                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2008

USA v. Ozcelik
Precedential or Non-Precedential: Precedential

Docket No. 06-4245




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 06-4245




             UNITED STATES OF AMERICA

                               v.

                    HAKAN OZCELIK
                    a/k/a Hakan Askin

                      Hakan Ozcelik,
                                Appellant




       On Appeal from the United States District Court
                for the District of New Jersey
                  (D.C. No. 05-cr-00722-1)
        District Judge: Honorable Faith S. Hochberg




                 Argued February 12, 2008

Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges

                   (Filed: May 27, 2008)
                            ____

Adrienne U. Wisenberg
Solomon L. Wisenberg (Argued)
Wisenberg & Wisenberg
Washington, D.C. 20036-0000

     Attorneys for Appellant
Sabrina G. Comizzoli (Argued)
George S. Leone
Office of United States Attorney
Newark, N.J. 07102-0000

       Attorneys for Appellee

                                ____

                   OPINION OF THE COURT




SLOVITER, Circuit Judge.

        This appeal raises, inter alia, an issue of first impression
in this court, that is, what conduct constitutes shielding,
harboring, and concealing an alien within the meaning of 8
U.S.C. § 1324.

                                I.
                   Facts and Procedural History

       In 1990, appellant Hakan Ozcelik, then age sixteen, came
to the United States from Turkey as a stowaway on a merchant
ship.1 Thereafter, Ozcelik earned his GED and a college degree
in criminal justice, and worked at various jobs. He obtained
legal American citizenship and on December 15, 2003, he began
working as a Customs and Border Protection Officer in the
Department of Homeland Security (“DHS”). He worked
principally in Port Elizabeth, New Jersey inspecting cargo on
cruise vessels, but also occasionally worked at Newark Airport
inspecting individual passengers.

      Tunc Tuncer, the government’s principal witness, is a
Turkish citizen who came to the United States on an F-1 student



       1
         Ozcelik went by the name of Askin at one time, but
changed his name for family reasons.

                                  2
visa to participate in a master’s degree program at Columbia
University. When Tuncer failed to meet required academic
standards, Columbia refused him readmission, thereby
subjecting him to deportation for being “out of status.” App. at
352.

        Shortly thereafter, Tuncer discussed his immigration issue
with his friend, Uzgar Madik, who was the President of the
Intercollegiate Turkish Students Society. Madik phoned
Ozcelik, who Madik said might be able to help, and put Tuncer
on the phone. The two had a short conversation. Tuncer called
Ozcelik the next day to provide the information Ozcelik had
requested and Ozcelik said he would see what he could do.
Ozcelik called Tuncer back the following day, stating that
Tuncer’s case was “doable” or “easy” and that all Tuncer had to
do was pay Ozcelik $2,300. App. at 220. Ozcelik told Tuncer
the money had nothing to do with him, but that it was for two of
his friends in the Immigration and Naturalization Service
(“INS”)2 who were going to change some dates in the system for
Tuncer’s visa. Tuncer testified that Ozcelik told him he had
“done this for another girl in the past recently” and would be
happy to help Tuncer with his problem. App. at 225. Tuncer
stated that he did not have the money and would call Ozcelik
when he obtained it. Within the next week or two, Ozcelik
called Tuncer several times asking about the money, but Tuncer
said he did not have it and did not know when he could get it.

       On March 14, 2005, Glenn Bartley, an Immigration and
Customs Enforcement (“ICE”) agent, visited Tuncer and told
him he was “out of status.” At a second meeting the next day
Bartley administratively arrested Tuncer but did not detain him.
At that meeting, the two discussed the possibility of Bartley
receiving information from Tuncer about Ozcelik.




       2
        As of March 2003, INS became United States Citizenship
and Immigration Services, an agency within the Department of
Homeland Security. We use the term “INS” or “Immigration”
throughout because that is the term used in the record.

                                3
        From March 18, 2005 until May 24, 2005, Tuncer
initiated several phone conversations at the direction of law
enforcement who recorded the conversations. Tuncer told
Ozcelik that his immigration problem was “still continuing.”
App. at 970. Ozcelik reiterated that Tuncer would have to pay
at least $2,000. In a subsequent recorded conversation, Tuncer
asked Ozcelik if $2,000 would be enough. Ozcelik responded:
“No it can’t. There is 2000 and than [sic] there is 300 for the
fee, they will give those, they will do the thing for you, they will
do the thing from the inside.” App. at 979. Ozcelik never told
Tuncer the names of the two friends, but he continually stated
that the money was for them.

