                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 17-10023
          Plaintiff-Appellee,
                                         D.C. No.
              v.                  1:15-cr-00018-RVM-2

FRANCISCO MUNA
TYDINGCO,
       Defendant-Appellant.



UNITED STATES OF AMERICA,              No. 17-10024
          Plaintiff-Appellee,
                                         D.C. No.
              v.                  1:15-cr-00018-RVM-1

LILI ZHANG TYDINGCO,
        Defendant-Appellant.             OPINION


      Appeals from the United States District Court
     for the District of the Northern Mariana Islands
      Ramona V. Manglona, Chief Judge, Presiding

        Argued and Submitted October 16, 2018
              San Francisco, California

                Filed November 27, 2018
2                 UNITED STATES V. TYDINGCO

Before: Sidney R. Thomas, Chief Judge, Susan P. Graber,
  Circuit Judge, and Robert S. Lasnik,* District Judge.

                     Opinion by Judge Graber


                            SUMMARY**


                            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.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               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.


                        COUNSEL

Steven P. Pixley (argued), Saipan, Commonwealth of the
Northern Mariana Islands, for Defendant-Appellant Francisco
Muna Tydingco.

Bruce Berline (argued), Berline & Associates LLC, Saipan,
Commonwealth of the Northern Mariana Islands, for
Defendant-Appellant Lili Zhang Tydingco.

Garth R. Backe (argued), Assistant United States Attorney;
Shawn N. Anderson, United States Attorney; United States
Attorney’s Office, Saipan, Commonwealth of the Northern
Mariana Islands; for Plaintiff-Appellee.


                         OPINION

GRABER, Circuit Judge:

    Defendants Lili and Francisco (“Frank”) Tydingco stand
convicted, respectively, of harboring an illegal alien and of
aiding and abetting the harboring, in violation of 8 U.S.C.
4               UNITED STATES V. TYDINGCO

§ 1324(a)(1)(A)(iii). On appeal they argue, first, that the
evidence was insufficient to support their convictions. We
disagree and, therefore, reach their additional arguments
concerning trial error. We hold: (1) the instruction defining
“harbor” was erroneous because it did not require the jury to
find that Defendants intended to violate the law, and the error
was not harmless; and (2) 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 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
Defendants on an invalid legal theory. Accordingly, we
reverse and remand.

    FACTUAL AND PROCEDURAL BACKGROUND

    In September 2013, Defendants traveled from their home
on Saipan in the Commonwealth of the Northern Mariana
Islands (“CNMI”) to China, Lili’s native country, with their
two children. Lili is a legal permanent resident of the United
States through her marriage to Frank. While in China,
Defendants met X.N.’s father, who asked Defendants to take
10-year-old X.N., a Chinese national, home with them to
attend school in the United States. Lili contacted a friend of
hers who knew someone who had brought a child to the
United States to study in the past, and the friend told Lili that
it was possible to bring X.N. to the United States.

    Defendants returned to the CNMI with X.N. on
September 26, 2013. The CNMI has a “parole” program
designed to support its tourism industry. Pursuant to this
program, Chinese and Russian nationals may enter the CNMI
                UNITED STATES V. TYDINGCO                     5

without a visa and stay for up to 45 days. United States
Customs and Border Protection (“CBP”) requires proof of a
ticket booked on a return flight within the 45-day window
before an alien may “parole in” to the CNMI.

    At immigration control in the Saipan airport, CBP sent
Lili and X.N. to “secondary processing” for a more thorough
investigation because X.N. was a minor traveling without her
parents. Lili presented a notarized letter of authorization
from X.N.’s parents stating that Lili and Frank would be
X.N.’s guardians during her studies in the United States. She
also told the CBP officer that they were going to “see how it
would work out having X.N. stay with [us] and go to school.”
The officer told Lili to get the authorization letter stamped at
the local police station, but otherwise said nothing about
X.N.’s attending school on Saipan. At some point during
processing, Lili or X.N. showed proof that X.N. had a return
flight to China booked for October 28, 2013. The parole
program allows a seven-day buffer from the date of a return
ticket to account for problems that might prevent a flight
from departing as scheduled, so the officer stamped the I-
94—a paper record of entry and departure dates—in X.N.’s
passport with “Nov 04 2013” to indicate that X.N. had to
leave the CNMI by November 4.

