     11-5165-cr
     United States v. Vargas-Cordon



1                        United States Court of Appeals
2                                     FOR THE SECOND CIRCUIT
3
4                                         August Term 2012
5
6           (Argued: December 13, 2012                  Decided: August 12, 2013)
7
8                                         No. 11-5165-cr
9                             _____________________________________
10
11                                         UNITED STATES,
12                                           Appellee,
13
14                                              -v.-
15
16                               MIGUEL ANGEL VARGAS-CORDON,
17                                     Defendant-Appellant.
18                            _____________________________________
19
20   Before:         POOLER, LEVAL, and LIVINGSTON, Circuit Judges.
21
22          Defendant-Appellant Miguel Angel Vargas-Cordon (“Vargas-Cordon”)
23   appeals from a judgment of conviction entered by the United States District
24   Court for the Eastern District of New York (Glasser, J.), for one count of
25   transporting a minor for illegal sexual purposes in violation of 18 U.S.C.
26   § 2423(a), one count of transporting an unlawfully present alien in violation of
27   8 U.S.C. § 1324(a)(1)(A)(ii), and one count of harboring an unlawfully present
28   alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Vargas-Cordon argues on
29   appeal that there was insufficient evidence to convict him of transporting a
30   minor for illegal sexual purposes, that the district court’s Allen charge, see Allen
31   v. United States, 164 U.S. 492 (1896), was unduly coercive, that the district court
32   erred in its instruction of what constitutes “harboring” under 8 U.S.C.
33   § 1324(a)(1)(A)(iii), and that the district court violated his due process rights by
34   limiting cross-examination of the victim at trial. We conclude that Vargas-
35   Cordon’s claims are without merit. We accordingly AFFIRM the judgment of the
36   district court.
37
1                                    Amy Busa, Soumya Dayanada, on behalf of
2                                    Loretta E. Lynch, United States Attorney for
3                                    the Eastern District of New York, Brooklyn,
4                                    N.Y., for Appellee.
5
6                                    Thomas H. Nooter, Freeman Nooter &
7                                    Ginsberg, New York, N.Y., for Defendant-
8                                    Appellant.
9
10   DEBRA ANN LIVINGSTON, Circuit Judge:

11         Defendant-Appellant Miguel Angel Vargas-Cordon (“Vargas-Cordon”)

12   appeals from a judgment of the United States District Court for the Eastern

13   District of New York (Glasser, J.), entered November 29, 2011, convicting him

14   after a jury trial of one count of transporting a minor for illegal sexual purposes

15   in violation of 18 U.S.C. § 2423(a), one count of transporting an unlawfully

16   present alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and one count of

17   harboring an unlawfully present alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

18   Vargas-Cordon challenges his convictions on four grounds: (1) that there was

19   insufficient evidence to support his conviction under 18 U.S.C. § 2423(a); (2) that

20   a supplemental jury charge, which quoted from the Supreme Court’s decision in

21   Allen v. United States, 164 U.S. 492 (1896), was unduly coercive; (3) that the

22   district court incorrectly instructed the jury on the meaning of “harbors” under

23   8 U.S.C. § 1324(a)(1)(A)(iii); and (4) that the district court impermissibly limited

24   his cross-examination at trial of the victim. For the reasons stated below, we



                                              2
1    conclude that his arguments lack merit. Accordingly, we affirm the judgment

2    of the district court.

3                                     BACKGROUND
4
5          I. The Offense Conduct

6          Vargas-Cordon is a thirty-seven-year-old citizen of Guatemala who resides

7    in the United States. In 2008, while visiting family in Guatemala, Vargas-

8    Cordon began a sexual relationship with his then fifteen-year-old niece, referred

9    to at trial as “Jaire” or “Jane Doe.” Before Vargas-Cordon returned to the

10   United States in April 2009, Jaire, who had a troubled home life, asked if she

11   could accompany him. Though Vargas-Cordon initially refused, returning alone,

12   he eventually made arrangements with a smuggler, or “coyote,” to bring Jaire

13   into the United States, paying $6000 for her transport. Supplied with a fake

14   passport, Jaire left Guatemala a few months later for Vargas-Cordon’s residence

15   in Lakewood, New Jersey.

16         Jaire did not immediately reach her destination. Customs and Border

17   Protection apprehended her at the California-Mexico border on August 28, 2009.

18   Because Jaire stated that she did not have any family in Guatemala to whom

19   she could return, federal authorities transferred her to an Office of Refugee




                                             3
1    Resettlement (“ORR”) facility in California.1 In December 2009, ORR relocated

2    Jaire to a foster home in Crewe, Virginia, a small town southwest of Richmond.

3    Throughout all this time, Jaire remained in frequent telephone contact with

4    Vargas-Cordon. (Indeed, telephone records admitted at trial reflected a total of

5    189 calls.) According to Jaire’s foster mother, Jaire appeared “disappointed”

6    upon arrival in Virginia that she had not been transferred to her uncle’s care.

7          Jaire asked Vargas-Cordon to come down to Virginia and take her back

8    with him to New Jersey. Vargas-Cordon initially refused, explaining to Jaire

9    that he would “get into problems . . . with the police.” He soon changed his mind,

10   however, and on December 19, 2009, Vargas-Cordon and a coworker, Tom

11   Grande (“Grande”), made the six-hour drive from Lakewood to Jaire’s foster

12   home in Crewe. Jaire attempted to meet them the following morning, but was

13   intercepted by her foster mother. Vargas-Cordon called the foster mother later

14   in the day and offered to take Jaire, to which the foster mother responded that

15   he was not permitted to do so. Jaire successfully snuck out of her foster home

           1
              ORR, located within the Department of Health and Human Services, is
     responsible for the care of unaccompanied minors who enter or attempt to enter the
     United States. See 6 U.S.C. § 279. Minors in ORR will typically first be placed into an
     ORR-run facility. They may later be transferred into foster care, often arranged
     through a non-profit organization. Any removal proceedings against the minor remain
     pending while he or she is in ORR custody. See Olga Bryne & Elise Miller, Ctr. on
     Immigration & Justice, The Flow of Unaccompanied Children Through the
     Immigration System: A Resource for Practitioners, Policy Makers, and Researchers,
     (2012), available at http://www.vera.org/sites/default/files/resources/downloads/ the-
     flow-of-unaccompanied-children-through-the-immigration-system.pdf.