       Ozcelik and Tuncer arranged a meeting at the New Port
Mall on March 24, 2005, so that Tuncer could pay Ozcelik the
$2,300 fee and provide him with a copy of his immigration
paperwork. At that meeting, Ozcelik took the money and told
Tuncer that it would take at least three months for anything to
happen. Following the meeting, Tuncer and Ozcelik had one
more recorded phone conversation in which Tuncer asked
whether there was “anything new” and Ozcelik said that he had
made the necessary contacts and that Tuncer would be the one
“receiving news.” App. at 999.

        As a result of those conversations and the controlled
meeting between Tuncer and Ozcelik, a federal grand jury
charged Ozcelik in a two-count indictment. Count One of the
indictment charged Ozcelik with seeking and accepting a bribe
in return for being influenced in the performance of official acts
and being induced to do or omit acts in violation of official
duties, in violation of 18 U.S.C. § 201(b)(2). Count Two
charged Ozcelik with attempting to conceal, harbor, and shield
from detection an illegal alien, in violation of 8 U.S.C. §
1324(a)(1)(A)(iii).

       The jury trial began on March 14, 2006. When the
government rested, Ozcelik reserved his right to move for
judgment of acquittal pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. Ozcelik thereafter presented evidence,
including testifying on his own behalf. The jury convicted

                                 4
Ozcelik on both counts. The District Court denied Ozcelik’s
renewed motion for judgment of acquittal.

        With regard to the bribery conviction, the District Court
held that there was ample evidence that Ozcelik solicited and
accepted $2,300 from Tuncer. The Court also stated that there
was substantial evidence that Ozcelik contemplated passing on
some or all of the $2,300 to other immigration officials for the
purpose of their taking official action to assist Tuncer. The
Court further held that a reasonable juror could infer corrupt
intent in soliciting the bribe because there was substantial
evidence of Ozcelik’s consciousness of wrongdoing. With
respect to the conviction for shielding/harboring an alien, the
Court held that there was sufficient evidence that Ozcelik gave
Tuncer multiple instructions to conceal his activities in order to
avoid detection by immigration authorities. The Court
characterized Ozcelik’s conduct as “instructing Tuncer to hide
from the immigration authorities,” App. at 14, thereby
constituting the crime of shielding.

       Following a sentencing hearing, the District Court
sentenced Ozcelik. On the bribery conviction, the Court
imposed a two-level enhancement for obstruction of justice for
Ozcelik’s false trial testimony, resulting in an adjusted offense
level of 16. With respect to the shielding conviction, the Court
imposed a two-level enhancement because Ozcelik abused a
position of trust, resulting in an adjusted offense level of 11.
The District Court denied Ozcelik’s request to group the two
offenses pursuant to United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) § 3D1.2. Instead, the Court
followed the recommendation of the Probation Officer, who had
calculated the offense level by applying the multiple-count
adjustment pursuant to U.S.S.G. § 3D1.4, resulting in a total
offense level of 17. With an offense level of 17 and a criminal
history category of I, Ozcelik’s Guidelines range was twenty-
four to thirty months imprisonment. The Court sentenced
Ozcelik to twenty-seven months imprisonment on each count, to
be served concurrently.




                                 5
        Ozcelik appeals.3 He argues that the evidence was
insufficient to sustain both the bribery and shielding convictions.
He also argues that the Court erred in defining the term “official
act” in its instructions to the jury. Finally, Ozcelik contends that
the Court erred by not grouping his offenses at sentencing.

                                 II.
           Sufficiency of Evidence on Count One - Bribery

       It is black letter law that in order to convict a defendant
the government must prove each element of a charged offense
beyond a reasonable doubt. See In re Winship, 397 U.S. 358,
364 (1970). We apply a deferential standard in determining
whether a jury’s verdict rests on sufficient evidence. Viewing
the evidence in the light most favorable to the government, we
will sustain a defendant’s conviction if “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Voight, 89 F.3d 1050, 1080
(3d Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). An appellant raising a claim of insufficiency of the
evidence bears a “very heavy burden.” United States v. Dent,
149 F.3d 180, 187 (3d Cir. 1998) (internal quotations omitted).

