                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-1290
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                   WALLY NGUYEN,
                                              Appellant
                                    ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. No. 3-10-cr-00240-001)
                     District Judge: Honorable Malachy E. Mannion
                                      ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 20, 2016

       Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges.

                                 (Filed: February 8, 2016)
                                      ____________

                                        OPINION*
                                      ____________

HARDIMAN, Circuit Judge.



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
       Appellant Wally Nguyen was convicted by a jury of breaking several federal laws

in connection with his involvement in the employment of illegal aliens. One of his

convictions was for the unlawful transportation of illegal aliens in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii). Nguyen claims that the evidence presented at trial was insufficient to

support that conviction. We disagree, and will affirm the District Court’s judgment.

                                              I

       In May 2005, the Pennsylvania State Police executed a traffic stop of a van

transporting ten Indonesian nationals in Monroe County, Pennsylvania. The police

suspected that the Indonesians were in the United States illegally and referred the matter

to Immigration and Customs Enforcement (ICE). A lengthy investigation followed which

led ICE agents to Artube Iridium, a local manufacturing business. Through surveillance,

ICE learned that Artube was staffed with illegal alien temporary workers by a company

called H&T Staffing.1

       An investigation of H&T revealed that the company was engaged in a large-scale

scheme to place illegal alien workers with local companies. Several individuals at H&T,

including Appellant Nguyen, were arrested and prosecuted. Nguyen was charged with

five counts in a superseding indictment, including charges of employing, harboring, and

transporting illegal aliens and conspiring to launder money.

       At trial, the prosecution demonstrated that Nguyen’s involvement with H&T was


       1
      H&T was known by different names at different times, including Golden Star and
P&H. For clarity, we refer to the company as H&T.




                                         2
extensive. Although Nguyen was not an owner of H&T, evidence revealed that he

provided H&T employees with transportation to and from work, cash for their labor, and

rent-free housing. Testimony also established that at least two H&T clients considered

Nguyen to be the company’s liaison, responsible for depositing client checks and

resolving day-to-day employee issues. One employee testified that Nguyen provided

workers with fake IDs in response to a client’s concerns regarding identification papers.

       The prosecution also presented evidence to show that H&T generally, and Nguyen

specifically, reaped significant financial rewards. Testimony revealed that hiring illegal

aliens allows companies like H&T to skirt tax laws, avoid paying benefits, underpay

workers, and demand overtime. Between 2005 and 2008, over $1,000,000 was deposited

into Nguyen’s bank accounts.

       At the end of trial, the jury found Nguyen guilty of all five counts and the District

Court imposed a sentence of 33 months’ incarceration, two years’ supervised release, a

$7,500 fine, and a $310 assessment. This appeal followed.

                                             II2

       On appeal, Nguyen claims the evidence at trial was insufficient to support his

conviction for the unlawful transportation of illegal aliens under 8 U.S.C.

§ 1324(a)(1)(A)(ii). Our review of this argument requires us to ask “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of


       2
         The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.




                                         3
fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Caraballo-Rodriguez, 726 F.3d 418, 424–25 (3d Cir. 2013) (en banc)

(quoting Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)) (emphasis removed).3 In

doing so, “we review the evidence as a whole, not in isolation” and are “ever vigilant . . .

not to usurp the role of the jury by weighing credibility and assigning weight to the

evidence, or by substituting our judgment for that of the jury.” Id. at 430 (citations and

brackets omitted).

                                             III

       In United States v. Silveus, we held that the government must prove four elements

to convict under 8 U.S.C. § 1324(a)(1)(A)(ii):

       (1) the defendant transported or attempted to transport an alien within the United
       States, (2) the alien was in the United States illegally, (3) the defendant knew of or
       recklessly disregarded the fact that the alien was in the United States illegally, and
       (4) the defendant acted willfully in furtherance of the alien’s violation of the law.

542 F.3d 993, 1002 (3d Cir. 2008). Although Nguyen concedes that he knowingly

transported illegal aliens during his time with H&T, he argues that his conviction cannot

stand because the prosecution failed to present sufficient evidence to show that he


       3
         Although Nguyen failed to challenge the sufficiency of the evidence supporting
his conviction under § 1324(a)(1)(A)(ii) in the District Court, we consider this argument
now, albeit under a plain error standard, since “the failure to prove one of the essential
elements of a crime is the type of fundamental error which may be noticed by an appellate
court notwithstanding the defendant’s failure to raise it in the district court.” United
States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) (quoting United States v. Zolicoffer,
869 F.2d 771, 774 (3d Cir. 1989)). We do this because affirming a conviction where there
has been such a failure of proof would “seriously affect[] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(quotations omitted).




                                         4
transported H&T workers willfully “in furtherance of” their illegal presence in the United

States. We disagree.

