United States of America v. Deanna L. Costello

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2917
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEANNA L. COSTELLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cr-30072-WDS-1—William D. Stiehl, Judge.
ARGUED DECEMBER 14, 2011—DECIDED JANUARY 31, 2012
Before POSNER, MANION, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The defendant was charged
with violating 8 U.S.C. § 1324(a)(1)(A)(iii), which pro-
vides that anyone who “knowing or in reckless dis-
regard 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 do
any of these things], such alien in any place, including
any building or any means of transportation,” is punish-

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2 No. 11-2917
able by a maximum prison term of 5 years and a maxi-
mum fine of $250,000. 8 U.S.C. § 1324(a)(1)(B)(ii); 18 U.S.C.
§ 3571(b)(3). The parties agreed to a bench trial on stipu-
lated facts. The district judge found the defendant guilty
and sentenced her to two years’ probation and to pay
a $200 fine.
The stipulated facts are sparse. The defendant is an
American citizen who at the time of the alleged offense
lived in a small Illinois town about five miles from St.
Louis, named Cahokia. She had a romantic relationship
with a Mexican whom she knew to be an illegal alien.
He lived with her in Cahokia for about a year, which
ended in July 2003 when he was arrested on a federal
drug charge. He pleaded guilty, spent several years in
prison, and upon completion of his sentence was
removed to Mexico. He returned to the United States
without authorization, and one day in March 2006 (we
don’t know how long that was after he’d returned to the
United States), the defendant picked him up at the Grey-
hound bus terminal in St. Louis and drove him to her
home in Cahokia, the same home in which they had
lived together during his previous sojourn in this country.
He lived there more or less continuously until his arrest
in October 2006 on drug charges. He was prosecuted,
and convicted both of marijuana offenses (conspiracy to
distribute marijuana and possession with intent to dis-
tribute it), and of having returned to the United States
illegally after having been removed, and was given a
stiff prison sentence.
The defendant in this case was indicted for all three
offenses specified in section 1324(a)(1)(A)(iii)—concealing,

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No. 11-2917 3
harboring, and shielding from detection an alien known to
be in this country illegally. The judge determined, ostensi-
bly on the basis of the stipulated facts, which were the
entire record except for the transcript of a phone call (see
below), that “her actions were designed, at least in part,
to facilitate and conceal [the boyfriend’s] return to the
United States as an illegal alien, and to harbor him in
this country and, therefore, that she acted knowingly . . . .
[Her] actions, . . . including picking the alien up at the
Greyhound station, giving him shelter, and coming to
his aide [sic] after he was arrested, amount to ‘sub-
stantial assistance’ because she made his illegal presence
in the United States easier, and facilitated his avoidance
of detection.”
There is no evidence that the defendant concealed
her boyfriend or shielded him from detection, and the
focus of the briefs and argument on appeal has therefore
been on the harboring offense. The judge’s reference to
the defendant’s “coming to [the boyfriend’s] aid” is to
the boyfriend’s having called the defendant from his car
as he was being chased by federal agents and her having
responded by driving to the site of the arrest. There is
nothing in the stipulated facts, or in the phone conversa-
tion, which was recorded and transcribed, to support
the judge’s characterization of her response. The
boyfriend had not asked her for help, nor did she say
anything to suggest she was coming to his aid. So
far as appears, she was merely worried and anxious and
preferred to see what had happened to her boyfriend
rather than remain at home sitting on her hands. There
is no indication of what if anything she did when she
arrived at the scene.

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4 No. 11-2917
The district judge seems to have thought that the defen-
dant’s having driven the boyfriend from the bus terminal
to her home was significant. But the distance was so
short—about six miles—that in a pinch he could have
walked. And had he wanted to take public transporta-
tion he could have used the St. Louis metro transit
system; the price of his ticket would have been $2.75.
(That is the price today; it probably was lower in 2006.)
There is nothing to suggest that the two of them had
prearranged the pickup, or that, had she not picked
him up, he would have returned to Mexico. (We don’t
know how long he had been in the United States.) She
was not charged with the offense in the next subsection
of section 1324(a)(1)(A) of “encourag[ing] or induc[ing]
an alien to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such
coming to, entry, or residence is or will be in violation
of law.” § 1324(a)(1)(A)(iv).
All that’s left is “harboring,” which if defined broadly
enough describes her action in having permitted the
boyfriend to live with her. The government argues that
“to harbor” just means to house a person, a meaning
that it claims to derive from dictionaries that were in
print in 1952 or today; surprisingly the government
omits dictionaries that were current in 1917, when con-
cealing and harboring aliens were added to the prohibi-
tion of smuggling aliens into this country. Immigration
Act of February 5, 1917, Pub. L. No. 64-301, ch. 29, § 8, 39
Stat. 874, 880 (repealed). In the Immigration and National-
ity Act of June 27, 1952, Pub. L. No. 82-411, Title IV,
§ 274(a), 66 Stat. 163, 228-29, Congress added penalties
for the concealing and harboring offenses, in response to

