of the United

States Citizenship and Immigration Services, a component of the Department of Homeland

Security, which succeeded the Immigration and Naturalization Service regarding Cuban refugee

applications for permanent residency. See 6 U.S.C. § 271 (describing new authority of the

United States Citizenship and Immigration Services).

9

“The so-called ‘Wet-foot/Dry-Foot’ policy . . . applies to Cuban refugees who reach

United States land. If they reach land, they are allowed to stay, apply for political asylum and

eventually residency.” Movimiento Democracia Inc. v. Chertoff, 417 F. Supp. 2d 1343, 1344

(S.D. Fla. 2006). For a full explication of the Wet-Foot/Dry-Foot policy see part I, infra.

51

criminal intent is the appropriate level of mens rea of the counts alleging a violation

of § 1324(a)(2)(B)(ii). Part IV explains that, regardless of whether criminal intent is

an element of the substantive offenses, Dominguez’s intent was relevant to his

conspiracy charge given that the indictment, the Government’s requested jury

instructions, and the district court’s instructions all required the jury to find that

Dominguez acted “willfully.” Part V sets out additional reasons why, even assuming

there is no criminal intent, the district court still erred. Part VI concludes.

I.

This part traces the origins of the Wet-Foot/Dry-Foot policy in light of

established United States’ immigration policy toward Cubans.

A.

1.

The Immigration and Nationality Act (the “INA”), Pub. L. No. 82-414, 66 Stat.

163 (1952) (enacted as amended in scattered sections of 8 U.S.C.), declares, as a

general rule, that an alien who arrives in the United States “at any time or place other

than as designated by the Attorney General,”10 or who lacks a “valid entry document,”

10

A place designated by the Attorney General is often referred to as a “Port-of-Entry.” 8

C.F.R. § 100.4; see also 3 C.J.S. Aliens § 546 (defining an “arriving alien”).

52

is inadmissible and immediately removable.11 In either case, a removable alien may

apply for asylum as a refugee, 8 U.S.C. § 1158,12 withholding of removal,13 protection

11

See 8 U.S.C. § 1182(a)(6)(A)(i) (2006) (regarding admission and parole); see also 8

U.S.C. § 1182(a)(7)(A)(i)(I) (regarding entry documents).

12

8 U.S.C. § 1158(a)(1) (2006) states, in pertinent part, “[a]ny alien who is physically

present in the United States or who arrives in the United States (whether or not at a designated

port of arrival . . . ), irrespective of such alien’s status, may apply for asylum . . . .”

8 U.S.C. § 1158(b)(1)(A) states,

The Secretary of Homeland Security or the Attorney General may grant asylum to

an alien who has applied for asylum in accordance with the requirements and

procedures established by the Secretary of Homeland Security or the Attorney

General under this section if the Secretary of Homeland Security or the Attorney

General determines that such alien is a refugee within the meaning of section

1101(a)(42)(A) of this title.

13

On applying for asylum, the alien may also apply for withholding of removal under 8

U.S.C. § 1231 (2006), which states in subsection (b)(3)(A), that “the Attorney General may not

remove an alien to a country if the Attorney General decides that the alien’s life or freedom

would be threatened in that country because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion.”

53

under the United Nations Convention Against Torture,14 and admission into the

United States. A refugee is:

any person who is outside any country of such person's nationality or,

in the case of a person having no nationality, is outside any country in

which such person last habitually resided, and who is unable or

unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a

well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). If the alien “does not have a credible fear of persecution,

the officer shall order the alien removed from the United States without further

hearing or review,” 8 U.S.C. § 1225(b)(1)(B)(iii)(I), subject to the alien’s right under

8 U.S.C. § 1225(b)(1)(B)(iii)(III) to “request . . . prompt review by an immigration

judge.” If the asylum officer or immigration judge grants the alien’s application for

asylum, the alien may be paroled pending final determination of his immigration

14

In addition to applying for withholding of removal, the alien may seek relief under the

Convention Against Torture, executed by the Foreign Affairs Reform and Restructuring Act,

which states in pertinent part that,

[i]t shall be the policy of the United States not to expel, extradite, or otherwise

effect the involuntary return of any person to a country in which there are

substantial grounds for believing the person would be in danger of being subjected

to torture, regardless of whether the person is physically present in the United

States.

Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, § 2242(a),

112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C. § 1231 note).

54

status for “urgent humanitarian reasons or significant public benefit.” 8 U.S.C. §

1182(d)(5)(A).

Cuban aliens, however, occupy a unique position. A Cuban who arrives in the

United States is presumed to be a refugee, and therefore entitled to asylum.15 This

presumption is based on the political and economic repression Cuban citizens have

been suffering at the hands of the Castro government since it came to power in 1959.

In the early years after Castro took over, the United States government welcomed

Cuban refugees with open arms. Indeed, between 1965 and 1971, the United States

government itself airlifted approximately two hundred-sixty thousand refugees out

of Cuba and into the United States under the so-called “Freedom Flights” program.16

Political favor for Cuban refugees achieved official status in 1966, with the

passage of the Cuban Adjustment Act (the “CAA”). That act granted special status

to Cubans coming to the United States. It provided, in pertinent part,

the status of any alien who is a native or citizen of Cuba and who has

been inspected and admitted or paroled into the United States

15

A Cuban, like other applicants for asylum, may be denied asylum under certain

extraordinary circumstances, including where “there are serious reasons for believing that the

[Cuban] has committed a serious nonpolitical crime outside the United States prior to the arrival

of the [Cuban] in the United States.” 8 U.S.C. § 1158(b)(2)(A)(iii).

16

Cuba: Migration, U.S. Department of State,

http://www.state.gov/www/regions/wha/cuba/migration.html (last visited September 12, 2011).

55

subsequent to January 1, 1959 and has been physically present in the

United States for at least two years, may be adjusted by the Attorney

General, in his discretion and under such regulations as he may

prescribe, to that of an alien lawfully admitted for permanent residence

if the alien makes an application for such adjustment, and the alien is

eligible to receive an immigrant visa and is admissible to the United

States for permanent residence.

Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (1966).17

As explained by the House Judiciary Committee, in order to grant Cubans this

special status, Congress had to except them from the prohibition then present within

§ 245(c) of the INA, which provided that “natives of any country of the Western

Hemisphere, or of any adjacent island named in section 101(b)(5) of the Immigration

and Nationality Act” were ordinarily “precluded from applying for adjustment to

permanent resident status while in the United States.” H.R. Rep. No. 89-1978, at 1

(1966), reprinted in 1966 U.S.C.C.A.N. 3792, 3793. Congress separated Cubans

from other natives of the Western Hemisphere because, as the House Judiciary

Committee explained,

[t]he only recourse available to a refugee from Cuba under existing law

in order to change to immigrant status is the awkward procedure of

leaving the United States for an indefinite period of time in order to

17

The Attorney General subsequently prescribed a regulation authorizing an alien

meeting the eligibility requirements of the CAA to apply for adjustment of status to that of a

lawful permanent resident to the [INS, now United States Citizenship and Immigration Services]

director having jurisdiction over the alien’s place of residence. See 8 C.F.R. § 245.2. This

provision was amended in 2006, after the events involved in this case.

56

secure an immigrant visa at a U.S. consular office abroad and then

reentering as a permanent resident.

H.R. Rep. No. 89-1978, at 2, 1966 U.S.C.C.A.N at 3794.

In addition to avoiding this awkward procedure, the CAA would “aid in

[Cuban refugees’] resettlement by enhancing their opportunity to qualify for

employment in all areas of the Nation.” Id. Moreover, it would afford Cubans the

same sort of opportunities that other immigrants might have: “The fact should not be

overlooked that the beneficiaries of this legislation could have come to the United

States as immigrants had diplomatic relations been maintained between the United

States and Cuba.” Id.