                                               4
1    that evening, and met with Vargas-Cordon and Grande. The three then drove

2    back to New Jersey.

3          After returning to New Jersey, Vargas-Cordon had Jaire stay with him in

4    the home he shared with Grande, several other male construction workers, and

5    one adult woman. Vargas-Cordon and Jaire shared a room together and had sex

6    while in New Jersey. Vargas-Cordon did not enroll Jaire in school. Jaire soon

7    began accompanying Vargas-Cordon and Grande to a home in Brooklyn where

8    the two men had a job renovating a basement. Vargas-Cordon and Grande

9    obtained the owner’s permission to stay in the home while renovating it, in order

10   to avoid daily travel between New York and New Jersey. Jaire thereafter stayed

11   in Brooklyn with Vargas-Cordon, as well as Grande, returning with them to New

12   Jersey on the weekends.2

13         While in Brooklyn, Grande saw Jaire and Vargas-Cordon enter various

14   rooms and heard them having sex. The couple shared a bedroom, according to

15   Grande, and he saw them kiss and shower together. Grande also witnessed

16   Jaire and Vargas-Cordon purchase a pregnancy test and heard Vargas-Cordon

17   discuss a potential pregnancy. Alarmed by the relationship, Grande contacted

18   the organization that ran Jaire’s foster care program, which in turn contacted


           2
            Vargas-Cordon told the home’s owner that he wanted to keep Jaire with him
     while he was working in New York because he did not trust anyone who lived in the
     New Jersey house.

                                             5
1    the authorities.     On January 21, 2010, an agent from the Department of

2    Homeland Security (“DHS”) entered the Brooklyn home and found Jaire in one

3    of the bedrooms. Vargas-Cordon was arrested and, in subsequent questioning,

4    admitted that he had sex with Jaire two days prior.

5          II. Procedural History

6          A grand jury indicted Vargas-Cordon on three counts. Count One alleged

7    that Vargas-Cordon had transported a minor for illegal sexual activity in

8    violation of 18 U.S.C. § 2423(a).3                 Specifically, the count alleged that

9    Vargas-Cordon transported Jaire from Guatemala to New York, in interstate

10   and foreign commerce, with intent to commit both rape in the third degree and

11   endangering the welfare of a child, in respective violation of New York Penal

12   Law §§ 130.25(2)4 and 260.10(1).5 Count Two alleged that Vargas-Cordon

           3
               18 U.S.C. § 2423(a) provides that:

                    A person who knowingly transports an individual who has not
                    attained the age of 18 years in interstate or foreign commerce, or
                    in any commonwealth, territory or possession of the United States,
                    with intent that the individual engage in prostitution, or in any
                    sexual activity for which any person can be charged with a
                    criminal offense, shall be fined under this title and imprisoned not
                    less than 10 years or for life.
           4
               New York Penal Law § 130.25(2) provides:

                    A person is guilty of rape in the third degree when:
                    ....
                    2. Being twenty-one years old or more, he or she engages in sexual

                                                    6
1   knowingly and intentionally transported an unlawfully present alien within the

2   United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(ii). Count

3   Three alleged that Vargas-Cordon concealed and harbored an unlawfully present

4   alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324(a)(1)(B)(ii).6


                  intercourse with another person less than seventeen years old . . . .
          5
              New York Penal Law § 260.10 provides:

                  A person is guilty of endangering the welfare of a child when:
                  ....
                  1. He or she knowingly acts in a manner likely to be injurious to
                  the physical, mental or moral welfare of a child less than
                  seventeen years old or directs or authorizes such child to engage in
                  an occupation involving substantial risk of danger to his or her life
                  or health . . . .
          6
           8 U.S.C. § 1324(a)(1)(A) provides in relevant part:

                  Any person who—
                  ....
                  (ii) 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;

                  (iii) 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;
                  ....
                  shall be punished as provided in subparagraph (B).


                                                7
1    Vargas-Cordon pled not guilty to all three counts.

2          Trial commenced on March 21, 2011. The prosecution rested its case on

3    March 22, and Vargas-Cordon moved for a judgment of acquittal, which the

4    district court denied. At the ensuing charge conference, Vargas-Cordon raised

5    objections to the proposed jury charge concerning, inter alia, Count Three. With

6    respect to that count—for harboring an unlawfully present alien—defense

7    counsel objected to the instruction that Vargas-Cordon could “harbor” an alien

8    simply by providing her with shelter “in reckless disregard of her status” without

9    requiring proof that he acted to conceal her from authorities. The district court

10   overruled the objection, noting that any act that “facilitate[es] the person to

11   remain alive by remaining where she is” constitutes “harboring” under the

12   statute.

13         The district court charged the jury the following day. With respect to

14   Count Three, the district court modified the instruction as discussed at


           Section 1324(a)(1)(B) provides in relevant part that:

                 A person who violates subparagraph (A) shall, for each alien in
                 respect to whom such a violation occurs—
                 ....
                 (ii) in the case of a violation of subparagraph (A)(ii) [or] (iii) . . . be
                 fined under title 18, imprisoned not more than 5 years, or both
                 ....

                                                  8
1    conference, adding that, to find Vargas-Cordon guilty of harboring, the jury must

2    find that he intended to substantially facilitate Jaire remaining in the country

3    illegally:

4                        With respect to the third element, the
5                 Government has to prove that the defendant harbored
6                 or concealed or shielded from detection [Jaire] who
7                 entered[,] who came or remained in the United States
8                 illegally.
9                        The statute prohibits this conduct which tends to
10                directly substantially facilitate an alien remaining in
11                the United States illegally. “Harboring” simply means
12                to shelter, to afford shelter to. “Shield from detection”
13                means to act in a way that prevents the authorities
14                from learning of the fact that the alien is in the United
15                States illegally. You don't have to find that the
16                defendant acted secretly, that harboring the alien was
17                done.
18                       To find based upon the evidence in this case that
19                the Government proved that the defendant harbored,
20                afforded shelter to, [Jaire] in a way intended to
21                substantially facilit[ate] her remaining here illegally[,]
22                that element has been . . . satisfied.
23
24   Trial Tr. at 449–50 (emphasis added).

25         After one hour of deliberation, the jury submitted a note stating, “[w]e, the

26   jurors, disagree on Count One without hopes of a unanimous decision.” Over

27   defense counsel's objection, the district court summoned the jury and read what

28   it described as a “modified Allen charge”:

29                       I’m going to suggest that you continue your
30                deliberations. You have, I think, been deliberating for
31                just about an hour. It’s normal for jurors to have
32                differences of opinion initially, that’s quite common.