       Although we believe that the issue of the sufficiency of
evidence to prove bribery is a very close one, we cannot
disregard that a jury convicted Ozcelik of bribery in violation of
18 U.S.C. § 201(b)(2). That statute provides that whoever:

       being a public official or person selected to be a public
       official, directly or indirectly, corruptly demands, seeks,
       receives, accepts, or agrees to receive or accept anything
       of value personally or for any other person or entity, in
       return for:

              (A) being influenced in the performance of any
              official act;



       3
        We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).

                                 6
            (B) being influenced to commit or aid in
            committing, or to collude in, or allow, any fraud, or
            make opportunity for the commission of any fraud,
            on the United States; or
            (C) being induced to do or omit to do any act in
            violation of the official duty of such official or
            person; . . .

       shall be fined under this title . . . or imprisoned for not
       more than fifteen years, or both . . . .

18 U.S.C. § 201(b)(2). The government must prove that the
public official took or sought the funds for one of the three
purposes enumerated in subsections (A), (B), and (C) in the
statute.

       Under § 201(b)(2), there are three essential elements that
must be met: (1) defendant must be a public official, (2) who
directly or indirectly demanded, sought, received, accepted, or
agreed to receive or accept anything of value personally or for
any other person or entity, and (3) did so specifically for one of
the three corrupt purposes set forth in subsections (A) through
(C). See United States v. Orenuga, 430 F.3d 1158, 1166 (D.C.
Cir. 2005). There is no question that Ozcelik met the first two
elements: he is a public official and he received money from
Tuncer.4 The third element goes to Ozcelik’s intent.



       4
         Ozcelik testified at trial that he never received the money
from Tuncer. However, Tuncer testified that he had given Ozcelik
$2,300 at their meeting at the New Port Mall. ICE agents gave
Tuncer the $2,300 in cash that he took to the meeting with Ozcelik.
Although the agents could not see the money change hands from
their surveillance positions, the agents patted down Tuncer when
he returned to their vehicle following the exchange and verified
that neither the cash nor the immigration documents he had taken
to give to Ozcelik were on his person. In addition, the conversation
during the exchange between Tuncer and Ozcelik was recorded.
During that conversation Tuncer asked Ozcelik if he would “like
to count” the money. App. at 995. Ozcelik responded, “No, no,

                                  7
        Thus the only disputed issue is whether the evidence is
sufficient to prove that Ozcelik received Tuncer’s money with a
corrupt intent, that is, he did so for one of the three reasons
prohibited by statute. The government argues that Ozcelik
violated the statute under both subsection (A) and subsection
(C), i.e., that he sought the bribe to be influenced in the
performance of an official act and that he took the bribe contrary
to his official duty to uphold the immigration law. It argues that
Ozcelik’s consciousness of wrongdoing is reflected by his
consistent statements to Tuncer to conceal their arrangement.

        Section 201(a)(3) defines “official act” as “any decision
or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by
law be brought before any public official, in such official’s
official capacity, or in such official’s place of trust or profit.” 18
U.S.C. § 201(a)(3).

        The government argues that Ozcelik was guilty under this
statutory section “in two non-mutually exclusive ways.”
Appellee’s Br. at 28. First, he had the corrupt intent to take
official action directly by acting “in his capacity as a DHS
employee [to agree] to take official action to request others in
DHS for official aid for Tuncer,” and, if need be, to intervene.
Appellee’s Br. at 28. “Second, Ozcelik, as a middleman, agreed
to importune other Immigration officials to take official action to
assist Tuncer.” Appellee’s Br. at 28. Both theories require us to
consider what is the “official action” Ozcelik took to fall within
the bribery statute.

       On this record, the jury could find that Ozcelik asked
other individuals within DHS to take official action on behalf of
Tuncer; thus both theories blend together into one theory of
aiding and abetting other unidentified Immigration officials to
take official action to alter Tuncer’s records. As the government



no. . . . I believe you . . . .” App. at 995. Any reasonable juror
could have found that the second element had been met based upon
the ample evidence adduced at trial.

                                  8
stated at oral argument, there is only one piece of evidence to
show that such Immigration officials even existed – Ozcelik’s
own statements to Tuncer that he had a friend within the INS
who would undertake to alter Tuncer’s visa status.