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No. 11-2917 5
a Supreme Court decision, United States v. Evans, 333 U.S.
483 (1948), that had held that the 1917 Act had somehow
failed to specify penalties for those offenses.
The actual definition of “to harbor” that the govern-
ment has found in these dictionaries and urges us to
adopt is “to shelter,” which is not synonymous with “to
provide a place to stay.” “To shelter” has an aura of
protectiveness, as in taking “shelter” from a storm. To
shelter is to provide a refuge. “Sheltering” doesn’t seem
the right word for letting your boyfriend live with you.
We have not scoured dictionaries current in 1917 or 1952,
but note for what it’s worth that the 1910 edition of
Black’s Law Dictionary defines “to harbor” as: “To receive
clandestinely and without lawful authority a person for
the purpose of so concealing him that another having
a right to the lawful custody of such person shall be
deprived of the same. A distinction has been taken, in
some decisions, between ‘harbor’ and ‘conceal.’ A person
may be convicted of harboring a slave, although he
may not have concealed her.” Henry Campbell Black,
A Law Dictionary 561 (2d ed. 1910) (citations omitted).
So the government’s reliance on the dictionary defini-
tion of “harboring” is mistaken, though a point of greater
general importance is that dictionaries must be used
as sources of statutory meaning only with great caution.
“Of course it is true that the words used, even in their
literal sense, are the primary, and ordinarily the most
reliable, source of interpreting the meaning of any
writing: be it a statute, a contract, or anything else. But
it is one of the surest indexes of a mature and devel-
oped jurisprudence not to make a fortress out of the

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6 No. 11-2917
dictionary; but to remember that statutes always have
some purpose or object to accomplish, whose
sympathetic and imaginative discovery is the surest
guide to their meaning.” Cabell v. Markham, 148 F.2d 737,
739 (2d Cir. 1945) (L. Hand, J.). “[T]he choice among
meanings [of words in statutes] must have a footing
more solid than a dictionary—which is a museum of
words, an historical catalog rather than a means to
decode the work of legislatures.” Frank H. Easterbrook,
“Text, History, and Structure in Statutory Interpretation,”
17 Harv. J.L. & Public Policy 61, 67 (1994); see also A.
Raymond Randolph, “Dictionaries, Plain Meaning, and
Context in Statutory Interpretation,” 17 Harv. J.L. & Public
Policy 71, 72 (1994). “[I]t makes no sense to declare a
unitary meaning that ‘the dictionary’ assigns to a term.
There are a wide variety of dictionaries from which
to choose, and all of them usually provide several
entries for each word. The selection of a particular dictio-
nary and a particular definition is not obvious and must
be defended on some other grounds of suitability. This
fact is particularly troubling for those who seek to use
dictionaries to determine ordinary meaning. If multiple
definitions are available, which one best fits the way an
ordinary person would interpret the term?” Note, “Look-
ing It Up: Dictionaries and Statutory Interpretation,” 107
Harv. L. Rev. 1437, 1445 (1994) (footnote omitted).
Dictionary definitions are acontextual, whereas the
meaning of sentences depends critically on context,
including all sorts of background understandings. In re
Erickson, 815 F.2d 1090, 1092 (7th Cir. 1987). A sign in a
park that says “Keep off the grass” is not properly inter-

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No. 11-2917 7
preted to forbid the grounds crew to cut the grass.
“[O]ne can properly attribute to legislators the rea-
sonable minimum intention ‘to say what one would
ordinarily be understood as saying, given the circum-
stances in which it is said.’ This principle, it should be
noted, does not direct interpreters to follow the literal
or dictionary meaning of a word or phrase. To the con-
trary, it demands careful attention to the nuances and
specialized connotations that speakers of the relevant
language attach to particular words and phrases in the
context in which they are being used.” John F. Manning,
“The Eleventh Amendment and the Reading of Precise
Constitutional Texts,” 113 Yale L.J. 1663, 1704 (2004). We
doubt that the government would argue that a hospital
emergency room that takes in a desperately ill person
whom the hospital staff knows to be an illegal alien
would be guilty of harboring, although it fits the gov-
ernment’s definition of the word.
A Google search (conducted on December 13, 2011,
rather than in 1952 or 1917, but the government
implies by its reliance on current dictionaries that the
word means the same today as on the date of the
statute’s enactment, an implication consistent with
Black’s Law Dictionary) of several terms in which the
word “harboring” appears—a search based on the sup-
position that the number of hits per term is a
rough index of the frequency of its use—reveals the
following:
“harboring fugitives”: 50,800 hits
“harboring enemies”: 4,730 hits