    After passing through immigration control, Defendants
and X.N. went through customs. Frank filled out a customs
declaration form for his family and X.N. In the section that
asked about the purpose of the trip, Frank filled in the bubble
for “Returning Resident.” He filled in only the CNMI bubble
in the section that asked for country of permanent residence,
but he also wrote X.N.’s name under “Travelers,” provided
her correct passport number, and listed China as her country
of citizenship.
6              UNITED STATES V. TYDINGCO

    About two weeks after returning to Saipan, Defendants
enrolled X.N. in public school. Lili stated that she did not
apply for a student visa for X.N. because the school never
asked for one; Lili simply gave the school a copy of X.N.’s
passport and the authorization letter. Defendants also filled
out other forms to enroll X.N. in school, including a consent
to disclose X.N.’s directory information and a hand-drawn
map accurately depicting the location of their house relative
to the school.

     X.N. lived with Defendants until February 2015. After
X.N. left her home, Lili voluntarily spoke to an agent from
Homeland Security and signed a written statement. The
statement acknowledged that Lili understood “that there are
immigration laws” and that she “had to follow certain steps
and pay certain fees” to obtain her green card. Lili also said
that she “had [X.N.]’s passport and saw the I-94 showing she
was paroled in until November 2013.” An agent present for
Lili’s interview testified, on cross-examination, that the
interviewing agent did not ask Lili if she knew what an I-94
was. He could not recall whether the interviewer asked Lili
if she knew what a student visa was. The agent also testified
that Lili said she knew what “being paroled in” meant. The
government indicted Defendants after Lili’s interview.

    Defendants moved for acquittal after the close of the
government’s case. The district court denied both motions.
Following their convictions, Defendants timely appeal.
                  UNITED STATES V. TYDINGCO                            7

                           DISCUSSION

    A. Sufficiency of the Evidence1

    Only Lili’s mental state was truly in dispute at trial. Lili
admitted seeing X.N.’s I-94 and the mandatory departure date
of November 4, 2013 (indeed, Lili personally brought X.N.
through immigration control), yet Lili kept X.N. in her house
long after that mandatory departure date passed. Lili also
understood that the United States has immigration laws, and
she understood that obtaining legal status (as she did) requires
an alien to follow certain procedures. The evidence also
showed that Lili expected to be paid for keeping X.N. in the
family home. On this record, a rational juror could have
found that Lili knew that X.N.’s continued presence in the
United States was unlawful after November 4, 2013, and that
Lili intended to violate the immigration laws.

    With respect to Frank, the fact that he was named as a
guardian in the Chinese letter of authorization from X.N.’s
parents is circumstantial evidence tending to show that he
actively participated in the plan to bring X.N. to the CNMI
for a period longer than is authorized by law. And as the
district court observed, Frank knew that, when X.N. came to
Saipan, she had a return ticket to China booked for October
28, 2013, within the parole period. A rational juror could
conclude that Frank intended to give X.N. a place to live long

    1
      We review de novo the sufficiency of the evidence. United States
v. Garrison, 888 F.3d 1057, 1064 (9th Cir. 2018). In doing so, we view
the evidence in the light most favorable to the government and ask
whether a rational trier of fact could have found that the government
proved the essential elements of the crime beyond a reasonable doubt. Id.
at 1063. In analyzing the sufficiency of the evidence, we apply the legal
principles that we hold, below, are required to instruct a jury properly.
8                 UNITED STATES V. TYDINGCO

after her parole period ended and that he had a financial
motive for doing so: Defendants’ family had modest income,
and Frank was an active participant in what occurred. For
example, he flew to China with Lili to bring X.N. back to
Saipan, he filled out the customs form at the border, and he
enrolled X.N. in school.

    In short, 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.
Therefore, Defendants are not entitled to outright reversal of
their convictions. We turn, then, to Defendants’ claims of
instructional error and their request for a new trial.

