MARIA DEL SOCORRO PARDO VIUDA DE AGUILAR, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 89-6214 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The amended opinion of the court of appeals (Pet. App. 1-48) is reported at 883 F.2d 662. JURISDICTION The judgment of the court of appeals was entered on March 30, 1989. A petition for rehearing was denied on October 4, 1989 (Pet. App. 49-50). The petition for a writ of certiorari was filed on December 1, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the First and Fourth Amendments were violated by the use of undercover agents to infiltrate various church-sponsored meetings and activities that routinely were open to the public and attended by the news media. 2. Whether the district court abused its discretion in precluding evidence pertaining to petitioners' asserted "mistake of law" defense based on international law and the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. 3. Whether the district court correctly instructed the jury on the elements of the offense of harboring illegal aliens, under 8 U.S.C. 1324(a)(3). 4. Whether the Free Exercise Clause of the First Amendment barred petitioners' convictions for violating federal immigration laws. STATEMENT On January 10, 1985, a 71-count indictment was returned in the United States District Court for the District of Arizona, charging petitioners and eight codefendants with conspiracy to bring into the United States, to transport, and to harbor illegal aliens, in violation of 18 U.S.C. 371 and 8 U.S.C. 1324(a)(1)-(3); and with various substantive violations of the federal immigration laws. After a jury trial, petitioners Aguilar, Nicgorski, Conger, Fife, Hutchison, and Quinones were convicted on the conspiracy count (Count 1), in violation of 18 U.S.C. 371. In addition, petitioner Aguilar was convicted of bringing an illegal alien into the United States (Count 2), in violation of 8 U.S.C. 1324(a)(1); petitioners Nicgorski (Counts 10 & 11), Conger (Count 6), Fife (Counts 4 and 5), and LeWin (Count 16) were convicted of transporting illegal aliens within the United States, in violation of 8 U.S.C. 1324(a)(2); petitioners Clark (Count 20) and Nicgorski (Counts 18 and 19) were convicted of harboring illegal aliens, in violation of 8 U.S.C. 1324(a)(3); and petitioners Conger (Count 26) and Quinones (Count 28) were convicted of aiding and abetting the entry of illegal aliens into the United States, in violation of 8 U.S.C. 1325. /1/ With the exception of petitioners Clark and LeWin, each petitioner was sentenced to a five-year term of probation; petitioners Clark and LeWin were each sentenced to a three-year term of probation. Gov't C.A. Br. 1-5. The court of appeals affirmed (Pet. App. 1-48). 1. The pertinent facts are summarized in the court of appeals' opinion (Pet. App. 7-10). In March 1982, petitioner Fife, the pastor of the Southside Presbyterian Church in Tucson, Arizona, stated in a published newspaper interview that he could "no longer cooperate with or defy the law covertly as (he) had done" and challenged the government to prosecute him for violating the federal immigration laws. Thereafter, in public rallies and in interviews with the news media, petitioner Fife and codefendant James Corbett repeatedly publicized their ongoing efforts to smuggle aliens from Central American countries into the United States for the purpose of providing "sanctuary." Pet. App. 7. Prompted by those reports, the government instituted an undercover investigation of petitioners' smuggling activities. On March 27, 1984, undercover informant Jesus Cruz contacted petitioner Quinones at a church office in Mexico and volunteered to work in the sanctuary movement. The following month, Quinones, Cruz, and petitioner Aguilar went to a Mexican prison to interview Central Americans who were scheduled to be deported for violating Mexican immigration laws. Quinones apprised the aliens of contacts in Mexico who could help them to avoid detection if they decided to travel to the United States. He also instructed the aliens that they should avoid contact with INS officers once they reached the United States, and that they should falsely claim Mexican citizenship if they were apprehended by INS officers. Pet. App. 7-8. After he began to work in the sanctuary movement, informant Cruz quickly became a trusted colleague. In the succeeding months, Cruz repeatedly assisted petitioners Aguilar, Conger, and Quinones in helping Salvadorian and Guatemalan nationals enter the United States. Those unlawful entries followed a common pattern: after the aliens were provided with bogus immigration documents and instructed on methods to avoid detection, they were led to a hole in the border fence and were directed to the Sacred Heart Church located near the border in Nogales, Arizona; there, they were harbored by petitioner Clark, among others. Pet. App. 8. Once safely inside the