                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-2869
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Braulio Pereyra-Gabino,                *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: March 12, 2009
                                Filed: April 16, 2009
                                 ___________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Braulio Pereyra-Gabino was convicted by a jury of concealing or shielding
from detection illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), and
sentenced to twelve months and one day imprisonment which was stayed by the
district court. On appeal Pereyra-Gabino challenges the sufficiency of the
indictment and the evidence and argues that his First Amendment rights were
violated by the prosecution, the jury instructions were flawed, and a sentencing
enhancement should not have been applied. We reverse.
       Swift and Company operates a meat packaging plant in Marshalltown, Iowa.
The plant employs approximately 2,200 people, a significant portion of whom are
Hispanic. As required by law, applicants for employment at Swift must complete
an I-9 form and submit two types of identification in order to ensure eligibility for
work in the United States. Swift also voluntarily participates in E-Verify,1 a social
security number verification protocol operated by the Department of Homeland
Security and the Social Security Administration which is designed to provide
further assurance of employment eligibility.

       Pereyra-Gabino was a senior representative at Swift for the United Food and
Commercial Workers Union Local 1149. On behalf of the union, Pereyra-Gabino
recruited new members and represented plant workers in their interaction with
Swift management. Because Pereyra-Gabino is a native Spanish speaker his
recruiting and representation duties typically were directed at Swift's Hispanic
employees. Another senior union representative performed similar functions for
English speaking employees.

      On August 22, 2006, an undercover Immigration and Customs Enforcement
(ICE) agent attended a union orientation presentation made to new employees by
Pereyra-Gabino. Each of the employees in attendance had already completed the I-
9 and E-Verify protocols. During the hour long presentation, which was recorded
by the ICE agent, Pereyra-Gabino made several statements which the prosecution
considered evidence of concealing or shielding from detection illegal aliens. First,
Pereyra-Gabino instructed employees to use authentic identification documents
outside of the Swift plant regardless of the form of identification they had
presented at work. Second, he offered to facilitate the provision of legal assistance
in the event employees were subject to wage garnishment or other penalties
associated with their employment identity. Third, Pereyra-Gabino provided his

      1
       E-Verify was known formerly as the Basic Pilot/Employment Eligibility
Verification Program and is referred to as such in Pereyra-Gabino's appellate brief.

                                         -2-
contact number for use in the event a plant worker was apprehended by law
enforcement. Finally, he discouraged employees from disclosing their immigration
status to him. At trial the prosecution introduced evidence of a contrasting
presentation delivered to new English speaking employees in October 2006 by
Pereyra-Gabino's counterpart which appeared to be focused on union specific
matters.

       Pereyra-Gabino was charged on April 25, 2007 with concealing or shielding
from detection aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The indictment
states in relevant part:

      On or about June, 2003, and to the present . . . defendant, BRAULIO
      PEREYRA-GABINO, knowing or in reckless disregard of the fact
      that aliens, namely, employees of Swift and Company had come to,
      entered and remained in the United States in violation of law, did
      conceal, and shield from detection and attempted to conceal, and
      shield from detection such aliens . . . .

       Pereyra-Gabino moved to dismiss the indictment, claiming that the charge
was impermissibly vague in violation of the Due Process Clause of the Fifth
Amendment because it failed to inform him of the specific date of the acts charged
or the specific aliens allegedly concealed and shielded. He also argued that the
indictment was duplicitous in violation of the Due Process Clause and his Sixth
Amendment right to a unanimous jury verdict because it charged him with
shielding and concealing multiple aliens while the allowable unit of prosecution
under the statute is a single alien. As Pereyra-Gabino explained, "[b]y listing
'employees of Swift and Company' . . . the conduct charged could involve any of
hundreds of individuals who may have worked at the Swift plant in the last four
years."

     Despite finding deficiencies with the indictment, the district court denied the
motion. Although it agreed that the indictment was probably duplicitous, the court

                                        -3-
concluded that “any duplicity in the indictment can be cured by an appropriate
instruction to the jury requiring that it must unanimously agree on Mr. Pereyra-
Gabino's guilt with respect to a specific alien(s).” The district court further
determined that the indictment was not vague because the dates of the alleged
conduct and the identity of the aliens shielded and concealed are not essential
elements of the offense charged. It nevertheless found a bill of particulars to be
necessary, explaining "while the form used by the Government in the present case
may not render this indictment defective . . . the Government cannot put Mr.
Pereyra-Gabino in a more difficult position than if it had charged the offense in a
more appropriate manner."

      The government filed a bill of particulars on October 5, 2007. Paragraph
one stated in relevant part:

      The new worker orientation at Swift consists of a series of
      meetings. . . . On August 22, 2006, the recorded presentation by the
      union was given to newly hired Spanish speaking employees by
      Pereyra-Gabino. A list of participants was prepared broken down by
      language, sex, employee ID#, name, last four digits of the SS#, and
      shift.

