FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCISCO MUNA

TYDINGCO,

Defendant-Appellant.

No. 17-10023

D.C. No.

1:15-cr-00018-RVM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LILI ZHANG TYDINGCO,

Defendant-Appellant.

No. 17-10024

D.C. No.

1:15-cr-00018-RVM-1

OPINION

Appeals from the United States District Court

for the District of the Northern Mariana Islands

Ramona V. Manglona, Chief Judge, Presiding

Argued and Submitted October 16, 2018

San Francisco, California

Filed November 27, 2018
2 UNITED STATES V. TYDINGCO

Before: Sidney R. Thomas, Chief Judge, Susan P. Graber,

Circuit Judge, and Robert S. Lasnik,* District Judge.

Opinion by Judge Graber

SUMMARY**

Criminal Law

The panel reversed Lili Tydingco’s conviction for

harboring an illegal alien, reversed Francisco (Frank)

Tydingco’s conviction for aiding and abetting the harboring,

and remanded for a new trial.

The panel held that the evidence—viewed in the light

most favorable to the government—is sufficient for a rational

trier of fact to find that Lili harbored an illegal alien and that

Frank had the specific intent to facilitate Lili’s commission of

that crime.

The panel held that the instruction defining “harbor” was

erroneous because it did not require the jury to find that the

defendants intended to violate the law, and the error was not

harmless.

*The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. TYDINGCO 3

The panel held that the instruction defining “reckless

disregard” was plainly erroneous because it did not require

the jury to find that Lili subjectively drew an inference that

the alien was, in fact, an alien and was in the United States

unlawfully. The panel held that the instruction may have

affected the outcome of the trial, and the error constitutes a

miscarriage of justice, warranting a new trial, because the

jury could have convicted the defendants on an invalid legal

theory.

COUNSEL

Steven P. Pixley (argued), Saipan, Commonwealth of the

NorthernMariana Islands, for Defendant-Appellant Francisco

Muna Tydingco.

Bruce Berline (argued), Berline & Associates LLC, Saipan,

Commonwealth of the Northern Mariana Islands, for

Defendant-Appellant Lili Zhang Tydingco.

Garth R. Backe (argued), Assistant United States Attorney;

Shawn N. Anderson, United States Attorney; United States

Attorney’s Office, Saipan, Commonwealth of the Northern

Mariana Islands; for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

Defendants Lili and Francisco (“Frank”) Tydingco stand

convicted, respectively, of harboring an illegal alien and of

aiding and abetting the harboring, in violation of 8 U.S.C.
4 UNITED STATES V. TYDINGCO

§ 1324(a)(1)(A)(iii). On appeal they argue, first, that the

evidence was insufficient to support their convictions. We

disagree and, therefore, reach their additional arguments

concerning trial error. We hold: (1) the instruction defining

“harbor” was erroneous because it did not require the jury to

find that Defendants intended to violate the law, and the error

was not harmless; and (2) the instruction defining “reckless

disregard” was plainly erroneous because it did not require

the jury to find that Lili subjectively drew an inference that

the alien was, in fact, an alien and was in the United States

unlawfully; the instruction may have affected the outcome of

the trial, and the error constitutes a miscarriage of justice,

warranting a new trial, because the jury could have convicted

Defendants on an invalid legal theory. Accordingly, we

reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2013, Defendants traveled from their home

on Saipan in the Commonwealth of the Northern Mariana

Islands (“CNMI”) to China, Lili’s native country, with their

two children. Lili is a legal permanent resident of the United

States through her marriage to Frank. While in China,

Defendants met X.N.’s father, who asked Defendants to take

10-year-old X.N., a Chinese national, home with them to

attend school in the United States. Lili contacted a friend of

hers who knew someone who had brought a child to the

United States to study in the past, and the friend told Lili that

it was possible to bring X.N. to the United States.

Defendants returned to the CNMI with X.N. on

September 26, 2013. The CNMI has a “parole” program

designed to support its tourism industry. Pursuant to this

program, Chinese and Russian nationals may enter the CNMI
UNITED STATES V. TYDINGCO 5

without a visa and stay for up to 45 days. United States

Customs and Border Protection (“CBP”) requires proof of a

ticket booked on a return flight within the 45-day window

before an alien may “parole in” to the CNMI.

