                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0150p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 03-2538
          v.
                                                     ,
                                                      >
 PATRICK MICHAEL STONEFISH,                          -
                            Defendant-Appellant. -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                   No. 02-81106—Arthur J. Tarnow, District Judge.
                                     Argued: January 28, 2005
                                Decided and Filed: March 30, 2005
                   Before: MERRITT, MOORE, and GILMAN, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Robert J. Dunn, Bay City, Michigan, for Appellant. Patricia G. Gaedeke, ASSISTANT
UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Robert J. Dunn,
Bay City, Michigan, for Appellant. Patricia G. Gaedeke, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
         RONALD LEE GILMAN, Circuit Judge. Patrick Michael Stonefish was driving a car with
seven Chinese nationals inside when he was arrested as he headed toward Detroit on Interstate 94.
A jury convicted Stonefish of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
The district court then sentenced him to 30 months in prison. On appeal, Stonefish argues that the
district court (1) erred in concluding that there was sufficient evidence to support the jury’s guilty
verdict, (2) committed plain error in using a special verdict form that allegedly did not require the
jury to find him guilty of all of the essential elements of the crime, and (3) erred in failing to grant
him a three-point reduction in his base-offense level because he allegedly did not transport the
illegal aliens with a profit motive. For the reasons set forth below, we AFFIRM the judgment of
the district court with respect to the sufficiency of the evidence and the use of the special verdict
form, but express NO OPINION regarding its failure to reduce Stonefish’s base-offense level
because this issue was mooted when Stonefish was released from federal custody.



                                                   1
No. 03-2538           United States v. Stonefish                                               Page 2


                                       I. BACKGROUND
       On the evening of December 9, 2002, United States immigration agents were monitoring an
abandoned parking lot on the American side of the St. Clair River near Algonac, Michigan. The
parking lot was known to have been used in the past by smugglers of illegal aliens. At about 8 p.m.,
the agents observed a gray station wagon pull into the parking lot, extinguish its lights, wait a few
minutes, and then drive away. The car returned and repeated this pattern once more before 10 p.m.
        Meanwhile, on the Canadian bank of the St. Clair River, seven Chinese nationals were
loaded into a small wooden boat and piloted across the river to the American side. The agents
observing the parking lot saw the boat pull to shore, unload its passengers in the shadows near the
river’s bank, and then leave. After the passengers had been crouching in the snow near the water
for about 20 minutes, the station wagon once again returned to the parking lot at 10:25 p.m. When
the driver got out of the car and motioned to the people huddled by the river, they all quickly
climbed in. The car then left the parking lot. After taking a circuitous route, the car eventually
made its way to Interstate 94 and began heading west toward Detroit. Soon after the car entered the
interstate highway, it was pulled over by immigration agents. The driver of the station wagon
(Stonefish) and the seven Chinese nationals were arrested.
        None of the passengers in the car spoke English. Nor had any of them ever met Stonefish
prior to that evening. When they were later questioned, the passengers told the immigration
authorities that Stonefish spoke some words to them in English, but that they did not understand
what he was saying. They also reported that there was no communication between Stonefish and
his passengers about where they were going.
        Testimony offered at trial by the immigration agents monitoring the parking lot and by the
seven passengers in the car indicated that Stonefish was a part of a large conspiracy to smuggle
Chinese nationals into the United States. The members of the conspiracy assisted aliens in
emigrating to Canada, crossing the St. Clair River, entering into the United States illegally, and then
traveling by car to New York City.
         Following his conviction by the jury for transporting illegal aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), Stonefish made an oral pro se motion to arrest judgment pursuant to Rule 34
of the Federal Rules of Criminal Procedure. Shortly thereafter he also filed a written pro se motion
under 28 U.S.C. § 2255 to vacate his sentence. The district court heard oral argument on both
motions, at which time Stonefish was represented by new counsel. After denying his motions, the
district court sentenced Stonefish to 30 months in prison. This timely appeal followed.
                                          II. ANALYSIS
A.     The evidence was sufficient to support the jury’s finding that Stonefish was guilty of
       transporting illegal aliens
       Stonefish argues that the evidence presented at trial was insufficient to support the jury’s
determination that he “knew that the passengers he transported were illegal immigrants,” or that he
transported them “willfully in furtherance of an illegal scheme.” In evaluating this claim, we must
“view the evidence in the light most favorable to the government and will affirm the jury’s verdict
unless no rational trier of fact could have found, beyond a reasonable doubt, that [Stonefish]
committed the offenses charged.” United States v. Morrow, 977 F.2d 222, 230 (6th Cir. 1992) (en
banc) (“Our review of the sufficiency of the evidence is quite limited.”).
