Petitioners Reply Brief — Patterson v. United States

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NO. 82-1466 | MAY m@

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

ANNEMARIE PATTERSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

Joun K. Trarn, III

(Counsel of Record)

Frank G. Smity, III

Kenyon W. MuRPHY

Alston & Bird

1200 C&S National Bank

35 Broad Street

Atlanta, Georgia 30335

(404) 586-1500

Bos R&INHARDT

Reinhardt, Whitley & Rogers, P.C.

1001 North Central Avenue

Tifton, Georgia 31793

(912) 382-6135

Counsel for Petitioner

II.

III.

IV.

TABLE OF CONTENTS

Page

PETITIONER WAS CHARGED ONLY

WITH THE UNAUTHORIZED TRANS-

PORTATION OF UNDOCUMENTED

ALIENS AND ALLEGATIONS WITH

RESPECT TO OTHER HYPOTHETICAL

VIOALTIONS OF THE IMMIGRATION

LAWS ARE IRRELEVANT................. 1

TRANSPORTATION OF UNDOCUMENTED

ALIENS IS LEGAL UNLESS IT BEARS A

DIRECT AND SUBSTANTIAL RELATION-

SHIP TO THEIR ILLEGAL ENTRY INTO

Rs | A ee 2

THE ELEVENTH CIRCUIT'S DECISION

CANNOT BE DISTINGUISHED FROM

UNITED STATES V. MORENO............ 3

THE ELEVENTH CIRCUIT'S DECISION

IMPERMISSIBLY CRIMINALIZES EM-

PLOYMENT OF UNDOCUMENTED

pS PE TEC UT OCA CELT eee 5)

ES vayavsricrs sy kaka erbdcrsers eee. 6

2 —-

TABLE OF AUTHORITIES

Page

Cases

Fillippon v. Albion Vein Slate Co., 250 U.S. 76

SUE Gb si aie-a:s bia hee ek beeen enue tee eee 4

United States v. Acosta De Evans, 531 F.2d 428

(9th Cir.), cert. denied, 429 U.S. 836 (1976). ...... 3

United States v. Cantu, 557 F.2d 1173 (5th Cir. 1977),

cert. denied, 434 U.S. 1063 (1978).............08.

United States v. Evans, 333 U.S. 483 (1948). ........ 5

United States v. Lopez, 521 ¥.2d 437 (2d Cir.),

cert. denied, 423 U.S. 995 (1975)............ cee 3

United States v. Moreno, 561 F.2d 1321 (9th Cir.

Nac caveaev cas ks ¥0 Sb uCkEeEEeREO eee 3,4

United States v. Rubio-Gonzalez, 674 F.2d 1067

cS eee eee wy een <- 2,3

Williams v. United States, 102 S.Ct. 3088 (1982)..... 5

Other

is OCD CRIP: c .5 so cokes veesnckepaes passim

Be Cis EE AEOEOO sc obuc vs bateeessoeneeneaneen 5

H.R. 1510 & S. 529, 98th Cong., Ist Sess. (1983).... 6

C. Gordon and H. Rosenfield, 2 /mmigration Law

and Procedure (Supp. 1982)..........cceeeeeeees 5

NO. 82-1466

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

ANNEMARIE PATTERSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

The Eleventh Circuit’s decision in this case extends the

reach of 8 U.S.C. §1324(a)(2) (1976) to criminalize con-

duct to an extent far beyond that which is prohibited by

the plain wording of the statute, contravenes congression-

al intent and conflicts with a decision of the Ninth Circuit.

The arguments raised in the brief in opposition in no way

detract from these important reasons for granting

certiorari.

I. PETITIONER WAS CHARGED ONLY WITH

THE UNAUTHORIZED TRANSPORTATION OF

UNDOCUMENTED ALIENS AND ALLEGATIONS

WITH RESPECT TO OTHER HYPOTHETICAL

VIOLATIONS OF THE IMMIGRATION LAWS

ARE IRRELEVANT.