At immigration control in the Saipan airport, CBP sent

Lili and X.N. to “secondary processing” for a more thorough

investigation because X.N. was a minor traveling without her

parents. Lili presented a notarized letter of authorization

from X.N.’s parents stating that Lili and Frank would be

X.N.’s guardians during her studies in the United States. She

also told the CBP officer that they were going to “see how it

would work out having X.N. stay with [us] and go to school.” 

The officer told Lili to get the authorization letter stamped at

the local police station, but otherwise said nothing about

X.N.’s attending school on Saipan. At some point during

processing, Lili or X.N. showed proof that X.N. had a return

flight to China booked for October 28, 2013. The parole

program allows a seven-day buffer from the date of a return

ticket to account for problems that might prevent a flight

from departing as scheduled, so the officer stamped the I94—a paper record of entry and departure dates—in X.N.’s

passport with “Nov 04 2013” to indicate that X.N. had to

leave the CNMI by November 4.

After passing through immigration control, Defendants

and X.N. went through customs. Frank filled out a customs

declaration form for his family and X.N. In the section that

asked about the purpose of the trip, Frank filled in the bubble

for “ReturningResident.” He filled in only the CNMI bubble

in the section that asked for country of permanent residence,

but he also wrote X.N.’s name under “Travelers,” provided

her correct passport number, and listed China as her country

of citizenship.
6 UNITED STATES V. TYDINGCO

About two weeks after returning to Saipan, Defendants

enrolled X.N. in public school. Lili stated that she did not

apply for a student visa for X.N. because the school never

asked for one; Lili simply gave the school a copy of X.N.’s

passport and the authorization letter. Defendants also filled

out other forms to enroll X.N. in school, including a consent

to disclose X.N.’s directory information and a hand-drawn

map accurately depicting the location of their house relative

to the school.

X.N. lived with Defendants until February 2015. After

X.N. left her home, Lili voluntarily spoke to an agent from

Homeland Security and signed a written statement. The

statement acknowledged that Lili understood “that there are

immigration laws” and that she “had to follow certain steps

and pay certain fees” to obtain her green card. Lili also said

that she “had [X.N.]’s passport and saw the I-94 showing she

was paroled in until November 2013.” An agent present for

Lili’s interview testified, on cross-examination, that the

interviewing agent did not ask Lili if she knew what an I-94

was. He could not recall whether the interviewer asked Lili

if she knew what a student visa was. The agent also testified

that Lili said she knew what “being paroled in” meant. The

government indicted Defendants after Lili’s interview.

Defendants moved for acquittal after the close of the

government’s case. The district court denied both motions. 

Following their convictions, Defendants timely appeal.
UNITED STATES V. TYDINGCO 7

DISCUSSION

A. Sufficiency of the Evidence1

Only Lili’s mental state was truly in dispute at trial. Lili

admitted seeing X.N.’s I-94 and the mandatory departure date

of November 4, 2013 (indeed, Lili personally brought X.N.

through immigration control), yet Lili kept X.N. in her house

long after that mandatory departure date passed. Lili also

understood that the United States has immigration laws, and

she understood that obtaining legal status (as she did) requires

an alien to follow certain procedures. The evidence also

showed that Lili expected to be paid for keeping X.N. in the

family home. On this record, a rational juror could have

found that Lili knew that X.N.’s continued presence in the

United States was unlawful after November 4, 2013, and that

Lili intended to violate the immigration laws.

With respect to Frank, the fact that he was named as a

guardian in the Chinese letter of authorization from X.N.’s

parents is circumstantial evidence tending to show that he

actively participated in the plan to bring X.N. to the CNMI

for a period longer than is authorized by law. And as the

district court observed, Frank knew that, when X.N. came to

Saipan, she had a return ticket to China booked for October

28, 2013, within the parole period. A rational juror could

conclude that Frank intended to give X.N. a place to live long

1 We review de novo the sufficiency of the evidence. United States

v. Garrison, 888 F.3d 1057, 1064 (9th Cir. 2018). In doing so, we view

the evidence in the light most favorable to the government and ask

whether a rational trier of fact could have found that the government

proved the essential elements of the crime beyond a reasonable doubt. Id.

at 1063. In analyzing the sufficiency of the evidence, we apply the legal

principles that we hold, below, are required to instruct a jury properly.
8 UNITED STATES V. TYDINGCO

after her parole period ended and that he had a financial

motive for doing so: Defendants’ family had modest income,

and Frank was an active participant in what occurred. For

example, he flew to China with Lili to bring X.N. back to

Saipan, he filled out the customs form at the border, and he

enrolled X.N. in school.

