[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 17, 2002
THOMAS K. KAHN
No. 01-15551 CLERK
D. C. Docket No. 00-00038 CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
CHANG QIN ZHENG,
ZHENG WEI ZHENG,
JIN SHUANG ZHENG,
a.k.a. Shuang Jin Zheng,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Florida
(September 17, 2002)
Before DUBINA, BARKETT and KRAVITCH, Circuit Judges.
DUBINA, Circuit Judge:
A jury found Appellees Chang Qin Zheng (“Chang”), Zheng Wei Zheng
(“Zheng”), and Jin Shuang Zheng, a.k.a. Shuang Jin Zheng (“Jin”), guilty of
conspiring to conceal, harbor, and shield from detection aliens in buildings and
motor vehicles for the purpose of commercial advantage and private financial gain,
knowing and in reckless disregard of the aliens’ illegal status, in violation of 8
U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(I), and (a)(1)(B)(i). The jury also found
the Appellees guilty of the substantive crimes of concealing, harboring, and
shielding from detection certain named illegal aliens for commercial advantage and
private financial gain, knowing and in reckless disregard of the aliens’ illegal
status, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), and
(a)(1)(B)(i). After trial, the district court granted a Motion for Judgment of
Acquittal as to all Appellees. The Government appeals, and we reverse.
BACKGROUND
In 1989, Chang illegally entered the United States but became a legal
permanent resident in 1995. His wife, Jin, had previously entered the United States
in 1984 on a tourist visa and reported to the Immigration and Naturalization
Service (“INS”) as an illegal alien. Jin became a legal permanent resident in 1996.
In 1993, Jin’s brother, Zheng, entered the United States with false documents.
Authorities arrested Zheng, but the INS issued him an employment authorization.
2
In 1997, the INS rescinded his employment authorization and ordered Zheng
deported. Zheng, however, never left the United States.
In 2000, the Federal Bureau of Investigation (“FBI”) in Gainesville, Florida,
and the INS in Jacksonville, Florida, began investigating complaints that three
people who were operating two Chinese restaurants in Gainesville – the China
Super Buffet and the New China Restaurant – were allegedly employing illegal
Chinese and Central American immigrants. The FBI and INS conducted joint
surveillances from March until July 2000. In one surveillance, authorities
observed ten to fifteen Asian and Hispanic individuals outside Zheng’s house at
1707 South Williston Road, Gainesville, Florida. These men and women were
dressed identically, wearing white shirts, black vests, and pants. In another
surveillance, authorities saw approximately ten Asian and Hispanic individuals
outside Zheng’s house enter two vehicles, a red Plymouth registered to Chang and
a tan Honda registered to Zheng. Thirty minutes later, authorities saw these same
individuals working in the China Super Buffet.
On another occasion, authorities observed ten or eleven workers arrive at the
China Super Buffet in either the red Plymouth or the tan Honda. On April 28,
2000, authorities videotaped four individuals leave Chang and Jin’s home in
Chang’s red Plymouth and drive to the China Super Buffet. Later that same day,
3
authorities saw Zheng working the cash register at the China Super Buffet. When
an officer paid for the meals, Zheng accepted the money and made change but
failed to ring up the sale on the cash register.
On June 16, 2000, Alachua County Deputy Sheriff Steven Maynard
(“Deputy Maynard”) responded to a disturbance call at Zheng’s residence. Upon
arrival, Deputy Maynard observed what appeared to be two Hispanic males jump a
chain link fence in the back yard of the residence and flee. Three other individuals
at the residence complained to Deputy Maynard that they disputed their wages with
their employers. Authorities later discovered that two of the complaining
individuals were illegal aliens. Looking inside the residence, Deputy Maynard saw
between ten and twenty persons of Asian and Hispanic heritage. Deputy Maynard
knocked on the door and Zheng appeared. Zheng admitted to Deputy Maynard that
he was an illegal alien and stated that he was the manager of the Super China
Buffet.
Chang, Jin, and their two children arrived shortly thereafter at Zheng’s
residence. Chang and Jin escorted Deputy Maynard around the house and
explained that they employed the occupants of the house at their restaurants.
