2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-27-2008

USA v. Ozcelik

Precedential or Non-Precedential: Precedential

Docket No. 06-4245

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

 

No. 06-4245

 

UNITED STATES OF AMERICA

v.

HAKAN OZCELIK

a/k/a Hakan Askin

Hakan Ozcelik,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 05-cr-00722-1)

District Judge: Honorable Faith S. Hochberg

 

Argued February 12, 2008

Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges

(Filed: May 27, 2008)

____

Adrienne U. Wisenberg

Solomon L. Wisenberg (Argued)

Wisenberg & Wisenberg

Washington, D.C. 20036-0000

Attorneys for Appellant
 Ozcelik went by the name of Askin at one time, but 1

changed his name for family reasons.

2

Sabrina G. Comizzoli (Argued)

George S. Leone

Office of United States Attorney

Newark, N.J. 07102-0000

Attorneys for Appellee

____

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

This appeal raises, inter alia, an issue of first impression

in this court, that is, what conduct constitutes shielding,

harboring, and concealing an alien within the meaning of 8

U.S.C. § 1324.

I.

Facts and Procedural History

In 1990, appellant Hakan Ozcelik, then age sixteen, came

to the United States from Turkey as a stowaway on a merchant

ship. Thereafter, Ozcelik earned his GED and a college degree 1

in criminal justice, and worked at various jobs. He obtained

legal American citizenship and on December 15, 2003, he began

working as a Customs and Border Protection Officer in the

Department of Homeland Security (“DHS”). He worked

principally in Port Elizabeth, New Jersey inspecting cargo on

cruise vessels, but also occasionally worked at Newark Airport

inspecting individual passengers.

Tunc Tuncer, the government’s principal witness, is a

Turkish citizen who came to the United States on an F-1 student
 As of March 2003, INS became United States Citizenship 2

and Immigration Services, an agency within the Department of

Homeland Security. We use the term “INS” or “Immigration”

throughout because that is the term used in the record.

3

visa to participate in a master’s degree program at Columbia

University. When Tuncer failed to meet required academic

standards, Columbia refused him readmission, thereby

subjecting him to deportation for being “out of status.” App. at

352.

Shortly thereafter, Tuncer discussed his immigration issue

with his friend, Uzgar Madik, who was the President of the

Intercollegiate Turkish Students Society. Madik phoned

Ozcelik, who Madik said might be able to help, and put Tuncer

on the phone. The two had a short conversation. Tuncer called

Ozcelik the next day to provide the information Ozcelik had

requested and Ozcelik said he would see what he could do.

Ozcelik called Tuncer back the following day, stating that

Tuncer’s case was “doable” or “easy” and that all Tuncer had to

do was pay Ozcelik $2,300. App. at 220. Ozcelik told Tuncer

the money had nothing to do with him, but that it was for two of

his friends in the Immigration and Naturalization Service

(“INS”) who were going to change some dates in the system for 2

Tuncer’s visa. Tuncer testified that Ozcelik told him he had

“done this for another girl in the past recently” and would be

happy to help Tuncer with his problem. App. at 225. Tuncer

stated that he did not have the money and would call Ozcelik

when he obtained it. Within the next week or two, Ozcelik

called Tuncer several times asking about the money, but Tuncer

said he did not have it and did not know when he could get it.

On March 14, 2005, Glenn Bartley, an Immigration and

Customs Enforcement (“ICE”) agent, visited Tuncer and told

him he was “out of status.” At a second meeting the next day

Bartley administratively arrested Tuncer but did not detain him. 

At that meeting, the two discussed the possibility of Bartley

receiving information from Tuncer about Ozcelik.
4

From March 18, 2005 until May 24, 2005, Tuncer

initiated several phone conversations at the direction of law

enforcement who recorded the conversations. Tuncer told

Ozcelik that his immigration problem was “still continuing.” 

App. at 970. Ozcelik reiterated that Tuncer would have to pay

at least $2,000. In a subsequent recorded conversation, Tuncer

asked Ozcelik if $2,000 would be enough. Ozcelik responded: 

“No it can’t. There is 2000 and than [sic] there is 300 for the

fee, they will give those, they will do the thing for you, they will

do the thing from the inside.” App. at 979. Ozcelik never told

Tuncer the names of the two friends, but he continually stated

that the money was for them.