Despite the existence of the CAA, the days of clear political preference for

Cuban refugees would come to an end. The massive 1980 “boatlift” from the port of

Mariel, Cuba, marked a new crisis point in the United States’s expressed policy of

“open heart, open arms” towards Cuban refugees.18 In the aftermath of a riot at the

Peruvian Embassy in Havana, Castro announced that the port of Mariel was “open”

to all who wanted to leave Cuba. Soon, American vessels were picking up refugees

18

Time magazine quoted President Jimmy Carter as stating that:

Ours is a country of refugees. We’ll continue to provide an open heart and open

arms to refugees seeking freedom from Communist domination and from the

economic deprivation brought about by Fidel Castro and his government.

Nation: Open Heart, Open Arms, Time, May 19, 1980, at 14.

57

from Mariel and transporting them to United States shores. According to United

States Coast Guard statistics, nearly one hundred twenty-five thousand Cubans fled

to the United States in what became known as the “Freedom Flotilla.”19

2.

This set the stage for this court’s decision in United States v. Zayas-Morales,

685 F.2d 1272 (11th Cir. 1982). Zayas-Morales involved the prosecution of the

owners and captains of American vessels, and those assisting them, who, as part of

the Freedom Flotilla, picked up thousands of refugees from Mariel Harbor and

brought them to Key West, Florida over the strong objection of the United States

government. Id. at 1274. The Zayas-Morales court described the Government’s

objection:

The first group of aliens arrived in the United States on April 21, 1980.

Two days later, the United States Coast Guard initiated warnings by

means of radio broadcasts alerting all listeners to the possibility of

arrests and seizure of vessels for transporting undocumented aliens to

the United States. By that time many of the vessels had left the United

States for Mariel Harbor. At approximately the same time, the United

States Customs Service began issuing written notices requiring customs

clearance prior to departure from United States ports and warning that

transportation of undocumented aliens was illegal. Dissatisfied with the

results of the initial efforts to halt the mass influx of aliens, on May 14,

19

Mariel Boatlift, U.S. Coast Guard Alien Migrant Interdiction, Coast Guard Off. of L.

Enforcement, http://www.uscg.mil/hq/cg5/cg531/AMIO/mariel.asp (last visited September 12,

2011) (describing U.S. Coast Guard activity during the so-called Mariel Boatlift, a.k.a. the

Freedom Flotilla).

58

1980, the President imposed an embargo on boats attempting to leave

our territorial waters and ordered a return of United States vessels from

Mariel Harbor. So ended the Freedom Flotilla.

685 F.2d at 1274 (citation omitted).

To indicate how condemnable it considered the defendants’ conduct, the

Government indicted 336 of those involved in the Freedom Flotilla under 8 U.S.C.

§ 1324(a)(1), the predecessor to the version of the statute, 8 U.S.C. § 1324(a)(2),

involved in this case. Id. at 1274. Section 1324(a)(1) stated, in pertinent part:

Any person, including the owner, operator, pilot, master, commanding officer,

agent, or consignee of any means of transportation who—

(1) brings into or lands in the United States, by any means of

transportation or otherwise, or attempts, by himself or though another,

to bring into or land in the United States, by any means of transportation

or otherwise;

....

any alien . . . not duly admitted by an immigration officer or not lawfully

entitled to enter or reside within the United States under the terms of this

chapter or any other law relating to the immigration or expulsion of

aliens, shall be guilty of a felony, and upon conviction thereof shall be

punished by a fine not exceeding $2,000 or by imprisonment for a term

not exceeding five years, or both, for each alien in respect to whom any

violation of this subsection occurs.

Id. at 1274 n.1 (quoting 8 U.S.C. § 1324(a)(1) (1976)).

The district court dismissed the indictment on the ground that the defendants

did not commit a “crime in presenting the Cubans at the border checkpoint.”20 We

20

The district court explained it in these words:

59

affirmed the dismissal on the ground that the Government failed to prove that the

defendants acted with criminal intent, the mens rea element that the district court, at

the Government’s urging, ruled irrelevant in Dominguez’s case.21 Id. at 1273–74.

The defendants lacked the requisite mens rea because they clearly intended to submit

the aliens to proper immigration officials in full compliance with the law:

[N]ot only had the defendants presented the aliens to the proper

officials, but . . . their intention in doing so was to allow the aliens to

seek legal status in this country. . . . Such an intention neutralizes any

government theory that the defendants possessed the criminal intent

necessary for a conviction under 8 U.S.C. § 1324(a)(1).

Id. at 1277.

The defendants’ lawful intent to retrieve Cubans without visas and deliver them

to U.S. immigration officials was effective the moment the boats left Mariel Harbor

and remained effective until delivery into the United States. See id. at 1274

(discussing stipulations made by the parties). Therefore, what the defendants

8 U.S.C. § 1324(a)(1) requires that an entry be made either by fraudulent or

surreptitious means. By admission and stipulation of the parties, no entry of

aliens was effectuated by the defendants’ actions in these boatlift cases. As stated

above, the defendants committed no crime in presenting the aliens at the border

checkpoint.

United States v. Anaya, 509 F. Supp. 289, 299 (S.D. Fla. 1980).

21

We affirmed on a rationale not relied upon by the district court.

60

intended to do with the aliens after their arrival in the United States was relevant to

their intent to disobey the law. Id. at 1276–77.

3.

In light of several concerns arising, in part, out of our decision in Zayas-

Morales, Congress revised § 1324 in 1986. I focus on those changes directly relevant

to my disagreement with the court’s holding today—that evidence of the federal

immigration policy governing the status of Cuban refugees and Dominguez’s reliance

on that policy is irrelevant.

First, Congress split the “bring into” provision of § 1324(a)(1) into two

separate provisions. The first provision, § 1324(a)(1)(A)(i), makes it unlawful to

bring an alien into the United States “at a place other than a designated port of

entry.”22 A person violating this provision may be sentenced to prison for not more

than ten years for each alien brought to the United States at such place.23 The second

22

8 U.S.C. § 1324(a)(1)(A)(i) (2006) applies to anyone who,

knowing that a person is an alien, brings to or attempts to bring to the United

States in any manner whatsoever such person at a place other than a designated

port of entry or place other than as designated by the Commissioner, regardless of

whether such alien has received prior official authorization to come to, enter, or

reside in the United States and regardless of any future official action which may

be taken with respect to such alien.

23

8 U.S.C. § 1324(a)(1)(B)(i) (2006) declares, in pertinent part: “A person who violates

[§ 1324(a)(1)(A)(i)] shall, for each alien in respect to whom such a violation occurs . . . be fined

under Title 18, imprisoned not more than 10 years, or both.”

61

provision, § 1324(a)(2), makes it unlawful to bring any alien to the United States who

has not received prior official authorization.24 A comparison of the text of the old

version of § 1324(a) with the text of the new version reveals that Congress added

language to clarify that the new § 1324(a)(2) applies only to those individuals who

act “knowing or in reckless disregard of the fact that an alien has not received prior

official authorization to come into, enter or reside, in the United States” and that a

violation of § 1324(a)(2) can occur “regardless of any official action which may later

be taken with respect to such alien.”

In drafting § 1324(a)(2), Congress created both a misdemeanor and a felony.

The misdemeanor is punishable by a fine or imprisonment for not more than one year,

or both;25 and the felony, depending on the intent or purpose for which it was

committed, is punishable by a fine and imprisonment for a maximum term of ten or

24

8 U.S.C. § 1324(a)(2) (2006) states,

[a]ny person who, knowing or in reckless disregard of the fact that an alien has

not received prior official authorization to come to, enter, or reside in the United

States, brings to or attempts to bring to the United States in any manner

whatsoever, such alien, regardless of any official action which may later be taken

with respect to such alien shall, for each alien in respect to whom a violation of

this paragraph occurs [shall be subjected to a fine or imprisonment, or both].

25

8 U.S.C. § 1324(a)(2)(A) (2006) provides that a person violating § 1324(a)(2) “be

fined in accordance with Title 18 or imprisoned not more than one year, or both” for each

violation.