    B. The Meaning of “Harbor” and the Necessary Mens
       Rea2

   Title 8 U.S.C. § 1324(a)(1)(A)(iii) criminalizes the
conduct of any person who:

         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.


    2
      We review de novo whether a jury instruction misstates a required
element of a charged offense. United States v. Hofus, 598 F.3d 1171,
1174 (9th Cir. 2010). Ordinarily, such an error requires reversal unless it
is harmless beyond a reasonable doubt. United States v. Pierre, 254 F.3d
872, 877 (9th Cir. 2001).
                UNITED STATES V. TYDINGCO                       9

Here, the court instructed the jury simply that the term
“harbor” “means ‘to afford shelter to.’” The instructions did
not include any requirement that the jury consider whether
Defendants intended to violate the law. Defendants asked the
court to instruct the jury that it had to find that they sheltered
X.N. for the specific purpose of avoiding detection by
immigration authorities. The court declined to give that
proposed instruction. We hold that, although the court
properly rejected Defendants’ particular formulation,
harboring instructions must require a finding that Defendants
intended to violate the law.

    In United States v. Acosta de Evans, 531 F.2d 428, 429
(9th Cir. 1976), we rejected the defendant’s argument that
“harbor” means “to harbor so as to prevent detection by law
enforcement agents,” in the context of considering the
sufficiency of the evidence to sustain the defendant’s
conviction. In concluding that the evidence sufficed even
though the defendant did not have the specific intent to
prevent detection, we held that—as the court instructed
here—“harbor” means “afford shelter to.” Id. at 430. Acosta
addressed an earlier version of the statute but, like the present
statute, it criminalized “conceal[ing], harbor[ing], or
shield[ing] from detection” an unlawful alien. Id. at 429 n.1.
Textually, the Acosta holding comports with the list of
prohibited acts, because one is guilty of the crime if one
either “harbor[s]” or “shield[s] from detection.” 8 U.S.C.
§ 1324(a)(1)(A)(iii). When Congress uses different terms in
the same statute, we presume that each term has a distinct
meaning. SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir.
2003).

   Nearly 30 years after Acosta, we decided United States v.
You, 382 F.3d 958 (9th Cir. 2004). There, we held that jury
10              UNITED STATES V. TYDINGCO

instructions on harboring an illegal alien “must require a
finding that the defendants intended to violate the law.” Id.
at 966. The district “court instructed the jury that it must find
that [the defendants] had acted with ‘the purpose of avoiding
the aliens’ detection by immigration authorities.’” Id.
(brackets omitted). We held that the instruction “contained
the necessary mens rea element” because it required the jury
to find that the defendants acted with the required intent to
violate the law. Id. Thus, an additional instruction that the
defendants had requested would have been redundant. Id. In
other words, we held that the instruction concerning a specific
intent to avoid detection was sufficient, but we did not hold
that it is necessary.

    The government argues, first, that the statement in You
concerning the required content of a jury instruction on intent
was mere dictum, rather than a holding that we must follow.
We are not persuaded. The opinion considered the question
at some length, relying on two analogous decisions in which
we held that a district court should have instructed the jury
that it must find that the defendants intended to violate the
law. Id. at 965–66. Moreover, the discussion was the sole
analytical underpinning for the conclusion that an additional
instruction was not needed. See Barapind v. Enomoto,
400 F.3d 744, 751 (9th Cir. 2005) (en banc) (per curiam)
(footnote omitted) (explaining that an issue presented for
review on appeal, which this court addressed and decided,
“became law of the circuit, regardless of whether it was in
some technical sense ‘necessary’ to our disposition of the
case”).

    Next, the government asserts that we need not follow You
because it was wrongly decided. Whether we agree with You
or not, we are bound to follow it. See Miller v. Gammie,
                UNITED STATES V. TYDINGCO                     11

335 F.3d 889, 899–900 (9th Cir. 2003) (en banc) (holding
that a three-judge panel must follow a prior decision of this
court unless it is “clearly irreconcilable” with the reasoning
or theory of an intervening Supreme Court decision or other
higher authority).