In short, the evidence—viewed in the light most favorable

to the government—is sufficient for a rational trier of fact to

find that Lili harbored an illegal alien and that Frank had the

specific intent to facilitate Lili’s commission of that crime. 

Therefore, Defendants are not entitled to outright reversal of

their convictions. We turn, then, to Defendants’ claims of

instructional error and their request for a new trial.

B. The Meaning of “Harbor” and the Necessary Mens

Rea2

Title 8 U.S.C. § 1324(a)(1)(A)(iii) criminalizes the

conduct of any person who:

knowing or in reckless disregard 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 conceal, harbor, or shield from

detection, such alien in any place, including

any building or any means of transportation.

2

 We review de novo whether a jury instruction misstates a required

element of a charged offense. United States v. Hofus, 598 F.3d 1171,

1174 (9th Cir. 2010). Ordinarily, such an error requires reversal unless it

is harmless beyond a reasonable doubt. United States v. Pierre, 254 F.3d

872, 877 (9th Cir. 2001).
UNITED STATES V. TYDINGCO 9

Here, the court instructed the jury simply that the term

“harbor” “means ‘to afford shelter to.’” The instructions did

not include any requirement that the jury consider whether

Defendants intended to violate the law. Defendants asked the

court to instruct the jury that it had to find that they sheltered

X.N. for the specific purpose of avoiding detection by

immigration authorities. The court declined to give that

proposed instruction. We hold that, although the court

properly rejected Defendants’ particular formulation,

harboring instructions must require a finding that Defendants

intended to violate the law.

In United States v. Acosta de Evans, 531 F.2d 428, 429

(9th Cir. 1976), we rejected the defendant’s argument that

“harbor” means “to harbor so as to prevent detection by law

enforcement agents,” in the context of considering the

sufficiency of the evidence to sustain the defendant’s

conviction. In concluding that the evidence sufficed even

though the defendant did not have the specific intent to

prevent detection, we held that—as the court instructed

here—“harbor” means “afford shelter to.” Id. at 430. Acosta

addressed an earlier version of the statute but, like the present

statute, it criminalized “conceal[ing], harbor[ing], or

shield[ing] from detection” an unlawful alien. Id. at 429 n.1. 

Textually, the Acosta holding comports with the list of

prohibited acts, because one is guilty of the crime if one

either “harbor[s]” or “shield[s] from detection.” 8 U.S.C.

§ 1324(a)(1)(A)(iii). When Congress uses different terms in

the same statute, we presume that each term has a distinct

meaning. SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir.

2003).

Nearly 30 years after Acosta, we decided United States v.

You, 382 F.3d 958 (9th Cir. 2004). There, we held that jury
10 UNITED STATES V. TYDINGCO

instructions on harboring an illegal alien “must require a

finding that the defendants intended to violate the law.” Id.

at 966. The district “court instructed the jury that it must find

that [the defendants] had acted with ‘the purpose of avoiding

the aliens’ detection by immigration authorities.’” Id.

(brackets omitted). We held that the instruction “contained

the necessary mens rea element” because it required the jury

to find that the defendants acted with the required intent to

violate the law. Id. Thus, an additional instruction that the

defendants had requested would have been redundant. Id. In

other words, we held that the instruction concerning a specific

intent to avoid detection was sufficient, but we did not hold

that it is necessary.

The government argues, first, that the statement in You

concerning the required content of a jury instruction on intent

was mere dictum, rather than a holding that we must follow. 

We are not persuaded. The opinion considered the question

at some length, relying on two analogous decisions in which

we held that a district court should have instructed the jury

that it must find that the defendants intended to violate the

law. Id. at 965–66. Moreover, the discussion was the sole

analytical underpinning for the conclusion that an additional

instruction was not needed. See Barapind v. Enomoto,

400 F.3d 744, 751 (9th Cir. 2005) (en banc) (per curiam)

(footnote omitted) (explaining that an issue presented for

review on appeal, which this court addressed and decided,

“became law of the circuit, regardless of whether it was in

some technical sense ‘necessary’ to our disposition of the

case”).

