In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1231
Y U T IAN L I,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-810—William C. Griesbach, Judge.
S UBMITTED JUNE 21, 2011 1—D ECIDED A UGUST 4, 2011
1
Pursuant to Seventh Circuit Internal Operating Procedure
6(b), this appeal was submitted to the panel of judges that
disposed of Li’s direct appeal of his conviction and sentence.
See United States v. Yu Tian Li, 615 F.3d 752 (7th Cir. 2010).
Neither party has included in its brief a statement indicating
that oral argument is necessary, see Fed. R. App. P. 34(a)(1) and
Circuit Rule 34(f), and upon review of the briefs and the
record and consideration of the standards set forth in Fed.
R. App. 34(a)(2), the panel has determined that oral argument
is unnecessary to the resolution of this appeal. The appeal
was therefore submitted on the briefs and the record.
2 No. 11-1231
Before E ASTERBROOK, Chief Judge, and R OVNER and
T INDER, Circuit Judges.
R OVNER, Circuit Judge. Yu Tian Li owned and operated
a restaurant in DePere, Wisconsin. An anonymous tip
led the FBI to conduct surveillance of Li, whom they
observed regularly transporting about four people back
and forth between his home and the restaurant. When
Li consented to a search of his home, authorities de-
tained three people who were illegally present in the
United States. They also found what looked like a make-
shift dormitory in Li’s basement and garage, with mat-
tresses on the floor and coin-operated laundry machines
in the basement.
A jury convicted Li of two of three counts of illegally
harboring or shielding illegal aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iii). The district court sentenced Li to
fifteen months of imprisonment on each count, to be
served concurrently, and two years of supervised release.
The court also ordered that he pay $10,000 in fines and
forfeit his house. This Court affirmed the conviction
on appeal. United States v. Yu Tian Li, 615 F.3d 752 (7th
Cir. 2010).
Li filed a motion in district court to vacate his convic-
tion pursuant to 28 U.S.C. § 2255, arguing that his counsel
was ineffective in the following four ways: by proposing
an incorrect jury instruction; by failing to object to video-
taped testimony of the witnesses against Li; by failing
to ensure that a language barrier did not prevent him
from communicating with Li; and finally, by preventing
Li from testifying on his own behalf. The district court
rejected each of these arguments and Li appeals.
No. 11-1231 3
When a district court denies a petition under § 2255,
we review fact findings for clear error and issues of law
de novo. Bethel v. United States, 458 F.3d 711, 716 (7th
Cir. 2006). To succeed on a claim for ineffective assis-
tance of counsel, Li must show both that “his attorney’s
performance was objectively deficient—in other words,
that it fell outside the wide range of competent repre-
sentation—and that he was prejudiced by the subpar
representation.” United States v. Jones, 635 F.3d 909, 915
(7th Cir. 2011) (citing Strickland v. Washington, 466 U.S.
668, 687-96 (1984)). In order to establish prejudice, he
must show that there is a reasonable probability that
but for his counsel’s mistakes, the result of the pro-
ceedings below would have been different, such that
the proceedings were fundamentally unfair or unreli-
able. Strickland, 466 U.S. at 694. To reflect the wide range
of competent legal strategies and to avoid the pitfalls
of review in hindsight, our review of an attorney’s per-
formance is highly deferential and reflects a strong pre-
sumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Id. at 689.
“The defendant must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy.” Koons v. United States,
639 F.3d 348, 351 (7th Cir. 2011). So long as an attorney
articulates a strategic reason for a decision that was
sound at the time it was made, the decision generally
cannot support a claim of ineffective assistance of coun-
sel. United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir.
2005). See also United States v. Lathrop, 634 F.3d 931, 937-38
(7th Cir. 2011), petition for cert. filed, (U.S. June 13, 2011)
4 No. 11-1231
(Nos. 10-11044, 10A1145) (noting that, provided counsel’s
reasons for not questioning further were not “so far off the
wall that we can refuse the usual deference that we give
tactical decisions by counsel, his performance will not
qualify as deficient.”).
We consider first Li’s argument that his counsel
should have proposed a specific intent instruction.
Because there was no controlling case law nor pattern
jury instruction for alien-harboring in the Seventh
Circuit, Li’s trial counsel proposed a jury instruction
modeled after one used in the Eleventh Circuit. See (R. 63,
p. 17 & R. 75, p. 7).2 Using a variation of the Eleventh
Circuit’s pattern, the district court instructed:
To sustain each charge of harboring an illegal alien
for purpose of commercial advantage or private
financial gain in violation of 8 U.S.C. § 1324(a)(l)(B),
the government must prove the following four ele-
ments beyond a reasonable doubt:
First, that the alien named in the indictment entered
or remained in the United States in violation of the law;
Second, that the defendant knowingly concealed,
harbored, or sheltered from detection the named
alien within the United States;
Third, that the defendant either knew or acted in
reckless disregard of the fact that the named alien
entered or remained in the United States in violation
of the law; and
2
Record citations are to the district court case in this matter,
No. 10-C-810.