border, the illegal aliens were transported from Nogales to other cities in the United States by various sanctuary movement volunteers, including petitioners Fife, Conger, LeWin and Nicgorski. In addition, petitioner Nicgorski harbored illegal aliens at her apartment in Phoenix while the aliens awaited transportation elsewhere. At each stage of the "sanctuary" operation -- from the unlawful entry of the aliens into the United States, to their subsequent harboring and transportation -- there was abundant evidence showing that petitioners were aware of the illegal status of the aliens involved. Pet. App. 8-10. Because of their considerable contributions to the sanctuary movement, Cruz, undercover INS agent John Nixon, and confidential informant Soloman Graham were also invited to join meetings of the movement's inner circle at the Southside Church. In all, one or more of the government agents attended four such meetings. The participants at the meetings, including petitioners Fife, Conger and Nicgorski, discussed the logistics of the smuggling operation, as well as the need to dispose of several vehicles that had become conspicuous to federal authorities because of their frequent use in the operation. Cruz was also present at petitioner Nicgorski's apartment when a group of illegal aliens arrived after having been smuggled across the border by petitioners Fife and Hutchinson. Pet. App. 9-10. 2. The court of appeals affirmed petitioners' convictions (Pet. App. 1-48). The court held that the Free Exercise Clause of the First Amendment did not immunize petitioners from prosecution under the federal immigration laws (id. at 33-35). Applying what it termed "(e)ven * * * the most exacting scrutiny" (id. at 33), the court held that there was a compelling governmental interest in controlling immigration into this country (id. at 34), and it refused to make "a limited exemption" from that interest to accommodate "the particular facts of this case" (ibid.). The court likewise rejected (id. at 35-44) petitioners' Free Exercise challenge to the use of undercover agents to infiltrate various church-connected meetings and activities. The court explained that "the meetings on church property routinely were open to the public and attended by the news media" (id. at 35). For that reason, the court concluded, neither the First nor Fourth Amendment precluded government informants from attending and participating in those meetings (id. at 44). The court of appeals also held that there were no trial errors. First, the court found (Pet. App. 10-14) that the trial judge did not improperly preclude the introduction of evidence pertaining to petitioners' asserted "mistake of law" defense. The court agreed (id. at 11) that it is a defense under 8 U.S.C. 1324 that the accused did not know that the alien was, in fact, an alien, or that he was, in fact, unlawfully admitted into the United States. Nevertheless, the court explained, petitioners were not entitled to introduce any evidence at all, no matter how far afield, that would advance such a defense (ibid.) -- including evidence of petitioners' personal construction of various immigration statutes and international legal principles (id. at 12). The court observed that the proffered evidence would have "overwhelm(ed)" the trial proceedings by "foolish(ly)" allowing petitioners "to put Reagan Administration foreign policy on trial" (ibid.). In addition, the court stated, the excluded evidence was offered to support an "objectively unreasonable" defense: that the federal immigration laws authorized petitioners "surreptitiously to smuggle, transport, and harbor aliens, while studiously avoiding presentment (of the aliens) to the INS" (id. at 14 n. 5). Finally, the court held that the trial judge had correctly instructed the jury on the elements of the offense of harboring illegal aliens (id. at 28-29). The court explained that the word "harbor" "does not require an intent to avoid detection" (id. at 29), but only "'conduct tending to directly or substantially facilitate the alien's remaining in the United States in violation of law'" (id. at 28). ARGUMENT 1. Petitioners first contend (Pet. 16-21) that their constitutional rights were violated by the use of undercover agents and informants to infiltrate and surreptitiously record various church-connected meetings and activities. Petitioners do not dispute, however, that they and their cohorts expressly invited the undercover agents and informants to attend the meetings and participate in the organization's activities. Nor do petitioners dispute the court of appeals' conclusion that the "meetings on church property routinely were open to the public and attended by the news media" (Pet. App. 35; see also Gov't C.A. Br. 177, 182-183). In light of those circumstances, the court of appeals correctly held that the presence of government informants did not violate petitioners' First