United States v. Xiang Hui Ye, 08-1333.

Xiang Hui Ye was indicted on one count of concealing, harboring, or shielding from detection illegal aliens, and one count of hiring illegal aliens. A jury convicted Ye on both counts, and the district court sentenced him to 33 months' imprisonment.

Ye appeals, arguing that the court erred in instructing the jury on the meaning of "shielding," a statutory-based term. Relying on a non-statutory standard adopted by several other circuits, Ye claims that the district court's definition of "shielding" was too vague and too broad. For the reasons that follow, we affirm.

At trial, the jury was presented with the following evidence. Investigators visited Buffet City in April 2005 and observed numerous Chinese and Hispanic workers. Ye did not have I-9 forms for any of the employees. An agent advised Ye that I-9 forms and certain other employment documents were required by law. He eventually submitted I-9 forms for some of the Chinese workers, but not for any of the Hispanic employees.

Ye testified he knew illegal Chinese and Hispanic aliens worked at the restaurant and that all of the Hispanics were illegal aliens. He stated he had helped with the hiring of the illegal aliens. Ye admitted entering lease agreements and making rent payments for apartments where illegal aliens lived, and also providing them with transportation to work. Ye declared he did not ask illegal aliens to fill out job applications, tax forms, or other employment documents, even though he knew such documents were required by law. Ye also acknowledged not keeping time cards for the illegal aliens, even though time cards were maintained for other employees.

After retiring for deliberation, the jury sent a note to the court requesting definitions of the statutory-based terms "concealing" and "shielding." Ye objected to the district court giving any definitions to the jury; the government thought definitions were warranted. The district court agreed with the government and gave the jury definitions for the two terms.

The jury found Ye guilty on both counts of the indictment. Ye then moved for a judgment of acquittal or, alternatively, a new trial, which the district court denied. The court sentenced Ye to 33 months' imprisonment. This appeal followed.

On appeal, Ye makes two arguments, both pertaining to his conviction under 8 U.S.C. § 1324(a)(1)(A)(iii). The first is that the supplemental instruction the district court gave the jury on the meaning of "shielding" was erroneous.

A. Supplemental Jury Instruction

Ye claims the district court's instruction on the meaning of "shielding" was erroneous because it was too vague and too broad. The usual standard of review for whether a jury instruction accurately states the law is de novo. United States v. Thornton, 539 F.3d 741, 745 (7th Cir. 2008).

But under Federal Rule of Criminal Procedure 30(d), when a party disagrees with a jury instruction it "must inform the court of the specific objection and the grounds for the objection. . . Failure to object in accordance with this rule precludes appellate review, except as permitted under [plain error review]."

Because Ye likely did not comply with Rule 30(d), our review perhaps should be for plain error only. United States v. Wheeler, 540 F.3d 683, 689 (7th Cir. 2008). And under that standard of review, we rarely reverse a conviction because of an improper jury instruction to which no objection was offered. IdBut assuming Ye did comply with Rule 30(d) and preserved the argument he advances on appeal, he cannot prevail under de novo review because the instruction was not an erroneous statement of the law.

Under 8 U.S.C. § 1324(a)(1)(A)(iii), it is unlawful when a person "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."

The only term at issue here is "shield from detection."Thus defined, the term "shield from detection" essentially means "to protect from or to ward off discovery."  In light of that understanding, there appears to be no problem with the district court defining "shielding" for the jury as "the use of any means to prevent the detection of illegal aliens in the United States by the Government"; "to prevent the detection" is certainly a fair and accurate approximation of "to protect from or to ward off discovery."

We conclude that the district court's supplemental jury instruction was not erroneous.

AFFIRMED

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