In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2229
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
Y U T IAN L I,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-212—William C. Griesbach, Judge.
A RGUED D ECEMBER 8, 2009—D ECIDED A UGUST 3, 2010
Before E ASTERBROOK, Chief Judge, and R OVNER and
T INDER, Circuit Judges.
R OVNER, Circuit Judge. Yu Tian Li was convicted after
a jury trial of two counts of harboring an alien for com-
mercial advantage or private financial gain, 8 U.S.C.
§ 1324(a)(1)(A)(iii), (a)(1)(B)(i). Li appeals, arguing that
the evidence was insufficient to support his convictions.
He also challenges one of the jury instructions given
by the district court and the forfeiture of his residence.
We affirm.
2 No. 09-2229
Li, a naturalized U.S. citizen, operated a restaurant in
DePere, Wisconsin, called China King Buffet. In late 2007
federal authorities received a tip that a China King em-
ployee might be working in violation of the immigra-
tion laws. After surveillance revealed Li shuttling ap-
proximately half a dozen people between his residence
and his restaurant, agents from Immigration and Customs
Enforcement (ICE) interviewed Li and obtained permis-
sion to look around his home. Agents discovered three
illegal aliens, Xiao Xi Zhang, Francisco Torres-Hernandez,
and Gen Fang Wang, living in the house. All three
worked at China King.
Li was charged with three counts of harboring an
illegal alien for commercial or private gain. At trial
Zhang, Torres-Hernandez, and Wang testified via video-
taped deposition. Each admitted that he was unlawfully
present in the United States and had been living at Li’s
home, though Torres-Hernandez had been living with Li
and working at China King for only a few days. All
three acknowledged that Li never asked them to com-
plete employment-related paperwork. In addition, Zhang
testified that he “divulged” his illegal immigration
status to Li after the two men got to know each other.
The ICE agents who interviewed Li and conducted
surveillance of his home also testified. The agents noted
Li’s refusal during his interview to reveal the names of
his employees and described how the drapes of his home
were constantly shut during the surveillance period.
The jury saw videotapes taken by the agents of the
surveillance and search of Li’s residence. The tapes
showed mattresses on the ground throughout the home.
No. 09-2229 3
The jury also heard from Warren Gordon, a records
supervisor with the Wisconsin Department of Workforce
Development. Gordon testified about the wage records
submitted by Li for China King Buffet from late
2007 to 2008. He explained that such records are used to
compute the amount employers must contribute to
the state unemployment fund. The records can also be
manipulated, he added: by under-reporting the number
of employees on their payroll, employers can lower
their required contributions. The names Zhang, Torres-
Hernandez, and Wang do not appear in the records.
At trial the district court took judicial notice that in
2007 and 2008 Wisconsin required employers to pay
their tipped employees $2.33 per hour. In his deposition
Zhang testified that Li paid him approximately $150 to
$200 per month in base pay. The prosecutor used this
information in his closing argument to argue that, as-
suming a 40-hour work week, Li paid Zhang approxi-
mately only $1.25 per hour.
At the close of trial Li’s counsel moved to dismiss all
charges, arguing that the government had failed to
present sufficient evidence that Li either knew or reck-
lessly disregarded that Zhang, Torres-Hernandez, and
Wang were in the country illegally. The district judge
denied the motion. The jury found Li guilty of harboring
Zhang and Wang for commercial advantage or private
financial gain, but acquitted him of harboring Torres-
Hernandez. The judge sentenced Li to two concurrent 15-
month terms of imprisonment and imposed a $10,000
fine. On the government’s motion, the court also ordered
Li to forfeit his home.
4 No. 09-2229
I.
On appeal, Li first contests the sufficiency of the
evidence supporting his convictions. We will overturn
a jury verdict for insufficient evidence only if, viewing
the evidence in the light most favorable to the govern-
ment, the record shows that no rational trier of fact
could have found guilt beyond a reasonable doubt. United
States v. Vaughn, 585 F.3d 1024, 1028 (7th Cir. 2009).
