USA v. Wilkinson

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
UNITED STATES OF AMERICA 	§
§
v. 	§ 	CRIM. NO. 5:26-CR-627-1
§
ANDRES WILKINSON, III 	§
REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Andres Wilkinson, III’s Motion to Dismiss
Indictment. (Dkt. No. 61). United States District Judge John A. Kazen referred the matter to
the Undersigned for a hearing and to issue a Report and Recommendation (Dkt. No. 64). For
the reasons set forth below, the Undersigned RECOMMENDS that Defendant’s Motion to
Dismiss be DENIED.
I. BACKGROUND1
On March 11, 2026, a federal grand jury returned a four-count indictment against
Defendant, with Count One alleging a violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and Counts
Two through Four each alleging a violation of 8 U.S.C. § 1324(a)(1)(A)(ii). (Dkt. No. 41). On
May 1, 2026, the Defendant filed his motion to dismiss the indictment for a violation of the
Fifth Amendment. (Dkt. No. 61 at 5–10). Defendant also makes facial and as-applied
challenges to the aforementioned statutes. (Id.). The Government timely filed its Response
1 The parties’ briefing discusses underlying facts that would likely be offered at trial. As this is a
motion to dismiss, the Court will consider only the allegations within the indictment itself. A motion
to dismiss is not valid means for challenging the competency or adequacy of the evidence presented
before the grand jury. See, e.g., Costello v. United States, 350 U.S. 359, 363–64 (1956). In fact, the
Undersigned previously struck the Government’s attempt to introduce exhibits in its Response and at
the hearing on June 23, 2026. (See Dkt. Nos. 69, 85). See also, United States v. Mann, 517 F.2d 259,
267 (5th Cir. 1975).
United States District Court
Southern District of Texas
ENTERED
July 08, 2026
Nathan Ochsner, Clerk
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on May 22, 2026, (Dkt. No. 69), and the Defendant filed a Reply on June 12, 2026. (Dkt. No.
77). A hearing was thereafter held on June 23, 2026. (See Minute Entry Dated June 23, 2026).
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 12(b)(1) allows a defendant to “raise by pretrial
motion any defense, objection, or request that the court can determine without a trial on the
merits.” A court may rule on a pretrial motion to dismiss an indictment where the motion
presents legal questions that involve undisputed facts. See United States v. Flores, 404 F.3d
320, 325 (5th Cir. 2005), abrogated on other grounds by Abramski v. United States, 573 U.S.
169 (2014). Thus, in deciding the motion, the Court should “take the allegations of the
indictment as true.” United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United
States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)).
III. DISCUSSION
The issue before the Court is whether all counts of the indictment against Defendant
should be dismissed as a matter of law. Defendant argues that 8 U.S.C. §§ 1324(a)(1)(A)(ii)
and (iii) are facially unconstitutional, as well as unconstitutional as applied to him. (Dkt.
Nos. 61 at 5, 77 at 5–13). Further, Defendant argues these statutes violate the Due Process
Clause of the Fifth Amendment. (Dkt. No. 61 at 5). Specifically, Defendant argues that the
terms “conceal, harbor, or shield from detection” and “in furtherance of such violation of law”
are impermissibly vague. (Dkt. No 61 at 8–10).
A. Defendant’s Facial Challenge to 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (iii)
The Court first evaluates Defendant’s facial challenge to 8 U.S.C. §§ 1324(a)(1)(A)(ii)
and (iii). “The distinction between as-applied and facial challenges is sometimes hazy.”
United States v. Perez, 43 F.4th 437, 443 (5th Cir. 2022). In assessing a facial challenge, the
Court asks whether a law “could never be applied in a valid manner.” Members of City Council
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of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 797–98 (1984); United States v. Morgan,
147 F.4th 522, 526 (5th Cir. 2025), reh’g en banc denied, (5th Cir. Oct. 20, 2025); United States
v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid.”). Facial challenges
contemplate only the text of the statute itself, not its application to the specific circumstances
upon which a person acted. Morgan, 147 F.4th at 526 (5th Cir. 2025) (quoting 16 C.J.S.
