Appendix — Merkt v. United States

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IN THE JOSEPH F. SPANIOL, JR

CLERK

Supreme Court of the Anite ——

OCTOBER 1986 TERM

STACEY LYNN MERKT and

JOHN B. ELDER,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

STEPHEN W. COOPER

Neighborhood Justice Center

500 Laurel Avenue

St. Paul, MN 55102

Attorney of Record for

Petitioners

MICHAEL TIGAR

Professor, University of

Texas Law School

C. PETER ERLINDER

Professor, William Mitchell

College of Law

224-7631 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 a 224-7631

i

Lik.

VI.

APPENDIX

TABLE OF CONTENTS

Order of the Honorable Judge Vela, Trial

Judge, adopting the Opinion of the

Honorable Judge Head as controlling on

Petitioner's Motions to Dismiss,

particularly, First Amendment - Religion.

Opinion of the Honorable Judge Head

regarding Motions to Dismiss First

Amendment - Religion.

Opinion of the Panel of the United States

Court of Appeals for the Fifth Circuit.

Denial of Suggestion for En Banc Review.

Motion to the Fifth Circuit to comply with

rules regarding En Banc Review and Recall

of Mandate denied.

Extension to December 3, 1986 to file

Petition for Certiorari granted by the

Honorable Justice Byron White.

T

Order of the Honorable Judge Vela,

Trial Judge, adopting the Opinion

of the Honorable Judge Head as

controlling on Petitioner's Motions

to Dismiss, particularly, First

Amendment —- Religion.

CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

FEB 22, 1985

JESSE E. CLARK, CLERK

BY DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

UNITED STATES OF AMERICA §

VS. § CR. NO. B-84-746

STACEY LYNN MERKT §

JOHN B. ELDER

OR DER

Defendants have filed several pre-trial

motions in the above entitled and numbered cause

which raise identical legal issues presented in

United States of America v. John B. Elder, Cr.

No. B-84-276.

Therefore, it is ORDERED that the attached

Opinion on Motions to Dismiss and the evidence

adduced at the heacinda therein be and the same

is hereby adopted for all purposes and made a

part of this record. The Defendants preserve

their exception.

The Clerk shall send a copy of this Order

to all counsel.

DONE at Brownsville, Texas this 22

of February, 1985.

day

FILEMON B. VELA

United States District Judge

iat

Opinion of the Honorable Judge Head

regarding Motions to Dismiss First

- D : :

\mendment - Religion.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

UNITED STATES OF AMERICA §

V. § CR. NO. B-84-276

JOHN B. ELDER §

CPINION ON MOTIONS TO DISMISS

I. INTRODUCTION

The United States. accused the

Defendant John B. Elder of unlawfully

transporting three undocumented Salvadoran

aliens in violation of 8 U.S.C. § 1324(a)(2).

Elder filed various motions to dismiss,

including motions based on freedom of

religion, domestic and international refugee

law, selective prosecution, and estoppel. He

also filed a motion to suppress based on an

allegedly improper showup. After extensive

pretrial evidentiary hearings, the Court, in

open court, denied all motions to dismiss and

the motion to suppress. This opinion discusses

only those motions which the Court feels are

sufficiently unique to merit a written opinion.

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TI. FACTS

Elder is the director of the Casa

Oscar Romero (Casa Romero), named in honor of the

assassinated Roman Catholic Archbishop of El

Salvador. Casa Romero, located in San Benito,

Cameron County, Texas, provides assistance and

shelter to Central Americans, principally

Salvadorans, who have fled Central America and

entered the United States. Elder considers

these persons "refugees" under a“ Refugee Act

of 1980, Pub. L. 96-212, 94 Stat. 102, and

international law. Elder regards Casa Romero

as a sanctuary in the biblical sense. The

testimony indicated that the Casa Romero was

founded in December, 1982, on land donated by

the Roman Catholic Diocese of Brownsville.

Parishes and congregations of various réligious

affiliations donated seed money and continue to

provide financial support for the Casa Romero.

The Roman Catholic Diocese of Brownsville plays

a financial and leadership role in the operation

of the Casa Romero.

On March 12, 1984, Elder transported

three undocumented Salvadorans six miles from

the Casa Romero to a bus station in Harlingen,

Texas, within the Rio Grande Valley. Without

permission or documentation, these aliens

together had entered the United States

earlier that same day in the vicinity of the

Matamoros-Brownsville International Bridge. The

Salvadorans then walked twenty-five miles to

San Benito, where they were directed to the Casa

Romero. After they ate and rested at the Casa

Romero, the Salvadorans asked Elder for a ride

to the Harligen bus station. The Salvadorans

planned to go north to Houston on the bus

through the Border Patrol checkpoint located

north of Harlingen on U.S. Highway 77. Elder

complied with the Salvadorans' request by

taking them to the Continental Trailways Bus

Station in Harlingen. Elder knew of the

Salvadorans' plan to go to Houston.

Two Border Patrol agents saw the

three Salvadorans get out of Elder's vehicle in

front of the bus station. After the agents

recorded the license plate number of the vehicle

the agents detained the Salvadorans and took

them to the Harlingen Border Patrol office. A

license plate check revealed that the car was

registered to Elder. An agent of the Immigration

and Naturalization Service (INS) later returned

the Salvadorans to the Casa Romero, where the

Salvadorans identified Elder. At the pretrial

evidentiary hearing, the Salvadorans and the

Border Patrol agents identified Elder as the

driver of the vehicle.

III. MOTION TO DISMISS - FREEDOM OF RELIGION

Elder contends that his First

Amendment right to exercise religion entitles

him to put into practice his religious beliefs,

which includes providing shelter and

transportation for Salvadoran aliens, even if

those practices clash with the statutory

prohibitions of 8 U.S.C. § 1324(a)(2). Courts

have recognized that the exercise of religious

freedom can sometimes excuse criminal conduct,

see Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct.

1526 (1972); People v. Woody, 61 Cal.2d 716, 40

Cal. Rptr. 69, 394 P.2d 813 (1964); however, the

Supreme Court has determined that the enforcement

of criminal laws can be constitutionally achieved

even if the laws interfere with the religious

practices of individuals. See Cantwell v.

Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940);

Prince v. Commonwealth of Massachusetts, 321 U.S.

158, 64 S. Ctr. 438 (1944); Reynolds v. United

States, 98 U.S. 145 (1878). The First Amendment

“embraces two concepts--freedom to believe and

freedom to act. The first is absolute but, in

the nature of things, the second cannot be."

Cantwell v. Connecticut, 310 U.S. at 303-04,

60 S. Ct. at 903.

Recent court docteions describe the

appropriate analysis to resolve the conflict

between the prohibitions of a crimina] statute

and the perceived mandates of religious practice.

Elder bears the initial burden to demonstrate

that religious beliefs motivated his conduct.

The burden then shifts to the Government to

justify placing limitations on the religious

conduct. The Government must show that such

limitations are essential to accomplish a

compelling governmental interest. The limitation

on religion must not exceed the least burdensome

method of accomplishing the Government's purpose

without infringing First Amendment rights.

ao

Peyote Way Church of God, Inc. v. Smith. 742

F.2d 193, 200 (5th Cir. 1984); see United States

v. Lee, 455 U.S. 252, 102 S. Ct. 1051 (1982);

Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526

(1972).

When a defendant presents evidence to

meet his initial burden, the Court must be careful

and deferential in examining the Defendant's

beliefs. The Supreme Court notes that the

determination of what constitutes a religious

belief or practice presents "a most delicate

question.” Wisconsin v. Yoder, 406 U.S. at

215, 92 S. Ct. at 1533. The Court should neither

interpret canon law nor define the parameters of

a religion. See Thomas v. Review Board of the

Indiana Employment Security Division, 450 U.S.

707, 715-16, 101 S. Ct. 1425, 1430-31 (1981).

The Court finds that Elder has met his

initial burden. He is a Roman Catholic who feels

a charitable Christian commitment, founded in

the Gospel, which motivates him to assist those

who flee the violence in El Salvador. Elder

presented the testimony of various Christian

clergymen who confirmed that assistance to those

in need remains a fundamental aspect of

Christianity. Bishop John Fitzpatrick, Bishop

of the Roman Catholic Diocese of Brownsville,

testified that meeting material human needs

represents an essential aspect of Christianity,

and that each individual remains free to fulfill

this obligation according to the directives of

his or her own conscience. Although no law of

the Roman Catholic Church specifically requires

Roman Catholics to provide sanctuary or rides to

Salvadorans, Bishop Fitzpatrick believes that

providing such assistance constitutes an

appropriate expression of the Christian gospel.

According to the testimony of the various

ministers, this conclusion also holds true in

other denominations. These ministers included

Donovan Cook of the American Baptist Church,

James Andrews of the Presbyterian Church, John

Steinbrook of the Lutheran Church, and Gilbert

Dawes and John Soper of the United Methodist

Church. The Government called no witnesses to

oppose the testimony of these ministers.

Elder feels a religious commitment to

assist Salvadorans because of the political

turbulence in that country. An insurgent movement

currently exists in El Salvador which continues

to battle government forces. Elder filed

numerous statements from alleged eyewitnesses who

describe a brutal situation in El Salvador.

According to these statements and testimony in

court, the conflict in El Salvador has resulted

in much violence and many atrocities directed at

the civilian population from both sides. The

testimony contains graphic descriptions of

torture, murder, brutalities, and disappearances.

The violence has included church workers among

its vintiak

Although the Court has no reasons to

doubt the description of tragedy and horror in El

Salvador, the Court need only find that Elder

believed that such violence actually occurred.

This Court has no responsibility to make factual

findings concerning the situation in El Salvador.

