9th Circuit reverses conviction of couple in harboring-an-illegal-alien case; calls for new trial

THE U.S. Court of Appeals for the Ninth Circuit has reversed the conviction of a couple and ordered a new trial, saying the jury might have convicted the defendants on an invalid legal theory.

Francisco Tydingco and his wife Lili Zhang Tydingco went to trial in federal court on June 8, 2016 on two counts of harboring an alien.

On June 13, 2016, the jury found Lili Tydingco guilty of harboring an alien and Francisco Tydingco of aiding and abetting his wife.

Ninth Circuit Judges Sidney R. Thomas, Susan P. Graber and designated Judge Robert S. Lasnik reversed the defendants’ convictions.

The judges held that the evidence — viewed in the light most favorable to the U.S. government — is “sufficient for a rational trier of fact to find that Lili harbored an illegal alien and that Frank had the specific intent to facilitate Lili’s commission of that crime.”

But the judges said the jury instruction defining “harbor” was erroneous because it did not require the jury to find that the defendants intended to violate the law, and the error was not harmless.

 The judges also held that the jury instruction defining “reckless disregard” was “plainly erroneous because it did not require the jury to find that Lili subjectively drew inference that the alien was, in fact, an alien and was in the U.S. unlawfully.”

 The judges said “the instruction may have affected the outcome of the trial, and the error constitutes a miscarriage of justice, warranting a new trial, because the jury could have convicted the defendants on an invalid legal theory.”

Accordingly, the judges said, “reversal and remand for a new trial is warranted.”

 The prosecution stated that on Sept. 13, 2013, the Tydingco couple and their two minor children went to China, met with the parents of a 10-year-old girl, brought the girl back to Saipan and enrolled her in a public school two weeks after arrival.

 The girl’s CNMI parole visa was to expire on Nov. 5, 2013 but she stayed with the Tydingcos until Feb. 19, 2015.

District Court for the NMI Chief Judge Ramona V, Manglona, in a seven-page ruling on Sept. 30, 2016, denied the motion for acquittal of the defendants, and said there was no question that the 10-year-old girl was an alien who remained in the United States in violation of federal immigration law or that the Tydingcos harbored her by giving her shelter in their home.

 Judge Manglona said the U.S. government satisfied the third and fourth elements that Mrs. Tydingco committed the underlying offenses of harboring an alien, and that Mr. Tydingco assisted his wife by agreeing to act as the girl’s guardian.

 She also pointed out that Mr. Tydingco was named as a guardian in the Chinese letter of authorization from the girl’s parents, and this was circumstantial evidence that he had some knowledge and that he participated in the enterprise in China before they brought the girl to Saipan.

Judge Manglona added that the most compelling evidence was that Mr. Tydingco knew the girl had a return ticket booked for Oct. 28, 2013 on Asiana Airlines after the 45-day parole period under the CNMI-Guam visa waiver.

Judge Manglona said Mr. Tydingco knew the girl was out of status after Oct. 28, 2013 and also knew the girl did not board that flight on the return ticket.

 On Dec. 9, 2016, Judge Manglona sentenced Lili Tydingco to 10 months imprisonment, and Francisco Muna Tydingco to 21 months imprisonment.

 The Tydingcos, through their respective counsels, appealed, asking the Ninth Circuit to reverse their convictions and vacate their sentence.

Attorney Bruce Berline represented Lili Tydingco while attorney Steven Pixley represented Francisco Tydingco.

Assistant U.S. Attorney Garth R. Backe and U.S. Attorney Shawn N. Anderson represented the federal government.

Source: Marianas Variety :

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