62

fifteen years.26 The presentence report prepared by the district court’s Probation

Office for Dominguez’s case recommended imprisonment for a minimum term of

three years and a maximum term of ten years for Counts 5, 6, 28, and 29 and a

minimum term of five years and a maximum term of fifteen years for Counts 10, 13,

19, 33, 35 and 40.27

4. Eight years after Congress revised 8 U.S.C. § 1324(a), the Wet-Foot/Dry-Foot

policy emerged. The Clinton Administration sought to quell a new Cuban

immigration crisis by entering into the Joint Communique of 1994 and the Joint

Statement of 1995 (collectively, the “Migrant Accords”) with the Cuban

government.28 Signed on September 9, 1994, the Joint Communique provided that

26

8 U.S.C. § 1324(a)(2)(B) (2006) provides that if the offense is:

(i) . . . committed with the intent or with reason to believe that the alien

unlawfully brought into the United States will commit an offense against the

United States or any State punishable by imprisonment for more than 1 year,

(ii) . . . done for the purpose of commercial advantage or private financial gain, or

(iii) an offense in which the alien is not upon arrival immediately brought and presented

to an appropriate immigration officer at a designated port of entry,

[the violator shall] be fined under Title 18 and shall be imprisoned, in the case of

a first or second violation of subparagraph (B)(iii), not more than 10 years, in the

case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3

nor more than 10 years, and for any other violation, not less than 5 nor more than

15 years.

27

The § 1324(a)(2) offenses of which Dominguez was convicted were “done for the

purpose of commercial advantage or private financial gain.” See 8 U.S.C. § 1324(a)(2)(B)(ii).

28

The number of Cuban “boat people” setting out for United States shores “steadily rose

from a few hundred in 1989 to a few thousand in 1993.” Ruth Ellen Wasem, Cong. Research

63

migrants rescued at sea attempting to enter the United States will not be

permitted to enter the United States, but instead will be taken to safe

haven facilities outside the United States. Further, the United States has

discontinued its practice of granting parole to all Cuban migrants who

reach U.S. territory in irregular ways.

Cuba-United States: Joint Statement on Normalization of Migration, Building on the

Agreement of September 9, 1994, 35 I.L.M. 327, 329.

In return, Cuba agreed to “prevent unsafe departures using mainly persuasive

methods.” Id. The United States further committed “through other provisions of

United States law, to authorize and facilitate additional lawful migration to the United

States,” establishing that a “minimum of 20,000 Cubans each year” would be allowed

to legally migrate. Id. at 330.

The Joint Statement, issued on May 2, 1995, declared that “Cuban migrants

intercepted at sea by the United States and attempting to enter the United States will

be taken to Cuba,” rather than Guantanamo Bay or, presumably, other safe havens as

contemplated in the Joint Communique. Id. at 328. The Migrant Accords laid the

foundation for what came to be known as the Wet-Foot/Dry-Foot policy, whereby

those Cubans who arrived on United States soil could seek asylum, parole, and

Serv., R40566, Cuban Migration to the United States: Policy and Trends 1 (2009), available at

http://www.fas.org/sgp/crs/row/R40566.pdf. Following a series of “threatening speeches”

delivered by Fidel Castro, subsequent riots in the capital city of Havana, and a decree by the

Castro regime that future attempts to go to the United States would not be contested, the Cuban

flight to the United States reached nearly 40,000 in number in 1994—the highest level since the

Marielito exodus of 1980. Id.

64

adjustment of status under the CAA, and those interdicted at sea would be returned

to Cuba.

The specific contours of the Wet-Foot/Dry-Foot policy were largely established

by a series of decisions made by the Department of Justice’s Office of Legal Counsel

and instructions issued by the INS and its successor agency, the United States

Citizenship and Immigration Services (“USCIS”). On its own terms, the Joint

Communique of 1994 would appear to cast doubt upon the ability of Cubans who

entered the United States in “irregular ways” to gain parole or seek protection under

the CAA. As the Communique states, “the United States has discontinued its practice

of granting parole to all Cuban migrants who reach U.S. territory in irregular ways.”

Id. 329.

Deputy Attorney General Richard L. Shiffrin, however, stated in one key

memorandum that the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (the “IIRIRA”), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (codified

as amended in scattered sections 8 U.S.C. and 18 U.S.C.), “substantially amended”

the INA, changing the terms by which aliens could be denied legal process in the

United States:

[T]he Reform Act has created the new category of “Aliens Treated as

Applicants for Admission” under section 235 of the INA. An alien’s

classification within that category will now determine whether he must

65

receive inspection, screening, and other attendant procedures . . . in

contrast to aliens who may be summarily repulsed or returned without

any INA screening and procedural requirements.

Memorandum from Richard L. Shiffrin, Deputy Assistant Att’y Gen., U.S. Dep’t. of

Justice, to David A. Martin, Gen. Counsel, INS), Rights of Aliens Found in U.S.

Internal Waters, 20 Op. O.L.C. 381, 381, 1996 WL 33101205, at *2 (1996)(emphasis

in original) (citation omitted) [hereinafter the “Shiffrin Memorandum”].

Thus, while “aliens treated as applicants for admission” under the INA (as

amended by the IIRIRA) include any

alien present in the United States who has not been admitted or who

arrives in the United States (whether or not at a designated port of

arrival and including an alien who is brought to the United States after

having been interdicted in international or United States waters[.]

8 U.S.C. § 1225(a)(1) (2006), the Shiffrin Memorandum concluded that,

unlanded aliens interdicted on internal waters29 do not constitute

“applicants for admission,” and therefore need not be inspected or

screened [. I]t necessarily follows that such aliens are not entitled to

removal proceedings (i.e., the amended INA’s substitute for deportation

proceedings) under section 240.30

1996 WL 33101205, at *3. The necessary implication of Shiffrin’s conclusion is that

aliens found on land did constitute “applicants for admission” and were entitled to the

29

“Internal waters” is obviously a reference to the territorial waters of the United States.

30

Codified as amended at 8 U.S.C. § 1229a.

66

attendant due process of law. Furthermore, while the United States might not grant

automatic parole to all Cubans who reached United States territory irregularly, “as a

practical matter, once a Cuban migrant is ‘feet dry,’ there is no place the United States

Government can send the individual because, under the Migrant Accords, the Cuban

Government will accept the repatriation of only those Cubans who [sic] the United

States interdicts ‘at sea.’” Lieutenant Commander Brian W. Robinson, Smuggled

Masses: The Need for a Maritime Alien Smuggling Law Enforcement Act, Army

Law., Aug. 2010, at 20, 29.

If a Cuban who physically arrives in the United States—i.e., has “dry feet”—is

thus to be treated as an “applicant for admission,” the question becomes one of the

process he is due under United States law and policy. There was once a point of

confusion among Immigration officers about the meaning of the word “admissible”

in the language of the CAA quoted supra.31 It appeared that Cubans who arrived in

the United States at a place other than a designated Port-of-Entry could be

inadmissible. This is because, under 8 U.S.C. § 1182(a)(6)(A)(i), “[a]n alien present

in the United States without being admitted or paroled, or who arrives in the United

31

The confusion regarding the word “admissible” in the CAA was addressed by the

Meissner Memorandum in 1999. It is not clear how long confusion or controversy surrounded

this term.

67

States at any time or place other than as designated by the Attorney General, is

inadmissible.”

To ensure that Cubans would not be deprived of CAA adjustment on this

ground, then–INS Commissioner Doris Meissner announced that the “policy of the

[INS/USCIS] is that the inadmissibility ground that is based on an alien’s having

arrived at a place other than a port-of-entry does not apply to CAA applicants.”

