In U.S. v. Gari, No. 08-10014 (June 30, 2009), the Court affirmed certain Cuban alien-smuggling convictions, reversed others, and remanded for resentencing.
The Court found sufficient evidence to convict the defendants of several counts of alien smuggling. However, as to one alien smuggling count, the evidence established that she had prior authorization to enter the United States through a designated port of entry. Accordingly, the convictions of the defendants for smuggling this alien (including the defendant who did not raise the issue on appeal) were set aside, as the statute required the government to prove that she entered without prior authorization.
The defendants challenged the government’s reliance on the aliens’ I-213 Forms as violative of the Confrontation Clause, because the defendants did not have an opportunity to cross- examine the aliens whose responses were recorded on these forms. Declining to reach the issue on the merits, the Court held that any error in admitting the forms was harmless, in view of the other evidence.
The Court rejected a defendant’s Rule 404(b) challenge to the admission of prior bad act, because the alien smuggling episode in question was "not very remote in time from the date of the charged conduct."
The Court disagreed with the government that one defendant had waived his motion to sever, pointing out that the district court had "implicitly denied" it, but agreed with the government that the denial of severance was not an abuse of discretion, pointing out that the court gave the jury a limiting instruction as to how the evidence should be considered on a defendant-specific basis.
In light of its vacatur of two convictions, the Court remanded the entire case for resentencing.
