USA v. Oneche Garcia-Cordero

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 29, 2010
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-10292
________________________
D.C. Docket No. 08-10057-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONECHE GARCIA-CORDERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 29, 2010)
Before TJOFLAT and COX, Circuit Judges, and KORMAN, District Judge.*
COX, Circuit Judge:
The issue presented in this case is apparently one of first impression: whether,
as applied to a defendant smuggling aliens, the “bring and present” requirement of 8
Honorable Edward R. Korman, United States District Judge for the Eastern District of New*
York, sitting by designation.

-- 1 of 17 --

U.S.C. § 1324(a)(2)(B)(iii) violates the Fifth Amendment’s privilege against self-
incrimination. That requirement imposes a duty on individuals transporting
international passengers to “bring and present” those passengers to appropriate
immigration officers at a designated point of entry immediately upon arrival into the
country. We hold that the statute does not violate the defendant’s privilege against
self-incrimination.1
I. BACKGROUND & PROCEDURAL HISTORY
A federal grand jury indicted Oneche Garcia-Cordero on various charges
arising out of his attempt to smuggle thirty-five undocumented aliens into the United
States from Cuba. The indictment contains: one count of conspiracy to encourage
and induce aliens to enter the United States in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(I) (Count I); thirty-five counts of encouraging and inducing aliens
to enter the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 2-36);
After oral argument, we requested supplemental briefing on the issue of ripeness. After1
consideration, we conclude that the issue presented is sufficiently ripe for our review.
“A claim is not ripe for adjudication if it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118
S. Ct. 1257, 1259 (1998) (quotation and citation omitted). Here, however, the injury to Garcia-
Cordero is not speculative. He was charged by indictment and convicted of violating the statute
which he challenges. So, Garcia-Cordero has already suffered injury, and his claim is ripe for
review. The circumstances of this case are similar to those in California v. Byers, 402 U.S. 424, 91
S. Ct. 1535 (1971), where the Supreme Court did not address ripeness directly, but it reached the
merits of a Fifth Amendment claim of a defendant who failed to comply with a reporting statute and
was charged with violating that statute.
2

-- 2 of 17 --

thirty-five counts of bringing aliens to a place other than a designated point of entry
in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) (Counts 37-71); and one count of
attempting to reenter as a removed alien in violation of 8 U.S.C. § 1326(a) (Count
72).
Garcia-Cordero moved to dismiss Counts 37-71 before trial, arguing that the
statute’s requirement that aliens be brought immediately before and presented to
immigration officials upon arrival at the border violated his Fifth Amendment
privilege against self-incrimination. The Government contended that Garcia-
Cordero’s motion was premature and without merit. The district court referred the
motion to a magistrate judge. Garcia-Cordero conceded that the motion presented an
“as applied” challenge to the statute, and as a result, should await a factual record to
be developed at trial. Accordingly, the magistrate judge recommended that the
motion be denied without prejudice to renew after trial, or alternatively, that the
resolution of the motion be deferred until after trial.
After a bench trial, the district court convicted Garcia-Cordero on all counts.
Garcia-Cordero then renewed his motion to dismiss Counts 37-71. The district court
assumed, without deciding, that the act of bringing and presenting aliens to the
appropriate border officials would “otherwise be sufficiently testimonial,
incriminating, and compelled to qualify for the privilege.” (R.1-71 at 4.)
3

-- 3 of 17 --

Nevertheless, the district court denied his motion, holding that the bring and present
requirement of the statute “is part of a regulatory regime constructed to effect public
purposes unrelated to the enforcement of criminal laws and that, as a result, [ ]
Garcia-Cordero cannot invoke the Fifth Amendment privilege to resist prosecution
for non-compliance.” (Id.) Garcia-Cordero appeals.
II. CONTENTIONS OF THE PARTIES
Garcia-Cordero contends that requiring persons who have smuggled aliens into
the country to bring and present those aliens to an immigration official at a designated
port of entry violates the right against self-incrimination contained in the Fifth
Amendment. The Government responds that the bring and present requirement of the
statute is outside the ambit of the privilege because it is part of a broader scheme of
immigration law. In other words, the requirement is part of a noncriminal regulatory
scheme not directed at persons suspected of committing a crime. Therefore,
according to the Government, the privilege is not implicated. Alternatively, the
Government contends that even if the statute does not fall within the regulatory
scheme exception to the privilege, the district court’s order should be upheld because
the physical presentation of aliens is not testimonial, and the disclosure is not
incriminatory.
4

