Smuggling, Transporting, Harboring, or Bringing in Illegal Aliens into the United States is a federal crime under 8 U.S.C. § 1324. San Diego is located in the Southern District of California (U.S. District Court for the Southern District of California), which see a large number of criminal prosecutions due to our proximity to the border. The statute covers a number of acts:
- Alien Smuggling: knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
- Domestic Transportation: knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
- Harboring: knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
- Encouraging: encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
- Conspiracy: engages in any conspiracy to commit any of the preceding acts, or aids or abets the commission of any of the preceding acts;
- Bringing Aliens: Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever. This section applies at the checkpoints;
- Employing Aliens: Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18 or imprisoned for not more than 5 years, or both.
The stakes are very high for those accused of committing crimes related to alien trafficking. The maximum penalties for this statute is 10 years, 20 years, life, and the death penalty, depending on the circumstances. In our current administration, we are hearing many concerns over immigration. The attitudes towards those illegally in the country and those bringing aliens have become more hostile over the last couple of years. If you or your loved one is charged with alien trafficking offenses in the Federal Court, it is crucial that you retain an experienced criminal defense lawyer. Attorneys at LAWSTACHE™ LAW FIRM have experience successfully negotiating with federal prosecutors or presenting a solid defense at trial.
Anton Vialtsin, Esq., E.I., handled over two hundred federal criminal cases from initial client interviews through sentencing. These cases required an in-depth knowledge of the Federal Sentencing Guidelines and the Federal Criminal Codes and Rules. Over a dozen of the federal cases he managed involved individuals charged with the importation and distribution of controlled substances all punishable by ten-year minimum mandatory sentence. Considering that the Southern District of California is a border district and one of the busiest in the country, he defended many individuals charged with transportation and harboring of illegal aliens, misuse of a passport, and illegal entry into the United States. Further, he worked on several transportation-of-illegal-aliens cases where the transportation resulted in death, triggering the possibility of the death penalty. These cases required negotiation with AUSAs and hours of witness depositions and interviews. Additionally, he worked on a number of cases involving individuals charged with complex wire and mail fraud violations, aggravated identity theft, and theft of public property.
A number of things to remember about § 1324:
- Mere transportation of illegal alien is, without more, insufficient as a matter of law to support a conviction for unlawfully transporting illegal aliens within the United States. U.S. v. Chavez-Palacios, C.A.10 (N.M.) 1994, 30 F.3d 1290.
- Purpose of the statute proscribing transportation of illegal aliens within the country is to ensure that persons who merely transport aliens within the country, but who do not actually smuggle them into the United States, do not escape punishment. U.S. v. Sanchez-Vargas, C.A.9 (Cal.) 1989, 878 F.2d 1163. I often hear this argument from my clients, “I did not drive them across the border.” Unfortunately, this is not a defense unless the prosecution fails to show that you knew that the individuals were in fact illegally here.
- A defendant will be facing significantly more time in prison or even a death penalty if a person he or she was transporting dies during the transportation. Anton Vialtsin represented a number of individuals facing illegal transportation charges, where someone tragically lost their life. For example, boat passenger’s death during illegal entry into United States was reasonably foreseeable, supporting ten-level enhancement to defendant’s sentence for illegally bringing aliens into the United States, resulting in 38-month prison sentence, where defendant had used an unseaworthy and overcrowded vessel to transport passengers through dangerous water where many things could go wrong, and defendant could have reasonably foreseen the possibility that vessel would be spotted by authorities as it approached shore and that some passengers desperate to avoid apprehension might leap into the sea. United States v. De La Cruz-Garcia, C.A.1 (Puerto Rico) 2016, 842 F.3d 1.
- Knowledge of alienage was an element of the offense of harboring and concealing alien not entitled to reside in the United States. U.S. v. Mack, C.C.A.2 (N.Y.) 1940, 112 F.2d 290. Knowledge of aliens’ illegal status, that is, their lack of entitlement to reside, was an essential element of the crime of knowingly bringing into the United States aliens who were not lawfully entitled to reside here. U.S. v. Bunker, C.A.9 (Ariz.) 1976, 532 F.2d 1262.
- In order to “harbor” aliens within the meaning of this section, harboring need not be part of a chain of the transaction of smuggling aliens into the United States, for the section is aimed at preventing unauthorized aliens from remaining in the United States as well as preventing them from entering. U.S. v. Acosta De Evans, C.A.9 (Cal.) 1976, 531 F.2d 428.
- Defendant did not “harbor” her Mexican boyfriend, who was in the country illegally after his deportation, within the meaning of the harboring statute; after the boyfriend returned to the United States without authorization, defendant picked him up at a bus terminal and drove him to her home, where they had lived together during his previous sojourn in the country, he then lived there more or less continuously until his subsequent arrest on drug charges, there was no evidence that defendant concealed her boyfriend or shielded him from detection, and she was not trying to encourage or protect or secrete illegal aliens. U.S. v. Costello, C.A.7 (Ill.) 2012, 666 F.3d 1040.
- There was insufficient evidence to show that defendant aided and abetted the commission of the crime of encouraging an illegal alien to reside in the United States; although defendant, at the behest of an alien smuggler, escorted an illegal alien from a fast food restaurant near the border to a nearby vehicle, which defendant knew was traveling north, that only showed that defendant aided and abetted the smuggler’s attempted transportation of an illegal alien. U.S. v. Thum, C.A.9 (Cal.) 2014, 749 F.3d 1143.
- Knowledge and intent are very important in these cases. Circumstantial indicators of defendant’s pecuniary motive were sufficient to support the defendant’s conviction for bringing unlawful aliens into the United States for purposes of commercial advantage or private financial gain; defendant bore no relationship to the children who she smuggled from Mexico to the United States, smuggling operation was premeditated, complete with an international journey, false identities, cover stories, and Texas birth certificates to legitimize the facade, defendant carried out smuggling at risk of legal consequences, and the smuggling operation had a financier who was ready and willing to contribute money to facilitate the operation’s success. United States v. Garcia, C.A.5 (Tex.) 2018, 883 F.3d 570, certiorari denied 138 S.Ct. 2006. Violation of statute prohibiting transportation of illegal aliens requires proof that the purpose of transportation was, in whole or in part, to further alien’s violation of law; Government must prove that the defendant specifically intended by means of transportation to advance or assist alien’s violation of law, not merely that effect of transportation was to allow alien to remain in the United States. U.S. v. Moreno-Duque, D.Vt.1989, 718 F.Supp. 254.
If you have been charged in San Diego federal court, contact LAWSTACHE™ LAW FIRM. Attorneys Anton Vialtsin and Jeremy Delicino have experience protecting those accused of federal and California crimes. Our office is conveniently located in downtown San Diego. You can reach our office by calling (619) 357-6677.
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