Monday, June 09, 2008

Customs and Border Protection Officer's Haboring Conviction Reversed While Bribery Conviction Upheld

In United States v. Ozcelik, No. 06-4245 (3d Cir. May 27, 2008), the Court of Appeals decided, as a matter of first impression, what constitutes "shielding, harboring, and concealing an alien within the meaning of 8 U.S.C. § 1324. The defendant, Ozcelik, a naturalized US citizen originally from Turkey, was a Customs and Border Protection Officer in the Department of Homeland Security. A Turkish student whose visa expired was put into contact with Ozcelik by a mutual acquaintance and told that Ozcelik could help him remain in the United States. Ozcelik advised Tuncer that Ozcelik had contacts with the then INS and that for $2,300 something could be done "from the inside" that would extend his visa. Tuncer began cooperating with the Government and participated in recorded telephone conversations with Ozcelik regarding the resolution of his immigration problems in exchange for $2,300. A controlled meeting was also arranged where Tuncer gave the money to Ozcelik along with his immigration papers. During their several conversations, Ozcelik advised Tuncer that he needed to keep a low profile and not to "get involved in anything" for 3-5 months in order to avoid detection. He also counseled Tuncer that it was a good thing to be living at an address different from his legal address. As a result, Ozcelik was indicted and, after a jury trial, was convicted of seeking and accepting a bribe in violation of 18 U.S.C. § 201(b)(2) and attempting to conceal, harbor and shield from detection an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

On appeal, Ozcelik challenged the sufficiency of the evidence on both counts of conviction. While the Court of Appeals upheld the bribery conviction, it found, as a matter of first impression, that merely counseling an alien to maintain a low profile and live at a different address did not constitute "shielding, harboring, and concealing" within the meaning of § 1324(a)(1)(A)(iii) which states, in part: "Any person who . . . 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 . . . shall be punished . . . ."

The Court of Appeals summarized the precise conduct that gave rise to the conviction was as follows: During their March 24 meeting, Ozcelik stated to Tuncer, "You are not going to get involved in anything for 3-5 months in order to keep your status. Go to your work and come back home in silence, cook your food, do that only." Ozcelik continued, "The most important thing is for you to not get involved in anything here, to not get involved in any activity." App. at 989. In a similar vein, Ozcelik said to Tuncer, "That’s why I’m telling you to stay away from everything for 4-5 months. Stay away from everything. Are you going to your job? Go, then come back home." Ozcelik also commented that "it is a good thing that you’ve changed your address. I mean your legal address is different. You are living with a friend here. Disappear, don’t tell anyone what address you’re staying at." Later, he said, "Stay away. Stay away from everything for 5-6 months. . . . Especially the address thing is very important." Ozcelik stated, "[A]s I said before stay low key for 5-6 months, because you do not have any rights." In a later recorded telephone conversation, Ozcelik said to Tuncer, "I told you, don’t do anything, I mean don’t go left and right a lot."

Summarizing appellate authority on the issue, the Court recognized that activity short of sheltering an alien violates the statute. For example, in United States v. Rubio-Gonzalez, 674 F.2d 1076 (5th Cir. 1982), the Fifth Circuit upheld a conviction where the defendant warned aliens at a work site of the presence of an INS agent conducting an investigation. While the Court in Ozcelik agreed "that the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324 encompass conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent Government authorities from detecting the alien’s unlawful presence, Ozcelik’s counsel did not. The Court concluded: "we view Ozcelik’s comments as general advice to, in effect, keep a low profile and not do anything illegal. Ozcelik suggested that Tuncer stay out of trouble. Telling an illegal alien to stay out of trouble does not tend substantially to facilitate the alien remaining in the country; rather, it simply states an obvious proposition that anyone would know or could easily ascertain from almost any source." Accordingly, the § 1324 conviction was reversed.

Ozcelik also challenged the sufficiency of the evidence on his bribery conviction under 18 U.S.C. § 201(b)(2) which prohibits a public official from seeking or accepting anything of value in exchange for "(A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the official duty of such official or person." The elements of the offense are that: "(1) defendant must be a public official, (2) who directly or indirectly demanded, sought, received, accepted, or agreed to receive or accept anything of value personally or for any other person or entity, and (3) did so specifically for one of the three corrupt purposes set forth in subsections (A) through (C)." The Court determined that there was no dispute that Ozcelik was a public official and that he took money from Tuncer, the issues were whether he took the money with corrupt intent and whether there was sufficient evidence that Ozcelik had taken "official action" as a result of the bribe. The Court of Appeals framed the issue as whether Ozcelik aided and abetted other unnamed INS officials to alter Tuncer’s records. The Government conceded that the only evidence that Ozcelik had done so were his own statements to Tuncer that he had friends in the INS who would alter Tuncer’s records. Recognizing that the crime of bribery is committed when the official agrees to perform the act, and that completion of the act is not necessary, the Court found that the crime had been completed when Ozcelik’s friend at INS had agreed to alter Tuncer’s status. Passing on the sufficiency of the evidence, the Court concluded; "Indeed, the only evidence the Government produced at trial that the unnamed friend at INS existed was Ozcelik’s own statements to that effect. But we are not permitted to assess credibility. And as such, we cannot say as a matter of law that no reasonable juror could accept the Government’s theory premised upon Ozcelik’s own statements." Accordingly, the bribery conviction was affirmed.

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