Ozcelik and Tuncer arranged a meeting at the New Port

Mall on March 24, 2005, so that Tuncer could pay Ozcelik the

$2,300 fee and provide him with a copy of his immigration

paperwork. At that meeting, Ozcelik took the money and told

Tuncer that it would take at least three months for anything to

happen. Following the meeting, Tuncer and Ozcelik had one

more recorded phone conversation in which Tuncer asked

whether there was “anything new” and Ozcelik said that he had

made the necessary contacts and that Tuncer would be the one

“receiving news.” App. at 999.

As a result of those conversations and the controlled

meeting between Tuncer and Ozcelik, a federal grand jury

charged Ozcelik in a two-count indictment. Count One of the

indictment charged Ozcelik with seeking and accepting a bribe

in return for being influenced in the performance of official acts

and being induced to do or omit acts in violation of official

duties, in violation of 18 U.S.C. § 201(b)(2). Count Two

charged Ozcelik with attempting to conceal, harbor, and shield

from detection an illegal alien, in violation of 8 U.S.C. §

1324(a)(1)(A)(iii).

The jury trial began on March 14, 2006. When the

government rested, Ozcelik reserved his right to move for

judgment of acquittal pursuant to Rule 29 of the Federal Rules of

Criminal Procedure. Ozcelik thereafter presented evidence,

including testifying on his own behalf. The jury convicted
5

Ozcelik on both counts. The District Court denied Ozcelik’s

renewed motion for judgment of acquittal.

With regard to the bribery conviction, the District Court

held that there was ample evidence that Ozcelik solicited and

accepted $2,300 from Tuncer. The Court also stated that there

was substantial evidence that Ozcelik contemplated passing on

some or all of the $2,300 to other immigration officials for the

purpose of their taking official action to assist Tuncer. The

Court further held that a reasonable juror could infer corrupt

intent in soliciting the bribe because there was substantial

evidence of Ozcelik’s consciousness of wrongdoing. With

respect to the conviction for shielding/harboring an alien, the

Court held that there was sufficient evidence that Ozcelik gave

Tuncer multiple instructions to conceal his activities in order to

avoid detection by immigration authorities. The Court

characterized Ozcelik’s conduct as “instructing Tuncer to hide

from the immigration authorities,” App. at 14, thereby

constituting the crime of shielding.

Following a sentencing hearing, the District Court

sentenced Ozcelik. On the bribery conviction, the Court

imposed a two-level enhancement for obstruction of justice for

Ozcelik’s false trial testimony, resulting in an adjusted offense

level of 16. With respect to the shielding conviction, the Court

imposed a two-level enhancement because Ozcelik abused a

position of trust, resulting in an adjusted offense level of 11. 

The District Court denied Ozcelik’s request to group the two

offenses pursuant to United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”) § 3D1.2. Instead, the Court

followed the recommendation of the Probation Officer, who had

calculated the offense level by applying the multiple-count

adjustment pursuant to U.S.S.G. § 3D1.4, resulting in a total

offense level of 17. With an offense level of 17 and a criminal

history category of I, Ozcelik’s Guidelines range was twentyfour to thirty months imprisonment. The Court sentenced

Ozcelik to twenty-seven months imprisonment on each count, to

be served concurrently.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 3

U.S.C. § 3742(a).

6

Ozcelik appeals. He argues that the evidence was 3

insufficient to sustain both the bribery and shielding convictions. 

He also argues that the Court erred in defining the term “official

act” in its instructions to the jury. Finally, Ozcelik contends that

the Court erred by not grouping his offenses at sentencing.

II.

Sufficiency of Evidence on Count One - Bribery

It is black letter law that in order to convict a defendant

the government must prove each element of a charged offense

beyond a reasonable doubt. See In re Winship, 397 U.S. 358,

364 (1970). We apply a deferential standard in determining

whether a jury’s verdict rests on sufficient evidence. Viewing

the evidence in the light most favorable to the government, we

will sustain a defendant’s conviction if “any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Voight, 89 F.3d 1050, 1080

(3d Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). An appellant raising a claim of insufficiency of the

evidence bears a “very heavy burden.” United States v. Dent,

149 F.3d 180, 187 (3d Cir. 1998) (internal quotations omitted).

Although we believe that the issue of the sufficiency of

evidence to prove bribery is a very close one, we cannot

disregard that a jury convicted Ozcelik of bribery in violation of

18 U.S.C. § 201(b)(2). That statute provides that whoever:

being a public official or person selected to be a public

official, directly or indirectly, corruptly demands, seeks,

receives, accepts, or agrees to receive or accept anything

of value personally or for any other person or entity, in

return for:

(A) being influenced in the performance of any

official act;
Ozcelik testified at trial that he never received the money 4

from Tuncer. However, Tuncer testified that he had given Ozcelik

$2,300 at their meeting at the New Port Mall. ICE agents gave

Tuncer the $2,300 in cash that he took to the meeting with Ozcelik.