        We view the issue before us in light of our obligation to
“view the evidence in the light most favorable to the government
and [to] sustain a jury’s verdict if ‘a reasonable jury believing
the government’s evidence could find beyond a reasonable doubt
that the government proved all the elements of the offense[ ].’”
United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997)
(quoting United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir.
1991)). We must “defer to the jury’s assessment of witness
credibility” and recognize that “the government’s proof need not
exclude every possible hypothesis of innocence.” United States
v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000) (internal quotations
and alterations omitted).

        One who aids and abets another is as guilty of the
underlying offense as the principal. United States v. Dixon, 658
F.2d 181, 191 (3d Cir. 1981) (holding that middleman who
facilitated bribery of government official was liable as aider and
abettor). To prove that Ozcelik aided and abetted another, the
government must prove that the other, i.e., the principal (in this
case the unnamed friend at INS), committed all of the elements
of the offense. United States v. Cades, 495 F.2d 1166, 1167 (3d
Cir. 1974); see also United States v. Nolan, 718 F.2d 589, 592
(3d Cir. 1983). Notably, the offense is committed when the
official (here, the unnamed INS official) agrees to accept the
bribe in exchange for promising to carry out one of the statutory
prohibitions (i.e., the promise to alter Tuncer’s visa); it is not
necessary to actually perform the prohibited act. See Orenuga,
430 F.3d at 1166 (stating that “‘acceptance of the bribe is the
violation of the statute, not performance of the illegal promise’”)
(quoting United States v. Brewster, 408 U.S. 501, 526 (1972)).

      The evidence at trial was as follows: Tuncer testified that
Ozcelik told him that he would get other authorities at
Immigration to change Tuncer’s visa status so that he could
remain in the country. During the March 23 recorded telephone

                                 9
conversation, Oczelik said that “they will give those, they will do
the thing for you, they will do the thing from the inside.” App.
at 979.5 At the March 24 meeting, Ozcelik stated, “the only
thing I know is that the person I know will do something for you
from the INS.” App. at 986. Later in the same conversation,
Ozcelik said, “At least 3 months, 3 months will have to go by,
because these kind of things have a certain way, it will be in the
system, there are a lot of people in front of you in the system.
He needs to do something within that system, do you understand
what I mean?” App. at 987. In a later recorded telephone
conversation on May 24, Tuncer asked for assurance that
Ozcelik had spoken with his friend at the INS and that the friend
had undertaken to help. Ozcelik was reluctant to talk about such
matters by phone but did confirm that he had “contacted the
people in question” for Tuncer and that Tuncer “should be the
one receiving news.” App. at 999.

        In addition, Tuncer testified at trial that in one of the
earlier, unrecorded telephone conversations, Ozcelik had told
him that his case was “doable,” i.e., “easy for him.” App. at 220.
Tuncer testified that Ozcelik had asked him for $2,300, and
Tuncer asked what the money was for. Ozcelik replied that the
money “was for two of his friends who worked . . . at INS and
they were going to change some dates within the system for
[Tuncer’s] visa.” App. at 221.

        If the jury believed that evidence, it could reasonably
have concluded that Ozcelik had a contact (or contacts) at INS
whom he aided in taking a bribe to violate the contact’s official
duty. The evidence that the friend had undertaken to adjust
Tuncer’s visa status was Ozcelik’s own statements to Tuncer
that his friend was going to adjust the visa within the system for
Tuncer. Although there is no evidence that the friend actually
adjusted the visa status, there is evidence from which the jury
could infer that the friend agreed to adjust the visa, and it was at



       5
          The government and Ozcelik each submitted slightly
different versions of the recorded transcripts. There is no
substantive difference between the two.

                                 10
that point that the crime of the principal was complete. Because
there was sufficient evidence from which the jury could
rationally conclude that Ozcelik had induced a friend at INS to
alter Tuncer’s status in exchange for a bribe, there was sufficient
evidence to support Ozcelik’s guilt on a theory of aiding and
abetting.

        Ozcelik argues that there is insufficient evidence because
the government could not name a specific official whom Ozcelik
aided and abetted and there is no evidence that such unnamed
official actually adjusted the visa. Ozcelik raises an intriguing
argument. We agree that it is possible that there was no “friend”
at the INS and that Ozcelik was lying to Tuncer by telling him
that his friend at the INS would adjust Tuncer’s status, when, in
reality, Ozcelik intended to keep the money without taking any
action to adjust Tuncer’s status. Indeed, the only evidence the
government produced at trial that the unnamed friend at INS
existed was Ozcelik’s own statements to that effect. But we are
not permitted to assess credibility. And as such, we cannot say
as a matter of law that no reasonable juror could accept the
government’s theory premised upon Ozcelik’s own statements.