Constitutional Law § 153 (2024)). Last, facial challenges are generally disfavored as they
frequently rest on speculation, run contrary to a fundamental principal of judicial restraint,
and threaten to hamper the intent of elected representatives. See Washington State Grange
v. Washington State Republican Party, 552 U.S. 442, 450–51 (2008).
To establish the statutory provisions at issue are facially vague, Defendant is required
to show that an ordinary person could not understand what conduct is prohibited, or that the
statute encourages arbitrariness and/or discriminatory application by law enforcement. See
United States v. Clark, 582 F.3d 607, 614 (5th Cir. 2009). Here, Defendant has failed to show,
as a matter of law, that an ordinary person could not understand what conduct would
constitute a violation of the statute, nor is there any evidence that the language of the
statutes encourages arbitrary or discriminatory enforcement. Defendant has also not
demonstrated that no set of circumstances exist under which 8 U.S.C. §§ 1324(a)(1)(A)(ii) and
(iii) would be valid. In short, a plain reading of the statute provides an understanding of the
prohibited behavior and Defendant has not shown the statutory provisions at issue are, on
their face, “unduly vague, in violation of due process.” Vill. of Hoffman Ests. v. Flipside,
Hoffman Ests., Inc., 455 U.S. 489, 497 (1982). Accordingly, Defendant’s facial attack on 8
U.S.C. §§ 1324(a)(1)(A)(ii) and (iii) fails.
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B. Defendant’s As-Applied Challenge to 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (iii)
The 	Court 	next 	evaluates 	Defendant’s 	as-applied 	challenge 	to 	8 	U.S.C. 	§§
1324(a)(1)(A)(ii) and (iii). In an as-applied challenge, the Court assesses whether a law with
some permissible uses “is nonetheless unconstitutional as applied to [the defendant's]
activity.” Morgan, 147 F.4th at 526 (quoting Spence v. Washington, 418 U.S. 405, 414 (1974)).
“We consider whether a statute is vague as applied to the particular facts at issue, for ‘[a]
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.’” Holder v. Humanitarian L. Project,
561 U.S. 1, 18–19 (2010) (quoting Hoffman, 455 U.S. at 495).
The Fifth Amendment provides that “[n]o person shall be…deprived of life, liberty, or
property, without due process of law.” U.S. Const. Amend. V. “It is established that a law
fails to meet the requirements of the Due Process Clause if it is so vague and standardless
that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors
free to decide, without any legally fixed standards, what is prohibited and what is not in each
particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 402–03 (1966). See also Kolender v.
Lawson, 461 U.S. 352, 357 (1983) (“As generally stated, the void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.”); Johnson v. United States, 576 U.S.
591, 595 (2015) (“Our cases establish that the Government violates this guarantee by taking
away someone's life, liberty, or property under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so standardless that it invites
arbitrary enforcement.”) (citations omitted).
Defendant 	largely 	rests 	his 	argument 	on 	the 	contention 	that 	8 	U.S.C. 	§§
1324(a)(1)(A)(ii) and (iii) do not clearly define the actions necessary to commit the offenses in
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question and is therefore unconstitutionally vague. (Dkt. Nos. 61 at 6, 77 at 2). However, “the
most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal
element of the doctrine—the requirement that a legislature establish minimal guidelines to
govern law enforcement.” Smith v. Goguen, 415 U.S. 566, 574 (1974). A statute must inform
an ordinary person what conduct is prohibited. See United States v. Branson, 139 F.4th 475,
478 (5th Cir. 2025), cert. denied, 223 L. Ed. 2d 561 (Jan. 20, 2026) (citations omitted). The
plain meaning of the statute controls unless the language is ambiguous or would lead to an
absurd result. See BMC Software, Inc. v. Comm'r, 780 F.3d 669, 674 (5th Cir. 2015) (“In any
case of statutory interpretation, we look to the plain language of the statute, reading it as a
whole and mindful of the linguistic choices made by Congress. If the language of the statute
is “plain and unambiguous, it must be given effect.”) (internal citations omitted).