Although the agents could not see the money change hands from

their surveillance positions, the agents patted down Tuncer when

he returned to their vehicle following the exchange and verified

that neither the cash nor the immigration documents he had taken

to give to Ozcelik were on his person. In addition, the conversation

during the exchange between Tuncer and Ozcelik was recorded.

During that conversation Tuncer asked Ozcelik if he would “like

to count” the money. App. at 995. Ozcelik responded, “No, no,

7

(B) being influenced to commit or aid in

committing, or to collude in, or allow, any fraud, or

make opportunity for the commission of any fraud,

on the United States; or

(C) being induced to do or omit to do any act in

violation of the official duty of such official or

person; . . . 

shall be fined under this title . . . or imprisoned for not

more than fifteen years, or both . . . .

18 U.S.C. § 201(b)(2). The government must prove that the

public official took or sought the funds for one of the three

purposes enumerated in subsections (A), (B), and (C) in the

statute.

Under § 201(b)(2), there are three essential elements that

must be met: (1) defendant must be a public official, (2) who

directly or indirectly demanded, sought, received, accepted, or

agreed to receive or accept anything of value personally or for

any other person or entity, and (3) did so specifically for one of

the three corrupt purposes set forth in subsections (A) through

(C). See United States v. Orenuga, 430 F.3d 1158, 1166 (D.C.

Cir. 2005). There is no question that Ozcelik met the first two

elements: he is a public official and he received money from

Tuncer. The third element goes to Ozcelik’s intent. 4
no. . . . I believe you . . . .” App. at 995. Any reasonable juror

could have found that the second element had been met based upon

the ample evidence adduced at trial.

8

Thus the only disputed issue is whether the evidence is

sufficient to prove that Ozcelik received Tuncer’s money with a

corrupt intent, that is, he did so for one of the three reasons

prohibited by statute. The government argues that Ozcelik

violated the statute under both subsection (A) and subsection

(C), i.e., that he sought the bribe to be influenced in the

performance of an official act and that he took the bribe contrary

to his official duty to uphold the immigration law. It argues that

Ozcelik’s consciousness of wrongdoing is reflected by his

consistent statements to Tuncer to conceal their arrangement.

Section 201(a)(3) defines “official act” as “any decision

or action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which may by

law be brought before any public official, in such official’s

official capacity, or in such official’s place of trust or profit.” 18

U.S.C. § 201(a)(3).

The government argues that Ozcelik was guilty under this

statutory section “in two non-mutually exclusive ways.” 

Appellee’s Br. at 28. First, he had the corrupt intent to take

official action directly by acting “in his capacity as a DHS

employee [to agree] to take official action to request others in

DHS for official aid for Tuncer,” and, if need be, to intervene. 

Appellee’s Br. at 28. “Second, Ozcelik, as a middleman, agreed

to importune other Immigration officials to take official action to

assist Tuncer.” Appellee’s Br. at 28. Both theories require us to

consider what is the “official action” Ozcelik took to fall within

the bribery statute.

On this record, the jury could find that Ozcelik asked

other individuals within DHS to take official action on behalf of

Tuncer; thus both theories blend together into one theory of

aiding and abetting other unidentified Immigration officials to

take official action to alter Tuncer’s records. As the government
9

stated at oral argument, there is only one piece of evidence to

show that such Immigration officials even existed – Ozcelik’s

own statements to Tuncer that he had a friend within the INS

who would undertake to alter Tuncer’s visa status.

We view the issue before us in light of our obligation to

“view the evidence in the light most favorable to the government

and [to] sustain a jury’s verdict if ‘a reasonable jury believing

the government’s evidence could find beyond a reasonable doubt

that the government proved all the elements of the offense[ ].’” 

