United States of America v. Dajer Cuevas-Reyes

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3059
UNITED STATES OF AMERICA
v.
DAJER CUEVAS-REYES,
Appellant
On Appeal from the United States District Court
for the District of the Virgin Islands
(D.C. No. 3-07-cr-000666-2)
District Judge: Honorable Curtis V. Gomez
Argued April 23, 2009
Before: BARRY, HARDIMAN and COWEN, Circuit Judges.
(Filed: July 10, 2009 )

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2
Ishmael A. Meyers, Jr. (Argued)
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924
Attorneys for Appellee
Darren John Baptiste (Argued)
Suites 11 & 12
5062 Fortets Gade
The Professional Building
St. Thomas, VI 00802
Attorneys for Appellant
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Dajer Cuevas-Reyes appeals his conviction for shielding
illegal aliens. Because we find that Cuevas-Reyes’s actions are
insufficient as a matter of law to support a conviction under 8
U.S.C. § 1324, we will reverse.
I.

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3
On November 20, 2007, United States Customs and
Border Patrol Agent William Santiago observed two individuals
boarding a small plane at the north ramp of Cyril E. King
International Airport in St. Thomas, United States Virgin
Islands. Santiago, who had been alerted by his superiors that a
pilot was trying to take illegal aliens out of the Virgin Islands by
private aircraft, radioed tower control to return the plane to the
general aviation area. Upon its return, Santiago confirmed that
the plane had six passengers: the pilot, Eliud Gomez-Garcia;
Cuevas-Reyes, who was seated in the co-pilot seat; and four
women from the Dominican Republic. The women, who were
illegal aliens, later testified that they were trying to leave the
United States by private plane because of their immigration
status and that they had paid Cuevas-Reyes between $600 and
$1,300 to arrange their flight to the Dominican Republic.
The Government charged Cuevas-Reyes with shielding
illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and
aiding and abetting Gomez-Garcia in the shielding of illegal
aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(II). The case
was tried to verdict in February 2008. Following the
Government’s case-in-chief and again after all the evidence had
been submitted, Cuevas-Reyes moved for judgment of acquittal
pursuant to Rule 29 of the Federal Rules of Criminal Procedure.
The District Court denied both motions and the jury found
Cuevas-Reyes guilty on both counts. Following the verdict,
Cuevas-Reyes moved again for judgment of acquittal, which the
District Court again denied. The District Court later sentenced
Cuevas-Reyes to 10 months imprisonment and three years of
supervised release.

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4
Cuevas-Reyes appeals, asserting that the evidence was
insufficient to sustain his convictions. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 1294.
II.
Cuevas-Reyes must overcome a “very heavy burden” to
overturn the jury’s verdict for insufficiency of the evidence.
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). We
will sustain a defendant’s conviction if, viewing the evidence in
the light most favorable to the Government, “any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Voigt, 89 F.3d
1050, 1080 (3d Cir. 1996) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)).
The elements of the crime of “bringing in and harboring
certain aliens” are set forth, in relevant part, in 8 U.S.C. § 1324:
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 according to
[the penalties outlined in this section].

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In addition to the substantive offense, subsection1
(a)(1)(A)(v)(II) prohibits aiding or abetting another person in the
commission of the act described above.
5
8 U.S.C. § 1324(a)(1)(A)(iii). To convict Cuevas-Reyes under1
the statute, the Government was required to prove:
(1) the alien entered or remained in the United
States in violation of the law; (2) the defendant
concealed, harbored, or sheltered the alien in the
United States; (3) the defendant knew, or
recklessly disregarded the fact that the alien
entered or remained in the United States in
violation of the law; and (4) the defendant’s
conduct tended to substantially facilitate the alien
remaining in the United States.
United States v. DeJesus-Batres, 410 F.3d 154, 160 (5th Cir.
2005); accord United States v. Silveus, 542 F.3d 993, 1002 (3d
Cir. 2008) (discussing similar test for illegally transporting an
alien under 8 U.S.C. § 1324(a)(1)(A)(ii)).
The first and third elements of this test are easily satisfied
in the present case. The women testified that they were in the
United States illegally and that Cuevas-Reyes knew about it.
The analysis of the second and fourth prongs is more
difficult. We recently considered the question of what conduct
constitutes shielding, harboring, or concealing an illegal
immigrant within the meaning of § 1324. See United States v.