    Finally, the government urges us to seek en banc
rehearing because Acosta and You conflict irreconcilably.
See United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th
Cir. 2014) (citing Atonio v. Wards Cove Packing Co.,
810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc))
(“Moreover, if we thought that two controlling cases were in
irreconcilable conflict, we could not simply pick one to
follow—we would be required to call this case en banc.”). In
our view, we can harmonize the two cases despite some
tension between them.

    You requires only an instruction that the defendant
intended to violate the law. One way to demonstrate such an
intention is to prove that the defendant sought to prevent
immigration authorities from detecting an illegal alien’s
presence. But that is not the only way. For example, a
defendant who chooses to publicize her harboring of an
illegal alien in order to call attention to what she considers an
unjust immigration law intends to violate the law, even
though she does not intend to prevent detection. See United
States v. Dann, 652 F.3d 1160, 1174 (9th Cir. 2011) (stating
that “the government is correct” in interpreting Acosta to
mean that it did not have to prove that the defendant
“harbored [the alien] to prevent detection by immigration
authorities”); United States v. Aguilar, 883 F.2d 662, 690 (9th
Cir. 1989) (explaining that Acosta held that “‘harbor’ . . .
does not require an intent to avoid detection”).
12                UNITED STATES V. TYDINGCO

    In summary, the jury instructions were legally deficient
by not requiring the jury to find that Defendants intended to
violate the law. The omitted instruction was not harmless
beyond a reasonable doubt, because it went to the heart of
Lili’s primary defense—that she did not understand the
immigration laws and did not act with the intent to violate the
law. Indeed, the government expressly concedes that, if the
harboring instruction was erroneous, the error was not
harmless. Frank’s conviction rises or falls with Lili’s in this
respect, because his conviction for aiding and abetting cannot
stand without her conviction for the underlying offense of
harboring.

     C. The Meaning of “Reckless Disregard”

    The district court instructed the jury that “reckless
disregard” means “being aware of facts which, if considered
and weighted in a reasonable manner, indicate a substantial
and unjustifiable risk that” the person harbored was in fact an
alien and was in the United States unlawfully. The
government concedes that the instruction was plainly
erroneous in light of United States v. Rodriguez, 880 F.3d
1151 (9th Cir. 2018).3 Rodriguez held that reckless disregard
requires that the defendant herself must be aware of facts



     3
       When a defendant fails to object to an instruction below, we review
for plain error. United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015).
We may correct a plain error when: (1) there was error, meaning “a
deviation from a legal rule that is not waived”; (2) the error is plain,
“meaning ‘clear’ or ‘obvious’”; (3) the error was prejudicial, meaning a
“‘reasonable probability’” exists that it “‘affected the outcome of the
district court proceedings’”; and (4) the error “‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)).
                   UNITED STATES V. TYDINGCO                            13

from which an inference of risk could be drawn and the
defendant must actually draw that inference. Id. at 1159–62.

    The parties dispute whether the erroneous instruction, to
which Defendants did not object at trial, prejudiced
Defendants. Defendants bear the burden of showing
prejudice, which requires some intermediate level of proof
that the error affected the outcome at trial: more than a mere
possibility, United States v. Gonzalez-Aguilar, 718 F.3d 1185,
1189 (9th Cir. 2013), but less than a preponderance of the
evidence, United States v. Dominguez Benitez, 542 U.S. 74,
83 n.9 (2004). To determine whether the error affected the
outcome, we consider the whole trial record, including “the
strength of the evidence against” Defendants and “the
arguments made by the parties.” United States v. Garrido,
713 F.3d 985, 995 (9th Cir. 2013) (internal quotation marks
omitted). We also consider “whether the defendant contested
the omitted element ‘and raised evidence sufficient to support
a contrary finding.’” United States v. Conti, 804 F.3d 977,
982 (9th Cir. 2015) (quoting Neder v. United States, 527 U.S.
1, 19 (1999)). In sum, we must decide whether a reasonable
probability exists that the jury would have found Lili not
guilty4 had the district court defined “reckless disregard” to
mean: “the defendant knew of facts which, if considered and
weighed in a reasonable manner, indicate a substantial and
unjustifiable risk that the alleged alien was in fact an alien
and was in the United States unlawfully, and the defendant
knew of that risk.” See Rodriguez, 880 F.3d at 1162
(providing a sample instruction).