                                              9
1    But after some extended discussion, jurors frequently
2    find that a point of view which they originally
3    entertained and they believe to represent the fair,
4    considered judgment may change after some extended
5    discussion and exchange of views.
6           I want to emphasize, however, that a juror
7    mustn’t vote for any verdict if after a full and complete
8    discussion, the juror feels quite strongly about his or
9    her view.
10          But I should tell you that if you fail to agree upon
11   a verdict in a case which is important to the
12   Government as it is important to the defendant. It
13   leaves one count completely open, the possibility it may
14   have to be tried again, no reason to believe that the
15   case will be tried any better or more exhaustively at a
16   future time and tried to a jury more intelligent or more
17   conscientious than you.
18          Many, many years ago, the Supreme Court of the
19   United States had occasion to address a problem which
20   arises when, as in this case, after very brief
21   deliberation, you’ve only been deliberating for an hour,
22   the jury returns a note and says it disagreed.
23          Let me read to you what the Supreme Court of
24   the United States had [to] say in this regard:
25          “Although the verdict must be the verdict of each
26   individual juror, they should listen with a disposition to
27   be convinced of each other’s argument. If the much
28   larger number is more convinced [then] a dissenting
29   juror should consider whether his or her doubt was a
30   reasonable one which made no impression on the minds
31   of the other jurors equally honest and equally
32   intelligent as herself or himself.
33          But if, on the other hand, the majority was for
34   acquittal, the minority ought to ask themselves
35   whether they might reasonably doubt the correctness of
36   a judgment which was not considered by the majority.”
37          What the Supreme Court is saying is that jurors
38   should conscientiously discuss the case among
39   themselves, deliberate with a predisposition to listen to
40   each other with an open mind, but in no event should

                                 10
1                you surrender an honest conviction which you have
2                about the case one way or the other and so I'll ask you
3                to continue your deliberation.
4
5    Trial Tr. at 463–65.
6
7          The next day, the jury sent another note, asking: (1) “If only one of the

8    counts cannot be decided does only this issue get ever retried or the entire case,

9    meaning all three counts?” and (2) “What is the maximum amount of time given

10   to jurors to deliberate?” The district court informed the jury that there is no

11   maximum amount of time afforded for deliberations, and that should they choose

12   to return a partial verdict, that partial verdict would be final. The district court

13   reminded the jurors that it is their “duty to discuss the case for the purpose of

14   reaching a verdict, if you can do so conscientiously. Each of you must decide the

15   case for yourself, but do so only after considering all the evidence, listening to

16   the views of your fellow jurors, discussing it fully.” The district court warned the

17   jury not to “surrender an honest conviction as to the weight and effect of the

18   evidence simply to arrive at a verdict.”

19         The jury deliberated for four hours after receiving the first supplemental

20   charge (for a total of five hours of deliberation). The jury returned a verdict of

21   guilty on all three counts on March 24.

22         Vargas-Cordon moved for a judgment of acquittal under Federal Rule of

23   Criminal Procedure 29(c). Vargas-Cordon made three arguments relevant here:


                                              11
1    (1) as to Count One, that there was insufficient evidence to convict him of

2    transporting a minor with intent that an illegal sexual act take place because

3    there was no direct evidence that he had this intent when transporting Jaire;7

4    (2) that his conviction for “harboring” an unlawfully present alien as charged in

5    Count Three was not supported by the evidence because “harboring” should not

6    mean the simple provision of shelter, and there was no proof that he knew Jaire

7    was in the United States illegally; and (3) that the district court's Allen charge

8    was unduly coercive.

9          The district court denied Vargas-Cordon's motion. As to Count One, the

10   court rejected Vargas-Cordon’s argument that direct evidence of his intent was

11   required, noting that “[i]t would surely be an immodest display of superfluous

12   research to cite what must be a limitless number of cases for the principle that

13   a jury’s verdict may rest entirely on circumstantial evidence.”          The court

14   similarly dismissed the argument that the evidence of Vargas-Cordon’s

15   knowledge that Jaire was in the country illegally was insufficient, observing that

16   “knowingly, unlawfully, and intentionally remov[ing] [Jaire] from the custody

17   of the foster home and transport[ing] her from Virginia to Brooklyn was plainly

18   acting in furtherance of [Vargas-Cordon’s] bringing and keeping her here in

           7
             Vargas-Cordon also argued as to Count Two that there was insufficient
     evidence to convict him of transporting an unlawfully present alien because there was
     no evidence that he knew Jaire was in the country illegally at the time he took her
     from Virginia to New York. He does not pursue this argument on appeal.

                                              12
1    violation of the law.” Specifically as to Count Three, the court recited the jury

2    instruction and asserted that “a more precisely fitting application of the statute

3    to the facts that were established beyond any doubt, would be difficult to

4    construct.” The court finally concluded that its supplemental jury charge was

5    not unduly coercive.

6          On November 29, 2011, the district court sentenced Vargas-Cordon to 120

7    months’ imprisonment on Count One and 60 months’ imprisonment each for

8    Counts Two and Three, all sentences to run concurrently. Vargas-Cordon timely

9    appealed.

10                                     DISCUSSION

11         I. Transportation of Minor with Intent to Engage in Criminal
12         Sexual Activity
13
14         Vargas-Cordon first contests the district court’s determination that there

15   was sufficient evidence to support his conviction under 18 U.S.C. § 2423(a). We

16   review a district court’s determination of a sufficiency challenge de novo. United

17   States v. Miller, 626 F.3d 682, 690–91 (2d Cir. 2010). A defendant bringing such

18   a challenge “bears a heavy burden.” Id. We must “view the evidence in the light

19   most favorable to the government, crediting every inference that could have been

20   drawn in the government’s favor, and deferring to the jury’s assessment of

21   witness credibility, and its assessment of the weight of the evidence.” United

22   States v. Robinson, 702 F.3d 22, 35 (2d Cir. 2012) (internal quotation marks

                                             13
1    omitted). We will uphold the jury’s verdict if “any rational trier of fact could

2    have found the essential elements of the crime beyond a reasonable doubt.”