-- 4 of 17 --

III. STANDARD OF REVIEW
We review de novo whether a statute is unconstitutional as applied. United
States v. Evans, 476 F.3d 1176, 1178 (11th Cir. 2007) (citation omitted).
IV. DISCUSSION
8 U.S.C. § 1324, entitled “Bringing in and harboring certain aliens,” makes it
a crime for,
[a]ny person who, knowing or in reckless disregard of the fact that an
alien has not received prior official authorization to come to, enter, or
reside in the United States, brings to or attempts to bring to the United
States in any manner whatsoever, such alien, regardless of any official
action which may later be taken with respect to such alien.
Id. § 1324(a)(2). If “the alien is not upon arrival immediately brought and presented
to an appropriate immigration officer at a designated port of entry,” the statute
provides for an increased penalty. Id. § 1324(a)(2)(B)(iii) (emphasis added).
Under the Fifth Amendment, “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. CONST. amend. V. The privilege
only applies “when the accused is compelled to make a testimonial communication
that is incriminating.” Baltimore City Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549,
554, 110 S. Ct. 900, 904 (1990) (internal quotations and citations omitted). “When
the government demands that an item be produced, the only thing compelled is the
act of producing the item. The Fifth Amendment’s protection may nonetheless be
5

-- 5 of 17 --

implicated because the act of complying with the government’s demand testifies to
the existence, possession, or authenticity of the things produced.” Id. at 554-55, 110
S. Ct. at 905 (internal quotations and citations omitted). However, Congress may in
some instances, without violating the privilege, require individuals to report
information to the government which may incriminate the individual. The Supreme
Court “has on several occasions recognized that the [ ] privilege may not be invoked
to resist compliance with a regulatory regime constructed to effect the State’s public
purposes unrelated to the enforcement of its criminal laws.” Id. at 556, 110 S. Ct. at
905. Therefore, the question here is whether the bring and present requirement falls
within the regulatory regime exception.
The Supreme Court has held that statutes may violate the privilege if “directed
at a highly selective group inherently suspect of criminal activities,” Albertson v.
Subversive Activities Control Bd., 382 U.S. 70, 79, 86 S. Ct. 194, 199 (1965), and it
has identified several areas permeated with criminal statutes in which a defendant is
inherently suspected of criminal activities. For example, in Marchetti v. United
States, 390 U.S. 39, 88 S. Ct. 697 (1968), the Court considered whether laws
requiring registration to engage in wagering activities violated the privilege. Federal
and state law widely prohibited gambling at the time the case was decided.
Marchetti, 390 U.S. at 44, 88 S. Ct. at 700. Because “every portion of these
6

-- 6 of 17 --

requirements had the direct and unmistakable consequence of incriminating
petitioner,” Id. at 49, 88 S. Ct. at 703, the Court held that compelling the defendant
to comply with the registration requirements violated the privilege. See also
Albertson, 382 U.S. 70, 86 S. Ct. 194 (1965) (holding that a law requiring registration
of membership in the Communist Party violated the privilege); Haynes v. United
States, 390 U.S. 85, 96, 98-99, 88 S. Ct. 722, 730-31 (1968) (holding that a law
requiring firearm registration violated the privilege because the law was aimed
“principally at those persons who have obtained possession of a firearm without
complying with the [law’s] other requirements, and who therefore are immediately
threatened by criminal prosecutions” and because the requirement involved an issue
“permeated with criminal statutes,” not “an essentially noncriminal and regulatory
area of inquiry”); Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532 (1969)
(invalidating a law requiring registration of marijuana dealers). Garcia-Cordero
argues that his case is analogous to this line of cases. The determinative issue, he
contends, is whether his compliance with § 1324(a)(2)(B)(iii) would have made him
vulnerable to prosecution. He says that it would, arguing that compliance with the
statute would furnish a link in the chain of evidence that would be used to prosecute
him for alien smuggling.
7