    4
       Frank’s conviction for aiding and abetting cannot stand without
Lili’s conviction for the underlying offense, so the instruction necessarily
prejudiced him if it prejudiced Lili.
14              UNITED STATES V. TYDINGCO

    Lili’s mental state was the main disputed issue at trial.
The government provided uncontested evidence of the other
elements of harboring an illegal alien: that X.N. was an alien,
that X.N. remained in the United States unlawfully, and that
Lili afforded shelter to X.N. And the government offered
strong evidence on the mental-state element: Lili brought
X.N. through immigration control and saw the I-94 with a
mandatory departure date of November 4, 2013, yet she kept
X.N. in her home until 2015.

    X.N. also had a return flight (that she never boarded)
booked within the parole program’s 45-day window. That
reservation suggests that someone connected to X.N. knew
the requirements of the parole program, but the evidence did
not definitively show that Lili booked the flight or even knew
about it.

    Lili’s defense strategy focused on sowing doubt about
whether she knew (or knew of the risk) that X.N.’s continued
presence on Saipan was unlawful.             Through cross-
examination and some of the government’s exhibits,
substantial evidence emerged from which a reasonable jury
could infer that Lili—despite knowing of facts from which a
reasonable person would infer the risk of X.N.’s presence
being unlawful—did not actually draw that inference herself,
as Rodriguez requires. 880 F.3d at 1160. Lili said that she
consulted with a knowledgeable friend before agreeing to
bring X.N. to the United States, and the friend told her that it
was possible to bring a child to the United States to study.
Lili also explicitly told a CBP officer, while going through
immigration control, that X.N. would attend school on
Saipan; she received no response to that information other
than an instruction to have the authorization letter from
X.N.’s parents stamped at the local police station.
               UNITED STATES V. TYDINGCO                    15

    Moreover, Lili gave the public school extensive
documentation connecting herself to X.N.—something the
jury could have inferred that she might not have done had she
appreciated the facts of X.N.’s unlawful status. Among other
things, Lili gave the school the authorization letter listing
herself and Frank as X.N.’s guardians, a consent form to
release X.N.’s directory information to the public, and a
hand-drawn map showing precisely where Defendants lived.
Lili also said that she never sought a student visa for X.N.
because the school never asked for one and simply accepted
X.N.’s passport and the notarized letter from her parents in
China. One reasonable view of that evidence is that Lili did
not realize that X.N. needed other documents to make her
long-term presence in the United States legal.

    In sum, Lili has shown more than a mere possibility that
the jury would have reached a different verdict if properly
instructed on reckless disregard. Gonzalez-Aguilar, 718 F.3d
at 1189. But prejudice alone does not require reversal. We
also must decide whether the error “seriously affects the
fairness, integrity or public reputation of judicial
proceedings” before exercising our discretion to correct the
error. Johnson v. United States, 520 U.S. 461, 469–70 (1997)
(brackets omitted) (quoting United States v. Olano, 507 U.S.
725, 736 (1993)).

    Here, the jury might have relied on a legally invalid
theory to convict Lili: that she acted in reckless disregard
because a reasonable person, aware of the facts that Lili
knew, would have understood the risk that X.N. remained in
the country unlawfully—even if Lili herself did not
understand that risk. The jury’s “possible reliance on a
legally invalid theory constitutes a miscarriage of justice
which would seriously affect ‘the fairness, integrity or public
16            UNITED STATES V. TYDINGCO

reputation of judicial proceedings.’” United States v.
Vasquez-Hernandez, 849 F.3d 1219, 1229 (9th Cir. 2017)
(quoting Garrido, 713 F.3d at 998).

   Accordingly, we hold that Defendants have met their
burden under Olano to show that reversal and remand for a
new trial is warranted.

     REVERSED and REMANDED.