Petitioner was charged only with “the offense of un-

authorized transportation of illegal aliens in violation of

8 U.S.C. §1324.” Pet. at 5a. It is thus irrelevant for the

Government to contend that petitioner’s conduct also

included “provision of shelter and other services and was

otherwise .. . egregious... .”’ Opp. Brief at 5. Similarly,

the Government’s argument that petitioner also violated

the “harboring” prohibitions in §1324(a)(3) has no bear-

ing on the issues presented to this Court. Harboring is a

separate, distinct offense. See United States v. Rubio-

Gonzalez, 674 F.2d 1067, 1073 n.5 (Sth Cir. 1982). More

importantly, the particular question of statutory con-

struction raised by petitioner —7.¢., the limitation imposed

by the “‘in furtherance of’ language found in $1324(a)(2)

—is simply inapplicable to “harboring” because there is

no comparable language in §1324(a)(3).

Il. TRANSPORTATION OF UNDOCUMENTED

ALIENS IS LEGAL UNLESS IT BEARS A DIRECT

AND SUBSTANTIAL RELATIONSHIP TO THEIR

ILLEGAL ENTRY INTO THIS COUNTRY.

Section 1324(a)(2) prohibits the transportation of un-

authorized aliens only when the transportation is ‘in

furtherance of such violation of law.” The plain language

of the statute and its legislative history both demonstrate

that the ‘‘in furtherance” clause confines the prohibitions

of 8 U.S.C. §$1324(a)(2) to transportation that had a direct

or substantial relationship with the alien’s entry or

presence in the United States.! Sce Pet. at 5-8. The

Government, however, simply reads the ‘‘in furtherance’’

clause out of the statute. Opp. Brief at 3.

'The government also argues that petitioner’s construction of

8 U.S.C. §1324(a)(2) must be incorrect because it would mean that

“transportation of an illegal alien two and a half years after his entry

into the country would fall outside the scope of the statute. . .’’ Opp.

The cases cited by the Government for the proposition

that “8 U.S.C. §1324(a) extends well beyond the chain of

the smuggling process” are inapposite. Opp. Brief at 3.

Each of the cases cited by the Government pertains only

to harboring illegal aliens in violation of $1324(u)(3).?

Ii]. THE ELEVENTH CIRCUIT’S DECISION CAN-

NOT BE DISTINGUISHED FROM UNITED

STATES V. MORENO.

In United States v. Moreno, 561 F.2d 1321 (9th Cir.

1977), the Ninth Circuit held that the transportation of

an undocumented alien, in order to be “in furtherance” of

the violation of the immigration laws, must bear “a

direct or substantial relationship” to “the alien’s presence

in the United States.” 561 F.2d at 1323. The Ninth Cir-

cuit decided that because the defendant’s transportation

of aliens “‘was only incidentally connected to the fur-

Brief at 3. Petitioner's construction of §1324(a)(2) would mean no

such thing. The instructions requested by petitioner (Pet. at 13a)

would have permitted the jury to find that transportation of an un-

documented alien anytime within three years of his entry into the

country was illegal so long as the transportation had ‘‘a direct or sub-

stantial relationship” to “furtherance of the alien's presence in the

United States.’’ See United States v. Moreno, 561 F.2d 1321, 1323

(9th Cir. 1977).

* See Rubio-Gonzalez, 674 F.2d 1067; United States v. Cantu, 557

F.2d 1173 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978); United

States v. Lopez, 521 F.2d 437 (2d Cir.), cert. denied, 423 U.S. 995

(1975); United States v. Acosta De Evans, 531 F.2d 428 (9th Cir.),

cert. denied, 429 U.S. 836 (1976). To the extent that the cases cited

by the Government have any relevance to the offense of transporta-

tion of illegal aliens, the cases actually reinforce petitioner's argu-

ments. These cases stand for the propositon that “the term [harbor]

was intended to encompass conduct tending substantially to facilitate

an alien’s ‘remaining in the United States illegally.’ ’’ United States v.

Lopez, 521 F.2d at 441 (emphasis supplied); accord, Cantu, 557 F.2d

1180; Rubio-Gonzalez, 674 F.2d at 1073. Compare petitioner's Request

to Charge No. 1, Pet. at 13a.

therance of the violation of law,” the defendant's con-

viction had to be reversed. /d. at 1822. In petitioner's

case, the district court refused to give the jury instrue-

tions embodying the language used in Moreno. See Pet. at

l3a, 14a, Since the Eleventh Cireuit affirmed the district

court’s refusal to give these instructions, the decision in

this case plainly conflicts with Moreno.

