United States v. Tydingco, No. 17-10023 (9th Cir. 2018)
Annotate this CaseIn 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome.
Court Description: Criminal Law. The panel reversed Lili Tydingco’s conviction for harboring an illegal alien, reversed Francisco (Frank) Tydingco’s conviction for aiding and abetting the harboring, and remanded for a new trial. The panel held that the evidence—viewed in the light most favorable to the 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. The panel held that the 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 Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. UNITED STATES V. TYDINGCO 3 The panel held that the instruction defining “reckless disregard” was plainly erroneous because it did not require the jury to find that Lili subjectively drew an inference that the alien was, in fact, an alien and was in the United States unlawfully. The panel held that 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.
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