Meissner Memorandum at 1 (emphasis in original). Otherwise, “the purpose of the

CAA would have been defeated.” Id. at 2. Nonetheless, the Meissner Memorandum

makes clear that this INS/USCIS “policy does not relieve the applicant of the

obligation to meet all other eligibility requirements. In particular, [CAA] adjustment

is available only to applicants who have been ‘inspected and admitted or paroled into

the United States.’” Id. (citation omitted). A Cuban “present without inspection,

therefore, would not be eligible for CAA adjustment unless the [Cuban] first

surrendered himself . . . into [INS/USCIS] custody and the [INS/USCIS] released the

alien from custody pending a final determination of . . . admissibility.” Id.

As Meissner noted, simply being “admissible” to the United States is not

enough for a Cuban to qualify for adjustment of status under the CAA; the Cuban

must, in the words of the CAA, also be “physically present in the United States” for

68

at least one year.32 CAA, Pub. L. No. 89-732, § 1, 80 Stat. at 1161. The expressed

policy of the USCIS ensures that the dry-foot Cuban will have the opportunity to so

remain in the United States:

A native or citizen of Cuba who is present in the United States without

having been inspected and admitted is eligible to apply for an initial

parole at the USCIS field office having jurisdiction over the applicant’s

place of residence. Natives or citizens of Cuba need parole

documentation in order to become eligible for benefits under the Cuban

Adjustment Act . . . .

....

The validity period of the initial parole must be one (1) year. This will

allow natives or citizens of Cuba who have been physically present in

the United States for at least one year to apply for adjustment of status

under the CAA and seek employment authorization as an applicant for

permanent residence while the adjustment of status application is

pending.

Memorandum from Tracy Renaud, Chief, Office of Field Operations, USCIS, to Field

Leadership, File No. HQ 70/10.10, Processing of Initial Parole Requests Presented

by Natives or Citizens of Cuba to USCIS Field Offices 1, 2 (Mar. 4, 2008), available

at http://www.uscis.gov/files/pressrelease/CubanParole_4Mar08.pdf (citation

omitted).

32

The CAA was amended by the Refugee Act of 1980, Pub. L. No. 96-212, § 203(i), 94

Stat. 102, 108. The 1980 Act reduced the “physical presence” requirement of the CAA from two

years to one year.

69

As stated supra, parole is to be granted to an alien on the basis of “urgent

humanitarian reasons” or a “significant public benefit.” 8 U.S.C. § 1182(d)(5)(A).

While these standards may appear to be high ones, appearances may be deceiving.

As the Meissner Memorandum explains, there exists a heavy presumption in favor of

parole for Cuban refugees in the United States:

In the absence of a disqualifying criminal record or other factors that

would bar CAA adjustment, however, the on-going difficulty in actually

removing aliens to Cuba and the availability of CAA adjustment should

ordinarily weigh heavily in favor of a grant of parole. The [USCIS] may

properly consider the avoidance of detention costs with respect to an

alien whose actual removal is unlikely as a factor in determining, as a

matter of discretion, that parole would yield “a significant public

benefit.” In similar fashion, the [USCIS] may properly consider the

availability of CAA adjustment as a factor in determining, as a matter of

discretion, that an “urgent humanitarian reason” justifies a grant of

parole.33

Meissner Memorandum 2–3 (citation omitted).

B.

Gustavo Dominguez is a native of Cuba and a naturalized United States citizen.

At the time of the events that led to the indictment in this case, Dominguez was a

sports agent. Through his company, Total Sports International (“TSI”), he had

represented over 100 baseball players, many of whom played for Major League

33

In this case, the Government presented no evidence to the effect that a “disqualifying

criminal record or other factors” would bar any of the five Cuban players from obtaining CAA

adjustment of status to lawful permanent residence.

70

Baseball teams. This case involves five Cuban baseball players: Francisely Bueno-

Trueba, Osbek Castillo-Perez, Allen Guevara-Perez, Osmany Masso-Arredondo, and

Yoankis Turino-Montalno.

On August 22, 2004, they were brought from Cuba to the Florida Keys by boat

and taken to the residence of a former Major League player, a Cuban national, in

Miami. Dominguez was informed of the players’ arrival, agreed to represent the

players, and arranged for their transportation to California.

Throughout this process, Dominguez retained the assistance of an experienced

immigration law attorney. Shortly after the players arrived in California, Stephen

Schneider, Dominguez’s TSI partner and a lawyer, arranged for Humberto Gray, an

immigration attorney, to process the players through immigration.34 Gray told

Dominguez that he set up an appointment for the players at the USCIS Los Angeles

office. On November 19th, Gray and Dominguez accompanied the players to the

34

Testifying in the Government’s case, Schneider said that Gray had done immigration

work for TSI players since the late 1990s. During that time, Dominguez, through TSI, had

represented 30 to 40 Cuban players; “probably 15” of those eventually reached the Major

Leagues. According to his firm’s website, Gray is “recognized as an expert on Immigration

Law” and his firm, Humberto R. Gray, P.L.C.,

has represented many top foreign players playing in Major League Baseball. This

esteemed list includes, [sic] Pedro Martinez, Ramon Martinez, Raul Mondesi,

Andres Galarraga, Larry Walker, Jose Offerman, Ismael Valdez, Wilton Guerrero,

Deivi Cruz, Ramiro Mendoza, Pedro Astacio and Mariano Rivera, to name a few.

Gray Law, http://www.graylaw.com/index.html (last visited September 12, 2011).

71

USCIS office to apply for asylum and “to get their paroles.” They were paroled.

Gray thereafter represented them before the USCIS.

Because the players were presumptive refugees, all of this happened precisely

as set out by the CAA, the Wet-Foot/Dry-Foot policy, and the Meissner

Memorandum; to wit, the Cuban aliens arrived in the United States at a location other

than a designated port of entry, made their way to immigration authorities, and were

then paroled. These events, however, gave rise to the current prosecution for

conspiracy to smuggle, attempted smuggling, smuggling in violation of 18 U.S.C. §

371 and 8 U.S.C. § 1324(a)(2)(B)(ii); transporting aliens, in violation of 8 U.S.C. §

1324(a)(1)(A)(ii); and harboring aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

C.

Anticipating that Dominguez would frame a defense to those charges based on

“Legislative and Executive Branch immigration policies” that apply specifically to

Cubans, namely the CAA, the Wet-Foot/Dry-Foot policy, and the Meissner

Memorandum, the Government moved the district court in limine to bar Dominguez

from referring to these policies in the presence of the jury at trial. In response,

Dominguez argued that, if these policies did not preclude his conviction, they were

at least relevant to the mens rea element of the charged offenses.

72

According to Dominguez, the policies the Government sought to exclude

enable undocumented Cubans who enter the United States at a location not

designated as a “Port-of-Entry” by the Attorney General and without valid entry

documents to apply for permanent residence status. Dominguez represented that he

was aware of these policies when he had the five players transported to California,

trained, observed by Major League baseball scouts, and presented to the federal

immigration authorities. In this light, he contended, he lacked the requisite criminal

intent to violate the law.

The district court granted the Government’s motion.35 The court rejected the

notion that the Wet-Foot/Dry-Foot policy and the CAA provided a legal defense to

any of the pending charges against Dominguez, holding that the policy and the CAA

were “irrelevant” for such purpose. As for Dominguez’s mens rea argument, the

court held that Dominguez’s beliefs about the law were “irrelevant to his intent” to

violate 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2)(B)(ii). The court explained: “[t]he

mens rea presumption requires knowledge only of the facts that make the defendant’s

conduct illegal, lest it conflict with the related presumption, deeply rooted in the

American legal system, that, ordinarily, ignorance of the law or a mistake of law is

35

In granting the Government’s motion, the district court simultaneously denied

Dominguez’s request for a hearing on the motion.

73

no defense to criminal prosecution.” Order Granting Gov’t Mot. In Limine 2, Mar.

