Opposition — Cantu v. United States

~

Ma TEN 7 . oe hs FILED S's

ee ) } FEB 4 1978}

\ oe

i SAB “MICHAEL RODAK, JR., CLERK” 4

In: the Supreme Court of the United States

OcTOBER TERM, 1977

Mauro CANTU, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCree, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

SIDNEY M. GLAZER,

. DEBORAH WATSON,

fs _. Altorneys, | e

- Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-641

MAURO CANTU, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. B) is

reported at 557 F. 2d 1173.

JURISDICTION

The judgment of the court of appeals was entered on

August 22, 1977 (Pet. App. A). A petition for rehearing

was denied on October 3, 1977 (Pet. App. C). The petition

for a writ of certiorari was filed on November 2, 1977.

The jurisdiction of this Court is invoked under 28 U.S.C.

12541). QUESTIONS PRESENTED

|. Whether the charge against petitioner was the result

of impermissible selective prosecution.

(1)

2

2. Whether petitioner’s motion to suppress evidence

was properly denied.

3. Whether 8 U.S.C. 1324(a)(3), which makes it a crime

to shield illegal aliens from detection, covers only

activities that are part of the smuggling process.

4. Whether the evidence was sufficient to sustain

petitioner’s conviction.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Texas, petitioner was

convicted of conspiracy and shielding illegal aliens from

detection, in violation of 18 U.S.C. 371 (Count I) and 8

U.S.C. 1324 (Counts II and III). He was sentenced to four

years’ imprisonment and a $3000 fine (Pet. 5). The prison

term was suspended, and petitioner was placed on

probation for five years. The court of appeals affirmed

(Pet. App. B).

The government's evidence at trial showed that on June

18, 1976, the Immigration and Naturalization Service

received information that petitioner, the owner of a

restaurant in San Antonio, Texas, was employing illegal

aliens in his restaurant (Tr. 61-63). The same day, agents

of the Service went to the restaurant to question the

employees about their residence status (Tr. 75-76, 106-

107). When petitioner refused to admit the agents without

a search warrant (Tr. 112), the agents remained outside

the restaurant to await the arrival of a warrant.

While the agents were awaiting the warrant, petitioner

made arrangements for two of his employees to leave

the restaurant immediately, accompanied by restaurant

patrons. The two employees were both illegal aliens who

had worked for petitioner during previous illegal visits to

the United States (Tr. 64-65, 130-134, 186). One of the

3

patrons who was asked to escort an employee out of the

restaurant admitted at trial that he knew the employee

worked for petitioner, that he was aware that INS agents

were outside the restaurant, and that he suspected the

employee was an illegal alien (Tr. 171-174). The other

patron, who had been dining with members of his family,

first pretended to converse with the employee and then

directed the employee to walk between his sons as they

left the restaurant (Tr. 190). The agents arrested both

aliens in the restaurant parking lot after determining their

illegal status (Tr. 113-115, 139, 173, 190, 225).! On the

basis of information obtained from the aliens at that time,

the agents arrested petitioner as well.

ARGUMENT

1. Petitioner first contends (Pet. 7-13) that the

government was guilty of “selective, discriminatory

prosecution” and complains of the district court's refusal

to grant a hearing at which he could develop the facts to

support this allegation. Petitioner concedes, however, that

“there was no tangible proof to present” to demonstrate

selective prosecution (Pet. 11). Instead, in support of his

claim, he offered at trial to present evidence that he was a

member of a group that aided immigrant workers and

that other employers had not been prosecuted for

employing illegal aliens (Tr. 19-37).2 As the court of

'A third illegal alien was arrested outside the restaurant shortly

after the INS agents arrived (Tr. 122, 254, 258, 301); a fourth illegal

alien employed by petitioner successfully evaded the agents at the

restaurant by leaving with patrons (Tr. 218-221); and a fifth was

arrested inside the restaurant after the search warrant arrived (Tr.

118-119, 134, 256).

?When asked by the judge during the hearing, “What proof do you

have of selective prosecution in this case for your bill that’s hard,

proveable [sic], cold evidence that selective prosecutions have been

4

appeals noted. however, merely employing illegal aliens

does not violate Section 1324. Accordingly, petitioner's

assertion that other employers were not prosecuted is

irrelevant to his claim that he was selectively prosecuted

for shielding illegal aliens from detection. Because

petitioner failed to prove even a colorable entitlement to

the defense of selective prosecution, the district court

properly overruled his motion to dismiss the indictment.’

See United States v. Murdock, 548 F. 2d 599 (C.A. 5); cf.

Oyler v. Boyles, 368 U.S. 448.

2. Petitioner further contends (Pet. 13-19) that evidence

obtained as a result of the search of his restaurant should

have been suppressed because the affidavit upon which

the search warrant was based failed to meet the test laid

down by this Court in Aguilar v. Texas, 378 U.S. 108. He

fails, however, to point to any evidence that was produced

as a result of the allegedly improper search. In fact, the

only product of the “search” of the restaurant was the

arrest of another alien employee long after the arrest of

the two aliens named in the indictment. And that

employee was questioned and arrested in a public area of

the restaurant (Tr. 67), as to which no search warrant

would have been required in any event. See United States

v. Santana, 427 U.S. 38; United States v. Watson, 423

U.S. 411.

ordereé or accomplished by the U.S. Attorney's office or by the

Executive Branch or any other agency against Mr. Cantu” (Tr. 31),

Petitioner's counsel indicated that the testimony he intended to offer

would show that “other people in South Texas and throughout the

southwestern United States hire aliens and they are not charged with

shielding” (Tr. 31-32).