No. 11-1231 5
Fourth, that the defendant committed such offense
for the purpose of commercial advantage or private
financial gain.
(R. 75, p. 7). This language reflects the statute itself
which defines the criminal act as:
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;
8 U.S.C.A. § 1324 (a)(1)(A)(iii).
Li’s brief states that counsel should have requested
a “specific intent” instruction, but fails to specify what
additional language the jury instruction should have
contained or how requiring intent would have changed
the nature of this case at all.
Under the Strickland standard, we certainly cannot say
that it was outside the realm of reasonable professional
assistance for Li’s counsel to propose a jury instruction
similar to that used by the Eleventh Circuit and
reflecting the general intent requirement in several other
circuits, where there was no controlling law in this
Circuit. See, e.g., United States v. Khanani, 502 F.3d 1281,
1287 (11th Cir. 2007) (jury only instructed that it must
find that defendant knowingly harbored aliens and that
defendant knew or acted in reckless disregard of the
6 No. 11-1231
alien’s status)3 ; United States v. Dejesus-Batres, 410 F.3d
154, 162 (5th Cir. 2005) (specific intent to violate the
immigration laws is not required to prove alien har-
boring); see also United States v. Deguzman, 133 Fed. Appx.
501, 506 (10th Cir. 2005) (noting, in a non-precedential
opinion, that specific intent is not necessary to prove
illegal harboring charge).
Li argues that had his trial counsel done better
research, he would have uncovered cases which sup-
ported a specific intent instruction. The cases he cites,
however, both involve a specific intent instruction in
cases involving the transportation or importing of illegal
aliens. United States v. Parmlee, 42 F.3d 387, 391 (7th Cir.
1994), United States v. Nguyen, 73 F.3d 887 (9th Cir. 1995).
In those cases the courts expressed concern about
various hypothetical situations in which someone like
a taxi driver or boat operator might transport an alien
without any intent to violate the law. For example, in
Nguyen, the court expressed concern about exposure
to punishment for a boat operator who departed from
a coastal port with permanent-resident aliens on board,
3
The jury instructions in this case included an explanation
that “[t]he word willfully, as that term is used in the indict-
ment or in these instructions, means that the act was com-
mitted voluntarily and purposely, with the specific intent to do
something the law forbids, that is, with bad purpose either
to disobey or disregard the law.” The instructions for the
alien harboring count included in the jury instructions, how-
ever, spoke only of “knowingly” and did not include the
term “willfully.” Khanani, 502 F.3d at 1287.
No. 11-1231 7
entered international waters and then returned to shore
at a location other than a designated port of entry. Nguyen,
73 F.3d at 893. The Parmelee court expressed concern
about a cab driver who, in a routine commercial trans-
action, transported an individual who announced his
illegal status during the course of the ride. Parmelee,
42 F.3d at 391, 393. Without saying so, both courts
were expressing concern about the unique nature of
transportation—that it involves a transient situation in
which the transporter could learn about the illegal status
in media res, and have no way to complete the innocent
transport without violating the law. It is more difficult
to imagine a situation in which one could knowingly
harbor a known illegal alien without an intent to
violate the law. If there were such a situation, the evi-
dence in this case does not reflect it. At trial, the jurors
heard evidence that one of the illegal aliens who lived at
Li’s house for several months divulged his status as an
illegal alien to Li. They also heard how he shuttled his
tenant/employees back and forth between the garage
and the restaurant, how the curtains of the house
remained closed at all times, how the defendant re-
fused to tell investigating agents the names of his em-
ployees, and that the illegal employees were not asked
to complete any paperwork, nor were they listed on
any wage or employment records submitted to the state.
Certainly there is room to argue that Li’s counsel should
have requested a specific intent instruction. The cases on
transporting were close enough to support an argument
and, had he looked further, he may have found some
even closer. See, e.g., United States v. You, 382 F.3d 958,
8 No. 11-1231
966 (9th Cir. 2004) (in a harboring case, the court in-
structed the jury that it must find that appellants had
acted with “the purpose of avoiding [the aliens’]
detection by immigration authorities—an instruction
synonymous with having acted with necessary intent
as required in Nguyen.”) Even were it error for Li’s
counsel not to ask for a different instruction, however,
Li has not demonstrated that the proposed instruction
had any adverse effect on Li’s defense. As we noted
above, the evidence clearly indicated that Li’s covert
acts were taken in a purposeful attempt to violate the
law. The jury was already instructed that the defendant
had to knowingly conceal the aliens from detection and
that he had to know or act in reckless disregard of
their illegal status. Had the jury been explicitly
instructed that it had to find that the defendant
specifically intended to engage in the proscribed action,
the result of the trial would have been the same.