The government attached a list of twenty eight employees who allegedly attended
this meeting. It claimed that six of the individuals had been identified by ICE as
"suspect." Paragraph two of the bill stated that "[s]everal individual aliens have
cooperated with the government regarding their Swift employment and the activity
of Pereyra-Gabino" and listed seven such people, including Veronica Martinez-
Mesa, the only one among them who later testified at trial. Paragraph three of the
bill stated that "[o]ther individual Swift employees have rented apartments from
Pereyra-Gabino. An advertisement would be placed in the Swift plant with a
telephone number. Various individual workers would then rent apartments from
Pereyra-Gabino." Paragraph four of the bill stated that "[c]ertain of these [renters]
have been deported . . . ."

                                         -4-
       Pereyra-Gabino moved once again to dismiss the indictment, arguing that
the indictment as supplemented by the bill of particulars remained vague in
violation of the Fifth Amendment and duplicitous in violation of the Fifth and
Sixth Amendments because the "bill never states that . . . any of the 2[8] persons
listed in the exhibit, or any of the other [seven] persons specifically named, is the
alien alleged to be harbored in the indictment." According to the motion, "the jury
will have the potential of up to thirty five specific people to chose [sic] from in
determining if an alien was harbored. There is nothing that requires the jury to all
agree on one individual alien." Pereyra-Gabino also separately moved to dismiss
the indictment for violation of the First Amendment because the government
intended to use as evidence the recorded union orientation talk which he argued
was protected speech under Brandenburg v. Ohio, 395 U.S. 444 (1969).

        The district court denied Pereyra-Gabino’s second and third motions to
dismiss. Although it acknowledged that "the Government's bill of particulars is not
a model of clarity" and did not "meaningfully restrict the government in order to
fulfill the purpose of the bill," the district court concluded that it could remedy
concerns with duplicity by "draft[ing] the verdict forms in such a manner as to
ensure that [the] right to a unanimous jury verdict is adequately protected." The
district court did rule, however, that "for purposes of the trial, the aliens at issue are
limited to those individuals identified by name on the orientation list and those
specifically named in the bill." Although the district court agreed that “there are
significant First Amendment concerns raised by this indictment and the record thus
far," it found it inappropriate to rule on the motion to dismiss until after the
government presented its evidence.

      A superseding indictment was returned on April 23, 2008. It charged
Pereyra-Gabino with false representation of a social security number, in violation
of 42 U.S.C. § 408(a)(7)(B), and aggravated identity theft, in violation of 18
U.S.C. § 1028A. On May 1, 2008, five days prior to trial, the government filed a


                                           -5-
supplemental bill of particulars listing two additional individuals whom Pereyra-
Gabino allegedly shielded and concealed: Miguel Mendoza-Lopez and "the person
using the identity of Mohamed Carrasquillo." Although the supplemental bill of
particulars identified thirty seven such individuals, the list was narrowed somewhat
at trial leaving the jury to consider Veronica Martinez-Mesa, Miguel Mendoza-
Lopez, "the person using the identity of Mohamed Carrasquillo," and the twenty
eight individuals alleged to have been present at the August 22, 2006 talk.

       At trial the government played a recording of the August 22, 2006 talk.
Before doing so, the district court acknowledged that whether the presentation was
inadmissible protected speech or admissible incitement to imminent unlawful
conduct was a close call and presented “many issues and difficulties and a rather
unchartered course for this Court.” The record reflects that the undercover ICE
agent present at the 2006 presentation testified that he had “assume[d]” all those in
attendance were eligible to work in the United States because “they’re being
hired.”

      Two aliens, Veronica Martinez-Mesa and Miguel Mendoza-Lopez, both
former Swift employees, testified to attending union presentations but not the one
recorded in 2006 and played for the jury at trial. They testified that during the
presentations they attended, Pereyra-Gabino provided his contact information for
use in the event plant workers were detained by the police, instructed the new
employees to use authentic identification documents outside of the plant, and
offered to facilitate the provision of legal assistance. Martinez-Mesa and
Mendoza-Lopez also testified to having received legal assistance through Pereyra-
Gabino.

       After Martinez-Mesa was arrested by state authorities in 2006 for identity
theft and forgery, she contacted Pereyra-Gabino for referral to a lawyer. Pereyra-
Gabino provided the referral and accompanied her to a meeting where he served as


                                         -6-
a translator.2 The state did not prosecute her, however, because Martinez-Mesa
had also been charged by federal immigration officials with social security fraud,
use of false documents, and aggravated identity theft which presented a more
severe penalty. Martinez-Mesa faced up to seven years imprisonment on the
federal charges in addition to deportation. In exchange for her cooperation with
the Pereyra-Gabino investigation, which included secretly recording several
conversations with him, the government entered into a plea agreement with
Martinez-Mesa. Under the terms of the agreement Martinez-Mesa pled guilty to
the use of false documents and was sentenced to two months already served, and
the government agreed not to pursue the remaining charges. Immigration
authorities also appear to have afforded Martinez-Mesa and her husband, who too
was in the country illegally, the right to work and remain in the United States.