or Fourth Amendment rights. As this Court recognized in Hoffa v. United States, 385 U.S. 293, 302 (1966), the use of undercover operatives to infiltrate criminal ventures does not implicate any "interest legitimately protected by the Fourth Amendment" when, as here, the undercover operatives are present in a normally private place "by invitation, and every conversation which (they) heard was either directed to (them) or knowingly carried on in (their) presence." In such a setting, nothing in the Fourth Amendment "protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it" (ibid.). See also United States v. White, 401 U.S. 745 (1971); Lewis v. United States, 385 U.S. 206, 211 (1966); On Lee v. United States, 343 U.S. 747 (1952). Similarly, an invited undercover operative may surreptitiously record a conversation that occurs in his presence, without recourse to probable cause or a warrant. See United States v. Caceres, 440 U.S. 741, 744 (1979); 18 U.S.C. 2511(2)(c) and (d). Nor is a different result warranted because, as petitioners assert, their activities implicated First Amendment interests. In Maryland v. Macon, 472 U.S. 463 (1985), this Court rejected an analogous claim raised by the owner of a bookstore who contended that his First and Fourth Amendment rights were violated when an undercover agent purchased obscene publications from the bookstore. The Court explained that "(a)n undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public" (id. at 470). "Nor," the Court added, "does the First Amendment suggest a different conclusion" (ibid.). In such circumstances, the Court emphasized, "(t)he mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities, whether because a customer will not complain or because undercover officers will not transact business with the store, is not one that society is prepared to recognize as reasonable" (id. at 469). Absent such a legitimate expectation of privacy, "(t)he officer's action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent(ed) the place of business * * * did not constitute a search within the meaning of the Fourth Amendment" (ibid.). In the absence of "some action taken by government agents that (could) properly be classified as a 'search' or a 'seizure,'" the Court held, "the Fourth Amendment rules designed to safeguard First Amendment freedoms do not apply" (id. at 468-469). See also Zurcher v. Stanford Daily, 436 U.S. 547, 564-565 (1978) (rejecting the claim that the First Amendment stands as a separate constitutional safeguard, in addition to the Fourth Amendment, in restricting government agents in gathering evidence of criminal activity). The same principle forecloses petitioners' claim. As in Macon, the record unambiguously shows that petitioners invited the various undercover agents and informants -- as well as members of the media and the public -- to participate in their church-connected meetings and activities, and that petitioners voluntarily revealed incriminating information in the presence of those agents and informants. Petitioners had no reasonable expectation that the undercover agents and informants would not record and divulge the information. Accordingly, neither petitioners' First nor Fourth Amendment rights were violated by the actions of the government investigators. Cf. United States v. Scopo, 861 F.2d 339, 347-348 (2d Cir. 1988), cert. denied, 109 S.Ct. 1750 (1989) (defendant's First Amendment rights were not violated when he was covertly photographed while attending funeral services for a Mafia member); United States v. Gering, 716 F.2d 615, 618-620 (9th Cir. 1983) (defendant's First Amendment rights were not violated by a mail cover used to monitor fraudulent solititations mailed under the auspices of the defendant's church). 2. Relying principally on Liparota v. United States, 471 U.S. 419 (1985), petitioners contend (Pet. 21-31) that they were improperly barred from offering certain evidence to prove that they were unaware of the illegal immigration status of the aliens whom they smuggled, harbored, and transported. In particular, petitioners claim that they should have been able to introduce evidence concerning the various aliens' experiences in the countries from which they fled, as well as evidence concerning petitioners' belief that those aliens were "entitled to enter and reside in the United States under the terms of international law and the 1980 Refugee Act" (Pet. 25). Petitioners' contention is both legally and factually unsupportable. In Liparota, this Court held that, in a food stamp fraud prosecution under 7 U.S.C. 2024 (b), the government must prove that the defendant knew that his possession of food stamps was unauthorized -- and not merely that the defendant possessed the food stamps, and that his possession was, in fact, unauthorized. To eliminate the "knowledge-of-illegality requirement," the Court explained, "would thus render criminal a