Next, the government asserts that we need not follow You

because it was wrongly decided. Whether we agree with You

or not, we are bound to follow it. See Miller v. Gammie,
UNITED STATES V. TYDINGCO 11

335 F.3d 889, 899–900 (9th Cir. 2003) (en banc) (holding

that a three-judge panel must follow a prior decision of this

court unless it is “clearly irreconcilable” with the reasoning

or theory of an intervening Supreme Court decision or other

higher authority).

Finally, the government urges us to seek en banc

rehearing because Acosta and You conflict irreconcilably. 

See United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th

Cir. 2014) (citing Atonio v. Wards Cove Packing Co.,

810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc))

(“Moreover, if we thought that two controlling cases were in

irreconcilable conflict, we could not simply pick one to

follow—we would be required to call this case en banc.”). In

our view, we can harmonize the two cases despite some

tension between them.

You requires only an instruction that the defendant

intended to violate the law. One way to demonstrate such an

intention is to prove that the defendant sought to prevent

immigration authorities from detecting an illegal alien’s

presence. But that is not the only way. For example, a

defendant who chooses to publicize her harboring of an

illegal alien in order to call attention to what she considers an

unjust immigration law intends to violate the law, even

though she does not intend to prevent detection. See United

States v. Dann, 652 F.3d 1160, 1174 (9th Cir. 2011) (stating

that “the government is correct” in interpreting Acosta to

mean that it did not have to prove that the defendant

“harbored [the alien] to prevent detection by immigration

authorities”); United States v. Aguilar, 883 F.2d 662, 690 (9th

Cir. 1989) (explaining that Acosta held that “‘harbor’ . . .

does not require an intent to avoid detection”).
12 UNITED STATES V. TYDINGCO

In summary, the jury instructions were legally deficient

by not requiring the jury to find that Defendants intended to

violate the law. The omitted instruction was not harmless

beyond a reasonable doubt, because it went to the heart of

Lili’s primary defense—that she did not understand the

immigration laws and did not act with the intent to violate the

law. Indeed, the government expressly concedes that, if the

harboring instruction was erroneous, the error was not

harmless. Frank’s conviction rises or falls with Lili’s in this

respect, because his conviction for aiding and abetting cannot

stand without her conviction for the underlying offense of

harboring.

C. The Meaning of “Reckless Disregard”

The district court instructed the jury that “reckless

disregard” means “being aware of facts which, if considered

and weighted in a reasonable manner, indicate a substantial

and unjustifiable risk that” the person harbored was in fact an

alien and was in the United States unlawfully. The

government concedes that the instruction was plainly

erroneous in light of United States v. Rodriguez, 880 F.3d

1151 (9th Cir. 2018).3 Rodriguez held that reckless disregard

requires that the defendant herself must be aware of facts

3 When a defendant fails to object to an instruction below, we review

for plain error. United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015). 

We may correct a plain error when: (1) there was error, meaning “a

deviation from a legal rule that is not waived”; (2) the error is plain,

“meaning ‘clear’ or ‘obvious’”; (3) the error was prejudicial, meaning a

“‘reasonable probability’” exists that it “‘affected the outcome of the

district court proceedings’”; and (4) the error “‘seriously affects the

fairness, integrity, or public reputation of judicial proceedings.’” Id.

(quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)).
UNITED STATES V. TYDINGCO 13

from which an inference of risk could be drawn and the

defendant must actually draw that inference. Id. at 1159–62.

The parties dispute whether the erroneous instruction, to

which Defendants did not object at trial, prejudiced

Defendants. Defendants bear the burden of showing

prejudice, which requires some intermediate level of proof

that the error affected the outcome at trial: more than a mere

possibility, United States v.Gonzalez-Aguilar, 718 F.3d 1185,

1189 (9th Cir. 2013), but less than a preponderance of the

evidence, United States v. Dominguez Benitez, 542 U.S. 74,

83 n.9 (2004). To determine whether the error affected the

outcome, we consider the whole trial record, including “the

strength of the evidence against” Defendants and “the

arguments made by the parties.” United States v. Garrido,

713 F.3d 985, 995 (9th Cir. 2013) (internal quotation marks

omitted). We also consider “whether the defendant contested

the omitted element ‘and raised evidence sufficient to support

a contrary finding.’” United States v. Conti, 804 F.3d 977,

982 (9th Cir. 2015) (quoting Neder v. United States, 527 U.S.