The Court need not make any foreign policy

judgments in order to conclude that, in assisting

the Salvadorans, Elder acted in accordance with

his personal view of Christianity. The Bishop of

‘

the Brownsville Diocese believes that Elder

is a religious man who practiced his Roman

Catholicism when he transported the Salvadorans.

According to the Bishop, as a practicing Roman

Catholic, the expression of Elder's inner

religious thoughts can properly be evidenced

by charitable social action, such as assistance

to undocumented Central Americans.

The Court understands that other

members of the Roman Catholic faith may oppose

Elder's activist response to the situation in

Central American. The Court emphasizes that it

is not an arbiter of canon law. The Court

simply finds that Elder fulfilled his Christian

obligations as he genuinely perceived them to be

and that Elder presented substantial testimony to

support his view of Christianity. This Court's

conclusions are not intended to define the

Christian gospel or Christian response to it.

The Court need not correctly interpret Christian

doctrine in order to hear the position of the

Defendant.

Because Elder meets his initial burden,

the Government must show an overriding interest

to justify prosecution. The Court finds that

the Government meets its burden to demonstrate

an overriding interest in protecting a

congressionally-sanctioned immigration and

naturalization system designed to maintain the

integrity of this Nation's borders. In

discussing the importance of United States'

immigration laws, the Supreme Court has

repeatedly emphasized the importance which

sovereign nations place upon controlling entry

through their borders. In Kleindienst v. Mandel,

408 U.S. 753, 763, 92 3: Ct. 2576, 23835 (i972),

the Sunreme Court agreed that controls over

immigration are "inherent in sovereignty,

necessary for maintaining normal international

relations and defending the country against

foreign encroachments and dangers--a power to

be exercised exclusively by the political

"

branches of government In Fialio v. Bell,

430 G.S. 767, T92, 97 &. Ct. 1473, 478 Ci9T73,

[quoting Oceanic Navigation Co. v. Stranahan,

£54 U.S. 320, 339, 29 &. Ct. 67%, 676 (2909) i,

the Supreme Court underscored the limited role

of the judiciary with respect to immigration and

reemphasized that "‘over no conceivable subject

| is the legislative power of Congress more complete

=

than it is over' the admission of aliens.’

The ability to control entry and to

identify those admitted remains vitai to the

welfare and security of the people. See The

Japanese Immigrant Case, 189 U.S. 86, 96-97,

23 S. Ct. 611, 613 (1903); Boutilier v.

Immigration and Naturalization Service, 38/7

Semet aee, keowes, Sf &. Ct. 13563, 13567 (1967).

Circumvention by individuals of the

congressionally-prescribed stuceiees for entry,

even if religiously motivated, undermines the

historically legitimate goals of immigration

control. Protection of the borders represents a

national obligation fulfilled by the Government

for the benefit of all Americans. See The

Chinese Exclusion Case, 130 U.S. 581, 603-07, 9

S. Ct. 623, 629-30 (1889). Elder's do-it-yourself

immigration policy, while charitable, gives away

what is not his to give away--the Government's

legitimate right to examine every person who

enters the country so that the Government can

make informed decisions on who will be admitted.

The United States retains interests

in immigration control for security reasons.

) Richard Casillas, District Director for the INS

in San Antonio, Texas, explained that potential

immigrants must submit a biographical data sheet

for review by law enforcement agencies. The goal

of this system of immigration control is to

prevent entry by enemies of the state, criminals,

and other classifications of immigrants which

Congress determines to be undesirable. Without

a functional system, the country remains unable

to inquire and therefore powerless to control.

The INS also faces problems with counterfeit

identification and documentation obtained by

aliens who wish to assimilate into American

society. Casillas testified that the INS

recently redirected its limited resources to

deal with the growing problem of undocumented

aliens who make fraudulent applications to receive

benefits under entitlement programs.

The parties presented conflicting

evidence concerning the beneficial or harmful

impact exerted by undocumented workers upon the

labor market and the national economy. David

North, an immigration researcher who testified

for the Government, concluded that undocumented

aliens drained social resources, depressed wages,

displaced minority and women workers, and impeded

| iittala

technological development in some sectors of

the economy. Thomas Muller, an expert for the

defense, found that undocumented immigrants

filled unwanted jobs and helped to create new

jobs and prosperity. Another defense expert,

Gilberto Cardenas, testified that undocumented

aliens adversely affected local funds for

social services, but that the State of Texas

as a whole received a net benefit from

contributions paid by undocumented aliens

into the state's social programs. This existing

controversy among experts proves, first, that

the economic impact of illegal immigration

remains unresolved and, second, that the Court

should not resolve the dispute. As long as the

issue persists, Congress remains entitled to

examine the immigration question and to pass

legislation to address the problems which

Congress discovers. Congress may direct the

executive to account for each individual who

enters the country and to make appropriate

decisions in the best interest of all

Americans.

The Court must also analyze whether

the Government utilizes the least burdensome

method to accomplish its purpose in securing

the Nation's borders. The Court finds that the

Government must retain the sole authority to

determine who may cross the borders or travel

further within the country. If the Government

attempted to accommodate into its immigration

policy Elder's religious beliefs, the

Government's efforts would result in no

immigration policy at all. As cestinéns from

Defendant's witnesses indicated, the moral

obligation to assist others crosses religious

and denominational lines. These widely-held

beliefs allow adherents to exercise considerable

discretion and would permit religious

individuals to form personal immigration

policies. See United States v. Lee, 455°U.S.

at 259-60, 102 S. Ct. at 1056-57. Elder wishes

to limit this Court's view solely to the

violence in El Salvador; however, the human

condition remains miserable in many parts of

the globe. Man's inhumanity to man, as well as

nature's, has been unrelenting throughout

history. Many people live on this planet who

logically are no less worthy of Elder's

Christian charity than the Salvadorans. The

consciences of others religiously motivated may

conclude that the starving and impoverished of

North Africa, Asia, or Mexico are equally

entitled to enter this country without review

by the INS.

Obviously all cannot enter. Congress

has recognized in its immigration policy that

the United States cannot absorb all who wish to

enter this country to take advantage of its

relative tranquility and bounty. Congress has

therefore established appropriate standards and

procedures by which to determine proper entry.

The Government, as the representative of all

Americans, must retain the sole authority and

responsibility to make these hard decisions

and has put a system into place which

individuals, without regard to their

motivations, cannot be allowed to evade. See

The Chinese Exclusion Case, 130 U.S. at 603-09,

9S. Ct. at 629-31.

The United States accepts applications

for asylum from all nationalities, including

Salvadorans, under a procedure which takes into

account the social and political conditions

. aa Mist OLEN NR EOE C0

which exist in their homelands. See generally

Refugee Act of 1980, Pub. L. 96-212, 94 Stat.

102. Title 8 U.S.C. § 1158(a) authorizes the

Attorney General to establish a procedure for

asylum, see 8 C.F.R. §§ 208.1-208.16 (1984),

which provides protection to applicants who

fall under the statutory definition of refugee.

Title 8 U.S.C. § 1101(a)(42)(A) includes as

refugees those persons unable or unwilling to

return to their native countries "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 ..." A

potential refugee may enter the country and

apply for asylum with the local District

Director of the INS. See 8 C.F.R. § 208.3(a).

All potential refugees also receive the

opportunity to submit applications for asylum

during exclusion or deportation proceedings

before an immigration judge. See C.F.R. §§

208.3(a), 208.9. Those denied asylum by an

immigration judge may appeal the decision

within the INS. The testimony indicates that

some Salvadorans have petitioned for and

received asylum. Petitioners who are denied

asylun have recourse to all levels of the

federal courts for review of the decision, see

Ramirez-Osorio v. Immigration and Naturalization

Service, 745 F.2d 937, 946 n. 15 (5th Cir.

1984), including the United States Supreme

Court. See Immigration and Naturalization

Service v. Stevic, Uses , MM SS. Ce. Zea

(1984).

This Court finds that toniemesketion

of the immigration laws represents an important

Government interest which, on balance, justifies

enforcement of § 1324(a)(2) against Elder. The

Court also finds that the Government utilizes

the least burdensome method by which to

accomplish its goals, especially since nothing

in this decision prohibits the exercise of

Christian charity to those who present

themselves before the INS to apply for asylum

and who proceed under INS rules. See United

States v. Pereira-Pineda, 721 F.2d 137 (5th

Cir. 1983). The Court accordingly denies the

motion to dismiss based on free exercise of

religion.

IV. MOTIONS TO DISMISS UNDER DOMESTIC AND

INTERNATIONAL LAW

Elder introduces various motions to

dismiss based on domestic and international

refugee law. Elder's motions based on

domestic law essentially argue that 8 U.S.C.

§ 1253(h) entitled the Salvadoran aliens that

he transported to remain in the United States

because they fall under the definition of

refugee. Section 1253(h), as amended by the

Refugee Act of 1980, provides that the Attorney

General "shall not deport or return any alien..

to a country if the Attorney General determines

that such alien's life or freedom would be

threatened in such country on account of race,

religion, nationality, membership in a

particular social group, or political opinion.”

Elder asserts that because the Salvadorans he

transported qualified for protection as

refugees, the Government cannot prove that the

aliens were present unlawfully, an essential

element of § 1324(a)(2). See United States v.

Shaddix, 693 F.2d 1135, 1137-38 (5th Cir. 1982).

The Defendant argues that his assistance to the

Salvadorans remained perfectly legal, and he

requests dismissal of the indictment.

The Court refuses the invitation to

circumvent the statutory scheme and declines to

dismiss the indictment. Fifth Circuit law

clearly holds that before Salvadoran aliens

may reside legally within this country they

must submit applications for asylum with the

Government. United States v. Pereira-Pineda,

721 F.2d 137 (5th Cir. 1983); see Martinez-

Romero v. Immigration and Naturalization

Service, 692 F.2d 595, 595-96 (9th Cir. 1982).