        Although we are concerned that the government could
not, through its investigation, discover the identity of Ozcelik’s
acquaintance at INS, that concern does not warrant overturning
Ozcelik’s conviction. After all, Ozcelik’s own words provide
the missing link and he did accept the money Tuncer paid for the
performance of the official act.

        Ozcelik proffered an alternative view of the evidence, i.e.,
that he solicited the money to procure a lawyer named Sol Kodsi
to assist Tuncer. Kodsi testified that Ozcelik had requested that
he represent Tuncer and that he had told Ozcelik that Tuncer’s
case would probably cost $2000 plus $300 for the filing fee and
mailings. Kodsi testified that if Tuncer brought him $2,300 he
would “probably more than likely take his case.” App. at 588.
Kodsi also testified that he had made an appointment with
Tuncer through Ozcelik for March 25, 2005.

       The jury was free to reject Kodsi’s testimony, particularly

                                11
in light of the absence of any evidence that Kodsi ever spoke to
Tuncer or that Ozcelik ever communicated any information
about Kodsi to Tuncer. Instead, Ozcelik’s statements to Tuncer
were always in terms of his INS contacts. For example, he
stated that “they will do the thing for you, they will do the thing
from the inside.” App. at 979 (emphasis added). Moreover,
although Kodsi testified he was a longtime friend of Ozcelik,
Ozcelik had stated in one recorded conversation that he was “not
very close” to the ones who would be helping Tuncer, App. at
991, thereby throwing into question the alleged discussion with
Kodsi. Although Ozcelik may have given a viable explanation
for the request for funds, we cannot say that it was unreasonable
for the jury to reject it in favor of the government’s theory.

         Ozcelik argues that the District Court improperly charged
the jury on the meaning of “official act” as used in § 201(b)(2).
Because Ozcelik did not object to the jury instructions at trial,
and indeed, made a joint request in favor of the very instruction
at issue, we review for plain error. United States v. Wolfe, 245
F.3d 257, 260-61 (3d Cir. 2001). A “plain error” is one that
affects substantial rights. Id. (citing United States v. Olano, 507
U.S. 725, 732 (1993)). An error affects “‘substantial rights’ if it
was prejudicial in that it affected the outcome of the District
Court proceedings.” Id. at 261 (citing Olano, 507 U.S. at 733).
It is the defendant’s burden to establish that the error prejudiced
the jury’s verdict. Id. Still, “[e]ven if the defendant establishes
the existence of plain error, Rule 52(b) leaves to the sound
discretion of the Court of Appeals the decision whether to
correct the error. While the Court of Appeals has the authority
to order correction when these elements are met, it is not
required to do so.” Id.

       The District Court charged the jury on the definition of
“official act” as follows:

       An official act means any decision or act or any question
       or matter which at any time may be pending or which may
       by law be brought before any public official in his or her
       capacity or in his or her place of trust. The term quote,
       “official act,” includes the decisions or actions generally

                                12
       expected of a public official. These decisions or actions
       do not need to be specifically described in any law, rule
       or job description to be considered an quote, “official
       act,” end quote. Official acts that violate an official duty
       also are not limited to those within the official’s specific
       authority.

App. at 1149 (emphasis added).

       The relevant statute defines “official act” as:

       any decision or action on any question, matter, cause, suit,
       proceeding or controversy, which may at any time be
       pending, or which may by law be brought before any
       public official, in such official’s official capacity, or in
       such official’s place of trust or profit.

18 U.S.C. § 201(a)(3) (emphasis added). The error, Ozcelik
claims, is that the District Court improperly substituted the
words “in his or her capacity” for the statutory language, “in
such official’s official capacity.” He argues that the substitution
eliminated the requirement that he needed to take action in his
official capacity and instead implied that he only had to take
action in some unspecified capacity.

        The government contends that the omission of the word
“official” was the stenographer’s error, and that at trial the Court
read the instruction containing the word “official.” Indeed, the
government filed a motion to correct the record in the District
Court, arguing that in fact, the Court had used the word
“official” before capacity when it charged the jury. The Court
concluded, based upon the testimony of the court stenographer,
that there was a reasonable probability that there had been a
mistake in the transcript. In addition, the written copy of the
instructions the Court gave the jurors contained the word
“official” and the Court had no recollection of omitting the word
“official.”