14, 2007 (quoting Staples v. United States, 511 U.S. 600, 622 n.3, 114 S. Ct. 1793,

1805 n.3, 128 L. Ed. 2d 608 (1994) (Ginsburg, J., concurring in the judgment)

(citation and internal quotation marks omitted)). As such, the court implicitly found

that Dominguez’s knowledge of the CAA and the Wet-Foot/Dry-Foot policy was not

relevant to his culpability.

The district court’s order governed the conduct of Dominguez’s trial. That is,

the order precluded Dominguez from (1) testifying that he arranged to have the

players brought to California for what he thought was a lawful purpose, to enable

them to attain asylum and parole in conformance with the immigration policy

established by the CAA, Wet-Foot/Dry-Foot policy, and Meissner Memorandum; and

(2) presenting the expert testimony of a retired Immigration Judge to explain that

immigration policy. The jury received the case without hearing a word about the

policy from the witness stand or the court’s instructions on the law. Moreover, the

instructions the court actually did give on the elements of the smuggling offenses did

not contain an instruction on criminal intent.36

36

Nor did the court’s instructions on the transporting and harboring offenses contain a

criminal intent instruction.

74

II.

I now turn to the court’s affirmance of the district court’s treatment of the mens

rea defense Dominguez attempted to present in countering the charges that he

conspired to violate and violated 8 U.S.C. § 1324(a)(2)(B)(ii). The court first recites

the language of § 1324(a)(2),37 noting that a defendant must know or recklessly

disregard “the fact that an alien has not received prior official authorization to come

to, enter, or reside in the United States” and that a smuggling offense occurs

“regardless of any official action which may later be taken with respect to such alien,”

so long as the defendant brings or attempts to bring the alien to the United States.

Ante at 29. The court highlights the mens rea requirement for the first element, that

the defendant know or recklessly disregard the alien’s status, and points out that

Congress omitted any mens rea for the second element of the offense. Ante. Then,

the court notes that there is a presumption that each statutory element contains some

level of scienter. Ante. The court concludes that:

[A] court may treat the mens rea Congress provided in the statute as

modifying each element that follows it. Thus, we decide a defendant

must knowingly bring an alien to the United States.

37

See supra note 4, for the text of 8 U.S.C. § 1324(a)(2).

75

Ante. (emphasis added)38

To support its conclusion that the statutory language it highlighted rendered

Dominguez’s criminal intent irrelevant, the court points to the legislative history of

the revisions Congress made to the statute in the wake of Zayas-Morales, finding that

the legislative history explains that Congress intended to overrule Zayas-Morales and

“expand the scope of activities proscribed by federal law to reach the conduct of those

participating in such operations as the Mariel boatlift.” Ante at 32–33.

The court also highlights the opinions from three cases to establish that

Congress intended to omit criminal intent as an element of the § 1324(a)(2)(B)(ii)

offense. Ante at 30. First, the court cites United States v. Mussaleen, 35 F.3d 692,

698 (2d Cir. 1994), for the proposition that “reckless disregard” or knowledge can

satisfy the requirement of a mens rea element. Ante at 31. The challenge raised in

that case, however, focused on whether “reckless disregard” could be a sufficient

mens rea, or whether actual knowledge was necessary. Mussaleen, 35 F.3d at 698.

I do not question that a defendant who acts in reckless disregard of an alien’s status

can be convicted under the statute; rather, the central issue is whether the Government

38

The question facing the court is not an argument that “the evidence supporting

[Dominguez’s] smuggling convictions [was] insufficient.” Rather, the argument is that the

district court erred in ruling Dominguez’s mens rea defense irrelevant.

76

must also prove criminal intent for the second element. Thus, Mussaleen addressed

a different concern than at what is issue here.

Second, the court discusses United States v. Nguyen, 73 F.3d 887 (9th Cir.

1995). Ante at 33–34. In Nguyen, the court found that 8 U.S.C. § 1324(a)(1), a

felony, requires proof of criminal intent—although the statutory language did not

expressly require it—but questioned, in dicta, whether the misdemeanor provision of

§ 1324(a)(2) required the same proof. 73 F.3d at 892–93. Here, we deal with the

felony provision.

Finally, the court points to a concurring opinion in United States v.

Garcia-Cordero, 610 F.3d 613, 619 (11th Cir. 2010) (Korman, J. concurring). Ante

at 34. In Garcia-Cordero, the concurring opinion contains this comment:

“Consequently, Congress enacted 8 U.S.C. § 1324(a)(2)[B], which does not require

general criminal intent, to make it a misdemeanor to engage in conduct of the kind

at issue in the Mariel Freedom Flotilla cases.” 610 F.3d at 619 (Korman, J.

concurring) (emphasis added). Notably, the concurring opinion cites no case in

support of the above-quoted proposition.

In sum, no opinion cited by the court states that criminal intent is not an

element of the § 1324(a)(2)(B) felony offenses.

77

III.

I must respectfully disagree with the court’s reasoning and conclusion that the

§ 1324(a)(2)(B) felony offenses do not require proof of criminal intent. In the

simplest terms, the court today creates a circuit split on this issue. In doing so, it

rejects the reasoned analysis of our sister circuits that have analyzed this provision

and the nearly identical language found in the § 1324(a)(1) felony offenses. For the

reasons set forth below, I do not read the statute to eliminate a general criminal intent

mens rea, but instead conclude that proof of general criminal intent is an element of

the § 1324(a)(2)(B) felony offenses.39

39

In reaching its conclusion, the court expressly rejects inclusion of criminal intent,

holding that “a specific intent to violate the law is not required.” Ante at 30. To be clear, I

would not require proof of specific criminal intent. Rather, like our decision in Zayas-Morales,

and the majority of decisions from other circuits who require mens rea, I would instead require

proof of general criminal intent. This requires more than a showing that the defendant acted

knowingly, see Eleventh Circuit Pattern Jury Instructions (Criminal) at 35, Basic Offense

Instruction 9.1A (“The word ‘knowingly[’] (sic) means that an act was done voluntarily and

intentionally and not because of a mistake or by accident”), but less than acting with specific

intent. The Eleventh Circuit Pattern Jury Instructions (Criminal) at 35, Basic Offense Instruction

9.1A, explains the meaning of general criminal intent:

The word “willfully” means that the act was committed voluntarily and purposely,

with the intent to do something the law forbids; that is, with the bad purpose to

disobey or disregard the law. While a person must have acted with the intent to

do something the law forbids before you can find that the person acted “willfully,”

the person need not be aware of the specific law or rule that [his] [her] conduct

may be violating.

The Eleventh Circuit Pattern Jury Instructions (Criminal) at 37, Basic Offense Instruction 9.1B,

also explains the instruction for more rigorous standard of specific intent, requiring proof that

“the act was done voluntarily and purposely with the specific intent to violate a known legal duty,

that is, with the intent to do something the law forbids.” The comments following Basic Offense

78

A.

1.

The analysis of the mens rea issue appropriately begins with the language of

the statute, 8 U.S.C. § 1324(a)(2)(B). See Staples v. United States, 511 U.S. 600,

605, 114 S. Ct. 1793, 1797, 128 L. Ed. 2d 608 (1994). The challenge the court faces

here is that the language provides little guidance; without question, Congress did not

expressly eliminate the mens rea requirement. Rather, the language of the statute

merely makes it unlawful for a person who,

knowing or in reckless disregard of the fact that an alien has not

received prior official authorization to come to, enter, or reside in the

United States, brings to the United States in any manner whatsoever,

such alien regardless of any official action which may later be taken

with respect to such alien.

8 U.S.C. § 1324(a)(2).

Considered in light of legislative history, the court concludes that Congress

intended to omit criminal intent as an element of the § 1324(a)(2)(B)(ii) offenses.40

Ante at 35. The court’s analysis, however, reaches its mens rea holding without

considering the “interpretative presumption” that proof of criminal intent or in other

Instruction 9.1A provide a helpful distinction between the two definitions of “willful.”