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8 No. 11-2917
“harboring refugees”: 4,820 hits
“harboring victims”: 114 hits
“harboring flood victims”: 0 hits
“harboring victims of disasters”: 0 hits
“harboring victims of persecution”: 0 hits
“harboring guests”: 184 hits
“harboring friends”: 256 hits (but some involve
harboring Quakers—“Friends,” viewed in
colonial New England as dangerous heretics)
“harboring Quakers”: 3,870 hits
“harboring Jews”: 19,100 hits
It is apparent from these results that “harboring,” as
the word is actually used, has a connotation—which
“sheltering,” and a fortiori “giving a person a place to
stay”—does not, of deliberately safeguarding members
of a specified group from the authorities, whether
through concealment, movement to a safe location, or
physical protection. This connotation enables one to
see that the emergency staff at the hospital may not
be “harboring” an alien when it renders emergency
treatment even if he stays in the emergency room over-
night, that giving a lift to a gas station to an alien with
a flat tire may not be harboring, that driving an alien to
the local office of the Department of Homeland Security
to apply for an adjustment of status to that of lawful
resident may not be harboring, that inviting an alien for
a “one night stand” may not be attempted harboring,
that placing an illegal alien in a school may not be har-
boring (cf. Plyler v. Doe, 457 U.S. 202 (1982)), and
finally that allowing your boyfriend to live with you

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No. 11-2917 9
may not be harboring, even if you know he shouldn’t
be in the United States.
The prohibition of concealing, shielding from detec-
tion, and harboring known illegal aliens grew out of the
prohibition of smuggling aliens into the United States.
Immigration Act of 1907, Pub. L. No. 59-96, 34 Stat. 898.
Concealing illegal aliens in the United States and
shielding them from detection in the United States are
closely related to smuggling; they are active efforts to
keep illegal aliens in the United States. We needn’t
assume that harboring is redundant; it can be given a
meaning that plugs a possible loophole left open by
merely forbidding concealing and shielding from detec-
tion. Suppose the owner of a Chinese restaurant in New
York’s or San Francisco’s Chinatown employs known
illegal aliens as cooks, waiters, and busboys because they
are cheap labor, and provides them with housing in order
to make the employment, poorly paid though it is, more
attractive, and also because they lack documentation that
other landlords would require of would-be renters. The
owner is harboring these illegal aliens in the sense of
taking strong measures to keep them here. Yet there may
be no effort at concealment or shielding from detection,
simply because the immigration authorities, having very
limited investigative resources, may have no interest
in rooting out illegal aliens in Chinese restaurants
in Chinatowns. It is nonetheless harboring in an ap-
propriate sense because the illegal status of the alien is
inseparable from the decision to provide housing—it is
a decision to provide a refuge for an illegal alien
because he’s an illegal alien.

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10 No. 11-2917
The defendant in the present case was not trying to
encourage or protect or secrete illegal aliens. There is
no suggestion that she prefers illegal aliens as
boyfriends to legal aliens or citizens. She had a boy-
friend who happened to be (as she knew) an illegal alien,
and he lived with her for a time. Had she been aware
of section 1324 and fearful of prosecution and hence
had told him to move out of her house, he could have
found some other place to live in Cahokia, or elsewhere.
It’s not as if he was made safer from the feds by living
with her. On the contrary, the stipulation of facts—which
remember is the only source of the facts upon which
she was convicted—states that the boyfriend “had
lived with the defendant at 816 LaSalle St. in Cahokia,
Illinois, for approximately a year before his arrest in July
of 2003 on a federal drug charge. [He] disclosed his co-
habitation with the defendant at this address to federal
authorities during a proffer on October 31, 2003. . . . In March
2006, the defendant picked [the boyfriend] up from a
Greyhound Bus Station in St. Louis, Missouri, and trans-
ported him to her home at 816 LaSalle St. in Cahokia,
Illinois” (emphasis added). The stipulation goes on to
state that on several occasions while he was living with
the defendant after his return to the United States he
moved out and stayed with his uncle or his brother,
who lived elsewhere in Illinois and whose addresses, as
far as we know, were unknown to the authorities. So,
had he been living with one of them rather than with
her because she refused to take him back when he
returned to the United States, he might well have been
safer.