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Our dissenting colleague rightly notes that the fourth2
prong of the test originally articulated by the Fifth Circuit in
DeJesus-Batres and embraced by our Court in Silveus – which
requires that the Government prove the defendant’s conduct
“tended to substantially facilitate the alien remaining in the
United States” – is not found in the statutory language. It is
equally clear, however, that our decision in Ozcelik read that
prong into the statute; indeed, it was that case’s central holding.
Because we are bound by Ozcelik, it would be inappropriate for
this panel to revisit that issue.
6
Ozcelik, 527 F.3d 88, 97-101 (3d Cir. 2008). Finding that the
goal of § 1324 was to prevent aliens from entering or remaining
in the United States illegally, we held that shielding an alien
ordinarily includes affirmative conduct – such as providing
shelter, transportation, direction about how to obtain false
documentation, or warnings about impending investigations –
that facilitates an alien’s continuing illegal presence in the
United States. Id. at 99. In doing so, we adopted the test of our
sister circuits: “harboring, within the meaning of § 1324,
encompasses conduct tending substantially to facilitate an
alien’s remaining in the United States illegally and to prevent
government authorities from detecting his unlawful presence.”
Id. (quoting United States v. Kim, 193 F.3d 567, 574 (2d Cir.
1999)) (emphasis in original).
Applying this test, as our precedent requires, there is no
evidence from which a reasonable juror could infer that Cuevas-
Reyes’s actions constituted substantial facilitation of the
women’s remaining in the United States illegally.2

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7
As a preliminary matter, we note that Cuevas-Reyes’s
actions were undertaken for the purpose of removing the women
from the United States rather than helping them remain here.
The women testified that they paid Cuevas-Reyes to take them
to Santo Domingo, Dominican Republic, and that he refunded
their money at the airport when it became apparent he would not
deliver them. Because the goal of § 1324 is to prevent aliens
from entering or remaining in the United States illegally by
punishing those who shield or harbor them, see Ozcelik, 537
F.3d at 98, punishing Cuevas-Reyes for helping illegal aliens
leave the country is contrary to that goal.
Secondly, the Government argues that Cuevas-Reyes may
be found guilty because he did not inform the women that they
were required to pass inspection by Immigration and Customs
Enforcement officials at the airport despite having been aware
of their illegal status. In so doing, the Government asserts,
Cuevas-Reyes failed to follow procedures set by the federal
government, thereby concealing the illegal immigrants from
detection while in the United States.
This argument fails in light of Ozcelik, where we
declined to hold that there was substantial facilitation. There, an
INS official advised an illegal immigrant to “lay low,” not draw
attention to himself, and avoid the address that the INS had on
file for him. Ozcelik, 537 F.3d at 99. We held that this did not
constitute substantial assistance because the official had only
provided “obvious information that any fugitive would know.”
Id. at 99. Likewise, in Silveus we acknowledged that mere
cohabitation with an illegal alien or “reasonable control of the
premises” does not constitute “harboring” within the meaning of

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8
the statute. 542 F.3d at 1003. Rather, the Government must
“prove that [the defendant’s] ‘conduct tend[ed] substantially to
facilitate [the alien’s] remaining in the United States illegally
and to prevent government authorities from detecting his
unlawful presence.” Id. at 1004 (quoting Ozcelik, 527 F.3d at
99).
The Government cannot make such a showing in this
case. There is no evidence in the record that Cuevas-Reyes
helped the aliens remain in the United States; he merely told the
women to meet him directly at the plane. To the extent Cuevas-
Reyes’s advice helped the departing women avoid detection by
Immigration and Customs Enforcement, this too facilitated their
removal from the country because they presumably would have
been detained in the United States and remained even longer had
they been apprehended.
The Government’s position would impose an affirmative
obligation on citizens to advise illegal aliens to turn themselves
in or to comply with immigration laws; § 1324 imposes no such
duty.
Finally, we note that Cuevas-Reyes’s actions fall well
short of the measures taken by defendants in cases from our
sister circuits where “substantial facilitation” was found. See,
e.g., Kim, 193 F.3d at 574-75 (employer who required his illegal
alien employee to obtain false documentation in order to mislead
the INS and gave him detailed instructions regarding how to
report falsely that he had been terminated from his job was
guilty of substantial facilitation); United States v. Sanchez, 963
F.2d 152, 154-55 (8th Cir. 1992) (providing illegal aliens with

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9
apartments and immigration papers justified a conviction for
shielding, harboring, or concealing); United States v. Rubio-
Gonzalez, 674 F.2d 1067, 1072-73 (5th Cir. 1982) (upholding
conviction for a foreman who had warned his illegal alien
employees that INS agents were on site by speaking loudly and
making gestures toward the INS agents to encourage the
employees to flee the work facility).
III.
Despite the heavy burden he bears on appeal, we hold
that Cuevas-Reyes’s conduct, when viewed in the light most
favorable to the Government, does not meet the second or
fourth requirements of the test we established in Ozcelik.
Accordingly, we will reverse the denial of Cuevas-Reyes’s
Rule 29 motion, and vacate his convictions for both shielding
illegal aliens and aiding and abetting.

