In U.S. v. Dominguez, No. 07-13405 (Oct. 31, 2011) (2-1) (Tjoflat, J. dissenting in part), the Court reversed convictions arising under 8 U.S.C. § 1324 for transporting and harboring aliens (Cuban baseball players) based on the insufficiency of the evidence, but affirmed convictions for conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and abetting a smuggle.
The Court found that the evidence was insufficient to support convictions for transporting aliens within the United States to further illegal status, pointing that while they lived in the United States the baseball players played baseball, went out with friends, ate at restaurants, watched baseball games, and were showcased in front of Major League baseball scouts. The players lived freely and openly “and in no way acted in a manner suggesting they were avoiding immigration officials.” Contrary to the government’s contention, the three-month wait before the players were taken to immigration officials did not suffice to show illegal transportation,because there is no specific time requirement for presenting Cubans to immigration officials.
For the same reason, the Court reversed the “harboring” aliens convictions, finding that Dominguez did not facilitate the players’ escaping detection.
The Court affirmed convictions for conspiring to bring aliens to the United States, noting the testimony of a government cooperating witness that “he had an extensive and ongoing smuggling relationship with Dominguez,” including a $125,000 payment to fund the smuggling of the five Cuban baseball players.
The Court also affirmed aiding and abetting convictions, noting that Dominguez paid for the smuggling of the Cuban baseball players. The Court rejected the argument that the evidence was insufficient because Dominguez did not earn a substantial fee for signing the players to Major League contracts, noting that “financial success” is not an element of the offense.
The Court rejected the argument that the Wet Foot/Dry Foot policy of the Cuban Adjustment Act precluded having the requisite mens rea to unlawfully smuggle Cuban aliens. The Court found that the statute does not require “specific intent,” or “willfully” smuggling, but only a “reckless disregard” for the alien’s unauthorized status. Further, an undocumented alien who is in the United States must still be paroled, a process that reclassifies the alien from one who is illegally in the United States to one who is legally in the United States. Thus, the Wet Foot/Dry Foot policy “is not relevant to a conviction for smuggling Cubans into the United States.” For the same reason, the Court found no error in failing to instruct the jury about the Wet Foot/Dry Foot policy.
