MARIA DEL SOCORRO PARDO VIUDA DE AGUILAR, ET AL., PETITIONERS V.
UNITED STATES OF AMERICA
   No. 89-6214
   In The Supreme Court Of The United States
   October Term, 1989
   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
   Brief For The United States In Opposition
                             OPINION BELOW
   The amended opinion of the court of appeals (Pet. App. 1-48) is
reported at 883 F.2d 662.
                             JURISDICTION
   The judgment of the court of appeals was entered on March 30, 1989.
 A petition for rehearing was denied on October 4, 1989 (Pet. App.
49-50).  The petition for a writ of certiorari was filed on December
1, 1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
                          QUESTIONS PRESENTED
   1. Whether the First and Fourth Amendments were violated by the use
of undercover agents to infiltrate various church-sponsored meetings
and activities that routinely were open to the public and attended by
the news media.
   2. Whether the district court abused its discretion in precluding
evidence pertaining to petitioners' asserted "mistake of law" defense
based on international law and the Refugee Act of 1980, Pub. L. No.
96-212, 94 Stat. 102.
   3. Whether the district court correctly instructed the jury on the
elements of the offense of harboring illegal aliens, under 8 U.S.C.
1324(a)(3).
   4. Whether the Free Exercise Clause of the First Amendment barred
petitioners' convictions for violating federal immigration laws.
                               STATEMENT
   On January 10, 1985, a 71-count indictment was returned in the
United States District Court for the District of Arizona, charging
petitioners and eight codefendants with conspiracy to bring into the
United States, to transport, and to harbor illegal aliens, in
violation of 18 U.S.C. 371 and 8 U.S.C. 1324(a)(1)-(3);  and with
various substantive violations of the federal immigration laws.  After
a jury trial, petitioners Aguilar, Nicgorski, Conger, Fife, Hutchison,
and Quinones were convicted on the conspiracy count (Count 1), in
violation of 18 U.S.C. 371.  In addition, petitioner Aguilar was
convicted of bringing an illegal alien into the United States (Count
2), in violation of 8 U.S.C. 1324(a)(1);  petitioners Nicgorski
(Counts 10 & 11), Conger (Count 6), Fife (Counts 4 and 5), and LeWin
(Count 16) were convicted of transporting illegal aliens within the
United States, in violation of 8 U.S.C. 1324(a)(2);  petitioners Clark
(Count 20) and Nicgorski (Counts 18 and 19) were convicted of
harboring illegal aliens, in violation of 8 U.S.C. 1324(a)(3);  and
petitioners Conger (Count 26) and Quinones (Count 28) were convicted
of aiding and abetting the entry of illegal aliens into the United
States, in violation of 8 U.S.C. 1325.  /1/ With the exception of
petitioners Clark and LeWin, each petitioner was sentenced to a
five-year term of probation;  petitioners Clark and LeWin were each
sentenced to a three-year term of probation.  Gov't C.A. Br. 1-5.  The
court of appeals affirmed (Pet. App. 1-48).
   1. The pertinent facts are summarized in the court of appeals'
opinion (Pet. App. 7-10).  In March 1982, petitioner Fife, the pastor
of the Southside Presbyterian Church in Tucson, Arizona, stated in a
published newspaper interview that he could "no longer cooperate with
or defy the law covertly as (he) had done" and challenged the
government to prosecute him for violating the federal immigration
laws.  Thereafter, in public rallies and in interviews with the news
media, petitioner Fife and codefendant James Corbett repeatedly
publicized their ongoing efforts to smuggle aliens from Central
American countries into the United States for the purpose of providing
"sanctuary." Pet. App. 7.
   Prompted by those reports, the government instituted an undercover
investigation of petitioners' smuggling activities.  On March 27,
1984, undercover informant Jesus Cruz contacted petitioner Quinones at
a church office in Mexico and volunteered to work in the sanctuary
movement.  The following month, Quinones, Cruz, and petitioner Aguilar
went to a Mexican prison to interview Central Americans who were
scheduled to be deported for violating Mexican immigration laws.
Quinones apprised the aliens of contacts in Mexico who could help them
to avoid detection if they decided to travel to the United States.  He
also instructed the aliens that they should avoid contact with INS
officers once they reached the United States, and that they should
falsely claim Mexican citizenship if they were apprehended by INS
officers.  Pet. App. 7-8.
   After he began to work in the sanctuary movement, informant Cruz
quickly became a trusted colleague.  In the succeeding months, Cruz
repeatedly assisted petitioners Aguilar, Conger, and Quinones in
helping Salvadorian and Guatemalan nationals enter the United States.