        We defer to the District Court’s conclusion that it did read
to the jury the word “official.” Moreover, the jurors had copies

                                 13
of the instructions that contained the word “official.” Ozcelik
has not met his burden of showing that the alleged error
substantially affected the outcome of the proceedings.

                              III.
                 Sufficiency of Evidence on
          Count Two - Shielding/Harboring/Concealing

        In his motion for judgment of acquittal, Ozcelik argued
that the government failed to prove that he attempted to conceal,
harbor, or shield from detention an illegal alien. The District
Court denied that motion, concluding that Ozcelik had taken
substantial steps to conceal Tuncer because he told him to “stay
low key for 5-6 months” and not to “go left and right a lot.”
App. at 14. Ozcelik raises the same issue on appeal, arguing that
his conduct, i.e., telling Tuncer to keep a low profile and not
draw attention to himself, and stating that it was good that he
lived at a different address than that on file with the INS, does
not constitute harboring, concealing, or shielding under 8 U.S.C.
§ 1324. The government responds that Ozcelik’s general advice
to Tuncer substantially facilitated Tuncer’s remaining in the
United States illegally, and therefore constitutes shielding,
harboring, and concealing under § 1324.

       The question of what conduct constitutes shielding,
harboring, and concealing within the meaning of § 1324 is an
issue of first impression in this court. The statute, 8 U.S.C. §
1324(a)(1)(A)(iii), provides, in relevant part:

       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 . . . shall be
       punished . . . .

        Tuncer was an illegal alien in the United States. He
testified at Ozcelik’s trial that he had remained in the United
States in violation of the terms of his student visa. In addition,

                                 14
Ozcelik did not contest that he knew that Tuncer was an illegal
alien. Indeed, at Ozcelik’s trial Tuncer testified that he had told
Ozcelik that he remained in the United States in violation of the
terms of his student visa. Thus, the only issue on appeal is
whether Ozcelik’s conduct towards Tuncer constituted
concealing, harboring, shielding, or attempting to conceal,
harbor, or shield. It is an issue that has occupied the attention of
several appellate courts.

        The original 1907 version of the statute prohibited only
the smuggling or unlawful bringing of aliens into the United
States. See United States v. Lopez, 521 F.2d 437, 439 (2d Cir.
1975). In 1917, the statute was amended to add concealing or
harboring as a crime, but no punishment attached to concealing
or harboring, only to smuggling. Id. In United States v. Evans,
333 U.S. 483, 484, 488 (1948), the Supreme Court discussed the
legislative history of a prior version of § 1324, then 8 U.S.C. §
144. The Court stated that “the section as originally enacted was
limited to acts of smuggling. And there is some evidence in the
legislative history that the addition of concealing or harboring
was meant to be limited to those acts only when closely
connected with bringing in or landing, so as to make a chain of
offenses consisting of successive stages in the smuggling
process.” Id. at 488. But, the Court noted, the evidence was not
conclusive regarding Congress’ intent as to the construction of
the then-current version of the statute; it could be construed to
criminalize as a separate offense, distinct from smuggling, the
act of harboring or concealing an alien remaining in the country
illegally. Id. The 1917 version of the statute was at issue in
Evans. Significantly, Congress amended the statute after the
decision in Evans. The congressional debates focused on the
necessity of a statutory prohibition for those who “wilfully and
knowingly” conceal or harbor an illegal alien, such as those who
provide shelter for aliens. Lopez, 521 F.2d at 440.

        Congress amended the statute in 1952 by means of Public
Law 283, which applied a penalty to shielding/harboring as well
as to the act of smuggling. The relevant provisions of the 1952
statute provided: “Any person . . . who . . . willfully or
knowingly conceals, harbors, or shields from detection, or

                                 15
attempts to conceal, harbor, or shield from detection, in any
place, including any building or any means or [sic] transportation
. . . shall be punished by a fine not exceeding $2,000 or by
imprisonment for a term not exceeding five years, or both, for
each alien in respect to whom any violation of this subsection
occurs . . . .” Act of Mar. 20, 1952, Pub. L. No. 82-283, 66 Stat.
26 (1952) (current version at 8 U.S.C. § 1324(a)(1)(A)(iii)). The
legislative history suggested that Congress intended to
strengthen the law in “preventing aliens from entering or
remaining in the United States illegally.” Id. (emphasis added).