The Defendant essentially asks the Court to

make a finding of fact concerning the refugee

Status of the Salvadorans. Title 8 U.S.C.

§ 1158 and § 1253(h), however, authorize the

Attorney General to determine the refugee

Status of an individual. The statutes do not

permit either the Court or the Defendant to

determine the refugee status of the Salvadorans

nor can the Court submit such an issue to a

jury. Under the statutory scheme, the

decision lies exclusively with the Attorney

General, subject to appropriate avenues of

judicial review. See Ramirez-Osorio v.

Immigration and Naturalization Service,

)

j

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745 F.2d 937, 946 n. 15 (5th Cir. 1984).

The Defendant also argues that

international laws and treaties automatically

entitle the aliens to receive refugee status

without regard to our own national iaws. The

Court concludes that Congress intended the

Refugee Act of 1980 to fulfill its obligations

under international law, see Immigration and

Naturalization Service v. Stevic, i & ,

104 S. Ct. 2489 (1984), and this Act designates

the Attorney General to determine refugee

Status. Congress also indicated that the

Government should review applications from

Salvadorans on a case-by-case basis. See

Pub.L. 97-113, § 731, 95 Stat. 1519. The Court

cannot interfere with political decisions which

the United States as a sovereign nation chooses

to make in the interpretation, enforcement, or

rejection of treaty commitments which affect

immigration. See The Chinese Exclusion Case,

130 U.S. 581, 9 S. Ct. 623 (1889); Botiller v.

Dominguez, 130 U.S. 238, 247, 9 S. Ct. 525, 527

(1889); Fiallo v. Bell, 430 U.S. 787, 792, 97

S. Ct. 1473, 1478 (1977); 74 Am. Jur. 2d

Treaties §§ 14, 36 (1974). The Court

accordingly denies Defendant's motions to

dismiss under domestic and international

refugee law.

ORDERED this 13th day of

February, 1985.

HAYDEN W. HEAD, JR.

UNITED STATES DISTRICT JUDGE

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Opinion of the Panel of the United

States Court of Appeals for the

Fifth Circuit.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 85-2264

OPINION

STACEY LYNN MERKT and JOHN B.

ELDER,

Defendants-A ppellants.

Filed July 17, 1986

Before: Jerre S. Williams, Will Garwood, and

Edith H. Jones, Circuit Judges.

Opinion by Judge Edith H. Jones

Appeal from the United States District Court

for the Southern District of Texas

Filemon B. Vela, District Judge, Presiding

SUMMARY

Immigration and Naturalization/Criminal Law

Appeal from judgments of conviction. Affirmed.

Defendants were convicted of conspiracy in connection with the

smuggling of illegal aliens. The charges arose from the arrest of an

E] Salvadorian man and woman who had entered the country ille-

gaily. They told U.S. Border Patrol agents that one of the defen-

dants had met them at the border and driven them to a sanctuary

where they stayed for approximately fifteen days. At the sanctuary,

they sometimes saw that defendant and also met the other defen-

dant who was a volunteer there.

[1] The free exercise clause of the first amendrnent embraces two

concepts, freedom to believe and freedom to act. The first is abso-

7995

ste ay alesis

7996 UNITED STATES v. MERKT, ETAL.

lute but the second is not. Legislation, religiously neutral on its

face, may regulate the health, safety, and general welfare of the pub-

lic, or certain activities within the purview of the federal govern-

ment, even if individuals will thereby be penalized because the

practice of their religious doctrine violates the law. [2] The strong

interest of the government in controlling its own borders is alone

sufficient reason to deny defendants’ claims of immunity from

prosecution under the free exercise clause of the first amendment.

[3] The Supreme Court has, at times, applied a balancing test to free

exercise claims. The test requires examining the extent of the bur-

den posed on a defendants’ religious practice, the interest of the

government in uniform law-enforcement, and the iikelihood that

the government could enforce its policy by: other, less intrusive

means. It is unclear what situations require the use of this test and,

therefore, exhibiting caution, this court will complete the analysis.

[4] Here, it is unclear how the criminal offense unduly burdens

defendants’ free exercise of religion. There was no evidence pres-

ented at the pre trial hearing or at the trial that suggested that

devout Christian belief mandates participation in the sanctuary

movement. [5] Contrary to defendants’ arguments, the state does

have a compelling interest in the uniform enforcement of border

control laws. The interest in uniform application of a facially neu-

tral criminal law is acute. The compelling state interest, moreover,

becomes more compelling in proportion to the increasing magni-

tude of the violations. [6] Defendants’ proffered less restrictive

alternatives, by their very triviality, highlight the necessity for

criminal sanctions. A further objection to requiring the govern-

ment to adopt less restrictive alternatives that would protect defen-

dants’ religious practices is the open-endedness of their demand.

[7] Evidence of a pretrial identification will be inadmissible only

if the photographic identification procedure was so impermissibly

suggestive as to give rise to a very substantial likelihood of irrepara-

ble misidentification. The district court was not clearly erroneous

in its determination that the male photographic array was unneces-

sarily suggestive. [8] The government concedes that the female pho-

tographic array was impermissibly suggestive. The court must

determine, therefore, whether under the totality of the circum-

stances, the suggestiveness led to a substantial likelihood of irrepa-

rable misidentification. A review of a number of factors indicates a

reliable basis for the identification. [9] A motion for recusal is com-

UnrTeD STATES v. MERKT, ETAL. 7997

mitted to the sound discretion of the trial judge and will not be

reversed on appeal unless the judge has abused his discretion. The

alleged bias or prejudice must be personal and it must stem from an

extrajudicial source which would result in an opinion on the ments

on some basis other than what the judge learned from his participa-

tion in the case. Here, defendants have not shown, by affidavit or

otherwise, that the judge’s impartiality might reasonably be ques-

tioned or that he had a personal bias or prejudice against either

defendant.

[10] The admission at trial of a coerced out of court statement

from a non defendant may violate the defendant's nght to a fair |

trial as guaranteed by the due process clause of the fifth amend-

ment. The voluntariness of the statement of a witness is generally

determined in a pretrial suppression hearing. [11] Here, the facts

presented at trial did not warrant an evidentiary hearing on the

issue.of voluntariness. [12] Evidence of other crimes is not admissi-

ble to prove character of a person in order to show that she acted in

conformity therewith. A trial court’s decision to admit extrinsic

offense evidence will be rejected only for an abuse of discretion.

Extrinsic offense evidence is particularly probative in a conspiracy

case to show intent or knowledge. Only when a defendant afirma-

tively takes the issue of intent out of the case is he entitled to an

exclusion of the evidence. [13] The court must make an on the

record determination that the probative value outweighs the preju-

dicial effect before admitting extrinsic offense evidence. The

requirement of a prior on the record articulation is only triggered

by the request of the party.

[14] It is unlawful for a person to assist an alien who is not law-

fully entitled to enter or reside within the United States. Since the

aliens’ status is an element of the crime charged, the defendants

assert that whether the aliens are refugees entitled to remain in the

United States is a question of fact which should have been submit-

ted to the jury. Even if the aliens are refugees under the United

Nations Protocol Reiating to the Status of Refugees, they are not

permitted to reside here contrary to domestic law. [15] The govern-

ment must prove that the defendants acted wilfully in furtherance

of the aliens’ violation of the law. Mere or incidental transportation

of an alien is not sufficient to sustain a conviction. The court’s

instruction to the jury substantially covered that requested by

Pe ae

7998 UNITED STATES v. MERKT, ETAL.

thie DCC ae <i a teat Wei

defendants and, in substance, embodied the above principles. [16]

Having reviewed all the evidence in the light most favorable to the

government, the court concludes that it was sufficient to sustain the

convictions.

OPINION

EDITH H. JONES, Circuit Judge:

In August 1984, Jose Andres Mendez-Valle and Maria Calletano

Rosales-Cruz, El Salvadoran citizens, along with three El Salvado-

ran juveniles (hereinafter collectively referred to as “illegal aliens”

or “aliens”) left El Salvador.’ Having reached Saltillo, Mexico, by

bus, Mendez-Valle contacted relatives in Washington, D.C., who

instructed him to remain in Mexico until further notice. Several

weeks later, two American women came and took the aliens to a

church in Matamoros, Mexico, near the Rio Grande River. The

aliens spent the night at the church and, the following morning, a

man escorted them to the river and directed them to cross at a point

where the appellant, John B. Elder, was waiting on the other side.

Once in the United States, Elder drove the illegal aliens to the

self-styled sanctuary, Casa Oscar Romero, in San Benito, Texas,

where they remained for approximately fifteen days. While at Casa

Oscar Romero, Mendez-Valle occasionally saw Elder, who directed

the house, and also became acquainted with the appellant, Stacey

Lynn Merkt, a volunteer there, when Mendez-Valle gave her money

to buy the aliens bus tickets to Houston.

In the early morning hours of November 21, Mendez-Valle was

given five bus tickets. Merkt drove the aliens to the bus station in

McAllen, Texas, where they were directed to the proper bus. En

route to Houston, the bus stopped in Weslaco. There, U.S. Border

Patrol agents boarded the bus to check for illegal aliens. Mendez-

Valle, Rosales-Cruz, and the three juveniles were arrested, given

Miranda wamings, and taken to the Border Patrol station in Mer-

'We recite the facts, as we must, in the light most favorable to the govern-

ment and the jury's verdict. See United States v. Alvarado Garcia, 781 F.2d 422,

423 & n.1 (Sth Cir. 1986).

ee

ee ee oe

Unrtep STATES v. MERKT, ET AL. 7999

cedes, Texas. There, the agents learned that the aliens might have

been smuggled into the United States. Accordingly, after initial

processing, the aliens were sent to the Anti-Smuggling Unit in

McAllen.