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Section 1324 states that criminal penalties will be3
imposed on any person who:knowingly or in a 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 means of transportation.
10
United States of America v. Dajer Cuevas-Reyes, No. 08-3059
COWEN, Circuit Judge, dissenting.
Because nothing in the text of 8 U.S.C. §
1324(a)(1)(A)(iii) requires that the shielding or concealing of
an alien be for the purpose of enabling that alien to remain in
the United States, I respectfully dissent. There is no reason
that § 1324 cannot also prohibit individuals from assisting
aliens fleeing the United States. The key is that the individual
substantially assisted, or attempted to substantially assist, the
alien in avoiding detection. Accordingly, I would find that
the evidence supported the conviction and affirm the District
Court’s judgment.
On its face, § 1324 prohibits the concealing, harboring,
or shielding of any person known to be an alien from
detection by the authorities. Thus, to establish a violation of3

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8 U.S.C. § 1324(a)(1)(A)(iii).
Citing precedent from the Court of Appeal for the Fifth4
Circuit, the majority asserts that the Government must also
prove a fourth element: that the defendant’s conduct tended to
substantially facilitate the alien remaining in the United States.
However, such an element is neither supported by the text of §
1324, nor Ozcelik, which set out to provide insight on what it
means to conceal, harbor, or shield, see 527 F.3d at 100. Rather,
it appears as if the majority has confused the common
interpretation of what constitutes concealing, harboring, or
shielding with an independent fourth element.
Harboring is generally understood to relate to providing5
shelter and is therefore not applicable here. See United States
v. Acosta De Evans, 531 F.2d 428, 430 (9th Cir. 1976)
(construing “harbor” to mean “afford shelter to”).
11
the statute as it is written, the Government must only prove
three things: (1) an alien entered or was present in the United
States in violation of the law; (2) the defendant knew, or
recklessly disregarded, the fact that the alien was unlawfully
present in the United States; and (3) the defendant concealed,
harbored, or shielded the alien from detection. In this case,4
there is no doubt that Dajer Cuevas-Reyes knew that the four
women were unlawfully present in the United States. The
only question is whether his attempt to smuggle them out of
the country constituted concealing or shielding within the
prohibitions of § 1324.5

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All of the cases from the other Courts of Appeals and6
from which Ozcelik’s reasoning is drawn, are similar to Ozcelik
in that the aliens who were being concealed or shielded wanted
12
As the majority has pointed out, this Court considered
the meaning of concealing, harboring, and shielding in the
context of § 1324 in United States v. Ozcelik, 527 F.3d 88 (3d
Cir. 2008), and concluded that the terms “encompass[ed]
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.” Id.
at 100 (citations and internal marks omitted). However,
Ozcelik was decided under different factual circumstances,
which inevitably shaped the Court’s holding, and therefore
makes its application here somewhat incongruous.
In Ozcelik, the alien, Tuncer, had overstayed his
student visa but had no desire to leave the United States. He
was put in touch with Ozcelik, who worked for Customs and
Border Protection, and was thought to be able to help resolve
Tuncer’s immigration issues. The Court had to decide
whether the advice that Ozcelik gave Tuncer substantially
assisted Tuncer in avoiding detection, thereby enabling him to
remain in the United States. Given this inquiry, it is
understandable that the Court couched its holding in terms of
remaining in the United States—because that is what the alien
intended to do, and the only way to remain in the United
States was to avoid detection.6