-- 7 of 17 --

The Supreme Court has held, however, that the privilege may not be asserted
to avoid complying with a regulatory regime. In California v. Byers, 402 U.S. 424,
91 S. Ct. 1535 (1971), the Court held that a statute requiring a driver involved in an
accident to exchange names and addresses with the driver of the other vehicle did not
violate the privilege even when complying with the statute could expose the driver
to criminal charges. In contrast to the cases Garcia-Cordero cites, where “the
disclosures condemned were only those extracted from a highly selective group
inherently suspect of criminal activities and the privilege was applied only in an area
permeated with criminal statutes,” id. at 430, 91 S. Ct. at 1539 (quotations and
citations omitted), the statute at issue in Byers “was not intended to facilitate criminal
convictions but to promote the satisfaction of civil liabilities.” Id. Importantly, the
law in that case was directed at all drivers. See also United States v. Sullivan, 274
U.S. 259, 47 S. Ct. 607 (1927) (holding that requirement compelling individuals to
file income tax return does not violate the privilege, even when doing so may expose
criminal activity); Bouknight, 493 U.S. at 561, 110 S. Ct. at 908 (holding that the
privilege does not protect a mother against a court order requiring her to deliver her
child to social services). These cases stand for the proposition that the “privilege may
not be invoked to resist compliance with a regulatory regime constructed to effect the
8

-- 8 of 17 --

State’s public purposes unrelated to the enforcement of its criminal laws.” Id. at 556,
110 S. Ct. at 905.
“Tension between the State’s demand for disclosures and the protection of the
right against self-incrimination is likely to give rise to serious questions. Inevitably
these must be resolved in terms of balancing the public need on the one hand, and the
individual claim to constitutional protections on the other.” Byers, 402 U.S. at 427,
91 S. Ct. at 1537. Here, we must balance these competing interests in the context of
the bring and present requirement.
In general, immigration law is more properly classified as regulatory rather
than criminal. Rajah v. Mukasey, 544 F. 3d 427, 442 (2d Cir. 2008). While there are
certainly “some crimes related to immigration violations . . . the level of criminal
regulation in immigration matters is far less, and almost of a different order from that
which governs those areas where reporting requirements have been struck down.”
Id. The Government correctly asserts that identifying and questioning individuals
who enter our country is essential to controlling our borders, which is a critical
national security issue. United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir.
2001) (noting that the federal government has the responsibility to police national
borders); United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996); United States
v. Lueck, 678 F.2d 895, 899 (11th Cir. 1982).
9

-- 9 of 17 --

The “bring and present” requirement of § 1324(a)(2)(B)(iii) is part of the
federal regulatory scheme through which the government controls our national
borders. It “applies to all persons transporting aliens to the United
Sates—irrespective of whether those aliens have received prior authorization, and
irrespective of the transporters’ knowledge regarding such authorization.” (R.1-71
at 9-10.) The statute demands that every person bringing an alien to, or providing a
means for an alien to come to, the United States prevent the alien from entering the
country at any port of entry not designated by the Attorney General or immigration
officers. 8 U.S.C. § 1321(a). We agree with the district court that it “does not target
a highly selective group inherently suspect of criminal activities.” (R.1-71 at 10
(quotation and citation omitted).) The statute imposes the bring and present
requirement on all who transport aliens to this country—not just those who do so
illegally. On its face, it does not seek the admission of incriminating information.
The concern expressed in Albertson, Marchetti, Haynes, and Leary, that the
disclosure requirements were imposed on highly selective groups, does not apply
here. Instead, as the district court noted, this case is similar to Sullivan, Byers, and
Bouknight, in the respect that in all of these cases, the disclosure requirements were
part of broader civil regulatory schemes and applied to broad groups, and the activity
required to be disclosed was not inherently illegal. “[T]he fact that incriminating
10

