FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-10023 Plaintiff-Appellee, D.C. No. v. 1:15-cr-00018-RVM-2 FRANCISCO MUNA TYDINGCO, Defendant-Appellant. UNITED STATES OF AMERICA, No. 17-10024 Plaintiff-Appellee, D.C. No. v. 1:15-cr-00018-RVM-1 LILI ZHANG TYDINGCO, Defendant-Appellant. OPINION Appeals from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief Judge, Presiding Argued and Submitted October 16, 2018 San Francisco, California Filed November 27, 2018 2 UNITED STATES V. TYDINGCO Before: Sidney R. Thomas, Chief Judge, Susan P. Graber, Circuit Judge, and Robert S. Lasnik,* District Judge. Opinion by Judge Graber SUMMARY** Criminal Law The panel reversed Lili Tydingco’s conviction for harboring an illegal alien, reversed Francisco (Frank) Tydingco’s conviction for aiding and abetting the harboring, and remanded for a new trial. The panel held that the evidence—viewed in the light most favorable to the government—is sufficient for a rational trier of fact to find that Lili harbored an illegal alien and that Frank had the specific intent to facilitate Lili’s commission of that crime. The panel held that the instruction defining “harbor” was erroneous because it did not require the jury to find that the defendants intended to violate the law, and the error was not harmless. * The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. TYDINGCO 3 The panel held that the instruction defining “reckless disregard” was plainly erroneous because it did not require the jury to find that Lili subjectively drew an inference that the alien was, in fact, an alien and was in the United States unlawfully. The panel held that the instruction may have affected the outcome of the trial, and the error constitutes a miscarriage of justice, warranting a new trial, because the jury could have convicted the defendants on an invalid legal theory. COUNSEL Steven P. Pixley (argued), Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant Francisco Muna Tydingco. Bruce Berline (argued), Berline & Associates LLC, Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant Lili Zhang Tydingco. Garth R. Backe (argued), Assistant United States Attorney; Shawn N. Anderson, United States Attorney; United States Attorney’s Office, Saipan, Commonwealth of the Northern Mariana Islands; for Plaintiff-Appellee. OPINION GRABER, Circuit Judge: Defendants Lili and Francisco (“Frank”) Tydingco stand convicted, respectively, of harboring an illegal alien and of aiding and abetting the harboring, in violation of 8 U.S.C. 4 UNITED STATES V. TYDINGCO § 1324(a)(1)(A)(iii). On appeal they argue, first, that the evidence was insufficient to support their convictions. We disagree and, therefore, reach their additional arguments concerning trial error. We hold: (1) the instruction defining “harbor” was erroneous because it did not require the jury to find that Defendants intended to violate the law, and the error was not harmless; and (2) the instruction defining ...
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