3    Jackson v. Virginia, 443 U.S. 307, 319 (1979).

4          18 U.S.C. § 2423(a) provides:

5                (a) Transportation With Intent To Engage in
6                Criminal Sexual Activity.— A person who knowingly
7                transports an individual who has not attained the age
8                of 18 years in interstate or foreign commerce, or in any
9                commonwealth, territory or possession of the United
10               States, with intent that the individual engage in
11               prostitution, or in any sexual activity for which any
12               person can be charged with a criminal offense, shall be
13               fined under this title and imprisoned not less than 10
14               years or for life.
15
16   To secure a conviction under § 2423(a), the government thus must prove beyond

17   a reasonable doubt that the defendant: (1) knowingly transported a minor across

18   state lines and (2) with the intent that the minor engage in sexual activity for

19   which some person could be criminally charged. The government need not

20   prove, however, that the unlawful sexual activity actually took place: “§ 2423(a)

21   is a crime of intent, and a conviction is entirely sustainable even if no underlying

22   criminal sexual act ever occurs.” United States v. Broxmeyer, 616 F.3d 120, 129

23   n.8 (2d Cir. 2010). What is required is “that the mens rea of intent coincide with

24   the actus reus of crossing state lines.” Id. at 129.

25         In addition, the contemplated unlawful sexual activity need not be the

26   defendant’s sole purpose for transporting a minor in interstate or foreign

                                              14
1    commerce. Rather, it must only be a “dominant purpose” of the transportation.

2    See United States v. Miller, 148 F.3d 207, 212–13 (2d Cir. 1998). This can

3    include being one of multiple dominant purposes. As we have explained in

4    connection with an analogous statute, a jury need only find “that illegal sexual

5    activity . . . was one of the dominant motives for the interstate transportation of

6    the minors, and not merely an incident of the transportation.” United States v.

7    Sirois, 87 F.3d 34, 39 (2d Cir. 1996) (affirming a conviction under 18 U.S.C.

8    § 2251 for transporting a minor in interstate commerce with intent to produce

9    child pornography).

10         Vargas-Cordon claims that there was insufficient evidence to prove either

11   that he had the requisite intent to engage in unlawful sexual activity with Jaire

12   when he transported her into New York or that unlawful sexual activity was a

13   dominant purpose of his bringing Jaire into New York. We are not persuaded.

14         First, we agree with the district court that there was ample circumstantial

15   evidence from which a reasonable factfinder could conclude that Vargas-Cordon

16   intended to have sex with Jaire when he arranged to have her brought into the

17   country and when he thereafter personally transported her from Virginia to New

18   Jersey and then repeatedly into New York. As Jaire testified at trial, after

19   initiating a sexual relationship with her in Guatemala, Vargas-Cordon arranged

20   for Jaire to be smuggled into the United States, where their sexual relationship


                                             15
1    immediately recommenced once the pair was reunited. Jaire testified that she

2    had sexual relations with Vargas-Cordon in both New Jersey and in New York.

3    Vargas-Cordon himself, in a post-arrest interview with Special Agent Michael

4    Ortiz of DHS, admitted that he had intercourse with Jaire in Guatemala, that

5    he had sexual relations with her again within a day of picking her up in

6    Virginia, and that they had sexual relations on four occasions in Brooklyn,

7    including two days prior to his arrest on January 21, 2010.

8          Vargas-Cordon argues that the government never presented evidence

9    about precisely when the trips into New York occurred relative to the unlawful

10   sexual activity, precluding a reasonable jury from finding that a dominant

11   motive for these trips was to engage in unlawful sexual activity.8 We disagree.

12   The record is replete with evidence from which a reasonable jury could infer that

13   sexual access to Jaire was a dominant purpose of Vargas-Cordon’s repeated

14   transport of her from his New Jersey home into Brooklyn. Vargas-Cordon, after

15   paying a large sum to smuggle Jaire into the country, spirited her from her

16   Virginia foster home even though he acknowledged that doing so would “get


           8
             Vargas-Cordon argues that only the trips from New Jersey to Brooklyn “have
     any nexus to the New York offenses charged in the indictment,” and so only these
     incidents of interstate and foreign transportation may be considered in determining
     whether the evidence of his intent in transporting Jaire was sufficient to support
     conviction under § 2423(a). Appellant’s Br. at 26. We need not address this argument,
     however, inasmuch as we conclude, for the reasons stated in the text, that the evidence
     was more than sufficient for a reasonable jury to conclude that Vargas-Cordon had the
     requisite unlawful intent in transporting Jaire into New York.

                                               16
1    [him] into trouble.” The evidence, moreover, including the testimony of Jaire

2    and Grande, as well as Vargas-Cordon’s admissions to Agent Ortiz,

3    demonstrates that the couple was engaged in an ongoing sexual relationship

4    from the day Vargas-Cordon picked up his niece in Virginia until he was

5    arrested in New York just over a month later. Vargas-Cordon asserts that “the

6    overwhelming purpose” of his travel into New York during this period “was that

7    [he] could work at his place of employment” in Brooklyn. Appellant’s Br. at 27.

8    Even assuming this is true, however, it is irrelevant.       Section 2423(a) is

9    concerned not with why a defendant travels, but rather with the question why

10   he transports a minor. A reasonable jury had ample basis here to conclude that

11   a predominant reason – if not the dominant reason – for Jaire’s repeated

12   transport to New York was to facilitate the couple’s ongoing sexual relations.

13   We accordingly affirm Vargas-Cordon’s conviction for transporting a minor in

14   interstate commerce with intent to commit unlawful sexual activity in violation

15   of 18 U.S.C. § 2423(a).

16         II. Allen Charge

17         Vargas-Cordon next contests the district court’s supplemental charge to

18   the jury upon receipt of its first note, which the court described as a “modified

19   Allen charge.” “It has long been established that when a trial court receives

20   notice that the jury is deadlocked it may give a charge, commonly referred to as


                                            17
1    an ‘Allen’ charge, that urges the jurors to continue deliberations in order to reach

2    a verdict.” Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999). We review a

3    district court’s decision to give an Allen charge for abuse of discretion. United

4    States v. Crispo, 306 F.3d 71, 77 (2d Cir. 2002).

5          Whether an Allen charge is appropriate given the circumstances of a

6    particular case “hinges on whether it tends to coerce undecided jurors into

7    reaching a verdict”—that is, whether the charge encourages jurors “to abandon,

8    without any principled reason, doubts that any juror conscientiously holds as to

9    a defendant’s guilt.” United States v. Melendez, 60 F.3d 41, 51 (2d Cir. 1995),

10   vacated on other grounds by Colon v. United States, 516 U.S. 1105 (1996). We

11   evaluate a charge’s coerciveness “in its context and under all the circumstances.”