-- 10 of 17 --

evidence may be the byproduct of obedience to a regulatory requirement . . . does not
clothe such required conduct within the testimonial privilege.” U.S. v. Hubbell, 530
U.S. 27, 35, 120 S. Ct. 2037, 2043 (2000) (footnotes omitted). We hold that the
reporting requirement in this case falls in the same category.
V. Conclusion
Accordingly, the district court did not err in finding that “the privilege against
self-incrimination does not protect [Garcia-Cordero] from prosecution for failing to
comply with the bring and present requirement, even though his compliance might
have been incriminating.” (R.1-71 at 12.)2
AFFIRMED.
Because we find that the privilege is inapplicable because of the regulatory scheme2
exception, it is unnecessary for us to address the Government’s arguments that the physical
presentation of aliens is not testimonial and the disclosure is not incriminatory.
11

-- 11 of 17 --

KORMAN, District Judge, concurring:
I concur in the affirmance of the judgment of conviction without reaching the
merits of Garcia-Cordero’s self-incrimination claim. I do so for the following reasons.
Title 8 U.S.C. § 1324(a)(2) makes it a misdemeanor to bring in or attempt to bring in
any unauthorized alien “knowing or in reckless disregard of the fact that [the] alien
has not received prior official authorization to come to, enter, or reside in the United
States.” § 1324(a)(2). The statute, which was enacted in 1986, has its genesis in the
early 1980s when the government obtained 84 indictments charging more than 300
defendants with “bring[ing] into” the United States any alien “not duly admitted by
an immigration officer or not lawfully entitled to enter or reside within the United
States.” 8 U.S.C. § 1324(a)(1) (1976), amended by 8 U.S.C. §§ 1324(a)(1) &
1324(a)(2) (1986).
The defendants in those cases were part of what was then described as the
“Freedom Flotilla.” They carried more than 125,000 undocumented Cuban nationals
to the United States and presented them to INS officials at West Key, Florida, so that
the aliens could apply for political asylum. See United States v. Nguyen, 73 F.3d 887,
891 (9th Cir. 1995). In United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir.
1982), we held that the boat owners and crew members could not be prosecuted for
willfully and knowingly transporting these undocumented Cuban nationals, because
12

-- 12 of 17 --

they lacked general criminal intent, i.e. the intent to commit an illegal act, id. at
1277–78. As the House Judiciary Committee Report explained, “[o]f crucial
significance was the fact that the defendants in the case made no effort to land any
undocumented Cubans surreptitiously or evasively, but instead brought them directly
to immigration officers in Key West.” H.R. Rep. No. 99-682(I), at 66 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5670.
The House Judiciary Committee Report reflects the concern that, “[w]ithout the
threat of criminal prosecution, there is no effective way to deter potential transporters
from inundating U.S. ports of entry with undocumented aliens.” Id. As the Report
explained, “[a]s happened during the Mariel episode, the United States would be
forced to expend extraordinary amounts of money and human resources in processing,
monitoring, caring for and giving hearings to exorbitant numbers of people.” Id.
Consequently, Congress enacted 8 U.S.C. § 1324(a)(2), which does not require
general criminal intent, to make it a misdemeanor to engage in conduct of the kind
at issue in the Mariel “Freedom Flotilla” cases. Thus, the statute was intended to
reach defendants who, like those in the Mariel cases, had no intention of smuggling
aliens into the United States, but who nevertheless forced the expenditure of
extraordinary resources by knowingly bringing unauthorized aliens into the country
and to a designated port of entry for processing.
13