United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997)

(quoting United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir.

1991)). We must “defer to the jury’s assessment of witness

credibility” and recognize that “the government’s proof need not

exclude every possible hypothesis of innocence.” United States

v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000) (internal quotations

and alterations omitted).

One who aids and abets another is as guilty of the

underlying offense as the principal. United States v. Dixon, 658

F.2d 181, 191 (3d Cir. 1981) (holding that middleman who

facilitated bribery of government official was liable as aider and

abettor). To prove that Ozcelik aided and abetted another, the

government must prove that the other, i.e., the principal (in this

case the unnamed friend at INS), committed all of the elements

of the offense. United States v. Cades, 495 F.2d 1166, 1167 (3d

Cir. 1974); see also United States v. Nolan, 718 F.2d 589, 592

(3d Cir. 1983). Notably, the offense is committed when the

official (here, the unnamed INS official) agrees to accept the

bribe in exchange for promising to carry out one of the statutory

prohibitions (i.e., the promise to alter Tuncer’s visa); it is not

necessary to actually perform the prohibited act. See Orenuga,

430 F.3d at 1166 (stating that “‘acceptance of the bribe is the

violation of the statute, not performance of the illegal promise’”)

(quoting United States v. Brewster, 408 U.S. 501, 526 (1972)).

The evidence at trial was as follows: Tuncer testified that

Ozcelik told him that he would get other authorities at

Immigration to change Tuncer’s visa status so that he could

remain in the country. During the March 23 recorded telephone
 The government and Ozcelik each submitted slightly 5

different versions of the recorded transcripts. There is no

substantive difference between the two.

10

conversation, Oczelik said that “they will give those, they will do

the thing for you, they will do the thing from the inside.” App.

at 979. At the March 24 meeting, Ozcelik stated, “the only 5

thing I know is that the person I know will do something for you

from the INS.” App. at 986. Later in the same conversation,

Ozcelik said, “At least 3 months, 3 months will have to go by,

because these kind of things have a certain way, it will be in the

system, there are a lot of people in front of you in the system. 

He needs to do something within that system, do you understand

what I mean?” App. at 987. In a later recorded telephone

conversation on May 24, Tuncer asked for assurance that

Ozcelik had spoken with his friend at the INS and that the friend

had undertaken to help. Ozcelik was reluctant to talk about such

matters by phone but did confirm that he had “contacted the

people in question” for Tuncer and that Tuncer “should be the

one receiving news.” App. at 999.

In addition, Tuncer testified at trial that in one of the

earlier, unrecorded telephone conversations, Ozcelik had told

him that his case was “doable,” i.e., “easy for him.” App. at 220. 

Tuncer testified that Ozcelik had asked him for $2,300, and

Tuncer asked what the money was for. Ozcelik replied that the

money “was for two of his friends who worked . . . at INS and

they were going to change some dates within the system for

[Tuncer’s] visa.” App. at 221.

If the jury believed that evidence, it could reasonably

have concluded that Ozcelik had a contact (or contacts) at INS

whom he aided in taking a bribe to violate the contact’s official

duty. The evidence that the friend had undertaken to adjust

Tuncer’s visa status was Ozcelik’s own statements to Tuncer

that his friend was going to adjust the visa within the system for

Tuncer. Although there is no evidence that the friend actually

adjusted the visa status, there is evidence from which the jury

could infer that the friend agreed to adjust the visa, and it was at
11

that point that the crime of the principal was complete. Because

there was sufficient evidence from which the jury could

rationally conclude that Ozcelik had induced a friend at INS to

alter Tuncer’s status in exchange for a bribe, there was sufficient

evidence to support Ozcelik’s guilt on a theory of aiding and

abetting.

Ozcelik argues that there is insufficient evidence because

the government could not name a specific official whom Ozcelik

aided and abetted and there is no evidence that such unnamed

official actually adjusted the visa. Ozcelik raises an intriguing

argument. We agree that it is possible that there was no “friend”

at the INS and that Ozcelik was lying to Tuncer by telling him

that his friend at the INS would adjust Tuncer’s status, when, in

reality, Ozcelik intended to keep the money without taking any

action to adjust Tuncer’s status. Indeed, the only evidence the

government produced at trial that the unnamed friend at INS

existed was Ozcelik’s own statements to that effect. But we are

not permitted to assess credibility. And as such, we cannot say

as a matter of law that no reasonable juror could accept the

government’s theory premised upon Ozcelik’s own statements.