       Stonefish was convicted of violating 8 U.S.C. § 1324(a)(1)(A)(ii), which provides that the
offense of transporting illegal aliens is committed by any person who,
No. 03-2538           United States v. Stonefish                                                 Page 3


        knowing or in reckless disregard of the fact that an alien has come to, entered, or
        remains in the United States in violation of law, transports, or moves or attempts to
        transport or move such alien within the United States by means of transportation or
        otherwise, in furtherance of such violation of law.
“The ‘violation of law’ to which the provision refers is the illegal alien’s continued illegal presence
in the United States.” United States v. 1982 Ford Pick-Up, 873 F.2d 947, 950 (6th Cir. 1989). In
order to find that a defendant has acted “in furtherance of such violation of law,” a court must
conclude that the specific intent of the person transporting the illegal aliens was “to deliberately
assist an alien in maintaining his or her illegal presence” in this country. Id. at 951. This court has
determined that there is a “principled distinction between acts performed with the purpose of
supporting or promoting an alien’s illegal conduct, and acts which are incidental to or merely permit
an individual to maintain his existence.” Id. (citation and quotation marks omitted). Accordingly,
a person who knowingly gives an alien a ride to a homeless shelter may not be prosecuted under the
above statute for transporting an illegal alien. Id. In contrast, a person who knowingly smuggles
illegal aliens across the country may properly be convicted thereunder. Id.
         At trial, the government bore the burden of establishing beyond a reasonable doubt that
Stonefish acted with the requisite state of mind; i.e., that he willfully transported the seven Chinese
nationals with the intent of supporting and promoting their illegal presence in the United States. See
id. at 950-51 (noting that, in interpreting the statute, the court is “guided by the fact that as a penal
statute it must be strictly construed”) (quotation marks omitted). Stonefish alleges that the
government failed to show his specific intent because it introduced no evidence that he was ever
compensated or that he knew where the aliens he transported wished to go. He insists that the
evidence presented at trial “could just as easily be characterized as a humanitarian gesture picking
up human beings shivering in the cold out in the night.”
        In discerning Stonefish’s state of mind, the jury was permitted to consider any credible
evidence, direct or circumstantial, regarding his intentions in transporting the Chinese nationals.
See 1982 Ford Pick-Up, 873 F.2d at 951. This may include consideration of “whether the defendant
was compensated for the transportation, what efforts the defendant took to conceal or harbor the
illegal aliens[,] and whether the illegal aliens were friends, co-workers, or companions of the
defendant, or merely human cargo that was being shipped.” United States v. Perez-Gonzalez, 307
F.3d 443, 445-46 (6th Cir. 2002) (citation and quotation marks omitted). Stonefish makes much of
the fact that “[t]here was no evidence that he was ever compensated” for transporting the Chinese
nationals.
        True enough, there was no direct evidence presented at trial regarding whether the illegal
aliens in Stonefish’s car paid anyone to get them from China to the United States. The district court
determined, sua sponte and perhaps erroneously, that this information was irrelevant and prejudicial.
Significant circumstantial evidence was presented, however, suggesting that Stonefish’s only
possible motive was monetary. He did not know any of the aliens that he picked up, could not
communicate with any of them to determine where they wanted to go, and did not explain why he
was periodically checking on this abandoned parking lot late at night on December 9, 2002.
Moreover, Stonefish presented no evidence to rebut the inference that he was being compensated
for transporting the Chinese nationals.
         Evidence was also presented that Stonefish took considerable pains to conceal and harbor
the Chinese nationals. He met them late at night in an isolated location across from the Canadian
border, turned off the lights on the car he was driving, motioned to them to get into the car instead
of calling out to them, and then took a circuitous route to the interstate highway. In Perez-Gonzalez,
307 F.3d at 444, 446, the fact that the defendant had taken “a rather unusual route” and “purposely
No. 03-2538            United States v. Stonefish                                                   Page 4


departed late at night” was found to be strong evidence supporting the defendant’s conviction for
transporting illegal aliens.
        Furthermore, the Chinese nationals who testified at Stonefish’s trial said that they squatted
in the shadows and traveled at night because they were “scared the cops would find us.” Stonefish
offered no explanation for his suspicious actions and failed to rebut the inference that he was
attempting to smuggle the illegal aliens into the United States. See Perez-Gonzalez, 307 F.3d at 446
(concluding that evidence that the illegal aliens “were also clearly attempting to evade the law”
supported the jury’s verdict that the defendant had intentionally transported them).
        In addition, Stonefish failed to demonstrate that the aliens were anything more to him than
“human cargo,” Perez-Gonzalez, 307 F.3d at 446, that he was transporting to New York City. Cf.