‘Petitioner's reliance or United States vy. Falk, 479 F. 2d 616(C.A.

7). United States v. Steele, 461 F. 2d 1148 (C.A. 9), and United States

\. Crowther, 456 F. 2d 1074 (C.A. 4), is misplaced. In all of these

cases the courts of appeals found that appellants had made out a

prima facie case of discriminatory prosecution.

a

T =~

Petitioner also objects to the questioning and arrest of

the two alien employees in the restaurant parking lot (Pet.

16-19), apparently on the theory that their detention led

to his arrest. Petitioner, however, has no standing to

assert that claim. The arrest of the alien employees

“invaded no right of privacy of person or premises” of

petitioner (Wong Sun v. United States, 371 U.S. 471, 492),

since the arrest took place not within petitioner's

restaurant, but outside in a parking lot open to the

public.*

3. Petitioner next claims that 8 U.S.C. 1324(a\(3), the

statute under which he was charged, is limited to activities

that are part of the process of smuggling aliens into this

country. On its face, nuwever, the statute reaches all acts

of knowingly concealing, harboring or shielding illegal

aliens from detection. Nothing in the statute or in its

legislative history suggests that its coverage is limited to

actions related to bringing aliens into the United States.‘

‘In any event, the detention and questioning of these aliens was

entirely proper. The INS agents had received information that

numerous aliens who had entered the United States illegally were

working at petitioner's restaurant. In addition. the Service had

previously apprehended illegal aliens employed by petitioner at his

restaurant, including the two aliens stopped in the parking lot, who

had worked for petitioner during a prior illegal visit to the United

Siates (Pet. App. 4a, Sa). These factors constituted specific articulable

facts reasonably warranting suspicion. that the two aliens were

illegally in the United States. See Shu Fuk Cheung v. Immigration

and Naturalization Service, 476 F. 2d 1180 (C.A. 8), Au Yi Lau v.

United States Immigration and Naturalization Service, 445 F. 2d 217

(C.A. D.C.). certiorari denied. 404 U.S. 864: Yam Sang Awai \v.

Immigration and Naturalization Service, 411 F. 2d 683 (C.A. D.C.),

certiorari denied. 396 U.S. 877. The questioning of the two aliens

disclosed their legal status. thus furnishing the immigration officers

with probable cause to arrest.

‘The legislative history of Section 1324 makes it clear that the

Purposes of that Section extend beyond merely preventing smuggling

of aliens. Both the House and Senate reports characterized the

6

The two other circuits that have considered this precise

question have similarly refused to limit the scope of

Section 1324 to the smuggling process. See United States

v. Acosta de Evans, 531 F. 2d 428, 430, n. 4 (C.A. 9),

certiorari denied, 422 U.S. 1010; United States v. Lopez,

521 F. 2d 437, 440 (C.A. 2), certiorari denied, 423 U.S.

995. As the Second Circuit stated in Lopez, supra, 521

F. 2d at 440:

At least two provisions in the statute as finally

enacted are inconsistent with an intent to limit the

prohibition to conduct connected with the smuggling

of the alien into the United States. The first is a

proviso in §1324(aX2) to the effect that in order to

be guilty of knowingly transporting an illegal alien

the person charged must “have reasonable grounds to

believe that [the alien’s] entry into the United States

occurred less than three years prior thereto.”

Transportation at a point in time so long after the

illegal entry would not normally be in furtherance of

the smuggling process, which would long since have

been completed. Secondly, Congress expressly

provided that “for purposes of this section, employ-

ment (including the usual and normal practices

incident to employment) shall not be deemed to

constitute harboring.” Since such employment would

purposes of the statute as being to prevent aliens “from entering or

remaining in the United States illegally.” S. Rep. No. 1145, 82d

Cong., 2d Sess. 2 (1952); H.R. Rep. No. 1377, 82d Cong., 2d Sess. |

(1952). The language from the Senate Report on which petitioner

relies (Pet. 22), S. Rep. No. 1515, 81st Cong., 2d Sess. 644 (1950), was

merely a characterization of the predecessor to Section 1324.

Similarly, the case of United States v. Evans, 333 U.S. 483, on which

petitioner appears to rely, was a construction of the same predecessor

Statute, not a construction of Section 1324, which was passed in part

to remedy the restrictive reading of the Evans case.

-

not normally be related to ‘he smuggling process this

exemption would, under Lopez’s construction, be

unnecessary.

4. Finally, petitioner contends (Pet. 24-26) that the

evidence was insufficient to support his conviction of

conspiracy and of shielding illegal aliens. The evidence

adduced at trial, however, clearly established that

petitioner knew of the aliens’ illegal status and that the

two patrons who were named as unindicted co-

conspirators agreed, upon his request, to escort the aliens

out of the restaurant in an apparent effort to guide them

by the INS agents undetected. In light of the cir-

cumstances of their departure from the restaurant. it was

reasonable for the jury to infer that both co-conspirators

knew the illegal status of the aliens. Both men were aware

that the INS had staked out the restaurant; both knew

that the alien he was to escort out of the restuarant spoke

only Spanish; and in fact, one of them admitted on the

stand that he suspected his companion was an illegal alien

(Tr. 174). The evidence was thus plainly sufficient to

sustain petitioner's conviction for both conspiracy and the

substantive offenses.

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SIDNEY M. GLAZER,

DEBORAH WATSON,

Attorneys.

FEBRUARY 1978.

DOJ-1978-02