At the Border Patrol station in McAllen, Mendez-Valle generally

described and later indentified both Elder and Merkt. Rosales-Cruz

was not able to identify either defendant from a photographic line-

up.

Elder was indicted, charged, and convicted of two counts of con-

spiracy, two counts of bringing in and landing illegal aliens, in vio-

lation of 8 U.S.C. § 1324(a)(1), and two counts of transporting

illegal aliens, in violation of 8 U.S.C. § 1324(a)(2).? Merkt, indicted

on one conspiracy count and two substantive transportation

counts, was found guilty only of the conspiracy count. The appel-

lants challenge their convictions on numerous grounds which we,

after careful consideration, reject.

*Section 1324(a) sets forth the conditions under which persons can be found

liable for bringing in and harboring illegal aliens:

Any person, including the owner, operator, pilot, master, command-

ing 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; [or]

(2) knowing that he is in the United States in violation of law,

and knowing or having reasonable grounds to believe that his /ast

entry into the United States occurred less than three years prior

thereto, transports, or moves, or allempts to transport or move,

within the United States by means of transportation or otherwise,

in furtherance of such violation of law.

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 immigra-

tion or expulsion of aliens shall be guilty of a felony ....

8 U.S.C. § 1324(aX(1), (2).

ee ee eee eee ee

ti ete a

8000 UNITED STATES v. MERKT, ETAL.

1.

FREE EXERCISE CLAIM

Appellants contend that their convictions are barred by their reli-

giously motivated “sanctuary” activities for El Salvadorans, which

give rise to first amendment immunity from punishment for violat-

ing 8 U.S.C. § 1324.

American society extols its tradition as a haven for those to

whom obligations or piety and conscience rank higher than the

goods of this world. The tradition, at one level, was embodied in

the “free exercise” clause of the Bill of Rights. While respecting the

rights of citizens to adhere to different religions, however, it has

never been doubted that the government’s duty to all may, in some

circumstances, encroach upon the practices of a few. Appellants

Merkt and Elder seek sanctuary in the “free exercise” clause against

their violation of national border control laws. This court, whose

sanctuary power is rigidly controlled by precedent, cannot grant

heir request.

[1] The Supreme Court in Cantwell v. Connecticut, 310 U.S. 296,

60 S.Ct. 900, 84 L.Ed. 1213 (1940), noted that the free exercise

clause

embraces two concepts,—freedom to believe and freedom

to act. The first is absolute but, in the nature of things, the

second cannot be. Conduct remains subject to regulation

for the protection of society. The freedom to act must

have appropriate definition to preserve the enforcement of

that nrotection In every case the power to regulate must

ve so exercised as not, in attaining a permissible end,

unduly to infringe the protected freedom.

Id. at 303-04, 60 S.Ct. at 903, 84 L.Ed. at 1218 (footnote omitted).

Following the dichotomy, a significant body of Supreme Court law

has explained that legislation, religiously neutral on its face, may

regulate the health, safety, and general welfare of the public, or cer-

tain activities within the purview of the federal government, even

if individuals will thereby be penalized because the practice of their

religious doctrine violates the law. See Sherbert v. Verner, 374 U.S.

UNITED STATES v. MERKT, ETAL. 8001

398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965, 970 (1963). See,

| e.g., Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d

563 (1961) (Sunday closing laws); Prince v. Massachusetts, 321 U.S.

158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (child labor laws); Davis v.

Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890) (voter reg-

istration laws); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244

(1878) (polygamy laws). In Gillette v. United States, 401 U.S. 437,

91 S.Ct. 828, 28 L.Ed.2d 168 (1971), the Supreme Court found

unconvincing a “free exercise” claim to exemption from compul-

sory military service by petitioners who conscientiously objected

only to the Vietnam war. The government held an overriding inter-

est in raising armies, and the exemption was theologically neutral.

Id. at 462, 91 S.Ct. at 842-43, 28 L.Ed.2d at 188. In Goldman v.

Weinberger, — U.S. —, 106 S.Ct. 1310, 1314, 89 L.Ed.2d 478, 485

(1986), the Court, relying on the special needs of the armed forces

for uniformity and discipline, upheld a religiously neutral Air

Force regulation the effect of which was to forbid an orthodox Jew-

ish serviceman to wear a yarmulke.

en sae en ee)

The lower federal courts have consistently refused to create free

exercise havens from violation of the national criminal laws against .

use and saleof. marijuana: See United States v. Rush, 738 F.2d 497,

511-13 (1st Cir. 1984), cert. denied, U.S. —, 105 S.Ct. 1355, 84

L.Ed.2d 378 (1985); United States v. Middleton, 690 F.2d 820,

824-26 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 103 S.Ct.

1497, 75 L.Ed.2d 929 (1983); Leary v. United States, 383 F.2d 851,

859-61 (Sth Cir. 1967), rev’d in part and remanded on other

grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Likewise,

criminal laws prohibiting destruction of government property,

United States v. Allen, 760 F.2d 447, 453 (2d Cir. 1985), extortion,

United States v. Starks, 515 F.2d 112, 124 (3d Cir. 1975), affd in

relevant part sub nom. Abney v. United States, 431 U.S. 651, 97

S.Ct. 2034, 52 L.Ed.2d 651 (1977), racketeering, United States v.

Dickens, 695 F.2d 765, 772-73 (3d Cir. 1982), cert. denied, 460 U.S.

1092, 103 S.Ct. 1792, 76 L.Ed.2d 359 (1983), and refusal to testify

before a grand jury, Smilow v. United States, 465 F.2d 802, 804-05

(2d Cir.), vacated and remanded on other grounds, 409 U.S. 944, 93

S.Ct. 268, 34 L.Ed.2d 215 (1972), have been enforced against pleas

for preferment based on “free exercise”. The basis for these deci-

sions was the conclusion that “the very concept of ordered liberty

precludes allowing every person to make his own standards on mat-

—

8002 UNITED STATES v. MERKT, ETAL.

ters of conduct in which society as a whole has important

interests.” Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526,

1533, 32 L.Ed.2d 15, 25 (1972).

[2] Enforcement of 8 U.S.C. § 1324 cannot, consistent with this

authority, brook exceptions for those who claim to obey a higher

authority. The prohibition on the landing and transport of illegal

aliens represents but one facet of the comprehensive legal frame-

work governing entry into the United States and admission to its

citizenshin. The imnortance of the prohibition is reflected in the

criminalizain . vt conduct, as opposed to milder enforcement

sanctions. Control of one’s borders and of the identity of one’s citi-

zens is an essential feature of national sovereignty.? Relinquish this

control and it may fairly be said that there remains no territonal or

social body which can be called a sovereign nation. The peace,

order, and very existence of society are bound up in its border con-

trol laws as much 4s in its criminal and conscription laws. Although

their scope and application may be justly criticized, there can be no

doubt that, until Congress changes the border control laws, they

must be uniformly obeyed. On this basis alone, the first amend-

ment challenge of Merit and challenge of Merkt and Elder to their convictions fails,

t een 2 ay = 7

‘ = Freer aa

[3] The appellants urge us to apply the analysis of Wisconsin v.

Yoder and United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71

L.Ed.2d 127 (1982) to their case, which would require examining

the extent of the burden imposed on their religious practices, the

interest of the government in uniform law enforcement, and the

likelihood that the government could enforce its policy by other,

.ess intrusive means. At the outset, we note that in Lee the govern-

- ment prevailed, even under this analysis, in requiring the Amish,

' agairst their religious dictates, to contribute to the federal Social

Security system. Moreover, Yoder and Lee explicitly excluded from

their analysis legislation governing the public safety, peace, and

order. Despite the Court’s recent fragmentation of opinions in

3The Supreme Court has “long recognized the power to expel or exclude

aliens as a fundamental sovereign attribute exercised by the Government's

political departments largely immune from judicial control.” Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956,

961 (1953). See also Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52

L.Ed.2d 50, $6 (1977).

UNITED STATES v. MERKT, ET AL. 8003

a lin 7 aE I Ral eae | te Cn la obi ac

--

-. cece @ coe came amen. = © \

Bowen y. Roy, —. U.S. —, 106 S.Ct. 2147, —L.Ed.2d — (1986), the

‘ —¢ontroversy- there focused on whether to apply Yoder or-a- less-

stringent standard to the collision between a free exercise claim and

the receipt of federally funded welfare benefits. Justice Burger’s

opinion for the plurality in result, favorably cited Reynolds, which

earlier rejected a free exercise challenge against laws prohibiting

polygamy, and was not disputed on this point. Nevertheless, in an

abundance of analytical caution, we reach the same result even

under the Yoder test.

[4] First, it is not clear to us how enforcement of 8 U.S.C. § 1324

unduly burdens appellants’ free exercise of religion. See Braunfeld,

366 U.S. at 606-07, 81 S.Ct. at 1147-48, 6 L.Ed.2d at 568-69. The

statute relates only to conduct that aids or shelters illegal aliens and

contains no explicit prohibition on religious practices or beliefs.

The sincerity of appellants’ religious motivation to aid El Salvado-

rans was not doubted by the trial court. Whether such motivation,

in turn, required defiance of the nation’s border control laws,

hence, whether enforcement of those laws so as to inhibit and pun-

ish appellants burdened their religious practice, is another matter.