1982 Ford Pick-Up, 873 F.2d at 952 (finding that the defendants were not guilty of transporting
illegal aliens where “[t]heir purpose was to promote the well-being of friends and relatives by
helping them obtain employment”). Stonefish concedes in his brief that “there was no evidence that
any of the illegal aliens were friends, co-workers, or companions” of his.
        Although Stonefish contends that the above circumstantial evidence was equally consistent
with a finding that he had welcomed the Chinese nationals into his vehicle solely as a humanitarian
gesture, the jury was free to find that the evidence was sufficient to convict Stonefish of intentionally
transporting the illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). See Perez-Gonzalez, 307
F.3d at 445 (“We may find sufficient evidence even though the circumstantial evidence does not
remove every reasonable hypothesis except that of guilt.”) (citation and quotation marks omitted).
We therefore conclude that the evidence was sufficient to support the jury’s verdict.
B.      The district court did not commit reversible error by using a special verdict form
        Stonefish also argues that the district court clearly erred in using a special verdict form
“which required the jury to specify which of the two theories under which they found the defendant
guilty.” The use of a special verdict form in a criminal case is normally reviewed for an abuse of
discretion, United States v. Kimes, 246 F.3d 800, 810 (6th Cir. 2001), but because Stonefish did not
object at trial, his appeal on this issue must be analyzed under the “plain error” standard of review
provided by Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Reed, 147
F.3d 1178, 1180 (9th Cir. 1998) (reviewing “for plain error the use of a special verdict where there
was no defense objection”).
         Rule 52(b) provides that “[a] plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.” The Supreme Court has said that “before
an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and
(3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (citation
and quotation marks omitted). Where all three of these conditions are met, “an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 467 (citation and quotation
marks omitted).
        In support of his argument that the district court committed plain error in using a special
verdict form, Stonefish points out that “there is no provision in the Federal Rules for special verdict
forms in criminal cases,” and that the “Sixth Circuit has held that special verdict forms are not
favored.” Stonefish is correct that, “[i]n general, special verdicts are not favored and may in fact
be more productive of confusion than of clarity.” United States v. Wilson, 629 F.2d 439, 444 (6th
Cir. 1980) (citation and quotation marks omitted). This court has held that general verdicts in
criminal cases are preferred because “a jury is entitled to acquit the defendant because it has no
sympathy for the government’s position. It has a general veto power, and this power should not be
No. 03-2538           United States v. Stonefish                                               Page 5


attenuated by requiring the jury to answer in writing a detailed list of questions or explain its
reasons.” Id. at 443.
         But the pronouncement that special verdicts are disfavored in criminal cases does not compel
the conclusion that the district court erred in using a special verdict in Stonefish’s case. The Sixth
Circuit found in 1980 that the use of special verdict forms in criminal cases was “rare” and that this
fact supported the court’s decision to set aside the jury’s verdict. Wilson, 629 F.2d at 443. Over the
course of the last two decades, however, “[e]xceptions to the general rule disfavoring special
verdicts in criminal cases have been expanded and approved in an increasing number of
circumstances.” Reed, 147 F.3d at 1180-81 (reviewing cases from eight different federal circuits,
and concluding that “[t]hese cases make it clear that use of a special verdict form is a matter of the
district court’s discretion to be determined on the facts of each case”).
         Special verdict forms should not be used in cases where they confuse the jury or improperly
shift the burden of proof on an issue from the government to the defendant. Wilson, 629 F.2d at 444.
Stonefish contends that in his case “the form must have confused the jury since they had a question
regarding the two different theories upon which the Defendant could be convicted.” The special
verdict form contained the following language:
       We the jury, after due deliberation, unanimously find as follows:
       (1) We find that the defendant transported the aliens within the U.S., knowing that
       they had come to, entered or remained in the country illegally.
       Yes____ No____.
                                             -OR-
       (2) We find that the defendant transported the aliens within the U.S., with reckless
       disregard to the fact that they had come to, entered or remained in the country
       illegally.
       Yes____ No____.
         The special verdict form required that the jury unanimously agree and then check one of the
lines to indicate the theory upon which it was basing its verdict. There was thus no danger that some
jurors voted to convict Stonefish based on their belief that his conduct was knowing while other
jurors convicted him because they believed that he acted with reckless disregard. See United States
v. Kimes, 246 F.3d 800, 810 (6th Cir. 2001) (noting that a special verdict form may be used to ensure
that a jury is “unanimous on which type of conduct occurred” before convicting a defendant).