Next, we consider Li’s argument that his counsel’s
representation fell short when he failed to object to the
use of videotaped testimony of the witnesses against
him. Although the Sixth Amendment guarantees a defen-
dant the right to confront witnesses against him, the use
of pre-recorded deposition testimony does not violate
that right where the witness is unavailable for trial and
the defendant had a prior opportunity for cross-examina-
tion. Crawford v. Washington, 541 U.S. 36, 68 (2004), United
States v. McGowan, 590 F.3d 446, 453 (7th Cir. 2009). In
this case, the government anticipated that the three
witnesses against Li—the restaurant workers found
living in Li’s house—would be unavailable at the time
No. 11-1231 9
of trial. All three were in the United States illegally and
at the time of the pre-trial conference, one had already
been removed and the government anticipated that the
other two would follow suit shortly. 4 In anticipation of
their unavailability at trial, the government deposed
each of the three potential witnesses. The defendant
attended each deposition with his attorney who had
ample opportunity to question and cross-examine the
witnesses.
Initially Li’s attorney had objected to the depositions,
but then informed the court that he had a “180 degree
change in my position,” and that for strategic reasons
he thought it best for his client that the videotaped deposi-
tion testimony be presented in lieu of live testimony.
(R. 109, p. 7). Counsel’s theory was that the witnesses
had not testified to anything particularly incriminating,
and therefore Li was better off with their testimony
locked in as is, rather than having them re-examined
in front of the jury after the government had time to
4
It is not at all clear whether these witnesses could be
deemed unavailable for Confrontation Clause purposes pursu-
ant to Crawford. Such a determination would be based on the
specific facts surrounding their removal and the govern-
ment’s attempts to secure their testimony. See, e.g., United
States v. Tirado-Tirado, 563 F.3d 117, 123-24 (5th Cir. 2009);
United States v. Yida, 498 F.3d 945, 954-55 (9th Cir. 2007);
United States v. Gonzales, 436 F.3d 560, 577-79 (5th Cir.
2006). In any event we need not make this determination as
Li waived his right to confront the witnesses and had the right
to do so. United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001).
10 No. 11-1231
assess Li’s theory of the case. Li’s counsel further ex-
plained his strategy as follows: “I think it is unfair to my
client to have these witnesses called live when the gov-
ernment has seen the opportunity—has seen how I am
going to handle them . . . [and] knows essentially what my
argument is or at least they may be able to figure out by
looking at the transcript.” Id. Specifically, counsel ex-
plained, “[t]here were questions I didn’t ask because
the witness testified in a way that I thought was advanta-
geous to my client. So I stopped. I didn’t cross.” Id. at 12.
Li’s counsel objected to particular portions of the tran-
scripts and, after rulings by the district court judge,
some portions were redacted for trial. In short, based
on counsel’s reasoned strategy, Li agreed to waive his
right to confront the witnesses provided that the gov-
ernment would not call any of the three deponents to
the stand at trial. Li’s counsel articulated a reasonable
strategy to which a court must give deference. Li does not
argue that his counsel did not have ample opportunity
to question and cross-examine each witness in the
presence of the defense.
Furthermore, the district court conducted an extensive
examination of Li to assure that his waiver of his con-
frontation right was knowing and voluntary. Id. at pp. 23-
39. The district court judge engaged in this colloquy
directly with Li despite the fact that in this Circuit
a “defendant’s attorney can waive his client’s Sixth
Amendment confrontation right so long as the defendant
does not dissent from his attorney’s decision, and so long
as it can be said that the attorney’s decision was a legiti-
mate trial tactic or part of a prudent trial strategy.” Cooper,
No. 11-1231 11
243 F.3d at 418. Li’s rights were well protected and we
cannot say that his attorney was ineffective for adopting
his articulated strategy.
On a related matter, Li claims that his attorney
was ineffective for failing to object to a reading of the
tail end of one videotaped deposition. As agreed to at
the pre-trial conference, at trial the government played
the videotaped deposition testimony of three witnesses.
The first two proceeded unremarkably. The videotape
of the final witness, however, malfunctioned shortly
before the end of the tape. The district court judge sug-
gested that defendant’s counsel simply read the re-
mainder of his questions on cross-examination while
the judge read the witness’ answers. The prosecutor
read his few questions of re-direct at the end. In all, the
portion of the testimony read to the jury represented six
or seven pages of a thirty-page deposition. Li’s counsel
explained on the record, that he had not objected for
strategic reasons as he felt the jury had seen the most
important portion of the deposition and that he did
not want the jury to see him object to something that
was not important. The district court judge gave the
defendant the opportunity to recall the jury and play
the remainder of the tape (past the portion of the mal-
function), but the defendant, after consulting his coun-
sel, declined.