Deputy Maynard noticed that some of the rooms were sparsely furnished with
barrack-like accommodations. Several of the occupants admitted to Deputy
4
Maynard that they were illegal aliens. In addition, Chang admitted to Deputy
Maynard that he knew that some of his employees were illegal aliens.1
On July 27, 2000, investigators executed search warrants at the China Super
Buffet, the New China Restaurant, and at the Appellees’ residences. Investigators
located one illegal alien in Zheng’s home and recovered numerous business
documents, including invoices for both restaurants, billing records, blueprints, and
a contractor’s estimate for renovations to the China Super Buffet. Investigators
also recovered fifteen to twenty credit cards in Zheng’s name and a total of
$13,585 in cash in the trunk of his Honda. At Chang and Jin’s home, investigators
recovered various documents and located one illegal alien. At the two restaurants,
the investigators recovered business records, financial records, cash, illegal aliens,
business cards, and an INS order directing Zheng to report for deportation on May
10, 2000. Investigators discovered that eighteen of the twenty-two employees at
the restaurants were illegal aliens.
Investigators presented the evidence to the Government, who then charged
the Appellees with violating 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(I),
(a)(1)(A)(v)(II), and (a)(1)(B)(i). At trial, various employees testified about their
1
Chang cannot speak English, but his son, who does speak English, interpreted his father’s
words to Deputy Maynard.
5
working and living arrangements. These employees stated that they lived in
Zheng’s house without paying rent and that they worked at the restaurants, on
average, twelve hours a day, six days a week. Most of the restaurants’ employees,
if not all, lacked proper authorization documents. Some employees testified that
Chang and Zheng never requested to see identifying information. Additionally, the
employees testified that Chang and Zheng paid them in cash, an average monthly
salary between $900 and $1900. The Government also proffered evidence
showing that the Appellees failed to pay Social Security and federal taxes for these
employees, either from the employees’ earnings or from the required employer
payments. Further, the Appellees failed to make unemployment compensation
payments required under Florida state law. The Government also proved that
Appellees infrequently filed tax returns and when they did file, they greatly under-
reported the number of employees, the amount of wages paid to employees, their
personal income, and their business income. Despite failing to pay their taxes,
Appellees wired more than $200,000 in cash to China.
ISSUES
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1. Whether the district court erred in granting the Appellees’ Motion for
Judgment of Acquittal after the jury found the Appellees guilty of violating 8
U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(I), (a)(1)(A)(v)(II), (a)(1)(B)(i).
2. Whether the district court erred by failing to enter a judgment of
conviction on the lesser included offense proscribed in 8 U.S.C. §
1324(a)(1)(A)(iii), (a)(1)(B)(ii).2
STANDARD OF REVIEW
This court applies “the same standard used in reviewing the sufficiency of
the evidence” to a district court’s grant of a Judgment of Acquittal. United States
v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999). This court does not defer to the
district court’s decision, but views the evidence in the light most favorable to the
Government, resolving any conflicts in the evidence in favor of the Government.
Id. “The court must ascertain whether a reasonable jury could have found the
defendant guilty beyond a reasonable doubt.” Id.
DISCUSSION
2
Because we reverse the district court’s order granting Judgments of Acquittal and reinstate
the Appellees’ convictions, we decline to discuss this issue.
7
The Government charged the Appellees with various violations of 8 U.S.C.
§ 1324(a)(1)(B)(i). Section 1324 provides, in pertinent part:
§ 1324. Bringing in and harboring certain aliens
(a) Criminal penalties
(1)(A) Any person who –
(i) knowing that a person is an alien, brings to or attempts to
bring to the United States in any manner whatsoever such person at a
place other than a designated port of entry or place other than as
designated by the Commissioner, regardless of whether such alien has
received prior official authorization to come to, enter, or reside in the
United States and regardless of any future official action which may
be taken with respect to such alien;
(ii) 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;
(iii) 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;
(iv) encourages or induces an alien to come to, enter, or reside
in the United States, knowing or in reckless disregard of the fact that
such coming to, entry, or residence is or will be in violation of law; or
(v)(I) engages in any conspiracy to commit any of the preceding
acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in
respect to whom such a violation occurs –
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or
in the case of a violation of subparagraph (A) (ii), (iii), or (iv) in
which the offense was done for the purpose of commercial advantage
8
or private financial gain, be fined under Title 18, imprisoned not more
than 10 years, or both . . . .
8 U.S.C. § 1324(a)(1)(A)(i)-(v), (a)(1)(B)(i) (1999).
In its order granting the Appellees’ Judgments of Acquittal, the district court
concluded that the Government failed to prove beyond a reasonable doubt that the
Appellees harbored the illegal aliens for the purpose of commercial advantage or
private financial gain. In reaching this conclusion, the district court evaluated the
Government’s evidence and considered the legislative history and the dearth of
case law discussing this statute. The district court determined that the Government
did not present sufficient evidence from which a rational jury could conclude
beyond a reasonable doubt that the Appellees were guilty of the charged offenses.