Li maintains that there was insufficient evidence to
prove that he knew or recklessly disregarded that Zhang
and Wang were illegally in the country; knowingly con-
cealed, harbored, or sheltered them from detection;
and did so for commercial advantage or private finan-
cial gain.
According to Li, nothing in the record directly estab-
lishes that he knew or recklessly disregarded Zhang’s
and Wang’s immigration status. He acknowledges that
there was “a passing mention through various hearsay
testimony” that he might have known about Zhang’s
status, “but that is not clear.” However, Zhang explicitly
testified in his deposition that he had “divulged” his
status to Li. In addition, the government presented evi-
dence that Li did not require Zhang or Wang to complete
any paperwork before they were hired at China Buffet.
A reasonable jury could have concluded that such inat-
tentiveness reflected Li’s knowledge or reckless disregard
of Zhang’s and Wang’s illegal status.
Li also argues that his acquittal on charges of harboring
Torres-Hernandez meant that the jury did not believe
that he was aware of or recklessly disregarded Torres-
No. 09-2229 5
Hernandez’s illegal status, and so he could not have
been aware of or recklessly disregarded the status of
Zhang and Wang. But this argument overlooks the key
difference between Torres-Hernandez and the other
two: Torres-Hernandez had been living with and working
for Li for only a few days before his arrest, while
Zhang and Wang had worked for Li for several months.
A reasonable jury could have concluded that Li might
not have learned about Torres-Hernandez’s status
after only a few days, but that he knew of or could have
discovered Zhang’s and Wang’s illegal status during
their lengthier employment.
Li next asserts that the government did not meet its
burden of proving that he knowingly concealed Zhang
and Wang from detection. He argues that the evidence
adduced at trial showed only that he allowed the aliens
to stay at his home and transported them to work, ac-
tivities incidental to their employment at his restaurant.
But in United States v. Ye, 588 F.3d 411, 417 (7th Cir. 2009),
we denied a similar sufficiency challenge regarding the
defendant’s intent to prevent authorities from detecting
illegal aliens. We emphasized that the defendant had
failed to maintain employment records for his illegal
workers, and that his illegal employees “could have
been exposed” if the records had been maintained prop-
erly. Id. We also noted that the defendant had leased
apartments for the aliens, “thereby permitting them to
keep their identities under wraps.” Id. Here, similarly,
Li helped Zhang and Wang avoid detection by omitting
their names from his wage records and providing them
with a place to live. Moreover, as the ICE agents testified,
6 No. 09-2229
Li refused to disclose the names of his employees. This
also supports an inference that he sought to conceal the
aliens’ presence.
Further, Li contends that there was insufficient evidence
to show that he harbored Zhang and Wang for finan-
cial gain. He maintains that any gain he received from
the aliens resulted from their employment with his
business, not from his role in concealing their presence
from the authorities.
Li misapprehends the aim of § 1324. Although § 1324 is
used to prosecute people who smuggle aliens into the
United States for financial gain, it also covers those
who realize financial gain by hiring illegal aliens. As the
Eleventh Circuit observed in United States v. Zheng, 306
F.3d 1080, 1086 (11th Cir. 2002), “[t]he foundation of
§ 1324 was Congress’ acknowledgment that there was a
severe problem with the employment of illegal aliens.”
For this same reason, in United States v. Calimlim, 538
F.3d 706, 714-15 (7th Cir. 2008), we rejected the defen-
dants’ argument that the evidence was insufficient to
show that they had harbored an alien as their live-in
housekeeper for private financial gain. We concluded
that the alien’s labor came “at a significantly lower price
than a comparable American,” and that this discrepancy
was enough of a pecuniary motive to prove financial
gain. Id. at 715. The evidence adduced at Li’s trial sim-
ilarly supported an inference that he derived financial ad-
vantage from Zhang’s and Wang’s illegal status. Li paid
Zhang less than the state minimum wage he would have
had to pay a legal employee. Moreover, as Gordon testi-
No. 09-2229 7
fied, Li’s omissions of Zhang and Wang from his wage
records allowed him to reduce his required payments
into the state unemployment fund. Although Li might
have found legal employees who were willing to
work unreported, a reasonable jury could have con-
cluded that Zhang’s and Wang’s desire to remain unde-
tected facilitated the scheme.