Representatives of Catholic and Methodist clergy testified at the

rretrixl hearing and at trial. None suggested that devout Christian

belief mandates participation in the “sanctuary movement.” Obvi-

ously, appellants could have assisted beleaguered E] Salvadorans in

many ways which did not affront the border control Jaws: they

-could have collected and distributed monetary and other dona-

tions, aided in preparing petitions for legai entry and assisted E:

Salvadorans legally in this country, or, in the Christian missionary

tradition, they could have performed their ministry in E] Salvador

or neighboring countries where El Salvadorans are refugees. They

chose confrontational, illegal means to practice their religious views

—the “burden” was voluntarily assumed and not imposed on them

by the government.

[5] Second, contrary to appellants’ assertions, there is a compel-

ling state interest in the government’s uniform enforcement of bor-

der control laws. The statute under which appellants were

convicted is part of a comprehensive, essential sovereign policy.

We cannot engraft judicial exceptions to the illegality of transport-

ing undocumented El Salvadorans without thereby de facto

revising, for the unique benefit of El Salvadorans, the legal condi-

BGs Wate,

BEST AVAILABLE COPY '

8004 UNITED STATES v. MERKT, ETAL.

tions under which they may abide in this country. This result would

create a preference utterly at odds with the fine balancing of

national-origin quotas, visa preference tables, and alien residency

requirements promulgated and enforced pursuant to the Immigra-

tion and Nationality Act of 1952, as amended, 8 U.S.C.

§§ 1101-1557 passim. The interest in uniform application of a

facially neutral criminal law is acute: “To encourage individuals to

make their own determinations as to which laws they will obey and

which they will permit themselves as a matter of conscience to dis-

obey is to invite chaos.” United States v. Moylan, 417 F.2d 1002,

1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25

L.Ed.2d 91 (1970). Finally, we emphatically reject appellants’ sug-

gestion that because enforcement of the border control laws has not

been particularly successful, there is no compelling state interest in

orosecuting violators. The argument is so broadly couched that it

sould be used to deny a compelling state interest in enforcement of

the cnminal drug laws. In any event, to the extent that appellants’

conduct, amplified by the nationwide publicity given to the

“sanctuary movement,” has contributed to undermining compli-

ance witir the border control laws sad encouraging Meal catcies,

appettants are trying to excuse their violation of law on the basis of

other-vrotatrons. Tis will not do. The compelling state interest

becomes more compelling in proportion to the increasing magni-

tude of the violations.‘

[6] The third prong of the Yoder test requires consideration of

any less restrictive alternative means whereby the appellants’ inter-

est in upholding their religious beliefs may be accommodated

within government policy. Appellants assert that criminalizing

their efforts to abet the illegal entry of El Salvadorans is “almost

never” the least restrictive means. They suggest as “less restrictive”

the deportation of the alien or even confiscation of vehicles.

Deporting the aliens, as an alternative policy, would reduce appel-

lants’ efforts to a pitiful farce. It would also implicate the Border

Patrol! in a wasteful “catch-me-if-you-can” scheme that would not

further the law’s objectives. Confiscation of vehicles would be a

“Ii is unnecessary to speculate whether, in abstract terms, illegal immigration

can be judged good or bad for the country. Congress had determined the dis-

tinction between entry which is legal and that which is illegal. Neither appel-

Jante nar this court can be so bold as to revise the legislative determination.

¥

|

|

UNITED STATES v. MERKT, ET AL. 8005

futile remedy, imposing a tax on those who contribute to Merkt’'s

and Elder’s efforts, without, in all likelihood, diminishing the quan-

tity of their efforts to evade the Jaw. In short, appellants’ proffered

“less restrictive alternatives,” by their very triviality, highlight the

necessity for criminal sanctions.

An even more basic objection to requiring the government to

adopt a less restrictive alternative that would profect the appel-

lants’ choice of religious practices is the open-endedness of their

demand. Judge Head eloquently captured the ramifications of

appellants’ position in the following analysis:

If the Government attempted to accommodate into its

immigration policy [appellants’] religious beliefs, the Gov-

ernment’s efforts would result in no immigration policy at

all. As testimony from [appellants’] witnesses indicated,

the moral obligation to assist others crosses religious and

denominational lines. These widely-held belief allow

adherents to exercise considerable discretion and would

permit religious individuals to form personal immigration

policies. ... [Appellants wish] to limit this Court’s view

solely to the violence in El Salvador; however, the human

condition remains miserable in many parts of the globe.

Man’s inhumanity to man, as well as nature’s, has been

unrelenting throughout history. Many people live on this

planet who logically are no less worthy of [appellants’]

Christian charity than the Salvadorans. The consciences

of other religiously motivated may conclude that the

starving and impoverished of North Africa, Asia, or Mex-

ico are equally entitled to enter this country without

review by the INS.

United States v. Elder, 601 F. Supp. 1574, 1579 (S.D. Tex. 1985).°

Appellants’ “do it yourself” immigration policy, even if grounded

in sincerely held religious conviction, is irreconcilably, voluntarily,

and knowingly at war with the duly legislated border contro! policy.

In this case, the claims of conscience must yield to the twin impera-

‘Judge Vela adopted Judge Head's opinion in denying the appellants’

motions to dismiss.

8006 UNtrTeD STATES v. MERKT, ETAL.

tives of evenhanded enforcement of criminal laws and preservation

_ of our national identity as defined by the imnmigration laws._

SUGGESTIVE IDENTIFICATION PROCEDURES

court identifications were inadmissible because the photographic

identification procedures were impermissibly suggestive and cre-

ated a substantial risk of misidentification.* Prior to trial, the appel-

lants moved to suppress the photographic identification evidence.

After an evidentiary hearing, the district court found that the photo

array of male suspects was not unnecessarily suggestive. With

respect to Merkt, however, the court found the photo array to be

“disastrous.” The court nevertheless held that Mendez-Valle’s

indentification of Merkt was sufficiently reliable to outweigh the

corruptive effect of the suggestive photographic array. At trial,

Mendez-Valle made in-court identifications of both appellants.

)

Elder and Merkt next assert that Mendez-Valle’s pre-trial and in-

,

[7] Evidence of a pretrial photographic identification will be

inadmissible only if the photographic identification procedure was

so impermissibly suggestive as to give rise to a very substantial like-

lihood of irreparable misidentification. Simmons v. United States,

390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, i253

(1968). Elder asserts that the male photo array was impermissibly

suggestive because his photograph was the only one that even

remotely resembled the very general description given by Mendez-

Valle at the outset of the interview. We are u hat

| ¢ the district court was clearly erroneous in its determination that the

poner ne om array Was not unnecessarily suggestive. See

lecidue, .2d 535, 565 (Sth Cir. 1979), cert.

dated 445 U. s. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980).

At the Border Patrol station in McAllen, Mendez-Valle described

the man who had met and transported them to the Casa Oscar

Romero as a tall man with a mustache who possibly wore glasses

and had a name phonetically similar to “Mr. Mack” or “Mr. Yack.”

®Roseles-Cruz was unable to identify the appellants from the photographs

and could not identify them at tral.

UniteD STATES v. MERKT, ETAL. 8007

(Elder is known as “Jack.”) Mendez-Valle also indicated that, while

in Mexico, he was aided by a religious organization. Based on this

information, the agents compiled a photographic lineup. Because

the agents did not have access to a regular photograph of Elder,

they clipped his picture from a newspaper and included in the

lineup pictures of other men also taken from a newspaper. In addi-

tion to the seven newspaper clippings were four “hard” photos of

men, three of whom appeared to be of Hispanic descent.

Even excluding the four “hard” photographs, the remaining

seven newspaper clippings depicted caucasian males of varying

facial and feature characteristics but of the same general age and

description. Three of the men in the newspaper clippings wore

glasses, while two had mustaches. Mendez-Valle testified that no

one suggested any certain photograph to him but that he pointed

out Elder’s photograph because “that looked very much like Mr.

Mac.” Based on these facts, the male photographic array was not

impermissibly suggestive.

[8] The female photographic array consisted of eight “hard” pho-

tographs. Seven of the photographs were in color and depicted

women of obvious Hispanic origin. Merkt was the only caucasian

female in the array and her photograph was in black and white. The

govérnment concedes that the female photographic array was

impermissibly suggestive. Nevertheless, the district court found

that other factors weighed in favor of the reliability of Mendez-

Valle’s identification of Merkt and outweighed the effects of the

impermissibly suggestive photo identification. We agree.

In Simmons, the Supreme Court held that if a photo array was

unnecessarily suggestive, the court must then determine whether,

under the totality of the circumstances, the suggestiveness leads to

a substantial likelihood of irreparable misidentification. 390 U.S.

at 384-86, 88 S.Ct. at 971-72, i9 L.Ed.2d at 1253-54. Under this

analysis, “reliability is the linchpin in determining the admissibility

of identification testimony.” Afanson v. Brathwaite, 432 U.S. 98,

114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). See United

States v. Cueto, 611 F.2d 1056, 1063-64 (Sth Cir. 1980). A pretrial

identification found to be reliable will be admitted despite an

impermissibly suggestive photographic array.

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8008 UNITED STATES v. MERKT, ET AL,

This Circuit relies on six factors to determine the reliability of a

pretrial identification: (1) the opportunity of the witness to view the

suspect, (2) the witnesses’ degree of attention, (3) the accuracy of

) the pre-identification description, (4) ihe witnesses’ level of cer-

) tainty, (5) the time that has elapsed between the crime and the iden-

) tification, and (6) the corrupting influence of the suggestive

identification itself. United States v. Woolery, 735 F.2d 818, 821

(Sth Cir.), reh’g denied, 740 F.2d 359 (1984), cert. denied, — U.S.

