1 of 2 found guilty for illegal transport of others to Guam wants verdict overturned

One of the two Chinese nationals who were found guilty by a jury for allegedly helping illegally transport others to Guam by boat has filed a motion for acquittal with the U.S. District Court for the NMI last Thursday.

Hongjiang Yang, one of two others found guilty earlier this month for allegedly aiding in the illegal transport of others to Guam, has filed a renewed motion for judgment of acquittal.

Yang, through attorney Cong Nie, argues that acquittal is necessary because he and his wife were mere passengers of the boat to Guam and not a co-conspirator or facilitator of the illegal transport.

“The conduct of defendant is a far cry from what Congress intended to punish by criminal sanctions. Everything Yang did, he did it because he wanted to go to Guam himself with his wife, as passengers. To do what he did, he did not have to have an agreement with someone to commit a transportation offense. Nor did he have to have the intent to help someone commit a transportation offense. Nothing he did could lead a reasonable jury to elevate his status from a mere passenger to that of a co-conspirator or facilitator intending to further another alien’s unlawful presence. To find otherwise will frustrate the entire scheme of immigration law and lead to far-reaching consequences,” said Nie.

Ultimately, Nie argues that the evidence at trial shows an ordinary transaction to buy boat passage to Guam oppose to the government’s main theory of conspiracy alleging that Yang and others conspired to transport each other to Guam by pooling their money together to make the trip happen.

“A person does not automatically form a conspiracy by paying for a third party. When a person pays a transporter to transport another person, for all the transporter cares, the beneficiary does not even have to show up for the trip so long as the transporter gets paid. In Yang’s case, all Lady Hu cared was receiving the full price ($5,000 per person). So long as the price was paid in full, for all she cared, Yang’s wife (or any other passenger) could have simply gotten off the boat before departure and remained on Saipan, or Yang could have boarded the boat alone without his wife. There was simply no evidence at trial that Lady Hu would abort the trip if a passenger did not show up. Like in Lennick and Loveland, where no agreement automatically formed between an upstream supplier and a payor even when the upstream supplier knew that the payor was reselling drugs, there was simply no agreement between Yang and Lady Hu to transport Yang’s wife,” said Nie.

As part of his argument, Nie uses a home renovation company that hires undocumented workers (due to labor shortage) as an example.

“Its alien workers go to customers’ homes and work together to finish projects. They socialize and voluntarily carpool with each other. Without them, the company will have no workers and no business. In a sense, those workers pool their time, labor, skills, and cars. Even though everything they do is incidental to their existence, including being a normal co-worker and friend, they are guilty of alien employment and transportation conspiracies and aiding and abetting, if the government has its way in this case. Then suppose a worker does not work well with his co-workers and does not carpool with them, not because he thinks it is illegal to do so but because he prefers to be a lone wolf. This worker is not guilty of conspiracy or aiding and abetting. That is the absurd consequence of the government’s case,” he said.

Nie says the government has argued that it needs to be able to prosecute Yang this way because otherwise the CNMI visa-waiver program will somehow be in jeopardy. However, Nie argues that Congress has given tools to the government.

“It can enforce the prohibition on employment of undocumented aliens on Guam to make it equally hard, if not harder, to find work on Guam. It can seek to remove aliens who land in Guam. For aliens who apply from Guam to USCIS (U.S. Citizenship and Immigration Services) for asylum, the government even knows who among them came from the CNMI, because it has entry records. Perhaps the government lacks the resources to do everything it can legally do, but that is not an excuse to prosecute aliens in a way that subverts the entire immigration scheme and common sense,” said Nie.

Yang is currently scheduled for sentencing for March 14, 2025, at 9am before District Court for the NMI Chief Judge Ramona V. Manglona.

According to the indictment, in or about late June or early July 2023, Yang and others created, joined, and abetted a scheme to transport eight aliens (including themselves) from the District of the Northern Mariana Islands to the Territory of Guam.

The indictment alleges that the scheme was carried out with the intent that the aliens would reside in Guam, knowing and in reckless disregard of the fact that seven of the aliens were illegally present in the United States, including in the District of the Northern Mariana Islands, and the eighth alien had no authority to enter or reside in Guam or any part of the United States other than the District of the Northern Mariana Islands.