Those unlawful entries followed a common pattern:  after the aliens
were provided with bogus immigration documents and instructed on
methods to avoid detection, they were led to a hole in the border
fence and were directed to the Sacred Heart Church located near the
border in Nogales, Arizona;  there, they were harbored by petitioner
Clark, among others.  Pet. App. 8.
   Once safely inside the border, the illegal aliens were transported
from Nogales to other cities in the United States by various sanctuary
movement volunteers, including petitioners Fife, Conger, LeWin and
Nicgorski.  In addition, petitioner Nicgorski harbored illegal aliens
at her apartment in Phoenix while the aliens awaited transportation
elsewhere.  At each stage of the "sanctuary" operation -- from the
unlawful entry of the aliens into the United States, to their
subsequent harboring and transportation -- there was abundant evidence
showing that petitioners were aware of the illegal status of the
aliens involved.  Pet. App. 8-10.
   Because of their considerable contributions to the sanctuary
movement, Cruz, undercover INS agent John Nixon, and confidential
informant Soloman Graham were also invited to join meetings of the
movement's inner circle at the Southside Church.  In all, one or more
of the government agents attended four such meetings.  The
participants at the meetings, including petitioners Fife, Conger and
Nicgorski, discussed the logistics of the smuggling operation, as well
as the need to dispose of several vehicles that had become conspicuous
to federal authorities because of their frequent use in the operation.
 Cruz was also present at petitioner Nicgorski's apartment when a
group of illegal aliens arrived after having been smuggled across the
border by petitioners Fife and Hutchinson.  Pet. App. 9-10.
   2. The court of appeals affirmed petitioners' convictions (Pet.
App. 1-48).  The court held that the Free Exercise Clause of the First
Amendment did not immunize petitioners from prosecution under the
federal immigration laws (id. at 33-35).  Applying what it termed
"(e)ven * * * the most exacting scrutiny" (id. at 33), the court held
that there was a compelling governmental interest in controlling
immigration into this country (id. at 34), and it refused to make "a
limited exemption" from that interest to accommodate "the particular
facts of this case" (ibid.).  The court likewise rejected (id. at
35-44) petitioners' Free Exercise challenge to the use of undercover
agents to infiltrate various church-connected meetings and activities.
 The court explained that "the meetings on church property routinely
were open to the public and attended by the news media" (id. at 35).
For that reason, the court concluded, neither the First nor Fourth
Amendment precluded government informants from attending and
participating in those meetings (id. at 44).
   The court of appeals also held that there were no trial errors.
First, the court found (Pet. App. 10-14) that the trial judge did not
improperly preclude the introduction of evidence pertaining to
petitioners' asserted "mistake of law" defense.  The court agreed (id.
at 11) that it is a defense under 8 U.S.C. 1324 that the accused did
not know that the alien was, in fact, an alien, or that he was, in
fact, unlawfully admitted into the United States.  Nevertheless, the
court explained, petitioners were not entitled to introduce any
evidence at all, no matter how far afield, that would advance such a
defense (ibid.) -- including evidence of petitioners' personal
construction of various immigration statutes and international legal
principles (id. at 12).  The court observed that the proffered
evidence would have "overwhelm(ed)" the trial proceedings by
"foolish(ly)" allowing petitioners "to put Reagan Administration
foreign policy on trial" (ibid.).  In addition, the court stated, the
excluded evidence was offered to support an "objectively unreasonable"
defense:  that the federal immigration laws authorized petitioners
"surreptitiously to smuggle, transport, and harbor aliens, while
studiously avoiding presentment (of the aliens) to the INS" (id. at 14
n. 5).  Finally, the court held that the trial judge had correctly
instructed the jury on the elements of the offense of harboring
illegal aliens (id. at 28-29).  The court explained that the word
"harbor" "does not require an intent to avoid detection" (id. at 29),
but only "'conduct tending to directly or substantially facilitate the
alien's remaining in the United States in violation of law'" (id. at
28).
                               ARGUMENT
   1. Petitioners first contend (Pet. 16-21) that their constitutional
rights were violated by the use of undercover agents and informants to
infiltrate and surreptitiously record various church-connected
meetings and activities.  Petitioners do not dispute, however, that
they and their cohorts expressly invited the undercover agents and
informants to attend the meetings and participate in the
organization's activities.  Nor do petitioners dispute the court of
appeals' conclusion that the "meetings on church property routinely
were open to the public and attended by the news media" (Pet. App. 35;
 see also Gov't C.A. Br. 177, 182-183).  In light of those
circumstances, the court of appeals correctly held that the presence
of government informants did not violate petitioners' First or Fourth
Amendment rights.