The government cannot distinguish this case from

Moreno by recitation of evidence upon which the jury

could have found petitioner guilty under a proper con-

struction of Section 1324(a)(2). Opp. Brief 2-3, 5. The

testimony cited by the government with regard to

petitioner’s alleged contacts with undocumented aliens

at the time of their entry into this country was disputed

at trial.’ Because the trial court’s instructions in effect

told the jury that petitioner’s contacts with the undocu-

mented aliens after they arrived in Georgia were in and of

themselves illegal, the jury was not permitted (i) to con-

sider whether that conduct —the fact of which was undis-

puted at trial—was not “in furtherance’ of the undocu-

mented aliens’ entry into this country (and therefore

legal) and (ii) to believe petitioner's testimony —as op-

posed to the testimony of the aliens—that she did not

have other contacts with the undocumented aliens direct-

ly and substantially related to their entry into this

country. Thus, the government cannot legitimately con-

tend that the erroneous instructions submitted to the

jury were harmless error‘ or that important issues of

statutory construction and a direct conflict between the

circuits are not presented by this petition.

* See Opp. Brief at 2 and compare with T. pp. 217-219, 222, 246

(cited at p. 3 of Pet.).

‘“(I]n jury trials erroneous rulings are presumptively injurious,

especially those embodied in instructions to the jury... ."’ Fillippon

v. Albion Vein Slate Co., 250 U.S. 76, 82 (1919).

eer rrr Sr S”—

IV. THE ELEVENTH CIRCUIT’S DECISION IM-

PERMISSIBLY CRIMINALIZES EMPLOYMENT

OF UNDOCUMENTED ALIENS.

The trial court implicitly instructed the jury that the

transportation of undocumented aliens for employment

purposes was automatically a violation of §1324(a)(2)

when it stated that the act of furnishing a job to an un-

documented alien was one example of an action that was

in furtherance of that alien’s continued illegal presence in

the United States.* It is, of course, up to Congress to make

such decisions. See United States v. Evans, 333 U.S. 483,

486 (1948) (“defining crimes and fixing penalties are

legislative, not judicial functions’). The district court’s

instructions gave such a broad reading to Section 1324

(a)(2) that the effect of the Eleventh Circuit's affirmance

of those instructions was to expand the scope of the sta-

tute in such a way as to “make a surprisingly broad range

of unremarkable conduct a violation of federal law.”

Williams v. United States, 102 S.Ct. 3088, 3093 (1982)

(reversing a Fifth Cireuit decision which affirmed the

Government’s interpretation of 18 U.S.C. $1014 (1976)).

It is all the more clear that employment of undocu-

mented aliens is not a violation of current immigration

* The government further suggests that the employment related

transportation of illegal aliens is within the intended reach of §1324(a)

by notice that (i) §1324(a) provides that employment of an illegal

alien (including usual and normal practices incident to employment)

is not deemed tv constitute harboring and (ii) there is no such excep-

tion in the case of persons os illegal aliens to places where

they may find work. Opp. Brief at 5. However, “(while the ‘mere

employment’ exemption pi eryeres to harboring does not apply to

the ‘transporting’ phase of the statute, it does not follow that the

statute is violated by an employer transporting an alien employee

who is improperly in the United States.” C. Gordon and H. n-

field, 2 Immigration Law and Procedure, 9-56 (Supp. 1982).

laws because there is legislation now pending the purpose

of which is to make it illegal to employ undocumented

aliens. This legislation—the Immigration Reform and

Control Act of 1983 — would, if enacted, make it unlawful

for any employer knowingly to hire or recruit for a fee any

alien not authorized to work in the United States. See

H.R. 1510 & §, 529, 98th Cong., Ist Sess. (1983). In view

of this pending legislation, it is obvious that (i) the current

law does not prohibit the transportation of undocumented

aliens for employment purposes where such transporta-

tion is unsssociated with their entry into this country

and (ii) the Eleventh Cireuit) misconstrued that law

when it endorsed the trial court’s statement to the jury

that providing employment to undocumented aliens was

an example of a violation of 8 U.S.C. §1824(a)(2).

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Joun K. Tran, IIT

(Counsel of Record)

FRANK G. Smiru, III

Kenyon W. Murpuy

Alston & Bird

1200 C&S National Bank

35 Broad Street, N.W.