        The amended statute was considered by the Court of
Appeals for the Second Circuit in Lopez, 521 F.2d at 437. In
light of the amendment that court concluded that the statute was
not limited to instances of harboring in connection with
smuggling. Id. at 440-41. The court held that providing shelter,
obtaining employment, providing transportation to and from
work, and arranging sham marriages for illegal aliens was
conduct tending to substantially facilitate the aliens’ remaining
in the United States illegally. Id. at 441. In a later decision, the
Second Circuit announced the following test for determining
what constitutes shielding, concealing, and harboring under 8
U.S.C. § 1324: “harboring, within the meaning of § 1324,
encompasses conduct tending substantially to facilitate an alien’s
remaining in the United States illegally and to prevent
government authorities from detecting his unlawful presence.”
United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999)
(emphasis added); see also United States v. Cantu, 557 F.2d
1173, 1180 (5th Cir. 1977) (stating that proper test is whether
charged conduct tended “substantially to facilitate an alien’s
remaining in the United States illegally”) (quoting Lopez, 521
F.2d at 441).

       Convictions under § 1324 generally involve defendants
who provide illegal aliens with affirmative assistance, such as
shelter, transportation, direction about how to obtain false
documentation, or warnings about impending investigations.
See generally id. at 1175-76, 1180; United States v. Acosta de
Evans, 531 F.2d 428 (9th Cir. 1976); Lopez, 521 F.2d at 437. In
contrast, we have found no cases in which a defendant has been

                                16
convicted under this statute for merely giving an alien advice to
lay low and to stay away from the address on file with the INS,
obvious information that any fugitive would know.

        For example, in Kim, the defendant Kim ordered his
employee, an illegal alien, to report falsely to the INS that he had
been terminated from his job, and Kim required the employee to
obtain false documentation for the purpose of misleading the
INS. Kim, 193 F.3d at 575. The court held that Kim’s conduct
met the definition of harboring under 8 U.S.C. § 1324 because it
tended substantially to facilitate the alien’s remaining in the
United States illegally. Id. In effect, Kim directed his alien-
employee to obtain false documentation as a condition of
retaining his employment and gave detailed direction about how
to affirmatively mislead the INS. The instruction was specific
and involved falsifying documents. Ozcelik’s conduct here is
not comparable. He merely passed along general information to
Tuncer and made no suggestions regarding falsifying documents.

       In another case illustrating the type of conduct that falls
within the statute, United States v. Sanchez, 963 F.2d 152, 154-
55 (8th Cir. 1992), the defendant Sanchez provided illegal aliens
with apartments and immigration papers. The Court of Appeals
agreed that this justified Sanchez’s conviction for shielding,
harboring, or concealing under § 1324. Id. at 155-56. In yet
another decision, United States v. Varkonyi, 645 F.2d 453, 459
(5th Cir. 1981), the defendant forcibly interfered with INS
agents to prevent the aliens’ apprehension. In addition, the
defendant provided both employment and lodging to the aliens
and assisted at least one of them to escape from INS custody. Id.

       It is true, as the government argues, that some activity
short of providing shelter would violate the statute. In United
States v. Rubio-Gonzalez, 674 F.2d 1067, 1069-70 (5th Cir.
1982), several INS agents undertook to investigate whether
certain employees at a Texas work site were illegal aliens. Upon
entering the work area, one agent stopped Rubio-Gonzalez and
asked him for identification. The identification established that
Rubio-Gonzalez was a legal resident. As the agents proceeded
to look for other employees, Rubio-Gonzalez sped away on his

                                17
motorcycle to another part of the work site. He then began
speaking loudly and making gestures towards the INS agents,
telling two other individuals (later proven to be illegal aliens)
that the immigration authorities were present. The two aliens
then fled. Id. at 1070.

        The Court of Appeals held that Rubio-Gonzalez’s
conduct in alerting the illegal aliens to flee from investigating
INS officers constituted “shielding from detection” within the
meaning of 8 U.S.C. § 1324.6 Id. at 1072. The court reasoned
that shielding does not imply “any requirement that a physical
barrier of some kind be involved,” nor does it imply that a trick
or artifice be used. Id.