   As this Court recognized in Hoffa v. United States, 385 U.S. 293,
302 (1966), the use of undercover operatives to infiltrate criminal
ventures does not implicate any "interest legitimately protected by
the Fourth Amendment" when, as here, the undercover operatives are
present in a normally private place "by invitation, and every
conversation which (they) heard was either directed to (them) or
knowingly carried on in (their) presence." In such a setting, nothing
in the Fourth Amendment "protects a wrongdoer's misplaced belief that
a person to whom he voluntarily confides his wrongdoing will not
reveal it" (ibid.).  See also United States v. White, 401 U.S. 745
(1971);  Lewis v. United States, 385 U.S. 206, 211 (1966);  On Lee v.
United States, 343 U.S. 747 (1952).  Similarly, an invited undercover
operative may surreptitiously record a conversation that occurs in his
presence, without recourse to probable cause or a warrant.  See United
States v. Caceres, 440 U.S. 741, 744 (1979);  18 U.S.C. 2511(2)(c) and
(d).
   Nor is a different result warranted because, as petitioners assert,
their activities implicated First Amendment interests.  In Maryland v.
Macon, 472 U.S. 463 (1985), this Court rejected an analogous claim
raised by the owner of a bookstore who contended that his First and
Fourth Amendment rights were violated when an undercover agent
purchased obscene publications from the bookstore.  The Court
explained that "(a)n undercover officer does not violate the Fourth
Amendment merely by accepting an offer to do business that is freely
made to the public" (id. at 470).  "Nor," the Court added, "does the
First Amendment suggest a different conclusion" (ibid.).  In such
circumstances, the Court emphasized, "(t)he mere expectation that the
possibly illegal nature of a product will not come to the attention of
the authorities, whether because a customer will not complain or
because undercover officers will not transact business with the store,
is not one that society is prepared to recognize as reasonable" (id.
at 469).  Absent such a legitimate expectation of privacy, "(t)he
officer's action in entering the bookstore and examining the wares
that were intentionally exposed to all who frequent(ed) the place of
business * * * did not constitute a search within the meaning of the
Fourth Amendment" (ibid.).  In the absence of "some action taken by
government agents that (could) properly be classified as a 'search' or
a 'seizure,'" the Court held, "the Fourth Amendment rules designed to
safeguard First Amendment freedoms do not apply" (id. at 468-469).
See also Zurcher v. Stanford Daily, 436 U.S. 547, 564-565 (1978)
(rejecting the claim that the First Amendment stands as a separate
constitutional safeguard, in addition to the Fourth Amendment, in
restricting government agents in gathering evidence of criminal
activity).
   The same principle forecloses petitioners' claim.  As in Macon, the
record unambiguously shows that petitioners invited the various
undercover agents and informants -- as well as members of the media
and the public -- to participate in their church-connected meetings
and activities, and that petitioners voluntarily revealed
incriminating information in the presence of those agents and
informants.  Petitioners had no reasonable expectation that the
undercover agents and informants would not record and divulge the
information.  Accordingly, neither petitioners' First nor Fourth
Amendment rights were violated by the actions of the government
investigators.  Cf. United States v. Scopo, 861 F.2d 339, 347-348 (2d
Cir. 1988), cert. denied, 109 S.Ct. 1750 (1989) (defendant's First
Amendment rights were not violated when he was covertly photographed
while attending funeral services for a Mafia member);  United States
v. Gering, 716 F.2d 615, 618-620 (9th Cir. 1983) (defendant's First
Amendment rights were not violated by a mail cover used to monitor
fraudulent solititations mailed under the auspices of the defendant's
church).
   2. Relying principally on Liparota v. United States, 471 U.S. 419
(1985), petitioners contend (Pet. 21-31) that they were improperly
barred from offering certain evidence to prove that they were unaware
of the illegal immigration status of the aliens whom they smuggled,
harbored, and transported.  In particular, petitioners claim that they
should have been able to introduce evidence concerning the various
aliens' experiences in the countries from which they fled, as well as
evidence concerning petitioners' belief that those aliens were
"entitled to enter and reside in the United States under the terms of
international law and the 1980 Refugee Act" (Pet. 25).  Petitioners'
contention is both legally and factually unsupportable.
   In Liparota, this Court held that, in a food stamp fraud
prosecution under 7 U.S.C. 2024 (b), the government must prove that
the defendant knew that his possession of food stamps was unauthorized
-- and not merely that the defendant possessed the food stamps, and
that his possession was, in fact, unauthorized.  To eliminate the
"knowledge-of-illegality requirement," the Court explained, "would
thus render criminal a food stamp recipient who, for example, used
stamps to purchase food from a store that, unknown to him, charged
higher than normal prices to food stamp program participants." 471
U.S. at 426.  The Court added that a defendant's guilty knowledge may
be established, without any "extraordinary evidence," by circumstances
demonstrating that he knew his conduct was illegal.  Id. at 434.