II.
Li next argues that the district court gave an erroneous
jury instruction regarding the mens rea required to
convict for harboring an alien. He asserts that the court
erred by not instructing the jury that the government
was required to prove that he purposefully concealed
Zhang and Wang from the authorities in violation of the
law.
Li waived the right to challenge this jury instruction on
appeal. We have repeatedly held that approval of a jury
instruction in the district court extinguishes any right to
appellate review of the instruction. See United States v.
Conner, 583 F.3d 1011, 1027 (7th Cir. 2009); United States
v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996). Not only did
Li fail to object to the challenged instruction in the
district court, but the record shows that his trial counsel
proposed the very phrasing Li now disputes. Having
proposed a jury instruction virtually identical to the
instruction actually used by the district court, Li cannot
now contest that instruction.
8 No. 09-2229
III.
Finally, Li challenges the criminal forfeiture of his home.
Specifically, he maintains that he did not receive notice
of the possibility of forfeiture, and so the forfeiture
violates due process. He also contends that the for-
feiture constitutes excessive punishment in violation of
the Eighth Amendment.
The record directly belies Li’s claim that he was not
notified of the possibility of forfeiture. His indictment
included a forfeiture notice explaining that the govern-
ment would seek forfeiture of his home under 8 U.S.C.
§ 1324(b) and 18 U.S.C. § 982 if he were convicted of the
harboring charges. Moreover, after trial but before sen-
tencing the government moved—without objection
from Li—for a preliminary order of forfeiture.
Li’s excessive-punishment argument also fails. In order
to establish that the forfeiture of his home violates the
Eighth Amendment, Li must show that the forfeiture is
“grossly disproportional” to the crime of harboring an
alien or “otherwise does not bear some relationship to the
gravity of the offense that it is designed to punish.” United
States v. Bernitt, 392 F.3d 873, 880 (7th Cir. 2004) (quoting
United States v. Bajakajian, 524 U.S. 321, 334 (1998)). Li
asserts, first, that the forfeiture is grossly disproportional
to his offense because it leaves his minor children home-
less. But this contention is contradicted by Li’s presen-
tence report, which provides (and he does not dispute)
that his children have resided with their uncle in
New York since 2004, when Li’s first wife passed away.
Li also argues that the forfeiture of his house is grossly
No. 09-2229 9
disproportional because he was sentenced to only 15
months’ imprisonment and a $10,000 fine, while his
home, which he owns outright, was assessed as having
a fair market value of $179,200. But the authorized pe-
nalties for harboring an alien are evidence of the crime’s
assessed gravity, see Bernitt, 392 F.3d at 880, and Congress
has authorized a maximum sentence of 10 years’ impris-
onment and a maximum fine of $250,000 for each count
of conviction for harboring, 8 U.S.C. § 1324(a)(1)(B)(i);
18 U.S.C. § 3571(b)(3). Li is correct that he received a
sentence well below the maximum penalties authorized,
but those penalties reflect the seriousness with which
Congress views harboring an alien for financial gain.
Given the potential punishment the district court could
have assessed, the forfeiture of Li’s home is not so
grossly disproportionate to the gravity of his convictions
as to be excessive.
Li also argues in his reply brief that it was reversible
error for the district court to admit the aliens’ videotaped
depositions at trial, but arguments raised for the first
time in a reply brief are waived. See, e.g., United States v.
Wescott, 576 F.3d 347, 354 (7th Cir. 2009).
A FFIRMED.
8-3-10