Although we are concerned that the government could

not, through its investigation, discover the identity of Ozcelik’s

acquaintance at INS, that concern does not warrant overturning

Ozcelik’s conviction. After all, Ozcelik’s own words provide

the missing link and he did accept the money Tuncer paid for the

performance of the official act.

Ozcelik proffered an alternative view of the evidence, i.e.,

that he solicited the money to procure a lawyer named Sol Kodsi

to assist Tuncer. Kodsi testified that Ozcelik had requested that

he represent Tuncer and that he had told Ozcelik that Tuncer’s

case would probably cost $2000 plus $300 for the filing fee and

mailings. Kodsi testified that if Tuncer brought him $2,300 he

would “probably more than likely take his case.” App. at 588. 

Kodsi also testified that he had made an appointment with

Tuncer through Ozcelik for March 25, 2005.

The jury was free to reject Kodsi’s testimony, particularly
12

in light of the absence of any evidence that Kodsi ever spoke to

Tuncer or that Ozcelik ever communicated any information

about Kodsi to Tuncer. Instead, Ozcelik’s statements to Tuncer

were always in terms of his INS contacts. For example, he

stated that “they will do the thing for you, they will do the thing

from the inside.” App. at 979 (emphasis added). Moreover,

although Kodsi testified he was a longtime friend of Ozcelik,

Ozcelik had stated in one recorded conversation that he was “not

very close” to the ones who would be helping Tuncer, App. at

991, thereby throwing into question the alleged discussion with

Kodsi. Although Ozcelik may have given a viable explanation

for the request for funds, we cannot say that it was unreasonable

for the jury to reject it in favor of the government’s theory.

Ozcelik argues that the District Court improperly charged

the jury on the meaning of “official act” as used in § 201(b)(2). 

Because Ozcelik did not object to the jury instructions at trial,

and indeed, made a joint request in favor of the very instruction

at issue, we review for plain error. United States v. Wolfe, 245

F.3d 257, 260-61 (3d Cir. 2001). A “plain error” is one that

affects substantial rights. Id. (citing United States v. Olano, 507

U.S. 725, 732 (1993)). An error affects “‘substantial rights’ if it

was prejudicial in that it affected the outcome of the District

Court proceedings.” Id. at 261 (citing Olano, 507 U.S. at 733). 

It is the defendant’s burden to establish that the error prejudiced

the jury’s verdict. Id. Still, “[e]ven if the defendant establishes

the existence of plain error, Rule 52(b) leaves to the sound

discretion of the Court of Appeals the decision whether to

correct the error. While the Court of Appeals has the authority

to order correction when these elements are met, it is not

required to do so.” Id. 

The District Court charged the jury on the definition of

“official act” as follows:

An official act means any decision or act or any question

or matter which at any time may be pending or which may

by law be brought before any public official in his or her

capacity or in his or her place of trust. The term quote,

“official act,” includes the decisions or actions generally
13

expected of a public official. These decisions or actions

do not need to be specifically described in any law, rule

or job description to be considered an quote, “official

act,” end quote. Official acts that violate an official duty

also are not limited to those within the official’s specific

authority.

App. at 1149 (emphasis added).

The relevant statute defines “official act” as:

any decision or action on any question, matter, cause, suit,

proceeding or controversy, which may at any time be

pending, or which may by law be brought before any

public official, in such official’s official capacity, or in

such official’s place of trust or profit.

18 U.S.C. § 201(a)(3) (emphasis added). The error, Ozcelik

claims, is that the District Court improperly substituted the

words “in his or her capacity” for the statutory language, “in

such official’s official capacity.” He argues that the substitution

eliminated the requirement that he needed to take action in his

official capacity and instead implied that he only had to take

action in some unspecified capacity.

The government contends that the omission of the word

“official” was the stenographer’s error, and that at trial the Court

read the instruction containing the word “official.” Indeed, the

government filed a motion to correct the record in the District

Court, arguing that in fact, the Court had used the word

“official” before capacity when it charged the jury. The Court

concluded, based upon the testimony of the court stenographer,

that there was a reasonable probability that there had been a

mistake in the transcript. In addition, the written copy of the

instructions the Court gave the jurors contained the word

“official” and the Court had no recollection of omitting the word

“official.”