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No. 11-2917 11
We don’t even know whether he derived any economic
advantage from living with the defendant—for all
we know, they shared expenses and his share exceeded
what it would have cost him to rent a room some-
where else. The government and perhaps the district
judge assumed that she, or her house, was what enabled
him to remain in or return to the United States, but
there is no evidence of that and it cannot be assumed.
The restaurant owner in our example provides an
inducement to illegal aliens. There is no evidence that
the defendant provided an inducement to her boyfriend
to remain in or return to the United States. (As we said,
she was not charged with inducement.) On the scanty
record on which her conviction was based, it is as likely
that it was the drug trade that drew and kept him in
the United States as it was the girlfriend.
To call this harboring would carry section 1324 far
beyond smuggling, and a considerable distance
as well from concealing and from shielding from detec-
tion. That considerable distance identifies a further
problem with the use of dictionaries to determine
statutory meaning. Legislative prohibitions are often
stated in strings of closely related and overlapping
terms, to plug loopholes. They do not have identical
dictionary definitions (if they did, the use of multiple
terms would have no point), but the overlap means that
in many applications they will be redundant, so that to
pick out of the dictionary, for each statutory term, a
definition remote from that of the other terms may
be to misunderstand why the legislature included

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12 No. 11-2917
multiple overlapping terms. We have warned that “the
fact that a clause is broadly worded to stop up loopholes
doesn’t justify a literal interpretation that carries far
beyond any purpose that can reasonably be imputed to
the drafter. ‘When a statute is broadly worded in order
to prevent loopholes from being drilled in it by
ingenious lawyers, there is a danger of its being applied
to situations absurdly remote from the concerns of
the statute’s framers.’ ” Abbott Laboratories v. Takeda Pharma-
ceutical Co., 476 F.3d 421, 426 (7th Cir. 2007), quoting
Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226 (7th Cir. 1997).
The way in which adjacent terms shed light on each
other’s meaning, United States v. Williams, 553 U.S. 285, 294-
95 (2008)—a light not to be found in a dictionary—is
illustrated by Begay v. United States, 553 U.S. 137 (2008),
where the Supreme Court interpreted a statute that
defined as a “violent felony” an act or series of acts that
is “burglary, arson, or extortion, involves use of ex-
plosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). The Court held that driving
under the influence of alcohol, although a dangerous
activity, was not within the scope of the subsection’s
residual clause (“or otherwise involves conduct that
presents a serious potential risk of physical injury to
another”) because it lacked the essential character of the
enumerated crimes, all of which involved “purposeful,
violent, and aggressive” conduct. 553 U.S. at 144-45.
The string of prohibitions in section 1324(a)(1)(A)(iii)
is most naturally understood as the following series of

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No. 11-2917 13
loophole-stopping near synonyms: “concealing” is con-
cealing; “shielding from detection” usually is concealing
but could involve bribing law enforcement authorities—
in other words paying someone else to conceal (yet the
shade of difference is tiny—no surprise in a string of
near synonyms); and the office left to “harboring” is,
then, materially to assist an alien to remain illegally in
the United States without publicly advertising his
presence but without needing or bothering to conceal it,
as in our restaurant example—though harboring could
involve advertising, for instance if a church publicly
offered sanctuary for illegal aliens and committed to
resist any effort by the authorities to enter the church’s
premises to arrest them.
But to make “harboring” sweep so far beyond concealing
or shielding from detection as to reach the examples
we gave earlier of what we think the word does
not mean in section 1324 would yield a prohibition
that couldn’t be understood as just plugging possible
loopholes in the first two prohibitions. It would go
well beyond the bans on concealing and shielding from
detection, and indeed would reach further than
any other term in section 1324, which forbids bringing
someone one knows to be an illegal alien into the
country, § 1324(a)(1)(A)(i), transporting a known illegal
alien “in furtherance of such violation of law,”
§ 1324(a)(1)(A)(ii), and “encourag[ing] or induc[ing]” an
alien to enter the country illegally. § 1324(a)(1)(A)(iv).
The number of illegal aliens in the United States was
estimated at 10.8 million in 2010. Michael Hoefer, Nancy

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14 No. 11-2917
Rytina & Bryan C. Baker, “Estimates of the Unauthorized
Immigrant Population Residing in the United States:
January 2010,” p. 1 (Office of Immigration Statistics, U.S.
Department of Homeland Security, 2011), www.dhs.gov/
xlibrary/assets/statistics/publications/ois_ill_pe_2010.pdf
(visited Dec. 20, 2011). No doubt thousands, perhaps
many thousands, of persons are involved in concealing,
shielding from detection, or harboring—under unexcep-
tionable understandings of these terms—aliens whom they
know to be illegal. The government’s lawyer conceded at
oral argument that under the government’s broader defini-
tion of harboring the number of violators of section
1324(a)(1)(A)(iii) might well be two million. Did Congress
intend such a leap when it added harboring to the list
of offenses in that subsection? Illegal aliens were a
smaller fraction of the American population then. But
still—is it likely that Congress intended that parents
whose child invites an immigrant classmate who, as
they know, is illegally in the country to a sleepover
might be branded as criminals even if he didn’t accept
the invitation, since the statute criminalizes attempts?
And notice, among the paradoxes with which the gov-
ernment’s position is rife, that although generally it is
not a crime to be an illegal alien (though there are im-
portant exceptions, as when the alien has eluded examina-
tion or inspection by immigration officers, 8 U.S.C.
§ 1325(a), or, as in the case of the defendant’s boyfriend,
has returned to the United States without authorization
after having been removed, § 1326(a)), an illegal alien
becomes a criminal by having a wife, also an illegal
alien, living with him in the United States; if they have