       The evidence at trial, viewed in the light most favorable to the prosecution,

showed that Nguyen was a manager at H&T with a financial incentive to do what he

could to maintain the company’s illegal workforce. Each piece of evidence the

prosecution presented, reflecting the many ways in which Nguyen managed the lives of

H&T employees, combined to support the Government’s theory that Nguyen and others at

H&T worked to insulate workers from the outside world to reduce the risk that the

company’s lucrative and illicit operations would be uncovered. Nguyen himself paid

workers in cash, resolved on-the-job issues, secured rent-free housing, distributed fake

IDs, and provided daily transportation to many employees. Considering the evidence in

toto, there was nothing irrational about the jury’s conclusion that Nguyen transported

H&T employees with the intent to further their illegal presence in the United States.

       Nguyen challenges this conclusion in two ways. First, he argues that because he

did not undertake more substantial efforts to maintain and insulate H&T’s illegal

workforce, the jury could not have found that he provided transportation with the state of

mind § 1324(a)(1)(A)(ii) requires. He points out, for example, that none of the

Government’s evidence showed that he caused illegal aliens to enter the United States,

join H&T, or remain with H&T once hired. Nor did the evidence establish that he, or

anyone else at H&T, provided transportation and housing to all employees. And finally,

he emphasizes that there was no attempt by the prosecution to show that he took steps to




                                        5
conceal workers as he drove them to and from work—a significant fact in other cases

affirming convictions under § 1324(a)(1)(A)(ii). See, e.g., Silveus, 542 F.3d at 1002–03.

       While Nguyen’s arguments accurately reflect the trial record, they are inconsistent

with applicable jurisprudence regarding sufficiency of the evidence. To conclude that

Nguyen acted willfully under § 1324(a)(1)(A)(ii), the jury was not required to find that he

did everything he possibly could to establish, maintain, and conceal H&T’s illegal

workforce. Rather, the jury required credible evidence, direct as well as circumstantial,

that demonstrated beyond a reasonable doubt that Nguyen intended to assist at least one

H&T employee to remain in the United States illegally by providing him with a ride to

and from work. See United States v. 1982 Ford Pick-Up, VIN 1FTDX15G7CKA31957,

Texas Lic. No. VM-5394, 873 F.2d 947, 951 (6th Cir. 1989) (citing United States v.

Merkt, 764 F.2d 266, 272 (5th Cir. 1985)). The record contained such evidence.

       Second, Nguyen argues that most of the evidence against him—including evidence

showing that he distributed cash to workers, provided property for rent-free housing, and

acted as a company liaison—“is not [] probative of any motive or intent to further [H&T

workers’] presence in the United States.” Nguyen Opening Br. at 22. We disagree.

Evidence need not relate directly to transportation to shed light on the intentions of a

driver. The jury was entitled to take all of Nguyen’s activities into account to determine

whether he intended to further the unlawful presence of H&T employees.

       Nor are we persuaded by Nguyen’s reliance on the Ninth Circuit’s decision in

United States v. Moreno, 561 F.2d 1321 (9th Cir. 1977). Citing Moreno, he argues that




                                         6
there was no “direct or substantial relationship” between the transportation he provided

H&T employees and their ability to remain in the United States unlawfully. Nguyen

Opening Br. at 18 (quoting Moreno, 561 F.2d at 1323). Likening himself to Moreno, a

company foreman who was tasked with shuttling illegal aliens from one job site to

another as a condition of his employment, Nguyen claims that he did not provide “the

type of transportation” to illegal aliens that § 1324(a)(1)(A)(ii) prohibits. Id. at 18

(quoting Moreno, 561 F.2d at 1322). To the extent that Moreno held that

§ 1324(a)(1)(A)(ii)’s “in furtherance of” language prohibits certain types of transportation

or transportation that produces certain effects as such, we rejected it in Silveus. See

Silveus, 542 F.3d at 1002–03 (holding that a touchstone of Section 1324(a)(1)(A)(ii)’s “in

furtherance of” language is intent); Cf. 1982 Ford Pick-Up, 873 F.2d at 950–51 (opining

that Moreno was likely “wrongly decided” because its approach “focuses on the effect of

the transportation of the illegal alien and not upon its purpose”). In any event, the jury

could have reasonably concluded that Nguyen’s management of H&T’s illegal alien

workforce and the handsome profits he earned reflected a more culpable state of mind

than Moreno’s. Cf. United States v. One 1982 Chevrolet Crew-Cab Truck, VIN

1GCHK33M9C143129, 810 F.2d 178, 182 (8th Cir. 1987) (distinguishing Moreno where

the defendant who transported illegal aliens was their employer, not a third-party

employee).

                                              IV

       For the reasons stated, we hold that the evidence presented at trial was sufficient to




                                             7
allow the jury to conclude beyond a reasonable doubt that Nguyen knowingly provided

H&T workers with transportation to and from work “in furtherance of” their unlawful

presence in the United States. We will affirm the judgment of the District Court.




                                        8