We defer to the District Court’s conclusion that it did read

to the jury the word “official.” Moreover, the jurors had copies
14

of the instructions that contained the word “official.” Ozcelik

has not met his burden of showing that the alleged error

substantially affected the outcome of the proceedings.

III.

Sufficiency of Evidence on 

Count Two - Shielding/Harboring/Concealing

In his motion for judgment of acquittal, Ozcelik argued

that the government failed to prove that he attempted to conceal,

harbor, or shield from detention an illegal alien. The District

Court denied that motion, concluding that Ozcelik had taken

substantial steps to conceal Tuncer because he told him to “stay

low key for 5-6 months” and not to “go left and right a lot.” 

App. at 14. Ozcelik raises the same issue on appeal, arguing that

his conduct, i.e., telling Tuncer to keep a low profile and not

draw attention to himself, and stating that it was good that he

lived at a different address than that on file with the INS, does

not constitute harboring, concealing, or shielding under 8 U.S.C.

§ 1324. The government responds that Ozcelik’s general advice

to Tuncer substantially facilitated Tuncer’s remaining in the

United States illegally, and therefore constitutes shielding,

harboring, and concealing under § 1324.

The question of what conduct constitutes shielding,

harboring, and concealing within the meaning of § 1324 is an

issue of first impression in this court. The statute, 8 U.S.C. §

1324(a)(1)(A)(iii), provides, in relevant part:

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 . . . shall be

punished . . . .

Tuncer was an illegal alien in the United States. He

testified at Ozcelik’s trial that he had remained in the United

States in violation of the terms of his student visa. In addition,
15

Ozcelik did not contest that he knew that Tuncer was an illegal

alien. Indeed, at Ozcelik’s trial Tuncer testified that he had told

Ozcelik that he remained in the United States in violation of the

terms of his student visa. Thus, the only issue on appeal is

whether Ozcelik’s conduct towards Tuncer constituted

concealing, harboring, shielding, or attempting to conceal,

harbor, or shield. It is an issue that has occupied the attention of

several appellate courts.

The original 1907 version of the statute prohibited only

the smuggling or unlawful bringing of aliens into the United

States. See United States v. Lopez, 521 F.2d 437, 439 (2d Cir.

1975). In 1917, the statute was amended to add concealing or

harboring as a crime, but no punishment attached to concealing

or harboring, only to smuggling. Id. In United States v. Evans,

333 U.S. 483, 484, 488 (1948), the Supreme Court discussed the

legislative history of a prior version of § 1324, then 8 U.S.C. §

144. The Court stated that “the section as originally enacted was

limited to acts of smuggling. And there is some evidence in the

legislative history that the addition of concealing or harboring

was meant to be limited to those acts only when closely

connected with bringing in or landing, so as to make a chain of

offenses consisting of successive stages in the smuggling

process.” Id. at 488. But, the Court noted, the evidence was not

conclusive regarding Congress’ intent as to the construction of

the then-current version of the statute; it could be construed to

criminalize as a separate offense, distinct from smuggling, the

act of harboring or concealing an alien remaining in the country

illegally. Id. The 1917 version of the statute was at issue in

Evans. Significantly, Congress amended the statute after the

decision in Evans. The congressional debates focused on the

necessity of a statutory prohibition for those who “wilfully and

knowingly” conceal or harbor an illegal alien, such as those who

provide shelter for aliens. Lopez, 521 F.2d at 440.

Congress amended the statute in 1952 by means of Public

Law 283, which applied a penalty to shielding/harboring as well

as to the act of smuggling. The relevant provisions of the 1952

statute provided: “Any person . . . who . . . willfully or

knowingly conceals, harbors, or shields from detection, or
16

attempts to conceal, harbor, or shield from detection, in any

place, including any building or any means or [sic] transportation

. . . shall be punished by a fine not exceeding $2,000 or by

imprisonment for a term not exceeding five years, or both, for

each alien in respect to whom any violation of this subsection

occurs . . . .” Act of Mar. 20, 1952, Pub. L. No. 82-283, 66 Stat.

26 (1952) (current version at 8 U.S.C. § 1324(a)(1)(A)(iii)). The

legislative history suggested that Congress intended to

strengthen the law in “preventing aliens from entering or

remaining in the United States illegally.” Id. (emphasis added).