The district court further concluded that neither the legislative history nor the case
law supported the Government’s charges against the Appellees. We disagree.
The Appellees contend that, at most, the Government should have charged
them with § 1324a only, which imposes on the employer obligations to refrain
from knowingly employing an alien who is unauthorized to work in the United
States and to verify, under penalty of perjury, that before hiring a given individual,
the employer examine identification documents and conclude that those documents
reasonably appear to be genuine. 8 U.S.C. § 1324a(a), (b)(1). Section 1324a
authorizes the Government to prosecute employers who have engaged in a pattern
9
or practice of violating these obligations. The criminal sanctions prescribed for a
violation of § 1324a are much less stringent than those prescribed for a violation of
§ 1324.3
In considering this appeal, we first examine the language of the statute at
issue. “As with any question of statutory interpretation, we begin by examining
the text of the statute to determine whether its meaning is clear.” Lewis v.
Barnhardt, 285 F.3d 1329, 1331 (11th Cir. 2002); see also Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1185 (11th Cir. 1997) ("In construing a statute we must begin,
and often should end as well, with the language of the statute itself."). The
Appellees assert that the language of § 1324 restricts its application to individuals
who are in the business of smuggling illegal aliens into the United States for
employment or those who employ illegal aliens in “sweatshops.” We disagree.
Section 1324 applies to “[a]ny person” who knowingly harbors an illegal alien.
Although § 1324 and § 1324a appear to cover some of the same conduct, “the fact
that Congress has enacted two sections encompassing similar conduct but
prescribing different penalties does not compel a conclusion that one statute was
meant to limit, repeal, or affect enforcement of the other.” United States v. Kim,
3
Section 1324a provides a civil penalty, not to exceed $3000, for each unauthorized alien
and a criminal penalty, not to exceed six months, for the entire pattern or practice of employing
illegal aliens.
10
193 F.3d 567, 573 (2d Cir. 1999). The Supreme Court has noted that statutes may
“overlap” or enjoy a “partial redundancy,” United States v. Batchelder, 442 U.S.
114, 118, 99 S.Ct. 2198, 2201, 60 L.Ed.2d 755 (1979), and yet be “fully capable of
coexisting.” Id. at 122, 99 S.Ct. at 2203. We agree with the Second Circuit’s
analysis of §§ 1324 and 1324a that “nothing in the language of these two sections .
. . preclude[s] their coexistence.” Kim, 193 F.3d at 573. The plain language of §
1324 does not limit its reach to certain specific individuals, and thus, the
Government properly charged the Appellees with violating this statute.
We must also examine the other pertinent language Congress used in § 1324.
This section provides for a ten-year imprisonment term for any person who
knowingly harbors an illegal alien for commercial advantage or private financial
gain. 8 U.S.C. § 1324(a)(1)(B)(i). The statute fails to specifically define
“commercial advantage” or “private financial gain,” but the meanings of these
terms are hardly arcane. Terms that are not statutorily defined are ascribed their
"ordinary or natural meaning." Nat’l Coal Ass'n v. Chater, 81 F.3d 1077, 1081
(11th Cir. 1996) (per curiam) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 476, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994)); see also United States v.
Stewart, 311 U.S. 60, 63, 61 S.Ct. 102, 105, 85 L.Ed. 40 (1940) (assuming that
Congress used a word in its usual and well-settled sense). We therefore look to
11
other sources and common sense to aid in the interpretation of these terms. See
United States v. Porter, 591 F.2d 1048, 1053 (5th Cir. 1979).4
The usual meaning of “commercial” is “of, in, or relating to commerce.”
WEBSTER’S NEW INT’L DICTIONARY (3d ed. 1986). Commerce is defined as “the
exchange or buying and selling of commodities esp. on a large scale.” Id. The
word “advantage” signifies “a more favorable or improved position or condition;”
a “benefit, profit, or gain of any kind.” Id. Thus, a common-sense understanding
of “commercial advantage” is a profit or gain in money obtained through business
activity.