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No. 11-2917 15
children, born abroad and hence illegal aliens also, living
with them, then each parent has several counts of
criminal harboring, on the government’s interpretation
of the statute. The effect would be a profound change
in the legal status of aliens in the United States.
The Justice Department does little to publicize the
existence of federal criminal prohibitions, numerous as
they are—there are more than 4000 separate federal
crimes, as well as countless regulations the violation of
which is criminal. There are too few prosecutions
for violations of section 1324(a)(1)(A)(iii) to have
created widespread public awareness of the law, let
alone of its outer reach as conceived by the govern-
ment. We asked the Department of Justice for statistics,
and it informs us that, according to its records (which
it tells us may be incomplete), in fiscal year 2011 only
223 cases were filed that included a count under
section 1324(a)(1)(A)(iii). We have found a Justice De-
partment press release concerning a prosecution for
harboring illegal aliens, but it charges behavior remote
from that of the defendant in the present case: “Columbia
County Couple Indicted for Harboring Illegal Aliens
for Commercial Advantage and Laundering the Proceeds
of that Crime,” www.fbi.gov/atlanta/press-releases/2011/
columbia-county-couple-indicted-for-harboring-illegal-
aliens-for-commercial-advantage-and-laundering-the-
proceeds-of-that-crime (visited Dec. 20, 2011).
Courts like to say that knowledge of the law is pre-
sumed. But what they mean is that ignorance of the law,
though common, is not a defense to a criminal prosecu-

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16 No. 11-2917
tion. There are good practical reasons for this rule, but
it results in many injustices, since ignorance of specific
legal prohibitions is widespread. The prevalence
of such injustices argues for trying to conform criminal
prohibitions, by judicial interpretation where that is a
permissible option, to prevalent usages. We mustn’t
forget the rule of lenity in the interpretation of criminal
statutes, e.g., McBoyle v. United States, 283 U.S. 25, 27
(1931) (Holmes, J.), or the words of the great nineteenth-
century English jurist of criminal law James Fitzjames
Stephen: “Before an act can be treated as a crime, it
ought . . . to be of such nature that it is worth while
to prevent it at the risk of inflicting great damage,
direct and indirect, upon those who commit it.” Liberty,
Equality, Fraternity 151 (1992 ed. [1873]).
The government tells us not to worry: we judges can
rely on prosecutors to avoid bringing cases at the outer
margin of the government’s sweeping definition of
“harboring.” But this case is at the outer margin. No
doubt it was brought because the Justice Department
suspects that the defendant was involved in her boy-
friend’s drug dealings, but cannot prove it, so the Depart-
ment reaches into its deep arsenal (the 4000-plus
federal crimes) and finds a crime that she doubtless
never heard of that it can pin on her. She was sentenced
only to probation and to pay a fine but now has a
felony record that will dog her for the rest of her life
if she loses this appeal.
We’ve assumed thus far that we have to find a
meaning for harboring that will distinguish it sharply

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No. 11-2917 17
from concealing and from shielding from detection.
Indulging that assumption may be too generous to the
government. Statutory redundancy is common, and
also common as we’ve said is for a statute to string to-
gether words of prohibition that are almost synonyms,
the better to plug potential loopholes.
Remember that the words “concealing” and “harboring”
were added to the smuggling statute in the 1917 act.
There is no statutory definition but here is how
one court interpreted them: “When taken in connection
with the purposes of the act, we conceive the natural
meaning of the word ‘harbor’ to be to clandestinely
shelter, succor, and protect improperly admitted aliens,
and that the word ‘conceal’ should be taken in the
simple sense of shielding from observation and
preventing discovery of such alien persons.” Susnjar v.
United States, 27 F.2d 223, 224 (6th Cir. 1928). So conceal-
ment (“clandestinely shelter”) is an element of harboring.
In like vein United States v. Mack, 112 F.2d 290, 291 (2d
Cir. 1940), an opinion by Learned Hand, states that “the
statute is very plainly directed against those who abet
evaders of the law against unlawful entry, as the col-
location of ‘conceal’ and ‘harbor’ shows. Indeed, the
word, ‘harbor’ alone often connotes surreptitious con-
cealment.”
A similar statute, entitled “Concealing Person from
Arrest,” punishes “whoever harbors or conceals any
person for whose arrest a warrant or process has been
issued under the provisions of any law of the United
States, so as to prevent his discovery and arrest, after