The amended statute was considered by the Court of

Appeals for the Second Circuit in Lopez, 521 F.2d at 437. In

light of the amendment that court concluded that the statute was

not limited to instances of harboring in connection with

smuggling. Id. at 440-41. The court held that providing shelter,

obtaining employment, providing transportation to and from

work, and arranging sham marriages for illegal aliens was

conduct tending to substantially facilitate the aliens’ remaining

in the United States illegally. Id. at 441. In a later decision, the

Second Circuit announced the following test for determining

what constitutes shielding, concealing, and harboring under 8

U.S.C. § 1324: “harboring, within the meaning of § 1324,

encompasses conduct tending substantially to facilitate an alien’s

remaining in the United States illegally and to prevent

government authorities from detecting his unlawful presence.” 

United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999)

(emphasis added); see also United States v. Cantu, 557 F.2d

1173, 1180 (5th Cir. 1977) (stating that proper test is whether

charged conduct tended “substantially to facilitate an alien’s

remaining in the United States illegally”) (quoting Lopez, 521

F.2d at 441).

Convictions under § 1324 generally involve defendants

who provide illegal aliens with affirmative assistance, such as

shelter, transportation, direction about how to obtain false

documentation, or warnings about impending investigations. 

See generally id. at 1175-76, 1180; United States v. Acosta de

Evans, 531 F.2d 428 (9th Cir. 1976); Lopez, 521 F.2d at 437. In

contrast, we have found no cases in which a defendant has been
17

convicted under this statute for merely giving an alien advice to

lay low and to stay away from the address on file with the INS,

obvious information that any fugitive would know.

For example, in Kim, the defendant Kim ordered his

employee, an illegal alien, to report falsely to the INS that he had

been terminated from his job, and Kim required the employee to

obtain false documentation for the purpose of misleading the

INS. Kim, 193 F.3d at 575. The court held that Kim’s conduct

met the definition of harboring under 8 U.S.C. § 1324 because it

tended substantially to facilitate the alien’s remaining in the

United States illegally. Id. In effect, Kim directed his alienemployee to obtain false documentation as a condition of

retaining his employment and gave detailed direction about how

to affirmatively mislead the INS. The instruction was specific

and involved falsifying documents. Ozcelik’s conduct here is

not comparable. He merely passed along general information to

Tuncer and made no suggestions regarding falsifying documents.

In another case illustrating the type of conduct that falls

within the statute, United States v. Sanchez, 963 F.2d 152, 154-

55 (8th Cir. 1992), the defendant Sanchez provided illegal aliens

with apartments and immigration papers. The Court of Appeals

agreed that this justified Sanchez’s conviction for shielding,

harboring, or concealing under § 1324. Id. at 155-56. In yet

another decision, United States v. Varkonyi, 645 F.2d 453, 459

(5th Cir. 1981), the defendant forcibly interfered with INS

agents to prevent the aliens’ apprehension. In addition, the

defendant provided both employment and lodging to the aliens

and assisted at least one of them to escape from INS custody. Id.

It is true, as the government argues, that some activity

short of providing shelter would violate the statute. In United

States v. Rubio-Gonzalez, 674 F.2d 1067, 1069-70 (5th Cir.

1982), several INS agents undertook to investigate whether

certain employees at a Texas work site were illegal aliens. Upon

entering the work area, one agent stopped Rubio-Gonzalez and

asked him for identification. The identification established that

Rubio-Gonzalez was a legal resident. As the agents proceeded

to look for other employees, Rubio-Gonzalez sped away on his
Rubio-Gonzalez involved interpretation of an older 6

version of the statute but the relevant language was almost

identical. Compare 674 F.2d at 1069 n.1 (quoting 8 U.S.C. §

1324(a)(3)), with 8 U.S.C. § 1324(a)(1)(A)(iii).

18

motorcycle to another part of the work site. He then began

speaking loudly and making gestures towards the INS agents,

telling two other individuals (later proven to be illegal aliens)

that the immigration authorities were present. The two aliens

then fled. Id. at 1070.

The Court of Appeals held that Rubio-Gonzalez’s

conduct in alerting the illegal aliens to flee from investigating

INS officers constituted “shielding from detection” within the

meaning of 8 U.S.C. § 1324. Id. at 1072. The court reasoned 6

that shielding does not imply “any requirement that a physical

barrier of some kind be involved,” nor does it imply that a trick

or artifice be used. Id.