food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants." 471 U.S. at 426. The Court added that a defendant's guilty knowledge may be established, without any "extraordinary evidence," by circumstances demonstrating that he knew his conduct was illegal. Id. at 434. The present case, however, is not like Liparota; the government has never denied its obligation under Section 1324 to prove that petitioners intentionally smuggled into the country aliens who they knew to be illegal. The evidence amply met that standard -- by showing that the petitioners plainly knew that the persons they were smuggling were Central Americans who had not been presented to government officials either at the time of entry into the United States or any time thereafter. And the court of appeals expressly recognized the government's burden to prove knowledge and intent, noting that petitioners "were entitled to assert as a defense to their indictment under section 1324 that they did not know that the aliens in question were unlawful" (Pet. App. 11). But as the court of appeals also noted, petitioners' right to present a defense of lack of knowledge did not entitle them to present "any evidence at all to advance this defense" (Pet. App. 11) -- such as the contention that international law and the Refugee Act of 1980 effectively modified Section 1324, thus immunizing their conduct. Indeed, petitioners do not explain how those legal authorities can be construed to permit their actions. Nor do they contradict the court of appeals' conclusion that such a construction -- according to which "the Refugee Act of 1980 permit(s) (petitioners) surreptitiously to smuggle, transport, and harbor aliens while studiously avoiding presentment to the INS" (Pet. App. 14 n.5) -- is "objectively unreasonable" (ibid.). Finally, even if marginally relevant, the proffered evidence would, as the court of appeals observed, have required "a series of minitrials as to each alien's well-founded fear of persecution" (id. at 12), thus entailing an "interminable" trial process and "an intolerably difficult burden on the government" (ibid.). Accord United States v. Merkt, 794 F.2d 950, 965 n. 18 (5th Cir. 1986), cert. denied, 480 U.S. 946 (1987); United States v. Merkt, 764 F.2d 266, 273 (5th Cir. 1985). /2/ 3. Petitioners Clark and Nicgorski contend (Pet. 31-34) that the instructions on the elements of harboring, under 8 U.S.C. 1324 (a)(3), were erroneous, because the instructions did not require the jury to find that petitioners intended to shield the aliens from detection or arrest. There is no merit to that claim. At the time of petitioners' offense, Section 1324(a)(3) imposed criminal liability on any person who "willfully or knowingly conceals, harbors, or shields from detection" an unlawful alien. The district court instructed the jury that acts of "concealing" and "shielding" consist of conduct "tending to directly or substantially facilitate an alien's remaining in the United States unlawfully with the intent to prevent detection by the Immigration and Naturalization Service" (Pet. App. 28). The court further instructed that the term "harboring" means "conduct tending to directly or substantially facilitate the alien's remaining in the United States in violation of law," but that the conduct need not be intended to evade INS detection (ibid.). The term "harboring" connotes giving shelter to an alien known to have entered illegally, but, unlike the terms "concealing" and "shielding," it does not suggest any intent to avoid detection. That interpretation of the statute, moreover, accords with the decisions of other circuits that have addressed the issue. See, e.g., United States v. Lopez, 521 F.2d 437, 439, 441 (2d Cir.), cert. denied, 423 U.S. 995 (1975); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1071 (5th Cir. 1982). There is no basis for concluding, as petitioners suggest (Pet. 33), that the jury may have convicted Clark simply for giving a meal to illegal alien Ruben-Torres. But the evidence to support the charge of harboring Torres was far more substantial than that. It showed that Clark had told two illegal aliens, in the presence of Torres, that if stopped they should lie to INS agents by claiming to be Mexicans. It also showed that Clark read and tore up documents requiring the aliens to appear before an immigration judge. Pet. App. 6, 8, 28. In addition, Clark made sure that the two aliens, as well as Torres, had no documents in their possession that could possibly have identified them as Salvadorans should they be stopped by the INS. Gov't C.A. Br 43. In light of the underlying record, the decision in this case poses no risk that "social welfare agencies" (Pet. 31) will be prosecuted whenever they provide food, clothing, or shelter to illegal aliens. Such agencies normally do not smuggle aliens through holes in border fences or counsel aliens to avoid immigration officials. Finally, even if the offense of harboring requires proof of an intent to evade government officials, the evidence in this case overwhelmingly showed that Clark and Nicgorski possessed the requisite intent. Any error in the instruction was therefore harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 578-582 (1986). 