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18 No. 11-2917
notice or knowledge of the fact that a warrant or process
has been issued for the apprehension of such person.” 18
U.S.C. § 1071. In United States v. Foy, 416 F.2d 940, 941
(7th Cir. 1969), we defined to “harbor” in that statute as “to
lodge, to care for after secreting the offender.” To “har-
bor” appears in still another federal criminal statute,
18 U.S.C. § 1381, which prohibits harboring military
deserters, and there the word has been interpreted to
mean providing lodging and care “after secreting the
deserter.” Michael v. United States, 393 F.2d 22, 34 (10th
Cir. 1968); Firpo v. United States, 261 F. 850, 853 (2d Cir.
1919). See also Jones v. Van Zandt, 46 U.S. (5 How.) 215, 232
(1847) (Fugitive Slave Act).
If as the Susnjar and Mack opinions suggest, conceal-
ment is inherent in harboring, this may seem to make
the statutory prohibition of harboring redundant, and
that will bother anyone who doubts that statutes ever
contain redundancies (is there such an anyone?)—redun-
dant because if harboring always involves concealing,
why not just prohibit concealing? But think back to the
restaurant example. The owner does not house his
illegal employees in order to conceal them, though that
is one effect. He is reducing their interactions with
citizens, who might report them to the authorities. It is a
perfect case of harboring, but might be a weak case of
concealing, if the defendant could convince the jury
that concealment was not his purpose in housing them.
The government doesn’t rest its case entirely on dictio-
naries. It directs us to judicial opinions such as United
States v. Acosta de Evans, 531 F.2d 428 (9th Cir. 1976),

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No. 11-2917 19
where we read that “harbor” means “both concealment
and simple sheltering, although the latter appears to be
the primary meaning.” Id. at 430. Because the only
choice the court could see was between concealing and
simple sheltering (meaning “letting another stay at one’s
house,” though as we’ve noted that’s not the
same as “sheltering,” which, like “harboring,” connotes
protection against some external menace), and the
former was already in the statute, and because the
court did not consider the possibility of statutory redun-
dancy and thought mistakenly that “simple sheltering”
is the primary meaning of “harboring,” it was driven
to conclude that harboring must mean simple shelter-
ing. The analysis is unpersuasive, but in any event Acosta
de Evans is distinguishable from the present case. In
that case the defendant had met the illegal alien, her
cousin Imelda, in Mexico, and Imelda had complained
about the difficulty of legal immigration. Imelda got
in touch with the defendant and went to live with her
upon arriving illegally in the United States. These
facts implied a plan between the two for Imelda to
enter illegally and live with the defendant, and there is
no evidence of inducement of illegal entry in the
present case.
In all but one of the other appellate cases we’ve found
the defendant did other things for the illegal alien
besides providing a place to stay, such as employing
him or helping him to obtain false documentation to
conceal his illegal status. See, e.g., United States v. Zheng,
306 F.3d 1080, 1086 (11th Cir. 2002); United States v.

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20 No. 11-2917
Batjargal, 302 Fed. App’x 188, 191 (4th Cir. 2008) (per
curiam). So when opinions define harboring as simple
sheltering, as they sometimes do, United States v. Kim, 193
F.3d 567, 573-74 (2d Cir. 1999); United States v. Jimenez, 391
Fed. App’x 818 (11th Cir. 2010) (per curiam); United States
v. Balderas, 91 Fed. App’x 354 (5th Cir. 2004) (per
curiam), we cannot tell whether they would do so if
confronted by the facts of our case, in which the
defendant did nothing more than cohabit with a boy-
friend who happened to be (as she knew) an illegal im-
migrant. We must not forget Holmes’s aphorism, sugges-
tive though overstated, that “general propositions do
not decide concrete cases.” Lochner v. New York, 198 U.S. 45,
76 (1905) (dissenting opinion). A general proposition will
often as a matter of semantics cover facts remote from
those of the case in which the proposition is stated, yet
the court that stated it might qualify or refine it when
confronted with significantly different facts.
Rather than contenting themselves with “simple shel-
tering” or its synonyms as definitions of harboring, some
courts struggle for a definition that will avoid the an-
omalies that we’ve discussed at such length in this opin-
ion. See, e.g., United States v. Tipton, 518 F.3d 591, 595 (8th
Cir. 2008); United States v. Lopez, 521 F.2d 437, 441 (2d Cir.
1975). The Ninth Circuit itself, in a case decided
long after Acosta de Evans, approved a jury instruction
that to convict for harboring required proof that the
defendant had acted with the purpose of preventing
detection of the illegal alien. United States v. You, 382
F.3d 958, 966 (9th Cir. 2004). Some cases, in order to refine
the definition of “harboring,” adopt the formula “substan-