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to stay in the United States. See, e.g., United States v. Kim, 193
F.3d 567 (2d Cir. 1999) (Defendant instructed his alien
employees to file false documents with the INS after their
names appeared on list of aliens who lacked proper work
authorization.); United States v. Sanchez, 963 F.2d 152 (8th
Cir. 1992) (Defendant provided illegal aliens with apartments
and false immigration papers.); United States v.
Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982) (Defendant
warned alien co-workers that immigration officials were at their
job site.); United States v. Varkonyi, 645 F.2d 453 (5th Cir.
1981) (Defendant provided employment and lodging to two
aliens, and forcibly interfered with INS agents to prevent the
aliens’ apprehension.); United States v. Cantu, 557 F.2d 1173
(5th Cir. 1977) (Defendant assisted illegal employees in leaving
his place of business when INS agents arrived for an
inspection.); United States v. Acosta de Evans, 531 F.2d 428
(9th Cir. 1976) (Defendant provided shelter to unlawfully
present aliens.); United States v. Lopez, 521 F.2d 437, 441 (2d
Cir. 1975) (Defendant “provid[ed] shelter and other services in
order to facilitate the continued unlawful presence of the alien
in the United States.”).
See Ozcelik, 527 F.3d at 99 (“[G]enerally [convictions7
under § 1324] involve defendants who provide illegal aliens
with affirmative assistance, such as shelter, transportation,
direction about how to obtain false documentation, or warnings
about impending investigations.”). This observation is apt
13
This case presents a different factual scenario than
most prosecutions under § 1324 because the aliens here were7

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because generally, aliens who come to the United States want
to remain in the United States. But, as this case shows, not all
aliens share that desire.
14
not trying to remain in the United States. But that does not
mean that Cuevas-Reyes’s attempt to shield the aliens from
detection did not also violate the statute. In this case, none of
the four aliens expressed a desire to remain in the United
States. Indeed, they were apprehended as Cuevas-Reyes and
Eliud Gomez-Garcia were in the process of surreptitiously
transporting them back to the Dominican Republic. Thus, it
makes little sense to apply the portion of Ozcelik dealing with
remaining to this case because the aliens here were leaving
the United States, and remaining is not an element of the
statute.
Putting aside the fact that in Ozcelik the alien wanted
to remain in the United States, Ozcelik is properly read as
describing shielding and concealing as conduct that tends to
substantially assist an alien in avoiding detection by
government authorities. Indeed, this is the correct reading of
Ozcelik because nothing in the text of the statute suggests that
the Government must prove that the assistance in avoiding
detection occurred for the purpose of enabling the alien to
remain in the United States. In order to avoid adding an
element to the statute, Ozcelik must be understood as positing
that an individual violates § 1324 when he provides
substantial assistance to an alien in avoiding detection;

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Air commerce regulations promulgated by CBP require8
all aircraft carrying passengers for hire to clear customs before
departing the U.S. for a foreign area. 19 C.F.R. § 122.61(a)(1)
(2007). There is an exception for private aircraft, see 19 C.F.R.
§§ 122.26, 122.61 (2007), however because the women paid for
their transportation to the Dominican Republic, Gomez-Garcia’s
airplane cannot be classified as a private aircraft in this instance.
A private aircraft is “any aircraft engaged in a personal or
business flight to or from the U.S. which is not carrying
passengers and/or cargo for commercial purposes.” 19 C.F.R.
§ 122.1(h)(1) (2007). When Cuevas-Reyes accepted the
women’s money in exchange for transporting them to the
Dominican Republic, Gomez-Garcia’s plane was not being used
as a private aircraft. Consequently, the aircraft and its
passengers were required to clear customs prior to departing the
Virgin Islands. See 19 C.F.R. § 122.42 (2007) (“Aircraft
leaving the U.S. Virgin Islands for a place other than the U.S.
15
whether the alien intends to remain or leave the United States
is ancillary. Assistance in avoiding detection is sufficient to
establish a violation of § 1324.
There is no question that Cuevas-Reyes substantially
assisted these four women in avoiding detection by arranging
to fly them to the Dominican Republic. Cuevas-Reyes
instructed the women to meet him at the north ramp of the
airfield because he intended to take them out of the country
without clearing customs. Smuggling aliens out of the8

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are governed by the provisions of this part that apply to aircraft
leaving the U.S. for a foreign area.”).
16
country is the ultimate way to assist them in avoiding
detection. All of the elements of the offense are present:
Cuevas-Reyes knew that the four women were aliens who
were unlawfully present in the United States and he attempted
to shield them by “prevent[ing] government authorities from
detecting [their] unlawful presence.” Ozcelik, 527 F.3d at
100. This was sufficient evidence for the jury to find that
Cuevas-Reyes violated § 1324(a)(1)(A)(iii). The fact that the
women were attempting to leave the United States, as
opposed to enter or remain, has no impact on the illegality of
Cuevas-Reyes’s actions under the plain language of the
statute. By inappropriately applying Ozcelik to this case, the
majority inadvertently writes a fourth element into the statute
and unnecessarily reverses a conviction that should be
affirmed.

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