40

The court’s analysis fails to recognize the distinction between the § 1324(a)(2)

misdemeanor offense and the § 1324(a)(2)(B)(ii) felony offense. Here, Dominguez was tried and

convicted for the felony offense.

79

words, an evil mind, is required to convict a defendant of a crime, such as smuggling,

which has its origin in the common law,41 United States v. U.S. Gypsum Co., 438

U.S. 422, 437, 98 S. Ct. 2864, 2873, 57 L. Ed. 2d. 854 (1978) (“Although

Blackstone's requisite “vicious will” has been replaced by more sophisticated and less

colorful characterizations of the mental state required to support criminality intent

generally remains an indispensable element of a criminal offense.” (internal citation

omitted)),42 for each element of the offense, United States v. X-Citement Video, Inc.,

513 U.S. 64, 72, 115 S. Ct. 464, 469 (1994) (“[Supreme Court precedent] instructs

that the presumption in favor of a scienter requirement should apply to each of the

statutory elements that criminalize otherwise innocent conduct.”). The presumption

articulated by the U.S. Gypsum Court draws from the Court’s earlier decisions in

41

Amongst his “Offences Against Public Trade,” Blackstone identified the crime of

“Smuggling,” which he classified as a felony. See 4 William Blackstone, Commentaries on the

Laws of England (1769) 155–56 (describing the common law crime of smuggling).

42

This presumption does not apply in prosecutions for public welfare or regulatory

offenses. See Staples v. United States, 511 U.S. 600, 606–07, 114 S. Ct. 1793, 1797–98, 128 L.

Ed. 2d 608 (1994) (noting that typically these prosecutions involve regulation of potentially

harmful items or in areas of public health or safety); see also Nguyen, 73 F.3d at 891 n.1 (“The

government does not contend that section 1324(a)(1)(A) is a public welfare statute, nor could it.

The ‘public welfare’ exception does not extend to offenses derived from the common law.”);

Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960) (Blackmun, J.) (“[W]here a federal

criminal statute omits mention of intent and . . . where the penalty is relatively small, where

conviction does not gravely besmirch, [and] where the statutory crime is not one taken over from

the common law, . . . the statute can be construed as one not requiring criminal intent.” (emphasis

added)). Without question, § 1324(a)(2) does not create a public welfare or regulatory offense.

80

Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952),43 and

Dennis v. United States, 341 U.S. 494, 500, 71 S. Ct. 857, 862, 95 L. Ed. 1137

(1951).44

In Dennis, decided a year before Morissette, the Court observed that “[t]he

existence of a mens rea is the rule of, rather than the exception to, the principles of

Anglo-American criminal jurisprudence.” 341 U.S. at 500, 71 S. Ct. 857 at 962. In

Morrisette, the Court explained the origin of the judiciary’s practice of finding

legislative intent to include criminal intent as a requirement for a felony conviction,

even where the statute was silent as to the requirement. The Court in Morissette

noted:

As the states codified the common law of crimes, even if their

enactments were silent on the subject, their courts assumed that the

omission did not signify disapproval of the principle but merely

recognized that intent was so inherent in the idea of the offense that it

required no statutory affirmation. Courts, with little hesitation or

division, found an implication of the requirement as to offenses that

were taken over from the common law.

342 U.S. at 252, 72 S. Ct. at 244.

43

Morissette v. United States, 342 U.S. 246, 251–52, 72 S. Ct. 240, 241, 96 L. Ed. 288

(1952) (“Crime, as a compound concept, generally constituted only from concurrence of an

evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took

deep and early root in American soil.”).

44

Dennis v. United States, 341 U.S. 494, 500, 71 S. Ct. 857, 862, 95 L. Ed. 1137 (1951)

(“It has been suggested that the presence of intent makes a difference in the law when an ‘act

otherwise excusable or carrying minor penalties’ is accompanied by such an evil intent.”).

81

The Court tacitly, if not expressly, approved this practice again in 1985 in

Liparota v. United States, reiterating the fundamental principle that criminal offenses

without a mens rea element are “generally disfavored.” 471 U.S. 419, 426, 105 S. Ct.

2084, 2088, 85 L. Ed. 2d 434 (1985). In sum, “far more than the simple omission of

the appropriate phrase from the statutory definition is necessary to justify dispensing

with an intent requirement.” U.S. Gypsum, 438 U.S. at 438, 98 S. Ct. at 2874. That

is, more than a “simple omission” is necessary to rebut the interpretative presumption

that proof of criminal intent is required for a felony conviction. As I will explain,

there is nothing in the text or the legislative history that is sufficient to rebut that

presumption for § 1324(a)(2)(B).

2.

Congress did not overcome this presumption for three reasons: (1) the text and

legislative history are not sufficiently clear to infer any implied intent to eliminate

criminal intent, (2) the specific language Congress chose to use in the 1986 revision

mirrors language that courts have overwhelmingly held to include a criminal intent

mens rea, and (3) the potential penalties imposed for a violation under this provision

are severe enough to indicate that Congress intended to retain the requirement to

show proof of criminal intent.

82

First, the statutory language itself is unclear, as Congress simply omitted any

mens rea element in reference to the “brings to or attempts to bring to” element.

Also, nothing in the legislative history is clear enough to overcome the presumption

that criminal intent is an element under § 1324(a)(2)(B). The court essentially hinges

its interpretation of the statute on one portion of the legislative history. Ante at

31–34. After reviewing the holdings of the district court in United States v. Anaya,

509 F. Supp. 289 (S.D. Fla. 1980), aff’d on other grounds sub nom. United States v.

Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982), and Zayas-Morales, the House

committee stated:

The Committee is convinced that this gap in current law must be closed.

Without the threat of criminal prosecution, there is no effective way to

deter potential transporters from inundating U.S. ports of entry with

undocumented aliens. As happened during the Mariel episode, the

United States would be forced to expend extraordinary amounts of

money and human resources in processing, monitoring, caring for and

giving hearings to exorbitant numbers of people.

H.R. Rep. No. 99-682(I) at 20 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5670.

I am not convinced that Congress authorized the courts to read the statute as

eliminating proof of an evil mind for a felony conviction under § 1324(a)(2)(B).45

45

As the Ninth Circuit in Nguyen explained, “we cannot accept the government's leap

from this premise to the conclusion that Congress intended to dispense with the mens rea

requirement inferred by the Eleventh Circuit in Zayas-Morales.” Nguyen, 73 F.3d at 892

(reviewing history in light of changes to § 1324(a)(1)); see also United States v. Barajas-Montiel,

185 F.3d 947, 953 (9th Cir. 1999) (concluding that “nothing, in the statute or legislative history,

indicates that Congress intended to dispense with a mens rea requirement for the felony offense

83

The unexplained “gap” referred to in the legislative history is ambiguous at best.

While I do not doubt that the statutory revisions made in 1986 were intended to

“expand the scope of activities proscribed,” 1986 U.S.C.C.A.N. at 5670, the “gap”

could focus on any number of issues raised by the decisions of the district court and

this court.46 This bare assertion alone is not sufficient. My reading of the statute is

in accord with the other courts who have interpreted the legislative history. See part

III.A.3, infra.

Second, § 1324(a)(2)(B) should be read as requiring a criminal intent mens rea

element because Congress intentionally chose to use language in the 1986 revisions

that federal courts have consistently interpreted to include criminal intent. The

Supreme Court has held that “Congress will be presumed to have legislated against

the background of our traditional legal concepts which render intent a critical factor,”

and “absence of contrary direction [will] be taken as satisfaction with widely accepted

definitions, not as a departure from them.” U.S. Gypsum, 438 U.S. at 437, 98 S. Ct.

at 2873 (alteration in original) (quoting Morissette, 342 U.S. at 263, 72 S. Ct. at 250).

of violating 8 U.S.C. § 1324(a)(2)(B)”).