) —, 105S.Ct. 1172, 84 L.Ed.2d 322 (1985). “[T}he fact that some, or

) even a majority, of the Manson factors weigh against the reliability

| of the identification is not conclusive. We must examine all of the

| factors and decide, whether, on the whole, the suggestiveness of the

) line-up created a ‘very substantial risk of misidentification.’ ” 740

F.2d at 360-61 (quoting United States v. Atkins, 698 F.2d 711, 713

(Sth Cir. 1983)).

1. The opportunity to view the suspect. Mendez-Valle testified

that he saw Merkt a few times at the Casa Oscar Romero, that he

asked her to purchase five bus tickets, and that he gave her $100.

Mendez-Valle further testifed that, 07 November 21, 1984. Merkt

gave him five bus tickets and drove the aliens to the bus station,

whith was approximately twenly minutes trom Casa Oscar

Romero. Mendez-Valle had the opportunity to view Merkt during

“the day at close range for substantial periods of time. See, e.g.,

Woolery, 735 F.2d at 821; Passman v. Blackburn, 652 F.2d 559,

570 (Sth Cir. 1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72

L.Ed.2d 141 (1982); Allen v. Estelle, 568 F.2d 1108, 1113-14 (Sth

Cir. 1978).

2. Degree of attention. Mendez-Valle presented Merkt with what

was orobably a great deal of money to him. Merkt was the individ-

ual who paved the way for the aliens’ journey to Houston. From

these facts, we can conclude that Mendez-Valle’s attention was

often singularly focused on her. See, e.g., Passman, 652 F.2d at 570-

71; Swicegood v. Alabama, 577 F.2d 1322, 1328 (Sth Cir. 1978).

3. The accuracy of the pre-identification description. Mendez-

Valle described Merkt as a short Anglo or light-skinned woman

with curly or kinky yellowish-blond hair. He said her name was

phonetically similar to “Daisy.” Although perhaps general in terms

of providing a “measuring stick” for comparison, this was an accu-

‘

pian aca sora

UNITED STATES v. MERKT, ET AL. 8009

rate description of Merkt. Mendez-Valle did, in addition, provide

an accurate description of Merkt’s car. See, e.g., Allen, 568 F.2d at

1114.

4. The witness’ level of certainty. Mendez-Valle testified that he

picked Merkt’s picture from the lineup “[bJecause- it looked very

much like [Daisy].” At the evidentiary hearing, in response to a

question by the court, Mendez-Valie testified that. even if he had

not seen the picture of Merkt, he believed he would have been able

to identify her. At trial, Mendez-Valle positively and unequivoc-

ably identified Merkt. See, e.g., United States v. Jennings, 528 F.2d

222, 223 (6th Cir. 1975). Cf Cueto, 611 F.2d at 1064 (no in-court

identification of the defendant).

5. The time between the crime and the confrontation. Mendez-

Valle was asked to describe Merkt and identify her photograph only

hours after the aliens had been placed on the bus. See, e.g., Allen,

568 F.2d at 1114. Thus, there was no substantial passage of time

which could have affected the reliability of the identification.

Virtually all of these factors indicate a reliable basis for the iden-

tification. Because the suggestive photographic array did not create

a substantial nsk of an inaccurate identification, the pretrial identi-

fication evidence against Merkt was properly admitted.

Under the totality of the circumstances, Mendez-Valle’s in-court

identifications of Elder and Merkt were reliable also. Mendez-Valle

testified as to the length of time he spent with each appellant and

the conditions under which he viewed them. At trial, Mendez-Valle

said that Elder resembled the man who had helped them and he

positively identified Merkt. Defense counsel challenged the basis

for both the pretrial and in-court identifications during his closing

arguments. The credibility of those identifications was properly left

to the jury. See United States v. Fernandez-Roque, 703 F.2d 808,

814 (Sth Cir. 1983).’

’The appellants also assert that the identification procedures were imper-

missibly suggestive because Mendez-Valle and Rosales-Cruz were shown a

video tape in which the female dominantly portrayed was Merkt. This video

tape was only shown to ihe aliens after Mendez-Valle had already described

Merkt and picked her photo from the lineup and after Rosales-Cruz was unable

8010 UNITED STATES v. MERKT, ET AL.

Il.

- RECUSAL OF THE TRIAL COURT JUDGE

Prior to trial, Elder and Merkt moved for the recusal of the trial

court judge, the Honorable Filemon B. Vela, pursuant to 28 U.S.C.

§§ 144 and 455. The motion was denied by Judge Vela initially and

upon reconsideration. On appeal, appellants assert that Judge Vela

abused his discretion in refusing to recuse himself because (1) he

had acknowledged his personal bias by recusing himself, upon his

‘own motion, in another case in which Elder was the defendant, and

(2) he improperly considered the truth of the matters alleged in affi-

davits submitted under § 144 rather than merely passing upon the

legal sufficiency of those affidavits.

{9} A motion for recusal is committed to the sound discretion of

the trial judge. The denial of such a motion will not be reversed on

"appeal unless the judge has abused his discretion. See United States

v. Harrelson, 754 F.2d 1153, 1165 (Sth Cir.), cert. denied, — U.S.

—, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). Under both § 144 and

§ 455, the alleged bias or prejudice must be personal and it must

stem from an extrajudicial source which would result in an opinion

on the merits on some basis other than what the judge learned from

his participation in the case. See United States v. Reeves, 782 F.2d

1323, 1325 (Sth Cir. 1986).

Judge Vela’s disqualification was not required under $455

merely because he voluntarily withdrew from another case in which

Elder was the defendant.® See, e.g., Davis v. Fendler, 650 F.2d 1154,

1o identify either Elder or Merkt. After viewing the video tape, Rosales-Cruz

was still unable to identify anyone on the tape and Mendez-Valle again identi-

fied Merkt. In light of these facts, and our finding that the pretrial identification

procedures were reliable, we cannot conclude that the video tape had any effect

on the ability of the aliens to identify Merkt.

*Under § 455(a), a judge must disqualify himself in any proceeding in which

“his impartiality might reasonably be questioned.” Under § 455(6\1), a judge

must also disqualify himself where he has a “personal bias or prejudice con-

cerning a party.” If the evidence shows that a reasonable person “would harbor

doubts about the judge’s impartiality,” the trial judge must disqualify himself.

Potashnick v. Port City Consir. Co., 609 F.2d 1101, 1111 (Sth Cir.), cert. denied,

449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980).

UNITED STATES Vv. MERKT, ETAL. 8011

1163 (9th Cir. 1981). Judge Vela gave no reason for his withdrawal

from that case, other than to state that it was “for none of the rea-

sons urged by the Defendant in his Motions.” In this case, Judge

Vela considered, and specifically rejected, recusal based on his

prior recusal. The appellants have not shown, by affidavit or other-

wise, that Judge Vela’s impartiality might reasonably be questioned

or that he had a personal bias or prejudice against either Elder or

Merkt or in favor of the government. These facts do not indicate

that a reasonable person would harbor doubts about Judge Vela’s

impartiality based solely on his prior recusal. See Phillips v. Joint

Legislative Comm., 637 F.2d 1014, 1019-20 (Sth Cir. 1981), cert.

denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982).

Section 144 provides, in pertinent part:

Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that the

judge before whom the matter is pending has a personal

bias or prejudice either against him or in favor of any

adverse party, such judge shall proceed no further therein,

but another judge shall! be assigned to hear such proceed-

ing.

28 U.S.C. § 144. If an affidavit filed under § 144 is timely and tech-

nically correct, the factual allegations must be taken as true for pur-

poses of recusal. The trial judge may pass only upon the legal

sufficiency of the affidavit;? he may not consider the truth of the

matters asserted therein. Joint Legislative Comm., 637 F.2d at

1019 & n.6.

Merkt, in her affidavit, refers primarily to statements and rulings

made by Judge Vela during her trial and sentencing in a previous

case.’” These prior judicial rulings, however, offer no basis for

An affidavit is legally sufficient if it meets a three-part test: (1) the facts must

be material and stated with particularity; (2) the facts must be such that, if true,

they wouid convince a reasonable person that bias exists; and (3) the facts must

show that the bias is personal, rather than judicial, in nature. Joint Legislative

Comm., 637 F.2d at 1019. See Parrish v. Bd. of Comm'rs, 524 F.2d 98, 100 (Sth

Cir.1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188

(1976). Each party may submit only one such affidavit. 28 U.S.C. § 144.

1°See United States v. Merkt, 764 F.2d 266 (Sth Cir.), reh’g denied, 772 F.2d

904 (1985).

8012 UNITED STATES v. MERKT, ETAL.

recusal; they do not show any personal bias against Merkt. Elder’s

affidavit asserts prejudice on the basis of Judge Vela’s prior recusal.

We have already rejected this ground. Additional allegations center

on the statements made by Judge Vela during the previous trial and

sentencing of Merkt. Again, these prior judicial rulings do not show

any personal bias.

Finally, the appellants assert that Judge Vela should have recused

himself because of religious pressure. In support of this contention,

Merkt refers to the affidavit of Diane Eider, the wife of John Elder.

Diane Elder’s affidavit violates the one-affidavit rule of 28 U.S.C.

§ 144 and need not be considered. See United States v. Balistrieri,

779 F.2d 1191, 1200 & n.6 (7th Cir. 1985) (a court need only con-

sider the first afidavit submitted in support of a § 144 motion), cert.

denied, — U.S. —, 106 S.Ct. 1490, 89 L.Ed.2d 892 (1986). Even if

its filing were appropriate, Diane Elder’s affidavit, based, as it is, on

information told to her by unnamed individuals who did “not feel

capable of giving affidavits,” is legally insufficient to require the

recusal of Judge Vela on religious grounds. /d. at 1199 (affidavits

based on mere conclusions, opinions, or rumors are legally insuffi-

cient to require recusal). See also Davis v. Comm'r, 734 F.2d 1302,

1303 (8th Cir. 1984)."*

IV.