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No. 11-2917 21
tial facilitation of” or “substantially to facilitate” the alien’s
presence, United States v. Ozcelik, 527 F.3d 88, 99 (3d Cir.
2008); United States v. Tipton, supra, 518 F.3d at 595, which
strikes us as too vague to be a proper gloss on a criminal
statute. United States v. Ye, 588 F.3d 411, 416 (7th Cir.
2009). Finally, in the only case we’ve found in
which the government prosecuted, for harboring,
someone who had merely cohabited with a known
illegal alien, United States v. Silveus, 542 F.3d 993, 1003-04
(3d Cir. 2008), the government conceded that cohabita-
tion, without more, is not harboring, and the court re-
versed the defendant’s harboring conviction.
A better gloss than “substantial facilitation” would
be providing (or offering—for remember that the statute
punishes the attempt as well as the completed act) a
known illegal alien a secure haven, a refuge, a place to
stay in which the authorities are unlikely to be seeking
him—and thus a definition of “harboring” that differenti-
ates it from “simple sheltering” in the sense of just pro-
viding a place to stay or just cohabiting, although as
we said that is not what sheltering actually means.
Our rejection of equating harboring to providing a
place to stay compels the acquittal of the defendant, for
on our understanding of the offense no trier of fact could
reasonably find that the defendant had “harbored” her
boyfriend based on the stipulated facts, or that she
had concealed him or shielded him from detection.
REVERSED WITH INSTRUCTIONS.

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22 No. 11-2917
MANION, Circuit Judge, dissenting. The defendant
Deanna L. Costello was convicted of “harboring” an illegal
alien under 8 § U.S.C. 1324(a)(1)(A)(iii). Costello ap-
pealed, arguing that the facts were insufficient to
support a conviction under the statute. In this appeal,
the court rejects the ordinary definition of the term
“harboring” and asserts that the facts cannot support
Costello’s conviction even when considering a more
exacting definition of “harboring”; thus, the court
would reverse Costello’s conviction. I disagree, and
conclude that the plain language of the statute and the
stipulated facts support the conviction of harboring.
Accordingly, I respectfully dissent.
It is important to recognize the facts of this particular
case; we do not need to speculate with hypotheticals.
Costello is a legal American resident. When her boyfriend
first moved in with her in 2002, he was merely an alien
who had entered the United States without being
legally admitted. If he had been caught in his undocu-
mented condition by the Department of Homeland Secu-
rity, charging Costello with harboring, a felony, at that
time arguably may have been an unjust application of
the law. But that did not happen. Her boyfriend then
committed drug crimes, was arrested and convicted of
a federal felony, and imprisoned for several years. Fol-
lowing his imprisonment, he was formally deported
from the United States, only to reenter the country
shortly thereafter in violation of his status and order of
deportation. He reunited with Costello when she picked
him up at the bus station and then allowed him to live
with her in her home for about seven months. His stay

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No. 11-2917 23
The stipulation of facts does not indicate whether Costello 1
knew her boyfriend’s reentry was a felony in violation of
8 U.S.C. § 1326(a).
with Costello ended after he and his brother crashed
when being chased by Drug Enforcement Administration
(“DEA”) agents. During the chase he contacted Costello,
but was taken into custody after the crash.
So Costello was not simply a person who was letting
her boyfriend live with her. That may have been the case
early in the relationship when all she knew was that he
was “a Mexican whom she knew to be an illegal alien.”
(Opinion, p.2.) But any naivete (more likely deliberate
ignorance) ceased when her boyfriend was arrested,
convicted, imprisoned for a federal drug crime, and
then deported. When Costello brought her boyfriend
back to her home the second time, she was well aware
that he was a convicted felon who had been deported
after several years in federal prison, and who had
further violated the law by reentering the United States
without authorization in violation of his deportation
proceedings. What’s more, this is not a situation where1
Costello let her boyfriend stay at her place temporarily;
instead, for approximately seven months, she provided
him with a place to reside until another altercation
with law enforcement ended with his arrest. This is not
a case at the “outer margin.” (Opinion, p.16.)
The court appears to find Costello’s conviction
unfair and worthy of reversal because there are so
many potential “harboring” violations that presumably