Because Stonefish has not demonstrated how under the circumstances of his case the jury could have
been confused, the district court cannot be said to have abused its discretion, much less committed
plain error, in using a special verdict form. See Reed, 147 F.3d at 1181 (“Where a special verdict
form requires the jury to determine the occurrence of any of a series of acts, each of which is
sufficient to constitute the indicated crime, the traditional concerns regarding special verdicts are
not implicated.”).
        Stonefish further argues that even if the use of a special verdict form was appropriate in this
case, the court erred in using a form that “did not provide that the jury find the essential elements
of the charged offense.” Citing longstanding Supreme Court precedent, Stonefish contends that a
special verdict form must contain all of the elements of the crime charged or else the jury’s verdict
must be set aside. See United States v. Jackalow, 66 U.S. 484 (1861) (“A special verdict finding that
the offence was committed by the prisoner at a place designated, but omitting to find that it was
outside the limits of any State, must be set aside.”). But see United States v. Robbs, No. 01-2043,
2003 WL 22128710, at *7 (6th Cir. Sept. 12, 2003) (unpublished) (finding that the special verdict
form improperly omitted an element of the charged crime, but affirming the conviction because the
jury instructions adequately informed the jury of its obligation to find the element).
No. 03-2538            United States v. Stonefish                                                  Page 6


        Stonefish alleges that the special verdict form in his case was inadequate because it did not
require the jury to find that he knew that the Chinese nationals he transported were illegal aliens or
that he intended to further his passengers’ illegal presence in the United States. But the special
verdict form did require that the jury find that Stonefish had transported the aliens either “knowing
that they had . . . entered . . . illegally” or “with reckless disregard to the fact that they had come to,
entered or remained in the country illegally.” The first of Stonefish’s contentions is thus easily
dismissed.
          His second objection to the special verdict form, however, is more problematic. Nowhere
on the special verdict form does it state that the jury was required to find that Stonefish transported
the illegal aliens for the purpose of furthering their illegal presence in the United States. A person
who knowingly gives an illegal alien a ride to a homeless shelter could be convicted under the law
as it is stated in the special verdict form used in this case. See United States v. 1982 Ford Pick-Up,
873 F.2d 947, 950-51 (6th Cir. 1989) (“The mere transportation of a person known to be an alien
is not sufficient to constitute a violation of the section. . . . [A] person must act so as to deliberately
assist an alien in maintaining his or her illegal presence.”) (citation and quotation marks omitted).
Looking at the jury instructions as a whole, however, reveals that the jury in this case was informed
that there were four elements that must be found in order for it to convict Stonefish, one of which
was that he had transported “the person in order to help him remain in the United States illegally”
and not for some “other innocent reason.” See Kimes, 246 F.3d at 810 (stating that “the trial court’s
instructions should be read as a whole to determine whether they fairly and adequately submitted
the issues and applicable law to the jury”) (quotation marks omitted).
        We therefore conclude that the jury instructions as a whole were proper in the present case.
In addition, Stonefish failed to object to the use of the special verdict form at his trial, so he must
show that the district court’s actions constituted plain error under Rule 52(b) of the Federal Rules
of Criminal Procedure. This means that he “must demonstrate prejudice as a result of the error.”
United States v. Lowenstein, 1 F.3d 452, 454 (6th Cir. 1993). Because there was substantial
evidence presented at trial that Stonefish acted with the intent to help his passengers remain in the
United States illegally, and because the jury was instructed that it must find as such, we conclude
that Stonefish’s objection to the special verdict form does not survive the plain error standard of
review.
C.      The issue of whether the district court erred in refusing to grant Stonefish a reduction
        in his sentencing level is now moot
        Stonefish finally contends that the district court should have granted him a three-point
reduction in his base-offense level because he allegedly did not profit while committing the offense.
The United States Sentencing Guidelines § 2L1.1(b)(1) provides for a reduction if the defendant
transported aliens “other than for profit,” or if the defendant was transporting only his spouse or
children. Although Stonefish’s claim would ordinarily require analysis in light of United States v.
Booker, 125 S.Ct. 738 (2005), the issue has been mooted because Stonefish was released from
federal custody on February 10, 2005. See Letter from Patricia G. Gaedeke, Assistant United States
Attorney (Feb. 23, 2005) (stating that Stonefish was released from a halfway house on February 10,
2005). We therefore express no opinion on this claim.
                                         III. CONCLUSION
        For all of the reasons set forth above, we AFFIRM the judgment of the district court with
respect to the sufficiency of the evidence and the use of the special verdict form, but express NO
OPINION regarding its failure to reduce Stonefish’s base-offense level because this issue was
mooted when Stonefish was released from federal custody.