       When Mendoza-Lopez was erroneously subjected to wage garnishment for
child support, Pereyra-Gabino referred him to a lawyer who succeeded in having
the penalty removed. The wage garnishments resumed again two years later,
however, and Mendoza-Lopez wrote a letter to union officials accusing Pereyra-
Gabino of "robbery" for having referred him to a lawyer who had only been
partially successful.    Shortly thereafter Mendoza-Lopez was arrested by
immigration officials. Prior to the commencement of deportation proceedings,
however, Mendoza-Lopez offered to cooperate with the government in its
investigation of Pereyra-Gabino. In exchange for his cooperation, Mendoza-Lopez
entered into an agreement with immigration officials authorizing his continued
presence in the United States and conferring upon him the right to work.


      2
        At trial and within its appellate brief the government repeatedly characterized
as a judge, the attorney who was helping Martinez-Mesa, despite ample evidence that
the attorney was acting in an advocate capacity (he was a part time state magistrate
judge otherwise entitled to practice law). From this it could have been unfairly
inferred by the jury that Pereyra-Gabino was attempting to influence a state official
acting in his judicial capacity.

                                         -7-
      Before the jury was instructed, Pereyra-Gabino objected to instruction
number twelve. It was later given by the court without modification and read as
follows:

      The crime of shielding from detection or concealment of an alien
      illegally in the United States . . . has three essential elements which
      are:

      1. One or more of the following individuals was an alien in the United
      States in violation of the law:

            Veronica Martinez-Mesa
            Miguel Mendoza-Lopez
            The person using the identity of Mohamed Carrasquillo
            Any individual in attendance at Swift union orientation given
            by defendant on August 22, 2006

      2. Defendant, Braulio Pereyra-Gabino, knew or was in reckless
      disregard of the fact that one or more of the individuals identified in
      numbered paragraph one above were in the United States in violation
      of the law; and

      3. Defendant, Braulio Pereyra-Gabino, knowingly shielded from
      detection or concealed or attempted to shield from detection or
      conceal one or more of the individuals identified in numbered
      paragraph one above . . . .

      If all three essential elements have been proved beyond a reasonable
      doubt as to defendant, then you must find defendant guilty of the
      crime charged in Count One; otherwise you must find defendant not
      guilty of the crime charged in Count One. In order to find defendant
      guilty of the crime charged in Count One, you must find beyond a
      reasonable doubt that defendant shielded from detection or concealed
      or attempted to shield from detection or conceal at least one particular
      alien identified above. If you are unable to agree to at least one
      particular alien then you must find defendant not guilty.


                                        -8-
      This instruction was followed by a verdict form which stated in
relevant part:

      With regard to the crime of harboring illegal aliens, charged in Count
      1, we, the jury, find the defendant Braulio Pereyra-Gabino GUILTY

      With respect to the individual aliens at issue, we, the jury, find that
      defendant Braulio Pereyra-Gabino harbored or attempted to harbor the
      following illegal alien(s):

             Veronica Martinez-Mesa YES
             Miguel Mendoza-Lopez YES
             The person using the identity of Mohamed Carrasquillo NO
             One or more of the individuals in attendance at Swift union
             orientation given by defendant on August 22, 2006 YES

The jury found Pereyra-Gabino not guilty of Count Two, identity theft, and Count
Three, social security fraud.

       After trial Pereyra-Gabino filed a combined post trial motion for judgment
of acquittal, new trial, and arrest of judgment. The district court concluded that the
verdict regarding individuals who had actually heard the August 22, 2006
orientation talk could not be sustained because there was a lack of direct evidence
that any of these individuals was illegally in the United States. The district court
sustained the verdict regarding Martinez-Mesa and Mendoza-Lopez after finding
the evidence sufficient to support the verdict. Neither had been at Pereyra-
Gabino's 2006 speech which the jury had heard at trial. The district court rejected
arguments made by Pereyra-Gabino based on the First Amendment, the jury
instructions, the nature of the indictment, and other issues. After a finding that
Pereyra-Gabino had abused a position of trust, the district court imposed a two
level guideline enhancement under USSG § 3B1.3 and sentenced him to 12 months
and one day, a fine of $2,000, and two years of supervised release. The district
court allowed Pereyra-Gabino to remain on bond pending appeal.