46

It goes without saying that there are inherent problems with excessive reliance on

ambiguous legislative history. See Polycarpe v. E&S Landscaping Service, Inc., 616 F.3d 1217,

1224 (11th Cir. 2010) (per curiam) (“Before proceeding, we must note that severe problems

attend the use of legislative history in statutory interpretation; its analysis is a practice that we

seek regularly to avoid.” (citing United States v. Fields, 500 F.3d 1327, 1333-35 (11th Cir. 2007)

(Carnes, J., concurring))).

84

The Supreme Court’s decision in Liparota, is one illustration of this point.47

Liparota involved a “food stamps” prosecution. The defendant was charged with

acquiring and possessing food stamps in violation of 7 U.S.C. § 2024(b)(1). That

section provided at the time and in relevant part: “[W]hoever knowingly uses,

transfers, acquires, alters, or possesses coupons . . . in any manner not authorized by

this Act or the regulations issued pursuant to this Act[.]” 7 U.S.C. § 2024(b) (1981).

The Government’s case consisted of the testimony of an undercover agent of

the Department of Agriculture who had gone to the defendant’s sandwich shop and,

on three occasions, had purchased a total of $1,195 of food stamps for $800. The

defendant argued that this testimony, standing alone, was insufficient to establish that

he had violated § 2024(b)(1); he argued that the Government had to prove that he

knew he was violating a federal law when he purchased the food stamps. The district

court disagreed and instructed the jury that,

the Government had to prove that the Defendant acquired and possessed

food stamp coupons for cash in a manner not authorized by federal

statute or regulations and that the Defendant knowingly and wilfully

(sic) acquired the food stamps.

47

There are numerous other illustrations of courts reading in a criminal intent mens rea

element to similar statutes. For another example, the statute in Morissette provided: “Whoever

embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . [a] thing of

value of the United States . . . .” 18 U.S.C. § 641. The Supreme Court held that criminal intent

was an essential element of the crime in any prosecution for “knowingly convert[ing]” property

of the United States. Morissette, 342 U.S. at 275, 72 S. Ct. at 256.

85

Liparota, 471 U.S. at 422, 105 S. Ct. at 2086 (internal quotations omitted).48

The defendant was convicted, and, on appeal, the Seventh Circuit affirmed. Id.

The Supreme Court granted certiorari to determine “whether in a prosecution under

[§ 2024(b)(1)] the Government must prove that the defendant knew that he was acting

in a manner not authorized by statute or regulations.” Id. at 420–21, 105 S. Ct. at

2086. The answer was a matter of statutory interpretation, and the Court, disagreeing

with the Government, held that such knowledge was an element of the offense. In a

§ 2024(b)(1) prosecution, the Court concluded that the jury must be informed of what

the statute and regulations proscribe, then instructed to determine whether the

defendant knew that his conduct was unlawful. Id. The Court elaborated on its

holding:

[T]he Government must prove that the defendant knew that his

acquisition or possession of food stamps was in a manner unauthorized

by statute or regulations. This holding does not put an unduly heavy

burden on the Government in prosecuting violators of § 2024(b)(1). To

prove that petitioner knew that his acquisition or possession of food

stamps was unauthorized, for example, the Government need not show

that he had knowledge of specific regulations governing food stamp

acquisition or possession. Nor must the Government introduce any

extraordinary evidence that would conclusively demonstrate petitioner’s

48

Although the instruction contained the word willfully, it appears that it was not used in

this context to confer any criminal intent element given that the Court notes, “[p]etitioner

objected that this instruction required the jury to find merely that he knew that he was acquiring

or possessing food stamps; he argued that the statute should be construed instead to reach only

‘people who knew that they were acting unlawfully.’” Liparota, 471 U.S. at 422–23, 105 S. Ct.

at 2086.

86

state of mind. Rather, as in any other criminal prosecution requiring

mens rea, the Government may prove by reference to facts and

circumstances surrounding the case that petitioner knew that his conduct

was unauthorized or illegal.

Id. at 433–34, 105 S. Ct. at 2092–93 (footnote omitted).

Moreover, several of our sister circuits have read this type of statutory

language and structure to include “willfully” to modify the verb in § 1324 offenses,

rather than applying, as the court does here, the “knowing” mens rea that is applicable

only to the first element of the offense. For example, in United States v. Parmelee,

42 F.3d 387 (7th Cir. 1994), the Seventh Circuit concluded that the predecessor to §

1324(a)(1)(A)(ii) required that an element of criminal intent—that the defendant act

willfully—be read into the statute.49 See id. at 390. The Parmelee court reached this

conclusion because to hold otherwise would lead to “sweeping liability.” Id. at 39.

Numerous other circuits follow the same approach to read in “willfully” as an

element, rather than requiring only that the defendant act “knowingly.” See United

States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir. 1994) (holding that there

49

The Seventh Circuit specifically stated,

[w]e have no question that section 1324(a)(1)(B) implicitly requires the

government to prove beyond a reasonable doubt not only that the defendant knew

the alien he transported had entered this country in violation of immigration law,

but also that the defendant knowingly transported the alien to further that

violation, that is, acted willfully.

Parmelee, 42 F.3d at 390.

87

is a “willful” mens rea element required under statute with identical language to

current § 1324(a)(1)(A)(ii)); United States v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991)

(reading in “willful” mens rea for the transporting provision that is now in §

1324(a)(1)(A)(ii)); United States v. Medina-Garcia, 918 F.2d 4, 7 (1st Cir. 1990)

(addressing mens rea for transporting provision now in § 1324(a)(1)(A)(ii), which

requires that the defendant acted “willfully”); United States v. Hernandez, 913 F.2d

568, 569 (8th Cir. 1990) (per curiam) (interpreting § 1324(a)(1)(A)(ii) to find that the

defendant acted “willfully in furtherance” of alien’s violation of the law was a

required element); United States v. 1982 Ford Pick-Up, 873 F.2d 947, 951 (6th Cir.

1989) (concluding that the Government must prove “the defendant willfully

transported an illegal alien” under § 1324(a)(1)(A)(ii)); United States v.

Morales-Rosales, 838 F.2d 1359, 1360 (5th Cir. 1988) (holding that Government

must prove that defendant acted “willfully” to prove a violation of the transporting

provision), overruled on other grounds by United States v. Longoria, 298 F.3d 367

(5th Cir. 2002); United States v. Merkt, 764 F.2d 266, 272 (5th Cir. 1985) (affirming

a jury instruction that included a “willful” element for the transporting violation). But

see United States v. De Jesus-Batres, 410 F.3d 154, 162 (5th Cir. 2005) (rejecting

Nguyen while interpreting the harboring provision in § 1324(a)(1)(A)(iii), but

offering no explanation other than “[t]his circuit follows a different rule and has held,

88

as to similar offenses, that proof of specific intent to violate immigration laws is not

required.”). That other circuits have interpreted provisions with the same language

and structure to include a “willful” element is instructive to the approach we should

take in interpreting this provision. Namely, it is highly persuasive that other courts

have consistently rejected the interpretation suggested by the court today—that we

should read “knowingly” to apply to each element—and instead concluded that

criminal intent is the proper mens rea.

Thus, it is fair to conclude that when Congress chose the particular language

of § 1324(a)(2)(B), it did so with full knowledge of the widespread practice to

interpret such language to include a criminal intent element.50 See Morissette, 342

U.S. at 252, 72 S. Ct. at 244. Congress could have expressly indicated that a general

criminal intent mens rea element was not required for the “bring” or “attempts to

bring” element in a § 1324(a)(2)(B) prosecution; instead, it left a blank slate for us

50

In Morissette, the Supreme Court specifically noted,

[a]nd where Congress borrows terms of art in which are accumulated the legal

tradition and meaning of centuries of practice, it presumably knows and adopts the

cluster of ideas that were attached to each borrowed word in the body of learning

from which it was taken and the meaning its use will convey to the judicial mind

unless otherwise instructed.

Morissette, 342 U.S. at 263, 72 S. Ct. at 250.

89

to interpret. This omission does not establish that Congress intended to eliminate

criminal intent.