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24 No. 11-2917
occur throughout the United States but are not prose-
cuted. But that is not a reason for us to invalidate a fed-
eral law that Congress expects the Department of Justice
to enforce. Prosecution is not always necessary
and proper. “If a person commits a relatively nominal
act that is proscribed by § 1324(a)(1)(A)(iii), the
executive branch has the discretion to forego prosecu-
tion.” United States v. Xiang Hui Ye, 588 F.3d 411, 416
(7th Cir. 2009). When interpreting a statute, courts
should not overlay the statute with a “veneer” that
“appropriates that discretion and also invades the
province of Congress.” Id. The court’s decision
both invades congressional province and impermissibly
questions the executive’s decision to prosecute.
Courts should interpret the statute according to its
“plain language,” and “assume[] that the purpose of
the statute is communicated by the ordinary meaning
of the words Congress used.” Id. at 414-15 (quoting and
citing United States v. Berkos, 543 F.3d 392, 396 (7th Cir.
2008)). In this case, the statute declares that any
person who “conceals, harbors, or shields from detec-
tion” an illegal alien is criminally liable. 8 U.S.C.
§ 1324(a)(1)(A)(iii). Contrary to the court’s assertion,
the ordinary meaning of “harboring” certainly includes
“providing shelter to.” This was a common under-
standing of the term when the term “harbor” was first
added to the statute in 1917, and when the statute was

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No. 11-2917 25
See Webster’s New International Dictionary of the English 2
Language 981 (1917) (“harbor” defined as “[t]o afford lodging
to; to entertain as a guest; to shelter; to receive; to give refuge
to”); Webster’s New Collegiate Dictionary 376 (John P. Bethel
et al., eds. 1953) (“harbor” defined as “to entertain as a guest;
to shelter; to give a refuge to”).
amended and the term retained in 1952. As we noted2
in Ye, “ ‘conceal,’ ‘harbor,’ and ‘shield from detection’
have independent meanings, and thus a conviction
can result from committing (or attempting to commit)
any one of the three acts.” Ye, 588 F.3d at 414. Perhaps
if Costello had shooed her boyfriend out the back door
when the police were approaching from the front,
she could be accused of shielding. Or if she had
hidden him in the basement under a pile of laundry
when federal agents showed up with a search warrant,
she could also be charged with concealing. But she
neither shielded nor concealed; instead, she provided
shelter to her boyfriend, and nothing more is required
to charge her with harboring under the statute.
The court suggests a more exacting definition of “har-
boring” than “providing shelter to,” nam ely,
“providing . . . a known illegal alien a secure haven,
a refuge, a place to stay in which the authorities are
unlikely to be seeking him.” (Opinion, p.21.) Certainly
Costello qualifies under this more narrow defini-
tion. Her home was a refuge and a safe haven because
it was protected by the privacy the Fourth Amendment
provides her—freedom from unreasonable searches.
By allowing her boyfriend to stay with her, it made it

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26 No. 11-2917
The court asserts that because the government authorities 3
knew that Costello’s boyfriend had previously lived at
Costello’s house before his first arrest in July 2003, he was not
“made safer” by living there on his return to the United
States. But until Costello’s boyfriend connected with his
brother in the drug trade and got caught by the DEA, the
authorities apparently did not know that he had reentered
the country; so they had no reason to suspect that he was
staying at Costello’s house. Costello’s home still provided
him with a private safe harbor, free from public interference
and out of the eyes of the authorities. Obviously the
occasions when he stayed with his brother were by no means
in a safer haven.
much less likely for the authorities to discover that he
had reentered the country. Until his criminal conduct3
exposed him to the police, he lived in a haven secure
from any governmental scrutiny. This refuge lasted for
approximately seven months until the time her boyfriend
was captured with drugs after running from his
wrecked car following a high-speed chase.
Under the facts of this case, the charge and conviction
for harboring was by no means an overreach. Costello
acted not just with the knowledge that her boyfriend
was a mere illegal alien, but also with the knowledge
that he was a convicted felon who had been deported
and had reentered the country in violation of his deporta-
tion order. And she did not give him just a short-
term place to stay; instead, for seven months, she
provided him with a safe place to live. What Costello
did—providing her boyfriend with shelter and a safe

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No. 11-2917 27
It is important to note that Costello only received probation 4
while her boyfriend got a stiff sentence for drug conspiracy
and illegal reentry. It is likely that most of those potentially
liable for harboring aliens with records similar to Costello’s
boyfriend are beneficiaries of or participate in a criminal
enterprise—otherwise they don’t get caught—and so are
charged and convicted of other, more serious offenses.
Costello’s only offense was harboring an illegal alien
who entered and remained in the United States in violation
of law; but she knowingly committed that crime and it is
not unfair that she receive the felony stain that comes with
her conviction.
1-31-12
place to stay—was exactly what Congress intended to
prohibit under the statute. I am in agreement with the4
district court’s conclusion. Costello was knowingly
guilty of harboring under 8 § U.S.C. 1324(a)(1)(A)(iii), and
she was properly charged and convicted. Therefore
I respectfully dissent.

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