12   Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quoting Jenkins v. United States,

13   380 U.S. 445, 446 (1965) (per curiam)). Our case law has accordingly considered

14   a number of different factors when determining a charge’s coercive effect. While

15   some factors may be more important than others, none is, by itself, dispositive.

16   For example, although we have stressed the importance of reminding jurors in

17   an Allen charge not to abandon their conscientiously held views, see Smalls, 191

18   F.3d at 279, we have also upheld instructions that lacked such a warning, see

19   Spears v. Greiner, 459 F.3d 200, 206 (2d Cir. 2006).

20



                                              18
1          Under this standard, the most salient feature of the charge given in

2    Vargas-Cordon’s trial is its suggestion, quoting from Allen itself, that minority

3    jurors consider the correctness of their view in light of the majority’s position.

4    Although the district court described its instruction as a “modified Allen charge,”

5    the instruction in fact contained the defining feature of a “traditional” Allen

6    charge: the request that minority jurors—but not majority jurors—reconsider

7    their views.9 See Spears, 459 F.3d at 204 n.4. We have previously recognized

8    the “potential coercive effect on jurors in the minority” of the traditional charge,

9    have noted the modern tendency to use a modified charge that does not contrast

10   the majority and minority positions, and have strongly suggested that the

11   traditional charge should be used sparingly, and with caution. Id. at 204–05 n.4

12   (quoting United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971)).

13         Still, precedent forecloses the conclusion that a traditional Allen charge is

14   automatically coercive. The Supreme Court has reaffirmed the “continuing

15   validity” of its observations in Allen regarding minority jurors and has noted

16   that supplemental charges are to be reviewed in context and considering all the

17   relevant circumstances.      Lowenfield, 484 U.S. at 237–38.          We ourselves,



           9
             The focus on minority jurors makes an Allen charge “traditional” because the
     exact charge approved in Allen did the same. See Allen, 164 U.S. at 501–02. However,
     “[i]n more recent times, courts have tended to use ‘modified’ Allen charges that do not
     contrast the majority and minority positions.” Spears, 459 F.3d at 204–05 n.4.

                                               19
1    moreover, have declined to “take exception to the district court’s quoting directly

2    from Allen v. United States,” and have “never held that the trial court must

3    specifically inform the jury that the majority must consider the arguments and

4    the opinions of those in the minority,” even when Allen’s language is employed.

5    Melendez, 60 F.3d at 52. Indeed, perhaps most importantly, we have previously

6    upheld the use of traditional Allen charges nearly identical to the one used in

7    this case. See United States v. Hynes, 424 F.2d 754, 757 n.2 (2d Cir. 1970).

8          We therefore must consider the other circumstances surrounding the

9    district court’s instruction. These circumstances, on balance, do not indicate an

10   unacceptable risk of coercion. First, the district court repeatedly warned the

11   jurors not to surrender their conscientiously held beliefs, which is an instruction

12   we have previously held to mitigate greatly a charge’s potential coercive effect.

13   See United States v. Henry, 325 F.3d 93, 107 (2d Cir. 2003). Indeed, immediately

14   after quoting Allen’s language on the subject of minority jurors, the district court

15   specifically noted that:

16         What the Supreme Court is saying is that jurors should
17         conscientiously discuss the case among themselves, deliberate with
18         a predisposition to listen to each other with an open mind, but in no
19         event should you surrender an honest conviction which you have
20         about the case one way or the other . . . .
21
22


23



                                              20
1    Trial Tr. at 465. The jury deliberated for some four hours after receiving this

2    instruction—four times as long as it deliberated before receiving it. Such

3    lengthy post-instruction discussion “strongly indicates” a lack of coercion.

4    Spears, 459 F.3d at 207 (quoting United States v. Fermin, 32 F.3d 674, 680 (2d

5    Cir. 1994)).

6          The other factors cited by Vargas-Cordon do not alter our conclusion.

7    While Vargas-Cordon argues that the emotionally charged nature of his alleged

8    conduct compounded any pressure felt by jurors to convict, we do not think his

9    offenses are any more sensational than those in previous cases where the use of

10   a traditional Allen charge has been upheld. See, e.g., Allen, 164 U.S. at 501

11   (murder); Crispo, 306 F.3d at 75 (threatened kidnaping of two-year-old child).

12   Similarly, both the given instruction’s failure to remind jurors that the

13   government bears the ultimate burden of proof and Vargas-Cordon’s objection

14   to the instruction after it was given, while relevant, are not enough to overcome

15   the circumstances suggesting an absence of coercion.

16         Vargas-Cordon also objects to the giving of the Allen charge after only one

17   hour of jury deliberation. We have previously held, however, that “[n]o fixed

18   period of time must necessarily elapse before the charge may properly be given.”

19   United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977) (en banc); see also

20   Hynes, 424 F.2d at 757–58. The district court did not abuse its discretion in


                                            21
1    deciding to give the charge when it did. Importantly, the district court did not

2    deliver its instruction sua sponte, but only after the jurors reported that they

3    were “without hopes of a unanimous decision.” This report, moreover, although

4    early in the jury’s deliberations, was in the context of a trial that was not

5    exceptionally long and involved neither a large number of separate counts, nor

6    particularly complex factual issues.

7          Although we affirm its use in this case, we reiterate that a traditional

8    Allen charge is a powerful tool that should be deployed only with great caution.

9    See Spears, 459 F.3d at 205 n.4. While it remains within the district court’s

10   discretion, giving a traditional Allen charge heightens the risk that a juror will

11   feel coerced. The circumstances of this case strongly indicate a dearth of such

12   coercion, and we find no abuse of discretion in the district court’s instruction

13   here. But, as the Supreme Court suggested in Lowenfield, a defendant’s claim

14   that jurors have been coerced by the mere suggestion that they listen with

15   deference to the arguments of others (it being, “[t]he very object of the jury

16   system . . . to secure unanimity by a comparison of views”) has considerably less

17   force “where the charge given, in contrast to the so-called ‘traditional Allen

18   charge,’ does not speak specifically to the minority jurors.” 484 U.S. at 237–38.