-- 13 of 17 --

On the other hand, 8 U.S.C. § 1324(a)(2) provided for an enhanced five-year
mandatory minimum sentence for those defendants who were engaged in smuggling
defendants into the United States by not presenting unauthorized aliens to an
immigration officer at a designated port of entry. See § 1324(a)(2)(B)(iii). Read in
context, the purpose of the enhanced sentence was not to enforce compliance with the
presentment requirement or punish those who failed to do so. Instead, it was intended
to deter the smuggling of aliens into the United States and to punish those who
engaged in that activity.
Garcia-Cordero falls within this category of defendants who had no intention
of presenting the aliens they were smuggling into the country to an immigration
officer at a designated port of entry. Nevertheless, he argues that because compliance
with the “bring and present” requirement would have incriminated him, his sentence
cannot be enhanced for his failure to do so. In essence, his argument is that he is
being punished for asserting the privilege against self-incrimination and that this
renders the enhancement unconstitutional as applied to him.
This argument is wholly without merit because Garcia-Cordero’s failure to
comply with the “bring and present” requirement was not based on his fear of self-
incrimination, as opposed to his desire to consummate a crime he was in the mist of
committing. Briefly, the record shows that on August 12, 2008, Garcia-Cordero left
14

-- 14 of 17 --

Ft. Myers, Florida aboard a 33-foot motor vessel, headed for Western Cuba. There,
on the morning of August 13, 2008, 35 Cuban nationals boarded the boat which
departed for Loggerhead Key, Florida, where Garcia-Cordero intended to smuggle
the aliens into the United States. As the boat approached shore, it attracted the
attention of the United States Coast Guard patrol. The patrol responded to the scene
and observed the passengers jumping from the vessel and taking cover as they
reached shore. Ultimately, the passengers were rounded up and Garcia-Cordero was
arrested.
On this record, it is obvious that Garcia-Cordero was carrying out a scheme to
smuggle aliens into the United States. He never had any intention to comply with the
“bring and present” requirement because such compliance would have wholly
defeated the purpose of the criminal activity in which he was engaged. Indeed, as
previously observed, in United States v. Zayas-Morales we held that compliance with
such a requirement was inconsistent with the mens rea required to convict a
defendant of bringing unauthorized aliens into the United States under the former
version of 8 U.S.C. § 1324(a)(1). See Zayas-Morales, 685 F.2d at 1277–78.
Unlike other cases, in which it is clear that fear of self-incrimination
constituted a basis for a defendant’s failure to comply with a disclosure requirement,
see, e.g., Marchetti v. United States, 390 U.S. 39, 52 (1968), or where the defendant
15

-- 15 of 17 --

actually testified that his failure was motivated by “an apprehension that . . . he might
incriminate himself,” Leary v. United States, 395 U.S. 24, 29 (1969), common sense
suggests that this was not the case here. Indeed, Garcia-Cordero concedes that he did
not argue below, nor does he argue here, that it was his fear of self-incrimination that
accounted for his failure to comply with the “bring and present” requirement. Cf.
United States v. Liguori, 430 F.2d 842, 844 n.2 (2d Cir. 1970) (“[I]f the accused’s
failure to pay the transfer tax was not at all motivated by his fear of possible
incrimination, then [the privilege] may be no bar to his prosecution.”). Under these
circumstances, Garcia-Cordero’s challenge to the statute as unconstitutional as
applied to him is nothing more than a disguised facial challenge which violates “the
principle that a person to whom a statute may constitutionally be applied will not be
heard to challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the Court.” Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973).
The case would be otherwise if Garcia-Cordero had actually complied with the
“bring and present” requirement and he was being prosecuted based on evidence
allegedly obtained as a result of such compliance. See Baltimore City Dep’t of Soc.
Servs. v. Bouknight, 493 U.S. 549, 554–56 (1990) (suggesting that “limitations may
exist upon the State’s ability to use the testimonial aspects” of an act of compelled
16

-- 16 of 17 --

production). If that were the case, he might have standing to argue that the statute was
unconstitutional as applied to him. Because such a far-fetched scenario is not present
here, there is no need to address the merits of such a claim.
17

-- 17 of 17 --