4. Finally, petitioners contend (Pet. 35-41) that the Free Exercise Clause bars their convictions for violation of federal immigration laws, on the ground that their assistance to aliens was prompted by religious beliefs. This Court recently denied certiorari on precisely the same issue in United States v. Merkt, 794 F.2d 950 (5th Cir. 1986) (Merkt II), cert. denied, 480 U.S. 946 (1987), on which the court below relied (Pet. App. 34). Further review is likewise unwarranted in this case. Applying what it termed "(e)ven * * * the most exacting scrutiny" (Pet. App. 33), the court of appeals rejected petitioners' Free Exercise claim. That judgment was correct. First, the burden on petitioners' beliefs was not substantial. Unlike the claimants in Wisconsin v. Yoder, 406 U.S. 205 (1972), petitioners have not shown that their unlawful activities were required by their religion -- only that the activities were religiously inspired. Thus, as the Fifth Circuit observed in Merkt II, petitioners "could have assisted beleagered (Central Americans) in many ways which did not affront the border control laws(,) * * * (but they) chose confrontational, illegal means to practice their religious views" (794 F.2d at 956). Second, the court below correctly found that the government has an "overriding interest in policing its borders" (Pet. App. 34). Although petitioners contend that such a finding is not supported by the record, petitioners below "really d(id) not contest the strength of the government's interest," but instead merely argued that a limited exemption could be fashioned to harmonize the government's interest with their own beliefs (ibid.). As the court of appeals recognized, "(t)he proposition that the government has a compelling interest in regulating its border hardly needs testimonial documentation" (ibid.). See generally Kleindienst v. Mandel, 408 U.S. 753, 765-767 (1972). Finally, the court of appeals correctly rejected petitioners' request that a religious-based exemption be carved out from the ordinary operation of the immigration laws. As the court noted, the number of religiously motivated persons who might qualify for such an exemption would be "incalculable," and thus "a religious exemption * * * would seriously limit the government's ability to control the borders" (Pet. App. 34-35). For that reason, the exemption proposed by petitioners would effectively result in "no immigration policy at all" (id. at 35). /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney FEBRUARY 1990 /1/ Prior to trial, three codefendants (de Emery, Benavides, and Flaherty) pleaded guilty on various misdemeanor violations of the federal immigration laws. The government dismissed the charges against two codefendants (Priester and Waddell), and the jury returned not guilty verdicts with respect to three other codefendants (Corbett, MacDonald, and Espinosa). In addition, the jury acquitted each of the petitioners on at least one count charged in the indictment. Gov't C.A. Br. 1-5 & n.2. /2/ In United States v. Rhone, 864 F.2d 832 (D.C. Cir. 1989), upon which petitioners rely (Pet. 24), the court concluded that in a prosecution for mail fraud and theft it was error to instruct the jury that ignorance of the law was no excuse. The court pointed out (864 F.2d at 835) that the prosecution had virtually conceded that the instruction was erroneous. In addition, the court declined to address the government's contention that the defendant's ignorance must be objectively reasonable, stating that that contention had not been made in the district court (ibid.). The court also noted "in passing" (ibid.) that if the defendant did not have the requisite intent, her mistaken understanding of the law need not be objectively reasonable. That remark, as the court below observed (Pet. App. 13 n.4), was dicta in Rhone and does not cause a conflict between the circuits. /3/ There is no need to hold the present case pending this Court's resolution of Employment Div., Dept. of Human Res. v. Smith, No. 88-1213 (argued Nov. 6, 1989). In that case, the Oregon Supreme Court held, on remand from an earlier decision of this Court, that the Free Exercise Clause forbids the criminalization of peyote use by members of the Native American Church. Unlike in Smith, however, petitioners' actions were not required, but only inspired, by their religion. Moreover, for the reasons adduced by the court of appeals, the strength of the governmental interest and the lack of less restrictive alternatives amply justify the court of appeals' decision -- regardless of this Court's disposition of Smith.