# Petitioners Reply Brief — Patterson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0567%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 957 ## Text Office .¢ J tb 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 I, 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- 1 2 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. 3 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. 4 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”— 5 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). 6 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. Atlanta, Georgia 30335 (404) 586-1500 Bos REINHARDT Reinhardt, Whitley & Rogers, P.C. 1001 North Central Avenue Tifton, Georgia 31793 (912) 382-6135 Counsel for Petitioner Dated: May 17, 1983 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0567%3A3. Public record. Not legal advice.