First, the Fifth Circuit and other federal courts have repeatedly upheld Section
1324 against claims that it is void for vagueness. See, e.g., United States v. Moreno, 561 F.2d
1321, 1323 (9th Cir. 1977) (finding 8 U.S.C. § 1324(a)(1)(A)(ii) to not be constitutionally
vague, as the offense required the Government to prove a direct and substantial relationship
between the transportation and the alien’s unlawful presence); United States v. Merkt, 764
F.2d 266, 271 (5th Cir. 1985) (citing Moreno with approval); Banderas-Aguirre v. United
States, 474 F.2d 985, 986 (5th Cir. 1973); United States v. Sanchez-Mata, 429 F.2d 1391, 1392
(9th Cir. 1970) (“The claim of constitutionality of Title 8, U.S.C., Sec. 1324(a)(2) is frivolous.”);
Herrera v. United States, 208 F.2d 215, 217 (9th Cir. 1954) (“While the verbal arrangement
of the statute may be thought awkward, we are of opinion that a reading of it as a whole in
light of the congressional declaration of purpose leaves no rational doubt as to what was
intended.”); United States v. Patel, No. CRIM. H-08-177, 2008 WL 3914894, at *2 (S.D. Tex.
Aug. 21, 2008).
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Next, the Government has accused Defendant via the indictment of engaging in acts
to conceal, attempt to conceal, harbor, or shield Ms. Garcia-Vallejo from detection, knowing
she did not have permission to be in the United States. (Dkt. No 41 at 1). Defining what does
(or does not) constitute a violation of the harboring provision of 8 U.S.C. § 1324 has been
addressed by the Fifth Circuit. See United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir.
1977) (“Although ‘shield’ and ‘hide’ may in some contexts be synonymous, in the context of
section 1324 they are not. Section 1324 forbids attempts ‘to conceal, harbor, or shield from
detection.’ Were ‘shield from detection’ used synonymously with ‘hide’ then ‘conceal’ would be
redundant.”); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1072 (5th Cir. 1982) (“The
suggestion that ‘shield from detection’ implies any requirement that a physical barrier of
some kind be involved was clearly repudiated in Cantu.”); Villas at Parkside Partners v. City
of Farmers Branch, 726 F.3d 524, 529–30 (5th Cir. 2013) (en banc) (furnishing housing
without more is not illegal “harboring” under Section 1324(a)); United States v. Varkonyi, 645
F.2d 453, 459 (5th Cir. 1981) (harboring does not include “mere employment”); United States
v. Shum, 496 F.3d 390, 392 (5th Cir. 2007) (“[T]he evidence was sufficient to show that Shum
‘substantially facilitated’ these aliens' ability to remain in the United States illegally.”).
Additionally, the indictment alleges that in three separate instances the Defendant
transported and moved Ms. Garcia-Vallejo within the United States, knowing or in reckless
disregard of the fact she was here unlawfully. (Dkt. No. 41 at 1–3). As with the harboring
provision, what constitutes a violation of 8 U.S.C. § 1324(a)(1)(A)(ii) has been addressed by
the Fifth Circuit. See Merkt, 764 F.2d at 272 (finding that “willful transportation” is not a per
se violation of the statute, because the transportation must also be in furtherance of the
alien’s unlawful presence.); United States v. Nolasco-Rosas, 286 F.2d 762, 765 (5th Cir. 2002);
United States v. Pineda-Jimenez, 212 F. App'x 369, 372 (5th Cir. 2007) (“Although Rivas–
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Alvarez was not driving at the time of the stop, the jury could infer that he was in control of
the operation.”); United States v. Acosta-Ruiz, 481 F. App'x 213, 216 (5th Cir. 2012) (affirming
defendant’s conviction where, although not the physical driver, arranged for the aliens’
transportation); United States v. Jaquez, 107 F.4th 473, 478 (5th Cir. 2024) (affirming
defendant’s conviction where he “exercised control over the means of transportation.”);
United States v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991) (The defendant's knowledge of the
alien's illegal status is an essential element of the offense); United States v. Barbe, 383 F.
