The U.S. government is requesting the U.S. Court of Appeals for the Ninth Circuit to conduct a re-hearing in connection with its ruling that reversed the conviction of a woman for harboring an illegal alien and the conviction of her husband for aiding and abetting the harboring.
The Ninth Circuit judges held that the evidence was sufficient to find that Lili Zhang Tydingco harbored an illegal alien and that Francisco Muña Tydingco intended to help Mrs. Tydingco commit the crime. However, because of an error in the jury instruction, there may have been a miscarriage of justice.
Circuit Judge Susan P. Graber issued the opinion. Chief Judge Sidney R. Thomas and U.S. District Judge for the Western District of Washington Robert S. Lasnik concurred with the ruling.
In an order last Tuesday, Graber, Thomas, and Lasnik granted the U.S. government’s motion to allow it to file its petition for a rehearing by Jan. 10, 2019.
The judges also allowed the U.S. government to file a petition for rehearing en banc. An en banc refers to a session in which a case is heard before all the judges of the court.
The Ninth Circuit judges held that U.S. District Court for the NMI Chief Judge Ramona V. Manglona’s instruction defining “harbor” was erroneous because it did not require the jury to find that the Tydingcos intended to violate the law, and the error was not harmless.
The judges said the District Court’s instruction defining “reckless disregard” was plainly erroneous because it did not require the jury to find that Mrs. Tydingco 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 couple on an invalid legal theory.
With the reversal of the convictions, the Ninth Circuit remanded the case to the District Court for a new trial.
A federal grand jury indicted the couple for allegedly receiving money to harbor two illegal Chinese aliens, including a child they enrolled at a public school.
In June 2016, a federal court jury rendered a unanimous guilty verdict, finding Mrs. Tydingco guilty of one count of harboring an alien and Mr. Tydingco guilty of aiding and abetting the harboring.
On Dec. 9, 2016, Manglona sentenced Mrs. Tydingco to 10 months in prison with credit for time served. She sentenced Mr. Tydingco to 21 months in prison, with credit for time served.
The Tydingcos, through counsels Steven Pixley and Bruce Berline, appealed, asking the Ninth Circuit to reverse their conviction and vacate their sentence.
The couple have remained out of custody while their appeal was pending.