Federal Rule of Criminal Procedure 15 does not
require that depositions be videotaped and there is no
constitutional right to have a deposition videotaped.
Prior to the availability of videotape technology, reading
12 No. 11-1231
a deposition into the record was a common method of
entering deposition testimony of an unavailable witness
into the record. See, e.g., United States v. Knop, 701 F.2d
670, 675 (7th Cir. 1983). Li has failed to make a sufficient
showing of prejudice. The judge reasonably used his
discretion to keep the trial moving along, and defense
counsel did not object to the procedure. Finally, the
judge gave the precautionary instruction that “[n]othing
I say now, and nothing I said or did during the trial, is
meant to indicate any opinion on my part about what
the facts are or about what your verdict should be.” (R. 75,
p. 2). Jurors are presumed to follow limiting or curative
instructions unless they cannot be expected reasonably
to do so. United States v. Barnhart, 599 F.3d 737, 746 n.8
(7th Cir. 2010). Moreover, the court offered Li an oppor-
tunity to bring the jury back to replay the end of the
videotape, but he declined. Li has failed to demonstrate
that his counsel’s actions related to the video deposition
were deficient or prejudicial.
The defendant next argues that a language barrier led
to ineffective assistance of counsel. Subsumed within
this argument is defendant’s earlier separate claim that
he did not knowingly or intentionally abandon his right
to testify. The district court judge who presided over
several hearings and a two-day trial considered this
argument and concluded that no such communication
barrier existed. We do not find this conclusion to be
clearly erroneous. The court provided Li with a translator
in his native language. Li participated in the trial and
never notified the court of any problems understanding
the proceedings or his counsel. Gallo-Vasquez v. United
No. 11-1231 13
States, 402 F.3d 793, 799 n.1 (7th Cir. 2005) (noting
that a petitioner’s failure to complain about a commu-
nication problem calls into question whether such a
problem really existed). The district court also con-
sidered the fact that Li lived in the United States for
twenty years and, for six years, ran a restaurant in a
suburb of Green Bay, Wisconsin where he would have
had to communicate with patrons, employees and
vendors who are not Chinese. After Li expressed some
uncertainty about whether or not to testify, he was
given time to consult with his attorney and then engaged
in an extensive colloquy with the court:
MR. GEARY: Well, I think my client after dis-
cussing it with me has advised
me that he wishes to waive his
right to testify and move for-
ward with the trial.
THE COURT: Okay. Mr. Li, is that correct?
THE DEFENDANT: Correct.
THE COURT: Okay. In other words, you do
understand you have the right
to testify, but after giving it
thought and after listening to
your attorney, you’ve decided
not to; is that correct?
THE DEFENDANT: Correct. Correct.
THE COURT: Now, did anyone make any threats
against you to get you to give
up your right to testify in front
of this jury?
14 No. 11-1231
THE DEFENDANT: No.
THE COURT: And did anyone make any prom-
ises to you to get you to do so?
THE DEFENDANT: No.
THE COURT: Is this your own decision after
considering the advice of your
attorney? Is it your own deci-
sion then not to testify?
THE DEFENDANT: Yes.
THE COURT: Okay. And I can read to the jury
the instruction then that tells
them that you cannot be pun-
ished for not testifying, that it’s
not evidence for you got [sic] to
testify, and it’s not to be consid-
ered in any way. Would you
like me to read that instruction
to the jury?
THE DEFENDANT: Yes.
(R. 124, p. 225-26). We cannot find that the district court
erred in its factual finding that there was no language
barrier that would have prevented Li from the effective
assistance of counsel or from testifying.
Finally, Li argues that his motion under 28 U.S.C. § 2255
was improperly denied without a hearing. A district
court has discretion to “deny an evidentiary hearing
where the motion, files, and records of the case conclu-
sively show that the prisoner is entitled to no relief.” Koons
No. 11-1231 15
v. United States, 639 F.3d 348, 354-355 (7th Cir. 2011). The
judge who denied the motion was the same one who
presided over the case, reviewed the proposed jury in-
structions, admitted the taped depositions, and through
colloquies could assess the defendant’s understanding
of the English language and his understanding of the
proceedings as translated. He was in the best position
to conclude that an evidentiary hearing would not
provide any more information that could demonstrate
the viability of the defendant’s claim, and thus did not
abuse his discretion in denying a hearing.
As we have detected no unreasonable errors in assis-
tance, we cannot conclude that there was any cumulative
effect from these errors that would have amounted to
ineffective assistance of counsel as evaluated under the
Strickland parameters. The decision of the district court
is A FFIRMED.
8-4-11