1, 19 (1999)). In sum, we must decide whether a reasonable

probability exists that the jury would have found Lili not

guilty4had the district court defined “reckless disregard” to

mean: “the defendant knew of facts which, if considered and

weighed in a reasonable manner, indicate a substantial and

unjustifiable risk that the alleged alien was in fact an alien

and was in the United States unlawfully, and the defendant

knew of that risk.” See Rodriguez, 880 F.3d at 1162

(providing a sample instruction).

4 Frank’s conviction for aiding and abetting cannot stand without

Lili’s conviction for the underlying offense, so the instruction necessarily

prejudiced him if it prejudiced Lili.
14 UNITED STATES V. TYDINGCO

Lili’s mental state was the main disputed issue at trial. 

The government provided uncontested evidence of the other

elements of harboring an illegal alien: that X.N. was an alien,

that X.N. remained in the United States unlawfully, and that

Lili afforded shelter to X.N. And the government offered

strong evidence on the mental-state element: Lili brought

X.N. through immigration control and saw the I-94 with a

mandatory departure date of November 4, 2013, yet she kept

X.N. in her home until 2015.

X.N. also had a return flight (that she never boarded)

booked within the parole program’s 45-day window. That

reservation suggests that someone connected to X.N. knew

the requirements of the parole program, but the evidence did

not definitively show that Lili booked the flight or even knew

about it.

Lili’s defense strategy focused on sowing doubt about

whether she knew (or knew of the risk) that X.N.’s continued

presence on Saipan was unlawful. Through crossexamination and some of the government’s exhibits,

substantial evidence emerged from which a reasonable jury

could infer that Lili—despite knowing of facts from which a

reasonable person would infer the risk of X.N.’s presence

being unlawful—did not actually draw that inference herself,

as Rodriguez requires. 880 F.3d at 1160. Lili said that she

consulted with a knowledgeable friend before agreeing to

bring X.N. to the United States, and the friend told her that it

was possible to bring a child to the United States to study. 

Lili also explicitly told a CBP officer, while going through

immigration control, that X.N. would attend school on

Saipan; she received no response to that information other

than an instruction to have the authorization letter from

X.N.’s parents stamped at the local police station.
UNITED STATES V. TYDINGCO 15

Moreover, Lili gave the public school extensive

documentation connecting herself to X.N.—something the

jury could have inferred that she might not have done had she

appreciated the facts of X.N.’s unlawful status. Among other

things, Lili gave the school the authorization letter listing

herself and Frank as X.N.’s guardians, a consent form to

release X.N.’s directory information to the public, and a

hand-drawn map showing precisely where Defendants lived. 

Lili also said that she never sought a student visa for X.N.

because the school never asked for one and simply accepted

X.N.’s passport and the notarized letter from her parents in

China. One reasonable view of that evidence is that Lili did

not realize that X.N. needed other documents to make her

long-term presence in the United States legal.

In sum, Lili has shown more than a mere possibility that

the jury would have reached a different verdict if properly

instructed on reckless disregard. Gonzalez-Aguilar, 718 F.3d

at 1189. But prejudice alone does not require reversal. We

also must decide whether the error “seriously affects the

fairness, integrity or public reputation of judicial

proceedings” before exercising our discretion to correct the

error. Johnson v. United States, 520 U.S. 461, 469–70 (1997)

(brackets omitted) (quoting United States v. Olano, 507 U.S.

725, 736 (1993)).

Here, the jury might have relied on a legally invalid

theory to convict Lili: that she acted in reckless disregard

because a reasonable person, aware of the facts that Lili

knew, would have understood the risk that X.N. remained in

the country unlawfully—even if Lili herself did not

understand that risk. The jury’s “possible reliance on a

legally invalid theory constitutes a miscarriage of justice

which would seriously affect ‘the fairness, integrity or public
16 UNITED STATES V. TYDINGCO

reputation of judicial proceedings.’” United States v.

Vasquez-Hernandez, 849 F.3d 1219, 1229 (9th Cir. 2017)

(quoting Garrido, 713 F.3d at 998).

Accordingly, we hold that Defendants have met their

burden under Olano to show that reversal and remand for a

new trial is warranted.

REVERSED and REMANDED.