Finally, a third factor that weighs in favor of reading a criminal intent element

into § 1324(a)(2)(B) is that Congress prescribed harsh penalties for its violation. The

Supreme Court has held that the severity of potential punishment is a major factor in

finding whether Congress intended to omit an evil-mind requirement. See Staples,

511 U.S. at 616, 114 S. Ct. at 1802 (“Historically, the penalty imposed under a

statute has been a significant consideration in determining whether the statute should

be construed as dispensing with mens rea.”); see also Morissette, 342 U.S. at 256, 72

S. Ct. at 246 (noting that in statutes without a mens rea, the “penalties commonly are

relatively small, and conviction does no grave damage to an offender’s reputation.”).

The imposition of significant penalties without any requirement of criminal intent is

“incongruous.” Staples, 511 U.S. at 617, 114 S. Ct. at 1803.

The severity of the penalties authorized under § 1324(a)(2)(B) clearly indicates

that Congress intended a mens rea element. Section 1324(a)(2)(B)(ii), addressing an

“offense done for the purpose of commercial advantage or private financial gain,”

authorizes imprisonment for a first- or second-time violation of “not less than 3 nor

more than 10 years,” and “not less than 5 nor more than 15 years” for subsequent

90

violations. See § 1324(a)(2)(B)(ii).51 These penalties are a far cry from the petty

punishments, such as a fine or short jail sentence, typically associated with a crime

that does not require mens rea. See Staples, 511 U.S. at 616, 114 S. Ct. at 1803

(“Certainly, the cases that first defined the concept of the public welfare offense

almost uniformly involved statutes that provided for only light penalties such as fines

or short jail sentences, not imprisonment in the state penitentiary.”); see also

Commonwealth v. Raymond, 97 Mass. 567 (1867) (involving a fine of up to $200 or

six months in jail, or both); Commonwealth v. Farren, 91 Mass. 489 (1864)

(discussing a penalty limited to a fine); People v. Snowburger, 71 N.W. 497 (Mich.

1897) (addressing penalties of only a fine of up to $500 or incarceration in county

jail).

Here, Congress authorized more severe punishments under § 1324(a)(2)(B)

than it did for violations under the current version of § 1324(a)(1)(A) and the version

of § 1324(a)(1) that existed in Zayas-Morales.52 In Nguyen, one of the cases the court

51

The district court sentenced Dominguez to concurrent prison terms of five years.

52

See § 1324(a)(1)(B)(i) (describing punishment and, for all offenses other than those

involving serious bodily injury, a threat to someone’s life, or the death of someone, noting that

“in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of

subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial

advantage or private financial gain, be fined under Title 18, imprisoned not more than 10 years,

or both”); § 1324(a)(1) (1976) (stating that violators “shall be guilty of a felony, and upon

conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a

term not exceeding five years, or both, for each alien in respect to whom any violation of this

91

cites, ante at 33–34, the Ninth Circuit’s holding depended in part on the severity of

the penalties for violating § 1324(a)(1)(A). Nguyen, 73 F.3d at 892. In many ways,

there is a more persuasive argument that Congress intended an element of criminal

intent in § 1324(a)(2)(B) given that the mandatory minimum prison sentence of three

or five years and the maximum sentence of ten or fifteen years creates a more punitive

scheme than the one in § 1324(a)(1)(A).53

In short, the greater the penalty, the more Congress is aware that, if it intends

to eliminate criminal intent, it must do so clearly. If the district court decided to run

Dominguez’s sentences consecutively, the total sentence could have been as low as

forty-seven years and as high as one hundred thirty-five years.54 The potential penalty

authorized by Congress under § 1324(a)(2)(B)(ii) is great indeed. There is nothing

subsection occurs”).

53

In its analysis, the Ninth Circuit heavily relied upon the severity of the potential

punishments in concluding that § 1324(a)(2)(B) contained some mens rea requirement. See

Barajas-Montiel, 185 F.3d at 953 (noting that the exact same concerns at issue in Nguyen are at

issue in any analysis of § 1324(a)(2) because of “[t]he substantial overlap between the felony

statutes and the serious penalties for their violation.”). The court dismisses Barajas-Montiel as

unpersuasive, and yet cites Nguyen with approval. I do not attempt to reconcile this

inconsistency, concluding instead that both Barajas-Montiel and Nguyen are instructive.

54

These figures include five years on the conspiracy count, 18 U.S.C. § 371. The 47

years’ total sentence incorporates the three-year and five-year mandatory minimums prescribed

by 8 U.S.C. § 1324(a)(2)(B); the 135 years’ total sentence incorporates the maximum sentences

prescribed by that provision. These totals are, of course, theoretical. The mandatory minimums

§ 1324(a)(2)(B) prescribes required the court to impose sentences above the sentencing range

prescribed by the applicable Sentencing Guideline, U.S. Sentencing Guidelines Manual § 2L1.1.

92

in the language of § 1324(a)(2)(B)(i),(ii), or (iii) or the legislative history indicating

a legislative intent to omit criminal intent as an element of the offenses, let alone a

clear statement one would expect given the severe penalties authorized. Thus, the

penalties the statute imposes weigh heavily in favor of a finding that Congress

intended that general criminal intent remain an element.

Finally, I note that in instances where there is ambiguity concerning the scope

of a criminal statute, courts traditionally apply the longstanding rule of lenity. See

Barajas-Montiel, 185 F.3d at 952–53 (“If after examining the statutory language and

the legislative history we perceive any ambiguity regarding Congress's intent to

require a showing of criminal intent, we will resolve the ambiguity by implying a

mens rea element.” (quoting Nguyen, 73 F.3d at 890–91)). Even absent the reasons

why I conclude that mens rea is an element of the § 1324(a)(2) offenses, at a bare

minimum, the considerable ambiguity as to the inclusion of that element counsels that

we apply the rule of lenity. See U.S. Gypsum, 438 U.S. at 437, 98 S. Ct. at 2873; see

also Liparota, 471 U.S. at 427, 105 S. Ct. at 2089 (“Application of the rule of lenity

ensures that criminal statutes will provide fair warning concerning conduct rendered

illegal and strikes the appropriate balance between the legislature, the prosecutor, and

the court in defining criminal liability.”); United States v. Bass, 404 U.S. 336, 348,

92 S. Ct. 515, 523, 30 L. Ed. 2d 488 (1971) (“[B]ecause of the seriousness of criminal

93

penalties, and because criminal punishment usually represents the moral

condemnation of the community, legislatures and not courts should define criminal

activity.”).

3.

The approach I endorse is confirmed by a clear majority of circuits that have

considered whether criminal intent is an element of the §§ 1324(a)(1) and 1324(a)(2)

offenses.55 My research reveals that only the Ninth Circuit has answered the question

regarding the § 1324(a)(2) offenses. Other courts have addressed the question

regarding the § 1324(a)(1) offenses; as a whole, their holdings support my

interpretation.

The Ninth Circuit in Barajas-Montiel confronted the § 1324(a)(2)(B) issue and

concluded that criminal intent is an element of the offense. Barajas-Montiel, 185

55

Today the court addresses this question under the § 1324(a)(2)(B)(ii) offenses, but

none of the cases it cites provides any significant analysis of this issue. See United States v.

Garcia-Cordero, 610 F.3d 613, 619 (11th Cir. 2010) (Korman, J., concurring) (asserting, without

any citation for support that, “[c]onsequently, Congress enacted 8 U.S.C. § 1324(a)(2), which

does not require general criminal intent, to make it a misdemeanor to engage in conduct of the

kind at issue in the Mariel ‘Freedom Flotilla’ cases.”); United States v. Mussaleen, 35 F.3d 692,

698 (2d Cir. 1994) (addressing an entirely different issue); see also Nguyen, 73 F.3d at 892–94

(holding that § 1324(a)(1)(A) requires proof of criminal intent because nothing in the statute or

leg

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