   The present case, however, is not like Liparota;  the government
has never denied its obligation under Section 1324 to prove that
petitioners intentionally smuggled into the country aliens who they
knew to be illegal.  The evidence amply met that standard -- by
showing that the petitioners plainly knew that the persons they were
smuggling were Central Americans who had not been presented to
government officials either at the time of entry into the United
States or any time thereafter.  And the court of appeals expressly
recognized the government's burden to prove knowledge and intent,
noting that petitioners "were entitled to assert as a defense to their
indictment under section 1324 that they did not know that the aliens
in question were unlawful" (Pet. App. 11).
   But as the court of appeals also noted, petitioners' right to
present a defense of lack of knowledge did not entitle them to present
"any evidence at all to advance this defense" (Pet. App. 11) -- such
as the contention that international law and the Refugee Act of 1980
effectively modified Section 1324, thus immunizing their conduct.
Indeed, petitioners do not explain how those legal authorities can be
construed to permit their actions.  Nor do they contradict the court
of appeals' conclusion that such a construction -- according to which
"the Refugee Act of 1980 permit(s) (petitioners) surreptitiously to
smuggle, transport, and harbor aliens while studiously avoiding
presentment to the INS" (Pet. App. 14 n.5) -- is "objectively
unreasonable" (ibid.).  Finally, even if marginally relevant, the
proffered evidence would, as the court of appeals observed, have
required "a series of minitrials as to each alien's well-founded fear
of persecution" (id. at 12), thus entailing an "interminable" trial
process and "an intolerably difficult burden on the government"
(ibid.).  Accord United States v. Merkt, 794 F.2d 950, 965 n. 18 (5th
Cir. 1986), cert. denied, 480 U.S. 946 (1987);  United States v.
Merkt, 764 F.2d 266, 273 (5th Cir. 1985).  /2/
   3. Petitioners Clark and Nicgorski contend (Pet. 31-34) that the
instructions on the elements of harboring, under 8 U.S.C. 1324 (a)(3),
were erroneous, because the instructions did not require the jury to
find that petitioners intended to shield the aliens from detection or
arrest.  There is no merit to that claim.
   At the time of petitioners' offense, Section 1324(a)(3) imposed
criminal liability on any person who "willfully or knowingly conceals,
harbors, or shields from detection" an unlawful alien.  The district
court instructed the jury that acts of "concealing" and "shielding"
consist of conduct "tending to directly or substantially facilitate an
alien's remaining in the United States unlawfully with the intent to
prevent detection by the Immigration and Naturalization Service" (Pet.
App. 28).  The court further instructed that the term "harboring"
means "conduct tending to directly or substantially facilitate the
alien's remaining in the United States in violation of law," but that
the conduct need not be intended to evade INS detection (ibid.).
   The term "harboring" connotes giving shelter to an alien known to
have entered illegally, but, unlike the terms "concealing" and
"shielding," it does not suggest any intent to avoid detection.  That
interpretation of the statute, moreover, accords with the decisions of
other circuits that have addressed the issue.  See, e.g., United
States v. Lopez, 521 F.2d 437, 439, 441 (2d Cir.), cert. denied, 423
U.S. 995 (1975);  United States v. Rubio-Gonzalez, 674 F.2d 1067, 1071
(5th Cir. 1982).
   There is no basis for concluding, as petitioners suggest (Pet. 33),
that the jury may have convicted Clark simply for giving a meal to
illegal alien Ruben-Torres.  But the evidence to support the charge of
harboring Torres was far more substantial than that.  It showed that
Clark had told two illegal aliens, in the presence of Torres, that if
stopped they should lie to INS agents by claiming to be Mexicans.  It
also showed that Clark read and tore up documents requiring the aliens
to appear before an immigration judge.  Pet. App. 6, 8, 28.  In
addition, Clark made sure that the two aliens, as well as Torres, had
no documents in their possession that could possibly have identified
them as Salvadorans should they be stopped by the INS.  Gov't C.A. Br
43.  In light of the underlying record, the decision in this case
poses no risk that "social welfare agencies" (Pet. 31) will be
prosecuted whenever they provide food, clothing, or shelter to illegal
aliens.  Such agencies normally do not smuggle aliens through holes in
border fences or counsel aliens to avoid immigration officials.