App'x 391, 392 (5th Cir. 2010) (affirming the ruling in Merkt that the offense requires a
“direct and substantial relationship” between the transportation and the alien’s illegal
presence in the United States) (Merkt, 764 F.2d at 271–72).2
In sum, to violate the harboring component of 8 U.S.C. § 1324, a defendant must
knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains
in the United States in violation of the law, engage in any conduct that substantially
facilitates an alien's ability to remain in the United States illegally. See Cantu, 557 F.2d at
1180; see also United States v. Good, 386 F. Supp. 3d 1073, 1096 (D. Neb. 2019). Similarly, a
violation of the transporting subsection of 8 U.S.C. § 1324 occurs when an alien illegally
entered or remained in the United States, the defendant transported the alien within the
United States intending to further that unlawful purpose, and the defendant knew or
recklessly disregarded the fact that the alien was illegally in the United States. See United
States v. Irias-Romero, 82 F.4th 422, 425 (5th Cir. 2023). “A statute is not vague merely
2 Defendant cites Merkt to argue that the alleged transportation “is recreational and not within the
meaning of transporting in furtherance of the alien’s unlawful presence.” (Dkt. No 61 at 9). However,
as the Court in Merkt pointed out, the purpose behind the transport is an issue of intent that is
squarely within the province of the jury. 764 F.2d at 272 (“Because the statute condemns such conduct
only when it is willful, Merkt is entitled to have the jury consider her intentions…Determining a
criminal defendant's intent is a question of fact that the jury must resolve under the totality of the
circumstances and after evaluating all of the evidence.”).
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because its ‘outermost boundaries’ are imprecise,” and what it means to “conceal,” “harbor,”
“shield from detection,” “or transport in furtherance of such violation of law” has been defined
such that a person of ordinary intelligence in the Defendant’s position is on fair notice that
his alleged conduct was proscribed by 8 U.S.C. § 1324. See Good, 386 F. Supp. at 1094
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973)). The Government bears the
burden of proving the requisite mens rea, but with the alleged basis for that element in each
count of the indictment, Defendant is not entitled to dismissal merely by claiming he did not
know his conduct was illegal. That is an issue for a jury. Id. at 1093–1094.
IV. RECOMMENDATIONS
It is RECOMMENDED that the District Judge ACCEPT the Undersigned’s findings
that 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (iii) are NOT facially unconstitutional.
It is further RECOMMENDED that the District Judge ACCEPT the Undersigned’s
findings that 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (iii) are NOT unconstitutional as-applied to
Defendant.
It is further RECOMMENDED that the District Judge DENY Defendant’s Motion
to Dismiss Indictment. (Dkt. No. 61).
V. WARNINGS
The parties may file objections to this Report and Recommendation, unless they waive
the right to do so. A party filing objections must specifically identify those findings or
recommendations to which objections are being made. The District Court need not consider
frivolous, conclusive, or general objections. Battle v. United States Parole Comm’n, 834 F. 2d
419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 677 F. 2d 404, 410 n.8 (5th Cir. 1982)
(en banc)).
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A 	party’s 	failure 	to 	file 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations contained in this Report within fourteen (14) days after being served with
a copy of the Report shall bar that party from de novo review by the District Court of the
proposed findings and recommendations and, except upon grounds of plain error, shall bar
the party from appellate review of proposed factual findings and legal conclusions accepted
by the District Court to which no objections were filed. 28 U.S.C. § 636(b)(1); Fed. R. Crim.
P. 59(b); Thomas v. Arn, 474 U.S. 140, 150–53 (1985); Douglass v. United States Auto Ass’n,
79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).
The Clerk of Court is directed to send a copy of this Report and Recommendation to
all parties.
SIGNED on July 7, 2026, at Laredo, Texas.
___________________________________
Brian C. Bajew
United States Magistrate Judge
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