                                         -9-
       Pereyra-Gabino appeals, claiming: (1) the district erred in not dismissing the
indictment as duplicitous and vague in violation of the Fifth and Sixth
Amendments; (2) a conviction based in part on his union recruiting speech violates
the First Amendment; (3) jury instruction number twelve permitted the jury to
convict him of concealing or shielding illegal aliens without finding that each
element of the crime was present for the particular alien named in the instruction
being considered by the jury; (4) the evidence was insufficient to sustain a verdict
for shielding or concealing either Martinez-Mesa or Mendoza-Lopez; and (5) the
district court erred in adding a two level sentencing enhancement based on a
finding that Pereyra-Gabino abused a position of trust.

       We review the district court’s jury instructions for an abuse of discretion.3
Slidell, Inc. v. Millennium Inorganic Chem., Inc., 460 F.3d 1047, 1054 (8th Cir.
2006). In order to be adequate jury instructions must, “taken as a whole adequately
advise the jury of the essential elements of the offenses charged and the burden of
proof required of the government.” United States v. Rice, 449 F.3d 887, 895 (8th
Cir. 2006) (quoting United States v. Sherer, 653 F.2d 334, 337 (8th Cir. 1981))
(internal alteration omitted). "We will reverse a jury verdict . . . when the errors
misled the jury or had a probable effect on the jury’s verdict.” Slidell, 460 F.3d at
1054. Pereyra-Gabino argues that jury instruction number twelve permitted the
jury to convict him without finding that each element of the crime was committed
with respect to a particular alien concealed or shielded. Pereyra-Gabino contends



      3
        The government argues that Pereyra made only a general objection to jury
instruction number twelve and that our review should therefore be for plain error. At
the close of trial the district court asked for objections to the jury instructions and
Pereyra-Gabino informed the court that “[f]or all the reasons stated in the prior
motions to dismiss, we do object to Instruction No. 12, the marshaling instruction for
harboring, in that it includes multiple aliens in the instruction.” We find this objection
sufficient to preserve the jury instruction for review. In any event our analysis under
the plain error standard would lead to the same conclusion.

                                          -10-
that the unanimity instruction did not remedy these errors. After reviewing the
instruction and unanimity language, we conclude that Pereyra-Gabino is correct.

       The jury instructions describe the elements of the crime charged as follows:
First, that "[o]ne or more of the following individuals was an alien in the United
States in violation of the law." Second, that Pereyra-Gabino "knew or was in
reckless disregard of the fact that one or more of the individuals identified in
numbered paragraph one above were in the United States in violation of the law."
Third, that Pereyra-Gabino "knowingly shielded from detection or concealed or
attempted to shield from detection or conceal one or more of the individuals
identified in numbered paragraph one above."

       These instructions did not require the jury to find that each individual
Pereyra-Gabino "knowingly shielded from detection or attempted to shield from
detection or conceal" was "in the United States in violation of law” and that
Pereyra-Gabino “knew or was in reckless disregard” of that fact. Instead, the
instructions permitted the jury to mix and match "the individuals identified" to the
essential elements of the crime charged. While in some circumstances a general
unanimity instruction can cure a deficiency in the body of the instruction, see, e.g.,
United States v. Nattier, 127 F.3d 655, 660 (8th Cir. 1997), neither the unanimity
instruction nor the verdict form suffice here. The verdict form also introduces
additional uncertainty because it uses the language “harbored or attempted to
harbor” to describe the conduct charged while the jury instruction identifies the
crime as “shielding from detection or concealment.”

      It is true that jury instructions need not be “technically perfect or even a
model of clarity.” United States v. Garcia-Gonon, 433 F.3d 587, 591 (8th Cir.
2006) (quoting United States v. Gianakos, 415 F.3d 912, 920 (8th Cir. 2005)).
Nevertheless, they must inform the jury of the essential elements of the offense
charged and the government’s burden of proof, Rice, 449 F.3d at 895, both of


                                        -11-
which the instructions failed to do in this instance. Although an instructional error
will be deemed harmless in light of the overwhelming evidence of guilt, United
States v. Cacioppo, 460 F.3d 1012, 1025 (8th Cir. 2006), this is not such a case.
The government’s proof that Pereyra-Gabino shielded from detection or concealed
or attempted to shield from detection or conceal either Martinez-Mesa and
Mendoza-Lopez is not overpowering.

      Because of our conclusions regarding the instructions and the manner in
which the case was submitted to the jury, reversal is in order and we need not reach
Pereyra-Gabino’s additional arguments. For the reasons previously stated we
reverse the judgment and remand to the district court for further proceedings.4

                             _____________________




      4
       On remand the district court may want to start by revisiting Pereyra-Gabino’s
motions to dismiss the indictment and considering the possible relevance of any of the
conclusions here.


                                        -12-