   Finally, even if the offense of harboring requires proof of an
intent to evade government officials, the evidence in this case
overwhelmingly showed that Clark and Nicgorski possessed the requisite
intent.  Any error in the instruction was therefore harmless beyond a
reasonable doubt.  Rose v. Clark, 478 U.S. 570, 578-582 (1986).
   4. Finally, petitioners contend (Pet. 35-41) that the Free Exercise
Clause bars their convictions for violation of federal immigration
laws, on the ground that their assistance to aliens was prompted by
religious beliefs.  This Court recently denied certiorari on precisely
the same issue in United States v. Merkt, 794 F.2d 950 (5th Cir. 1986)
(Merkt II), cert. denied, 480 U.S. 946 (1987), on which the court
below relied (Pet. App. 34).  Further review is likewise unwarranted
in this case.
   Applying what it termed "(e)ven * * * the most exacting scrutiny"
(Pet. App. 33), the court of appeals rejected petitioners' Free
Exercise claim.  That judgment was correct.  First, the burden on
petitioners' beliefs was not substantial.  Unlike the claimants in
Wisconsin v. Yoder, 406 U.S. 205 (1972), petitioners have not shown
that their unlawful activities were required by their religion -- only
that the activities were religiously inspired.  Thus, as the Fifth
Circuit observed in Merkt II, petitioners "could have assisted
beleagered (Central Americans) in many ways which did not affront the
border control laws(,) * * * (but they) chose confrontational, illegal
means to practice their religious views" (794 F.2d at 956).
   Second, the court below correctly found that the government has an
"overriding interest in policing its borders" (Pet. App. 34).
Although petitioners contend that such a finding is not supported by
the record, petitioners below "really d(id) not contest the strength
of the government's interest," but instead merely argued that a
limited exemption could be fashioned to harmonize the government's
interest with their own beliefs (ibid.).  As the court of appeals
recognized, "(t)he proposition that the government has a compelling
interest in regulating its border hardly needs testimonial
documentation" (ibid.).  See generally Kleindienst v. Mandel, 408 U.S.
753, 765-767 (1972).
   Finally, the court of appeals correctly rejected petitioners'
request that a religious-based exemption be carved out from the
ordinary operation of the immigration laws.  As the court noted, the
number of religiously motivated persons who might qualify for such an
exemption would be "incalculable," and thus "a religious exemption * *
* would seriously limit the government's ability to control the
borders" (Pet. App. 34-35).  For that reason, the exemption proposed
by petitioners would effectively result in "no immigration policy at
all" (id. at 35).  /3/
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   EDWARD S.G. DENNIS, JR.
      Assistant Attorney General
   ROBERT J. ERICKSON
      Attorney
   FEBRUARY 1990
   /1/ Prior to trial, three codefendants (de Emery, Benavides, and
Flaherty) pleaded guilty on various misdemeanor violations of the
federal immigration laws.  The government dismissed the charges
against two codefendants (Priester and Waddell), and the jury returned
not guilty verdicts with respect to three other codefendants (Corbett,
MacDonald, and Espinosa).  In addition, the jury acquitted each of the
petitioners on at least one count charged in the indictment.  Gov't
C.A. Br. 1-5 & n.2.
   /2/ In United States v. Rhone, 864 F.2d 832 (D.C. Cir. 1989), upon
which petitioners rely (Pet. 24), the court concluded that in a
prosecution for mail fraud and theft it was error to instruct the jury
that ignorance of the law was no excuse.  The court pointed out (864
F.2d at 835) that the prosecution had virtually conceded that the
instruction was erroneous.  In addition, the court declined to address
the government's contention that the defendant's ignorance must be
objectively reasonable, stating that that contention had not been made
in the district court (ibid.).  The court also noted "in passing"
(ibid.) that if the defendant did not have the requisite intent, her
mistaken understanding of the law need not be objectively reasonable.
That remark, as the court below observed (Pet. App. 13 n.4), was dicta
in Rhone and does not cause a conflict between the circuits.
   /3/ There is no need to hold the present case pending this Court's
resolution of Employment Div., Dept. of Human Res. v. Smith, No.
88-1213 (argued Nov. 6, 1989).  In that case, the Oregon Supreme Court
held, on remand from an earlier decision of this Court, that the Free
Exercise Clause forbids the criminalization of peyote use by members
of the Native American Church.  Unlike in Smith, however, petitioners'
actions were not required, but only inspired, by their religion.
Moreover, for the reasons adduced by the court of appeals, the
strength of the governmental interest and the lack of less restrictive
alternatives amply justify the court of appeals' decision --
regardless of this Court's disposition of Smith.