19         III. “Harboring” aliens under 8 U.S.C. § 1324(a)(1)(A)(iii)

20         Vargas-Cordon next argues that the district court’s jury instruction on

21   Count Three—harboring an unlawfully present alien in violation of 8 U.S.C.

                                             22
1    § 1324(a)(1)(A)(iii)—was erroneous.      We review a claim of error in jury

2    instructions de novo, reviewing the charge as a whole “to see if the entire charge

3    delivered a correct interpretation of the law.” United States v. Quattrone, 441

4    F.3d 153, 177 (2d Cir. 2006) (internal quotation marks omitted). We will

5    reverse, however, only when the error was prejudicial. Id.

6           Section 1324(a)(1)(A)(iii) establishes criminal penalties for any person

7    who:

8                knowing or in reckless disregard of the fact that an
9                alien has come to, entered, or remains in the United
10               States in violation of law, conceals, harbors, or shields
11               from detection, or attempts to conceal, harbor, or shield
12               from detection, such alien in any place, including any
13               building or any means of transportation.
14
15   8 U.S.C. § 1324(a)(1)(A)(iii). This statute originates from the Immigration Act

16   of 1907, which criminalized the smuggling and transport of aliens into the

17   United States. Pub. L. No. 59-96, 34 Stat. 898, 900–01 (repealed). Congress

18   added prohibitions of concealing and harboring aliens ten years later. See

19   Immigration Act of February 5, 1917, Pub. L. No. 64-301, 39 Stat. 874, 880

20   (repealed). Thirty years after that, the Supreme Court ruled in United States v.

21   Evans that the statute did not provide any sort of penalty for its prohibition of

22   concealing and harboring aliens. 333 U.S. 483, 495 (1948). Congress responded

23   by adding an explicit penalty for any individual who “willfully or knowingly

24   conceals, harbors, or shields from detection” an unlawfully present alien.


                                             23
1    Immigration and Nationality Act of 1952, Pub. L. No. 82-414, Title IV, § 274(a),

2    66 Stat. 163, 228–29. Congress did not define the term “harbors,” however. In

3    1986 Congress changed § 1324(a)(1)(A)(iii) to its current form, though keeping

4    the phrase “conceals, harbors, or shields from detection.” See Immigration

5    Reform and Control Act of 1986, Pub. L. No. 99-603, Title I, Part B, § 112(a), 100

6    Stat. 3359, 3381–82.

7          Vargas-Cordon contends that the district court instructed the jury that

8    “harbors” under § 1324(a)(1)(A)(iii) “simply means to shelter, to afford shelter

9    to,” and that this was error. He argues we should follow the Seventh Circuit’s

10   recent decision in United States v. Costello, 666 F.3d 1040 (7th Cir. 2012), and

11   conclude that to “harbor” under § 1324 requires some element of preventing

12   detection by the authorities. The government counters that, although “one

13   sentence in the district court’s charge defined ‘harboring’ simply as ‘sheltering,’”

14   the charge also instructed the jury that the government had to prove that

15   Vargas-Cordon intended to substantially facilitate Jaire remaining in the

16   country illegally. Appellee’s Br. at 32. According to the government, the totality

17   of the district court’s instruction was therefore consistent with Second Circuit

18   precedent.

19         We note first that there is no precedent binding us to a particular

20   interpretation of “harbors” under § 1324(a)(1)(A)(iii). Our case law has been

21   inconsistent in describing the minimum conduct necessary to sustain a

                                              24
1    harboring conviction under § 1324. Our initial decisions on the topic, written in

2    the 1940s, interpreted “harbor” to connote an element of evading detection. See

3    United States v. Smith, 112 F.2d 83, 85 (2d Cir. 1940); see also United States v.

4    Mack, 112 F.2d 290, 291 (2d Cir. 1940) (L. Hand, J.) (“[T]he statute is very

5    plainly directed against those who abet evaders of the law against unlawful

6    entry, as the collocation of ‘conceal’ and ‘harbor’ shows. Indeed, the word ‘harbor’

7    alone often connotes surreptitious concealment.”). Yet, we stated in two opinions

8    thirty years later that harboring under § 1324 “was intended to encompass

9    conduct tending substantially to facilitate an alien’s remaining in the United

10   States illegally.” United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975)

11   (internal quotation marks omitted); see also United States v. Herrera, 584 F.2d

12   1137, 1144 (2d Cir. 1978). While this definition could conceivably be consistent

13   with Smith and Mack, in Lopez we concluded that the defendant had violated

14   § 1324(a)(1)(A)(iii) simply because he had “engaged in providing shelter and

15   other services in order to facilitate the continued unlawful presence” of certain

16   aliens in the United States. 521 F.2d at 441. In United States v. Kim, 193 F.3d

17   567   (2d   Cir.   1999),   however,   our    most   recent   decision    involving

18   § 1324(a)(1)(A)(iii), we changed direction yet again. Kim, reverting to language

19   consistent with our original discussions of the meaning of “harbors” as used in

20   § 1324, affirms that harboring encompasses conduct which is intended to

21   facilitate an alien’s remaining in the United States illegally and “to prevent

                                              25
1    government authorities from detecting [the alien’s] unlawful presence.” Id. at

2    574.

3           We note, moreover, that in our decisions arguably applying a broader

4    conception of “harboring” that does not require that a defendant aim to assist an

5    alien in remaining undetected by authorities, the defendants did more than

6    merely provide shelter. In Herrera, the defendants had taken clear steps to

7    prevent the detection of the unlawfully present aliens who worked in their

8    brothel, including the installment of a video surveillance and alarm system

9    designed to alert their employees whenever immigration officials approached the

10   building. 584 F.2d at 1141–42. The defendant in Lopez, meanwhile, arranged

11   sham marriages for some of the aliens to whom he rented homes. 521 F.2d at

12   439. In short, while some language from these opinions—now contradicted by

13   our more recent statements in Kim—may suggest that mere sheltering is enough

14   for a conviction under § 1324(a)(1)(A)(iii), there is no holding that compels us to

15   so conclude.

16          Absent a binding interpretation of “harbor,” we look to the statute’s text.

17   “As with any question of statutory interpretation,” our first task is “to determine

18   whether the language at issue has a plain and unambiguous meaning.” Louis

19   Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir. 2012). “[P]lain

20   meaning can best be understood by looking to the statutory scheme as a whole

21   and placing the particular provision within the context of that statute.” Saks v.