In Rubio-Gonzalez, there was an immediate threat to the

illegal aliens, that is, the physical presence of the INS agents

who intended to apprehend illegal aliens. Rubio-Gonzalez, who

had knowledge of the imminence of the apprehension, actively

sought out illegal aliens and alerted them. There was a close

temporal proximity between the threat to the illegal aliens and

the warnings the defendant undertook to spread. In addition, the

defendant’s conduct was an affirmative and active response to an

impending threat.

In contrast, here there is no evidence that Ozcelik knew

about any imminent threat to Tuncer’s immigration status. Nor

is there any evidence that Ozcelik actively attempted to intervene

in or delay an impending immigration investigation.

We agree with the Fifth Circuit that the terms “shielding,”

“harboring,” and “concealing” under § 1324 encompass conduct

“tending to substantially facilitate an alien’s remaining in the

United States illegally” and to prevent government authorities

from detecting the alien’s unlawful presence. Id. at 1073. We
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also agree that shielding does not require the use of a physical

barrier, artifice, or trick. Nonetheless, we must examine whether

Ozcelik’s conduct fits within the statutory language as construed

by the other courts of appeals.

The government cites the following evidence as proof

that Ozcelik tended to substantially facilitate Ozcelik’s

remaining in the United States. During their March 24 meeting,

Ozcelik stated to Tuncer, “You are not going to get involved in

anything for 3-5 months in order to keep your status. Go to your

work and come back home in silence, cook your food, do that

only.” App. at 988. Ozcelik continued, “The most important

thing is for you to not get involved in anything here, to not get

involved in any activity.” App. at 989. In a similar vein,

Ozcelik said to Tuncer, “That’s why I’m telling you to stay away

from everything for 4-5 months. Stay away from everything. 

Are you going to your job? Go, then come back home.” App. at

992.

Ozcelik also commented that “it is a good thing that

you’ve changed your address. I mean your legal address is

different. You are living with a friend here. Disappear, don’t

tell anyone what address you’re staying at.” App. at 992. Later,

he said, “Stay away. Stay away from everything for 5-6 months.

. . . Especially the address thing is very important.” App. at 994. 

Ozcelik stated, “[A]s I said before stay low key for 5-6 months,

because you do not have any rights.” App. at 996. In a later

recorded telephone conversation, Ozcelik said to Tuncer, “I told

you, don’t do anything, I mean don’t go left and right a lot.” 

App. at 999. This constitutes the totality of the evidence on

which the government relies.

The government argues that because Ozcelik gave Tuncer

many instructions, including telling Tuncer to hide, how to hide,

and to use multiple addresses to avoid detection by the

authorities, Ozcelik provided “counseling” that violates the

statute. We disagree. Instead, we view Ozcelik’s comments as

general advice to, in effect, keep a low profile and not do

anything illegal. Ozcelik suggested that Tuncer stay out of

trouble. Telling an illegal alien to stay out of trouble does not
20

tend substantially to facilitate the alien remaining in the country;

rather, it simply states an obvious proposition that anyone would

know or could easily ascertain from almost any source. 

Moreover, Tuncer had already changed his address before he

even spoke to Ozcelik. Ozcelik’s comments about that fact,

therefore, were irrelevant because Tuncer had already taken the

action on his own accord. Holding Ozcelik criminally

responsible for passing along general information to an illegal

alien would effectively write the word “substantially” out of the

test we have undertaken to apply. We decline to do so.

Considering the evidence in the light most favorable to

the government we conclude that no reasonable juror could find

that Ozcelik’s conduct tended to substantially facilitate Tuncer’s

remaining in the United States illegally. We therefore reverse

Ozcelik’s conviction under 8 U.S.C. § 1324 (Count Two of the

Indictment) and will remand for resentencing.

Because we reverse Ozcelik’s conviction with respect to

Count Two, the harboring charge, only one offense of conviction

remains. Therefore, Ozcelik’s contention that his two offenses

of conviction should have been “grouped” for sentencing

purposes is moot.

IV.

Conclusion

For the above-stated reasons, we will affirm the judgment

of conviction in part and reverse in part. We will remand for

resentencing.