        In Rubio-Gonzalez, there was an immediate threat to the
illegal aliens, that is, the physical presence of the INS agents
who intended to apprehend illegal aliens. Rubio-Gonzalez, who
had knowledge of the imminence of the apprehension, actively
sought out illegal aliens and alerted them. There was a close
temporal proximity between the threat to the illegal aliens and
the warnings the defendant undertook to spread. In addition, the
defendant’s conduct was an affirmative and active response to an
impending threat.

        In contrast, here there is no evidence that Ozcelik knew
about any imminent threat to Tuncer’s immigration status. Nor
is there any evidence that Ozcelik actively attempted to intervene
in or delay an impending immigration investigation.

       We agree with the Fifth Circuit that the terms “shielding,”
“harboring,” and “concealing” under § 1324 encompass conduct
“tending to substantially facilitate an alien’s remaining in the
United States illegally” and to prevent government authorities
from detecting the alien’s unlawful presence. Id. at 1073. We



       6
           Rubio-Gonzalez involved interpretation of an older
version of the statute but the relevant language was almost
identical. Compare 674 F.2d at 1069 n.1 (quoting 8 U.S.C. §
1324(a)(3)), with 8 U.S.C. § 1324(a)(1)(A)(iii).

                                 18
also agree that shielding does not require the use of a physical
barrier, artifice, or trick. Nonetheless, we must examine whether
Ozcelik’s conduct fits within the statutory language as construed
by the other courts of appeals.

        The government cites the following evidence as proof
that Ozcelik tended to substantially facilitate Ozcelik’s
remaining in the United States. During their March 24 meeting,
Ozcelik stated to Tuncer, “You are not going to get involved in
anything for 3-5 months in order to keep your status. Go to your
work and come back home in silence, cook your food, do that
only.” App. at 988. Ozcelik continued, “The most important
thing is for you to not get involved in anything here, to not get
involved in any activity.” App. at 989. In a similar vein,
Ozcelik said to Tuncer, “That’s why I’m telling you to stay away
from everything for 4-5 months. Stay away from everything.
Are you going to your job? Go, then come back home.” App. at
992.

         Ozcelik also commented that “it is a good thing that
you’ve changed your address. I mean your legal address is
different. You are living with a friend here. Disappear, don’t
tell anyone what address you’re staying at.” App. at 992. Later,
he said, “Stay away. Stay away from everything for 5-6 months.
. . . Especially the address thing is very important.” App. at 994.
Ozcelik stated, “[A]s I said before stay low key for 5-6 months,
because you do not have any rights.” App. at 996. In a later
recorded telephone conversation, Ozcelik said to Tuncer, “I told
you, don’t do anything, I mean don’t go left and right a lot.”
App. at 999. This constitutes the totality of the evidence on
which the government relies.

        The government argues that because Ozcelik gave Tuncer
many instructions, including telling Tuncer to hide, how to hide,
and to use multiple addresses to avoid detection by the
authorities, Ozcelik provided “counseling” that violates the
statute. We disagree. Instead, we view Ozcelik’s comments as
general advice to, in effect, keep a low profile and not do
anything illegal. Ozcelik suggested that Tuncer stay out of
trouble. Telling an illegal alien to stay out of trouble does not

                                19
tend substantially to facilitate the alien remaining in the country;
rather, it simply states an obvious proposition that anyone would
know or could easily ascertain from almost any source.
Moreover, Tuncer had already changed his address before he
even spoke to Ozcelik. Ozcelik’s comments about that fact,
therefore, were irrelevant because Tuncer had already taken the
action on his own accord. Holding Ozcelik criminally
responsible for passing along general information to an illegal
alien would effectively write the word “substantially” out of the
test we have undertaken to apply. We decline to do so.

       Considering the evidence in the light most favorable to
the government we conclude that no reasonable juror could find
that Ozcelik’s conduct tended to substantially facilitate Tuncer’s
remaining in the United States illegally. We therefore reverse
Ozcelik’s conviction under 8 U.S.C. § 1324 (Count Two of the
Indictment) and will remand for resentencing.

      Because we reverse Ozcelik’s conviction with respect to
Count Two, the harboring charge, only one offense of conviction
remains. Therefore, Ozcelik’s contention that his two offenses
of conviction should have been “grouped” for sentencing
purposes is moot.

                               IV.
                            Conclusion

       For the above-stated reasons, we will affirm the judgment
of conviction in part and reverse in part. We will remand for
resentencing.




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