                                             26
1    Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). We thus begin by

2    “review[ing] the statutory text, considering the ordinary or natural meaning of

3    the words chosen by Congress, as well as the placement and purpose of those

4    words in the statutory scheme.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707

5    F.3d 144, 155 (2d Cir. 2013) (internal quotation marks omitted).

6          We do not think the ordinary meaning of “harbors,” at least with respect

7    to whether it entails avoiding detection, is unambiguous. While “harbor” may

8    sometimes be synonymous with “shelter,” many of its most common uses—for

9    example, “harboring a fugitive”—also connote concealment. Dictionaries, either

10   from the early twentieth century or today, do not consistently define “harbor” as

11   containing or lacking an element of concealment. Compare, e.g., Black’s Law

12   Dictionary 784 (9th ed. 2004) (defining “harboring” as “[t]he act of affording

13   lodging, shelter, or refuge to a person) with Black’s Law Dictionary 561 (2d ed.

14   1910) (defining “to harbor” as “[t]o receive clandestinely and without lawful

15   authority a person for the purpose of so concealing him that another having a

16   right to the lawful custody of such person shall be deprived of the same”); see

17   also Webster’s Third New Int’l Dictionary 1031 (1961) (defining “harbor” as “(1)

18   to give shelter or refuge to: to take in [and] (2) to receive clandestinely and

19   conceal (a fugitive from justice)”). Given this lack of uniformity, we hesitate to

20   derive a singular meaning of “harbor” either from its common use or from

21   particular dictionary definitions.

                                             27
1          The placement of “harbors” in 8 U.S.C § 1324(a)(1)(A)(iii), however, does

2    indeed suggest that the term is intended to encompass an element of

3    concealment. Specifically, “harbors” appears in subparagraph (A)(iii) as part of

4    a list of three proscribed actions: “conceals, harbors, or shields from detection.”

5    The other two terms—“conceals” and “shields from detection”—both carry an

6    obvious connotation of secrecy and hiding. The canon of noscitur a sociis would

7    thus suggest that “harbors,” as the third and only other term in subparagraph

8    (A)(iii), also shares this connotation, which easily fits into its ordinary meaning.

9    See Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (“[A] word is known by the

10   company it keeps.”). Indeed, this is the same reasoning we used over seventy

11   years ago to first conclude that “harbors” in § 1324(a)(1)(A)(iii) contained an

12   element of concealment. See Mack, 112 F.2d at 291.

13         The broader structure of § 1324(a) further supports reading “conceals,

14   harbors, or shields from detection” as sharing a common “core of meaning”

15   centered around evading detection.            See Graham Cnty. Soil & Water

16   Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1403 n.7

17   (2010). Subsection 1324(a)(1)(A) is divided into four subparts, each of which

18   proscribes a particular type of action. The first reaches anyone who brings an

19   alien into the United States outside of a specified entry point. 8 U.S.C. §

20   1324(a)(1)(A)(i). The second applies to anyone who “transports, or moves” an

21   unlawfully present alien in furtherance of that alien’s violation of the law. Id.

                                              28
1    § 1324(a)(1)(A)(ii). The fourth applies to anyone who “encourages or induces” an

2    alien to enter the United States unlawfully. Id. § 1324(a)(1)(A)(iv). Each

3    subpart thus focuses on a single kind of act, and those that use different terms

4    to describe the act use near-synonyms with a clear overlap in meaning:

5    “transports” and “moves” for § 1324(a)(1)(A)(ii), or “encourages” and “induces”

6    for § 1324(a)(1)(A)(iv). We think it fair to infer from this structure that Congress

7    did not intend the inclusion of “harbors” in § 1324(a)(1)(A)(iii) to make that

8    subsection, and that subsection alone, simultaneously cover the two distinct acts

9    of keeping from the authorities an alien’s presence and simply offering the alien

10   a place to stay.

11         We accordingly hold that our description of harboring in Kim—conduct

12   which is intended to facilitate an alien’s remaining in the United States illegally

13   and to prevent detection by the authorities of the alien’s unlawful presence—is

14   the correct interpretation of that term as it is used in § 1324(a)(1)(A)(iii). 193

15   F.3d at 574. To “harbor” under § 1324, a defendant must engage in conduct that

16   is intended both to substantially help an unlawfully present alien remain in the

17   United States—such as by providing him with shelter, money, or other material

18   comfort—and also is intended to help prevent the detection of the alien by the

19   authorities. The mere act of providing shelter to an alien, when done without

20   intention to help prevent the alien’s detection by immigration authorities or

21   police, is thus not an offense under § 1324(a)(1)(A)(iii).

                                              29
1          We therefore agree with Vargas-Cordon that if the district court had

2    instructed the jury that “harboring” under § 1324(a)(1)(A)(iii) “simply means to

3    shelter,” it would have erred. We conclude, however, that the district court did

4    not err because it properly instructed the jury on the elements of harboring.

5    While the court stated that “‘Harboring’ simply means to shelter, to afford

6    shelter to,” the entire charge taken as a whole conveyed to the jury that simply

7    providing    shelter    was    insufficient     to   support    a   conviction     under

8    § 1324(a)(1)(A)(iii). Rather, the very next sentence properly instructed the jury

9    that to find that Vargas-Cordon harbored Jaire, it must “find based on the

10   evidence in this case that the Government proved that the defendant . . .

11   afforded shelter to[] [Jaire] in a way intended to substantially facilit[ate] her

12   remaining here illegally.” J.A. at 95. Thus, the jury was properly apprised that

13   it needed to find not just that Vargas-Cardon had afforded Jaire shelter, but also

14   that he had done so with the intent to prevent her detection by the authorities.10

15   Moreover, the evidence presented at trial was sufficient for a rational jury to

16   convict Vargas-Cordon under this narrower definition of “harbors.” The reason

17   is simple: even if Vargas-Cordon’s conduct lacked the hallmarks of active, classic


           10
              While it would have preferable for the district court to explain that harboring
     requires acting with an intent to prevent an alien’s detection, the instruction as a
     whole, including its requirement that there be intent to substantially facilitate an alien
     remaining in the United States illegally, “adequately communicated the essential ideas
     to the jury,” and “adequately inform[ed] the jury of the law.” See United States v.
     Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (citations omitted).

                                                30
1    concealment, it nevertheless was intended to make Jaire’s detection by the

2    authorities substantially more difficult. Vargas-Cordon helped Jaire escape from

3    her foster home and then brought her to a new location in a different state

4    unknown to either her foster care provider or the federal government. This

5    undoubtedly diminished the government’s ability to locate and apprehend Jaire.