Furthermore, we must ascribe an ordinary meaning to the phrase “private
financial gain.” Private is ordinarily “intended for or restricted to the use of a
particular person or group or class of persons.” WESTER’S NEW INT’L
DICTIONARY. Financial is defined as “relating to finance,” which in turn is defined
as “the obtaining of funds or capital.” Id. A gain is considered “an increase in or
addition to what is of profit, advantage, or benefit.” Id. Accordingly, the common
meaning attributed to “private financial gain” is an additional profit specifically for
a particular person or group.
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October
1, 1981.
12
Applying a common meaning to the plain language of the terms Congress
used in § 1324 to the Government’s evidence presented at trial, a rational jury
could conclude beyond a reasonable doubt that the Appellees harbored the illegal
aliens for their private financial gain. At trial, the Government proffered evidence
that the Appellees provided both employment and housing for the illegal aliens
without any evidence that they did so “out of any feelings of charity or affection.”
Kim, 193 F.3d at 577. The Government showed that the Appellees harbored the
illegal aliens by providing both housing and employment which facilitated the
aliens’ ability to remain in the United States illegally. The housing and
employment prevented government authorities from detecting the illegal aliens’
unlawful presence. Kim, 193 F.3d at 574; see also United States v. Singh, 261 F.3d
530 (5th Cir. 2001) (affirming a conviction for harboring illegal aliens for
commercial gain where defendants employed illegal aliens in a convenience store
and the aliens lived in the back of the store).
Moreover, in this case, the Appellees admitted that they obtained workers
from an employment agency that specifically recruited aliens. The Government
showed that the Appellees gained financially by employing those aliens and paying
lower wages, on average, $4.00 an hour for ten hours each day of work. The
Appellees also gained financially when they employed these aliens by failing to
13
withhold federal taxes and Social Security payments, failing to pay unemployment
taxes, failing to pay the employer’s portion of Social Security payments, and wire-
transferring more than $200,000 in unreported cash to China. Furthermore, the
Appellees greatly under-reported the number of employees, the amount of wages
paid to employees, their personal income, and their business income on their
infrequently filed tax forms/returns. No doubt exists that the Appellees harbored
these illegal aliens for private financial gain when they paid undocumented,
unreported, and unlisted illegal aliens a total of $10,000 to $15,000 cash each
month without deducting federal withholding tax, FICA, and Social Security
contributions.
Although we conclude that the plain language of § 1324 supports the
Government’s charges, we also note that the evolution of the statute to its present
form indicates that Congress intended for this statute to cover employers such as
the Appellees. The foundation of § 1324 was Congress’ acknowledgment that
there was a severe problem with the employment of illegal aliens. In 1986,
Congress passed the Immigration Control and Legalization Amendments Act,
which revised 8 U.S.C. § 1324(a). Immigration Reform and Control Act of 1986
(“IRCA”), Pub.L. No. 99-603, §§ 101, 112(a), 100 Stat. 3359, 3360-74, 3381-82
(1986). IRCA was a major immigration reform initiative designed to “deter aliens
14
from entering [the United States] illegally.” H.R. Rep. No. 99-682(I), at 46 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5650. Noting that the “primary reason for
the illegal alien problem is the economic imbalance between the United States and
the countries from which aliens come, coupled with the chance of employment in
the United States,” the House Committee was of the opinion that the most
reasonable approach to the problem was to make unlawful the “knowing”
employment of illegal aliens. 1986 U.S.C.C.A.N. at 5656.
Later, Congress amended the Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009-565, to
provide the increased penalty of ten years for a violation of § 1324(a)(1)(A)(i), (ii),
(iii), or (iv) (offenses relating to alien smuggling, harboring, inducement, or
transportation) done for the purpose of commercial advantage or private financial
gain.
The legislative history demonstrates that Congress intended § 1324 to cover
employers such as the Appellees. Congress expressly noted the pervasive problem
of illegal alien employment and its harmful effect on the American worker. Each
time an employer hires an illegal alien, an American citizen loses an employment
opportunity. Congress understood this problem and chose to penalize employers
for hiring illegal aliens and harboring them from detection by providing
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transportation and housing for them. In light of the Congressional purpose of this
statute, the Appellees are not immune from its reach.
In conclusion, we are persuaded that the Government provided sufficient
evidence from which a rational jury could conclude beyond a reasonable doubt
(and did so conclude) that the Appellees’ harboring of illegal aliens was for the
purpose of commercial advantage or private financial gain. Accordingly, we
reverse the district court’s judgments of acquittal and remand with instructions that
the district court reinstate the jury’s verdict.
REVERSED and REMANDED.
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United States v. Chang Qin Zheng
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2002-09-17
Citations: 306 F.3d 1080
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