COERCED TESTIMONY

The appellants timely moved to dismiss the indictment based on

government coercion and misconduct. On appeal, the appellants

contend that their fifth amendment right to due process was vio-

lated when the district court failed to hold an evidentiary hearing

on the voluntaniness of the testimony of the alien witnesses.

[10] It is established in this Circuit that “the admission at trial of

"*Both appellants also incorporate, by reference, the affidavits of other indi-

viduals in support of their motion for recusal. In addition te violating § 144's

one-afidavit rule, we note that these affidavits are also predicated on Judge

Vela’s religious background and his rulings in Merkt's previous trial, evidence

no personal bias or extrajudicial prejudice, and are legally insufficient to

require recusal.

UNITED STATES v. MERKT, ET AL. 8013

a coerced out-of-court statement from a non-defendant may violate

the defendant's right to a fair trial as guaranteed by the due process

clause of the fifth amendment.” Merkt, 764 F.2d at 274. See also

United States v. Chiavola, 744 F.2d 1271, 1273 (7th Cir. 1984);

LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir.), cert. denied, 419

U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974). The voluntariness

of the statement of a witness is generally determined in a pretrial

suppression hearing. See, e.g., Merkt, 764 F.2d at 273; LaFrance,

499 F.2d at 36. Here, however, defense counsel indicated that he

wished to carry the motion with the case, and testimony was pres-

ented at trial regarding the voluntariness of the statements of

Mendez-Valle and Rosales-Cruz.

The appellants first assert that Mendez-Valle’s testimony was

coerced with promises that he and the children would be sent to

Washington, D.C., if he testified favorably to the government. At

the outset of his testimony, Mendez-Valle stated that he wanted to

request a “condition” from the government. At that point, the jury

was excused and the proceedings continued. Mendez-Valle stated

that, when he was detained, the government promised him that the

children would be reunited with their parents in Washington, D.C.

The government denied making any such promise but acknowl-

edged that, when Mendez-Valle had asked what would happen to

the children, he had been told that the children would be held until

their parents could be located. At the time of trial, the children

remained in the government’s custody because no one had come

forward to accept responsibility for them. Mendez-Valle stated that

no other promises or threats had been made and the court ordered

him to testify. On cross-examination, Mendez-Valle stated his

belief that if he gave the Border Patrol agents answers that they

liked, they would let them go to Washington, D.C. However,

Mendez-Valle elsewhere indicated that, despite this belief, he nev-

ertheless told the truth.

Appellants assert, based on the fact that the border patrol agents

told the alien witnesses the names of the appellants, that the gov-

ernment impermissibly suggested specific testimony. While the

agents did inform the alien witnesses of the names of the appel-

lants, this was done only after the witnesses had described the

appellants, after Mendez-Valle had picked both of the suspects

from the photographic arrays, and after the aliens had both given

8014 UNITED STATES v. MERKT, ET AL.

the agents their phonetic understanding of the names of the indi-

viduals who had helped them.

[11] The facts presented at trial did not warrant an evidentiary

hearing. Neither witness claimed that he or she was threatened or

coerced into making untrue statements. Other than concern for the

children, both witnesses testified that no promises were made in

exchange for their testimony. Furthermore, even if one of the gov-

ernment agents did bang his fist on the table twice while question-

ing Rosales-Cruz, as suggested by defense counsel, such actions

would not lead this court to conclude that the entire trial testimony

of the aliens should be excluded. In United States v. Fredericks, 586

F.2d 470 (Sth Cir. 1978), cert. denied, 440 U.S. 962, 99 S.Ct. 1507,

59 L.Ed.2d 776 (1979), the defendant moved to exclude the testi-

mony of an unindicted co-defendant. The witness’ testimony was

obtained in violation of her Miranda rights and, according to the

witness’ uncontroverted testimony, only after being subjected to

threatening and heavy-handed interrogation. /d. at 477. Refusing

to exclude the witness’ testimony, this court held that the actions of

the government officials, “even if viewed in the worst possible light,

were a far cry from the sort of third-degree physical or psychologi-

cal coercion that might prompt us to disregard altogether the soci-

etal interest in law enforcement by excluding the highly probative

testimony of a nondefendant.” /d. at 481. In this case, we can find

no reascn to exclude the trial testimony of the alien witnesses.

V.

EVIDENCE OF A PRIOR CONVICTION

Merkt was previously convicted of conspiring to transport, and

of transporting, illegal aliens. See Merkt, 764 F.2d at 268.’* That

conviction was the subject of a motion in /imine, which was granted

to the extent that the government was required to get permission

from the court prior to introducing evidence of that conviction.

While cross-examining one of the defense witnesses, the prosecutor

elicited testimony regarding the previous conviction without prior

20n appeal, this court reversed that conviction and, remanded the case fora

new trial. Merkt, 764 F.2d at 275. On remand, the government elected not to

retry Merkt and dismissed the indictment.

UNITED STATES v. MERKT, ETAL. 8015

approval of the court. The district court summarily found the con-

viction admissible under Fed. R. Evid. 404. The court carefully

admonished the jury, however, as to the purposes for which the

conviction could be considered. Merkt challenges the introduction

of the prior offense evidence.

[12] Rule 404(b) provides that evidence of other crimes is not

admissible to prove the character of a person in order to show that

she acted in conformity therewith, but may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. The

admissibility of extrinsic evidence is determined in light of the two-

part test established by this court in United States v, Beechum, 582

F.2d 898, 911 (Sth Cir. 1978) (en banc), cert. denied, 440 U.S. 920,

99 S.Ct. 1244, 59 L.Ed.2d 472 (1979): (1) it must be determined

that the extrinsic offense evidence is relevant to an issue other than

the defendant's character, and (2) the evidence must possess proba-

tive value that is not substantially outweighed by its undure

prejudice.’ A trial court's decision to admit extrinsic offense evi-

dence will be rejected only for an abuse of discretion. See United

States v. Maggitt, 784 F.2d 590, 597 (Sth Cir. 1986).

Merkt first asserts that admission of evidence of the prior convic-

tion was improper because the government was trying to establish

her identity. This assertion is frivolous. The trial court, in admon-

ishing the jury as to the limited use of the extrinsic offense evi-

dence, cautioned that Merkt’s previous conviction could be

considered only in determining Merkt’s state of mind or intent and

“for no other purpose.”

Merkt next asserts that admission of the extringic offense evi-

dence as bearing upon her knowledge or intent is irrélevant because

her sole defense in this case was misidentification. It is clear, how-

‘ever, that “Rule 404(b) evidence is particularly probative where the

government has charged conspiracy.” United States v. Gordon, 780

F.2d 1165, 1174 (Sth Cir. 1986).

‘3The extrinsic offense evidence must also meet the other requirements of

Fed. R. Evid. 403, which provides that, although relevant, extrinsic offense evi-

dence may be excluded if it will confuse the issues, mislead the jury, or cause

undue delay, waste of time, or needless presentation of cumulative evidence.

8016 UNITED STATES v. MERKT, ET AL.

“In the context of a conspiracy case, the mere entry of a

not guilty plea sufficiently raises the issue of intent to jus-

tify the admissiblility of extrinsic offense evidence ....

Only when the defendant affirmatively takes the issue of

intent out of the case is he entitled to an exclusion of the

evidence.

Id. See United States v. Roberts, 619 F.2d 379, 383 (Sth Cir. 1980).

Here, Merkt did nothing from which this court could conclude that

she affirmatively took the issue of intent out of her case. See, e.g.,

Id. at 383 n.2 (“a defendant who intends to assert a defense based

upon mistaken identity may make an appropriate stipulation to

avoid the introduction of extrinsic offense evidence”).

{13} Merkt also contends that a remand is mandatory because the

district court allowed the admission of the extrinsic offense evi-

dence without a prior on-the-record determination that the proba-

tive value of the evidence outweighed its prejudicial effect. In

United States v. Robinson, 700 F.2d 205 (Sth Cir. 1983), cert.

denied, 465 U.S. 1008, 104 S.Ct. 1003, 79 L.Ed.2d 235 (1984), this

court held that:

{I]n Rule 404(b) cases an on-the-record articulation by the

trial court of Beechum’s probative value/prejudice inquiry

[is warranted] when requested by a party. In the absence of

on-the-record findings in response to such a request, we will

be obliged to remand unless the factors upon which the

probative value/prejudice evaluation were made are read-

ily apparent from the record, and there is no subsiantial

uncertainty about the correctness of the ruling.

Id. at 213 (emphasis added; fooinote omitted).

Robinson's requirement of a prior on-the-record articulation of

the probative value/prejudice analysis is only triggered by the

request of a party. Here, defense counsel made no specific request

for an on-the-record probative value/prejudice determination.

Because the district court subsequently made the probative value/

prejudice evaluation,” this contention, !ike the others, fails to per-

“Funher, although the appellants do not specifically challenge the district

court's post-trial findings, we find that the extrinsic evidence was relevant io

UNITED STATES v. MERKT, ET AL. 8017

suade. Cf. United States v. Lavelle, 751 F.2d 1266, 1279 (D.C. Cir.)

(“no reversal or remand is warranted unless the trial court refuses

to make an on-the-record determination in response to such a

request”), cert. denied, — U.S. —, 106 S.Ct. 62, 88 L.Ed.2d 51

(1985) (emphasis in original).’*

VI.

REFUGEE STATUS

[14] Section 1324 makes it unlawful for a person to assist an alien

who is “not lawfully entitled to enter or reside within the United

States.” 8 U.S.C. § 1324(a). The appellants assert that El Salvado-

rans, as nationals of a country tom by internal conflict, are

“refugees” entitled to sanctuary in the United States and, thus, are

not “illegally” within its borders. Since the aliens’ status is an ele-

ment of the crime charged, the appellants assert that whether the

aliens are refugees entitled to remain in the United States is a ques-

tion of fact which shouid have been submitted to the jury.