6          This is true even if Vargas-Cordon did not actively hide Jaire from the

7    outside world. Vargas-Cordon knew that he was not permitted to take Jaire out

8    of foster care: he said as much to Jaire, Jaire’s foster mother told him so, and his

9    late-night rendezvous with Jaire in Virginia did not suggest anything to the

10   contrary. The subsequent sheltering of Jaire, therefore, was done with the

11   knowledge that Jaire was legally in the custody of another person, and that if

12   she were detected by police or other authorities she would likely be returned to

13   that person. Similarly, that Vargas-Cordon intended to live with Jaire even

14   before she was apprehended by the government does not change things. By the

15   time Jaire arrived in New Jersey, Vargas-Cordon’s motivations were both to

16   continue their relationship and to prevent authorities from returning her to

17   government-arranged foster care.

18         Indeed, Vargas-Cordon’s actions closely track the definition of “harboring”

19   given by this Circuit in Firpo v. United States, 261 F. 850 (2d Cir. 1919). Firpo

20   involved a precursor statute to 18 U.S.C. § 1831 that provided criminal penalties

21   for “whoever shall harbor, conceal, protect, or assist” a military deserter. Id. at

                                              31
1    851. We explained that “[t]o harbor, as used, means to lodge, to care for, after

2    secreting the deserter.” Id. at 853. This is, of course, precisely what Vargas-

3    Cordon did: he secreted Jaire from her foster home, and then lodged and cared

4    for her until she was found by the authorities. While Firpo may have involved

5    a separate statute, its definition of “harboring” fits comfortably within Kim’s: one

6    who secretes an alien, at least from a location known to the government, will

7    almost always make detection of that alien more difficult.

8          Vargas-Cordon’s actions also distinguish his case from Costello. There the

9    defendant did little more than allow her boyfriend, who had previously been

10   arrested and deported, to come and stay at her home. 666 F.3d at 1042. As the

11   Seventh Circuit noted, the defendant was not trying to make her boyfriend’s

12   detection more difficult: her boyfriend had lived in the same town and at the

13   same address with her before he was arrested and lived openly and

14   conspicuously with her again upon his return. Id. at 1042–43, 1045. Vargas-

15   Cordon, meanwhile, spirited Jaire out of her foster home and then provided her

16   with shelter in a location unknown to any relevant authorities. In contrast to

17   Costello, his sheltering of Jaire substantially and successfully worked to help

18   prevent her return to government-arranged foster care.

19         IV. Limitation of Cross-Examination of Jaire

20         Vargas-Cordon argues, finally, that the district court committed non-

21   harmless error (indeed, that the court violated due process) by sustaining the

                                              32
1    government’s objections to two questions during Jaire’s cross examination

2    concerning what Jaire told Vargas-Cordon about whether she had permission to

3    stay in the United States during the time she was in foster care. Specifically,

4    the district court sustained objections as follows:

5                [Defense]: Did you tell [your uncle] anything about what was
6                happening with your case in immigration court?
7                [Jaire]: No.
8                [Defense]: Did you tell [your uncle] that you were trying to
9                get papers in order to stay in the U.S.?
10               [Jaire]: Yes.
11               [Defense]: Did you have the help of an immigration lawyer?
12               [Government]: Your Honor, I would object to this line of
13               questioning.
14               [The Court]: Objection is sustained.
15               [Defense]: At the time you were living in Virginia, did you
16               believe you had permission to stay in the United States?
17               [Government]: Objection.
18               [The Court]: Sustained.
19               [Defense]: Did you tell your uncle you had permission to be in
20               the United States?
21               [Government]: Objection.
22               [District Court]: Sustained.
23
24   Trial Tr. at 119–20. Vargas-Cordon claims that the court erred in preventing

25   Jaire from answering the final two questions in this exchange. This error in

26   turn kept him from establishing that he believed Jaire was no longer in

27   immigration custody after her transfer to a foster home—a belief that, according

28   to him, meant he lacked mens rea in connection with Count Two’s charge that

29


30



                                             33
1    he transported Jaire knowing or in reckless disregard of the fact that she had

2    come to, entered, or remained in the United States in violation of law.11

3          We will grant a retrial for improper evidentiary rulings only where these

4    rulings were “so clearly prejudicial to the outcome of the trial that we are

5    convinced that the jury has reached a seriously erroneous result or that the

6    verdict is a miscarriage of justice.” United States v. Bell, 584 F.3d 478, 486 (2d

7    Cir. 2009) (quoting Phillips v. Bowen, 278 F.3d 103, 111 (2d Cir. 2002)). Such

8    is not the case here. The first question at issue—whether Jaire personally

9    believed that she had permission to stay in the United States—has no bearing

10   on Vargas-Cordon’s mens rea under § 1324(a)(1)(A)(ii). Meanwhile, the second

11   question—whether Jaire told Vargas-Cordon that she had permission to be in

12   the United States—bears on Vargas-Cordon’s mens rea only if Jaire told him she

13   had (or lacked) such permission before he transported or harbored her. Yet

14   defense counsel – who made no offer of proof as to what Jaire would say – failed

15   even to specify any sort of time frame for the question, so that even an

16   affirmative response from Jaire would not necessarily have been relevant to

17   Vargas-Cordon’s culpability. Finally, we are to consider an evidentiary ruling’s



           11
              While the district court’s rulings could also be relevant to the mens rea
     element of Vargas-Cordon’s conviction for harboring an unlawfully present alien under
     8 U.S.C. § 1324(a)(1)(A)(iii), Vargas-Cordon does not make this argument on appeal.
     See United States v. Colasuonno, 697 F.3d 164, 171 n.2 (2d Cir. 2012) (arguments not
     made on appeal are waived).

                                              34
1    potential prejudicial effect “in light of the record as a whole,” id. (quoting

2    Phillips, 278 F.3d at 111), and the record here provides scant evidence that

3    Vargas-Cordon had reason to think Jaire could lawfully stay with him in New

4    Jersey. In such circumstances, “we are hard-pressed to conclude that the

5    unpermitted questions had damaging potential.” Jones v. Berry, 880 F.2d 670,

6    675 (2d Cir. 1989). Accordingly, we decline to grant Vargas-Cordon a new trial

7    on Count Two.

8                                    CONCLUSION

9          We have considered Vargas-Cordon’s remaining arguments and find them

10   to be without merit. For the foregoing reasons, we AFFIRM the judgment of the

11   district court.

12




                                           35