Appellants first contend that the aliens.are entitled to “reside” in

the United States pursuant to the Refugee Act of 1980, Pub. L. No.

96-212, 94 Stat. 102. This inventive argument was previously

rejected by this court in United States v. Pereira-Pineda, 721 F.2d

137, 139 (Sth Cir. 1983). We are bound by our own precedent.

Appellants also assert that the United States’ accession to the

United Nations Protocol Relating to the Status of Refugees, Jan.

31, 1967 [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, creates for all

Merkt's knowledge or intent and that the substantive value of the extrinsic evi-

dence outweighed its possible prejudicial effect.

'SThe admission of the extrinsic offense evidence prior to court approval was

in violation of court order. However, the government actions did not rise to the

level of prosecutorial misconduct. It appears from the record that the initial

injection of the prior conviction information was inadvertent. |The evidence

was properly admitted under Fed. R. Evid. 404(b) and, thus, the appellants can

show no prejudice. Further, the jury was carefully instructed on the limited

purpose for which the evidence could be considered. While we in no way con-

done the government's misstep, the appellants suffered no harm and the prose-

cutor was properly reprimanded by the trial court.

8018 UNITED STATES v. MERKT, ET AL.

“refugees” an “entitlement” to “reside” in the United States. Even

though the Protocol bound the signatories to comply with the sub-

stantive provisions of Articles 2 through 34 of the United Nations

Convention Relating to the Status of Refugees, 189 U.N.T.S. 150

(July'28, 1951), the Supreme Court has held that accession to the

Protocol did not create new nghts or substantially alter existing

domestic immigration and refugee law. See J.N.S. v. Stevic, 467

U.S. 407, 417-18, 428-29 n.22, 104 S.Ct. 2489, 2494-95, 2500 n.22,

81 L.Ed.2d 321, 330-32, 336-37 n.22 (1984). See also Bertrand v.

Sava, 684 F.2d 204, 218 (2d. Cir. 1982); Pierre v. United States, 547

F.2d 1281, 1288-89 (Sth Cir.), vacated and remanded for consider-

ation of mootness, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447

(1977). Thus, even if the aliens are refugees, the Protocol does not

permit them to “reside” here contrary to domestic law or for pur-

poses of 8 U.S.C. § 1324(a).’*

VII.

JURY INSTRUCTIONS

[1S] To establish a violation of 8 U.S.C. § 1324(a)(2), the govern-

ment must prove, inter alia, that the defendants acted willfully in

furtherance of the aliens’ violation of the law. See Merkt, 764 F.2d

at 276. Although the appellants challenge the district court’s refusal

to give their proffered instruction on the “furtherance” element of

the offense,’” we find no reversible error in this instruction.

164 mici urge this court to provide sanctuary, and thus legal staius, to the

aliens based on “custom” under international law. In enacting our refugee stat-

ute, however, Congress was not bound by international law, much Jess a pur-

ported “custom” of international law. See, e.g., United States v. Quemener, 789

F.2d 145, 156 (2d Cir. 1986); United States v. Allen, 760 F.2d 447, 454 (2d Cir.

1985); United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983), modified

on other grounds, 728 F.2d 142 (1984).

7 The appellants submitted the following instruction of “furtherance”:

The phrase “in furtherance of such violation” means that the conduct

involved was done with the specific intent of furthering the individu-

al’s ability to remain in the United States in violation of law. It is not

enough that the transportation was incidental to, or merely permitted

the person to maintain his or her illegal presence here. In order tc con-

stitute “furtherance” in violation of 8 U.S.C. § 1324(a){2), the trans-

portation must be directly and substantially related to the individual's

ability to avoid detection.

UNITED STATES v. MERKT, ETAL. 8019

In Merkt, this court, for the first time, directly examined the

requirement under § 1324(a){2) that the defendant act willfully in

furtherance of the aliens’ violation of law. 764 F.2d at 271. This

court held that:

For the government to show that Merkt transported the

aliens willfully “in furtherance of [their] violation of law,”

as the statute requires, it must show “a direct and substan-

tial relationship between that transportation and its fur-

therance of the alien’s presence in the United States.”

Willful transportation of illegal aliens is not, per se, a vio-

lation of the statute, for the law proscribes such conduct

only when it is in furtherance of the alien’s unlawful pres-

ence. The jury must be instructed that proof of this ele-

ment of the offense is prerequisite to conviction.

Id. at 271-72 (footnote omitted). Here, the court instructed the jury

that, in order to find the appellants guilty, it must find

that the transportation of the alien was done willfully in

furtherance of the alien’s violation of law; that is, to fur-

ther the alien’s illegal presence in the United States. Just

incidental transporting [of] an illegal alien will not make

you guilty of that offense. It has to be something that fur-

thers that person’s illegal presence in the United States.

The court’s instruction substantially covers the instruction

requested by the appellants and, in substance, embodies the princi-

ples expressed in Merkt. While the court’s instruction in this case

does not use the words “direct and substantial relationship,” the

court’s instruction makes clear that mere or incidental transporta-

tion of an alien is not sufficent to sustain a conviction under

§ 1324(a)(2). The court instructed that the jury must find that the

transportation of the aliens was done willfuily and in furtherance of

the aliens’ illegal presence in the United States. When viewed as a

whole, this instruction satisfies the text in Merkt. We find the appel-

lants’ remaining challenges to the jury instructions to be without

merit.’

‘*The appellants’ assertion that they were entitled to a good faith belief

instruction is, in essence, a mistake of law defense which was foreclosed by this

8020 UNITED STATES v. MERKT, ET AL.

VII.

SUFFICIENCY OF THE EVIDENCE

[16] The appellants assert that the evidence was insufficient to

sustain their convictions. Having reviewed all the evidence and the

inferences which may be drawn therefrom in the light most favor-

able to the government, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), we must conclude that

it was sufficient to sustain the convictions of both Elder and Merkt.

AFFIRMED.

court in Merki, 764 F.2d at 273. But see Merkt, 764 F.2d at 275 (Rubin, J., dis-

senting). The appellants’ assertion that they were entitled to a religious defense

instruction has been foreclosed by our holding that they had no religious

defense. Finally, the court's charge on conspiracy was adequate. See United

States v. Martin, 790 F.2d 1215, — (Sth Cir. 1986).

- — ——_- » = — eT ——

IV

Denial of Suggestion for En Banc Review

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 85-2264

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STACEY LYNN MERKT and

JOHN B. ELDER,

Defendants-Appellants

Appeal from the United States District Court for

the Southern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

(Opinion July 17, 1986 eT 6 es

F.se )

(September 4, 1986)

Before WILLIAMS, GARWOOD and JONES, Circuit

Judges

PER CURIAM:

( ) The Petition for Rehearing is DENIED and

no member of this panel nor Judge in regular

active service on the Court having requested

that the Court be polled on rehearing en banc,

(Federal Rules of Appellate Procedure and

Local Rule 35) the Suggestion for Rehearing En

Banc is DENIED.

( ) The Petition for Rehearing is DENIED and

the Court having been polled at the request of

one of the members of the Court and a majority

of the Circuit Judges who are in regular active

service not having voted in favor of it,

(Federal Rules of Appellate Procedure and Local

Rule 35) the Suggestion for Rehearing En Banc

is also DENIED.

( ) A member of the Court in active service

having requested a poll on the reconsideration

of this cause enbanc, and a majority of the

judges in active service not having voted in

favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge ~~ - REHG-6

U.S. COURT OF APPEALS

FILED

9-4-86

V

Motion to Fifth Circuit to comply with

rules regarding En Banc Review and

Recall of Mandate denied.

U.S. COURT OF APPEALS

FILED

OCT 7, 1986

GILBERT F. GANUCHEAU

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 85-2264

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STACEY LYNN MERKT and

JOHN B. ELDER,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

IT IS ORDERED:

that appellants’ motion for recall of

mandate, to vacate this Court's order of

September 4, 1986 denying petition for rehearing

and suggestion for rehearing en banc, and for

an order directing the suggestion for rehearing

en banc previously filed to be recirculated to

all active Judges of the Court, etc., is Denied.

As the order denying petition for

rehearing and for rehearing en banc stated, no

judge in active service requested an en banc

poll, although all were fully notified of

appellants’ motion. Also, pursuant to 5th

Circuit Local Rule 41.1, it is not this Court's

practice to stay the mandate in criminal cases

except in unusual circumstances, which are not

present in this case.

Edith H. Jones,

U. S. Circuit Judge

VI

Extension to December 3, 1986 to file

Petition for Certiorari granted by

the Honorable Justice Byron White.

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

JOSEPH F. SPANIOL, JR., AREA CODE 202

CLERK OF THE COURT 479-3011

October 28, 1986

Stephen W. Cooper, Esquire

c/o Neighborhood Justice Center

500 Laurel Avenue

St. Peul, 48 33102

Re: Stacey Lynn Merkt and John B.

Elder v. United States, A-308

Dear Mr. Cooper:

Your application for an extension of

time in which to file a petition for a writ of

certiorari in the above-entitled case has been

presented to Justice White, who on October 28,

1986, signed an order extending your time to

and including December 3, 1986.

A copy of the Justice's order is

enclosed.

Very truly yours,

JOSEPH F. SPANIOL, JR., Clerk

By

Francis J. Lorson

Chief Deputy Clerk

vjr

Enc.

cc: Hon. Charles Fried, Solicitor General

Clerk, U.S. Court of Appeals for the

Fifth Circuit

(Your No. 85-2264)