In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 14‐2449

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

MICHAEL B. MCCLELLAN,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:12‐cr‐00153‐PPS‐PRC‐1 — Philip P. Simon, Chief Judge.

____________________

ARGUED FEBRUARY 13, 2015 — DECIDED JULY 21, 2015

____________________

Before WOOD, Chief Judge, and BAUER and RIPPLE, Circuit

Judges.

RIPPLE, Circuit Judge. After a jury trial, Michael McClellan

was found guilty of one count of harboring an illegal alien,

in violation of 8 U.S.C. § 1324(a)(1)(A)(iii); three counts of

mail fraud, in violation of 18 U.S.C. § 1341; and one count of

engaging in a monetary transaction involving criminally de‐

rived property, in violation of 18 U.S.C. § 1957. Because we

believe that the evidence presented to the jury was a suffi‐
2 No. 14‐2449

cient basis on which to rest its verdicts, and because we be‐

lieve that the jury instructions on the harboring count did

not constitute plain error, we affirm the judgment of the dis‐

trict court.

I

BACKGROUND

A.

Mr. McClellan and his wife, Tina, operated T & M Day‐

care (“T & M”) in Calumet City, Illinois. Nearly all of the

families at T & M participated in an Illinois state child‐care

initiative, which reimbursed daycare centers for care provid‐

ed to children of eligible families. In order to qualify, the

child’s parent or guardian had to reside in Illinois, be em‐

ployed or attend school, and have an income below a speci‐

fied amount.

Fransis Lopez was hired at T & M in February 2006. At

first she had limited contact with Mr. McClellan and Tina.

Later, the McClellans promoted Lopez to director; to do so,

they had to falsify records to make it appear that she met

qualifications dictated by state regulations. Once she became

director, she had frequent contact with Mr. McClellan and

Tina, both in person and over the phone.

Mr. McClellan and Tina instructed Lopez that, when new

families came to the daycare for services, Lopez should falsi‐

fy applications so that T & M could receive reimbursements

from the State. There were also times when the McClellans

told Lopez to leave the applications blank so that they could

write in the necessary information to obtain reimbursement.
No. 14‐2449 3

Many of the children who attended T & M also qualified

for meals through a state “Healthy Start” program.1 T & M

received reimbursement from the State of Illinois when a

qualifying child was provided a meal. Sabrina Sanchez, a

former director of T & M, testified that she would record ac‐

curately the children in attendance who had eaten meals.

She witnessed Mr. McClellan change those numbers on the

sheets, which he then submitted to the State for reimburse‐

ment. She also noticed that the Healthy Start records con‐

tained names of children who did not attend the daycare.

When she raised the issue with the McClellans, she was told

that the children were on the list because “they may come

[to the daycare].”2 After Lopez took over as director, she

would record that children had eaten a meal, when in fact

they had not; she did so at the McClellans’ instruction.

Testimony from several mothers established that their

application forms for T & M had been altered to contain false

information, that T & M had sought reimbursement from the

State beyond the time their children attended T & M, or that

T & M had sought reimbursement from the State when, in

fact, their children never actually had enrolled in the day‐

care.

B.

In 2008, Mr. McClellan purchased The Paragon restau‐

rant in Schererville, Indiana. Unbeknownst to Mr. McClel‐

                                                 

1 R.87 at 149.

2 Id. at 243.
4 No. 14‐2449

lan, the Department of Homeland Security (“DHS”) had

been investigating The Paragon and its former owners, Louis

and Chris Gerodemos, based on information that illegal al‐

iens were working there and living in a house across the

street on St. John Road. As part of its investigation, the DHS

arrested The Paragon manager Horacio Bastida. Bastida

agreed to provide assistance to the Government by record‐

ing conversations with Mr. McClellan and also by providing

the DHS with documentary evidence that Mr. McClellan

was paying part of his employees’ wages in cash and was

not reporting those wages to the State of Indiana.

In 2008, Mr. McClellan and Tina also signed a purchase

agreement for the St. John Road house. When the closing

took place, the bulk of the purchase amount was wired from

T & M’s account. Several members of The Paragon’s undoc‐

umented kitchen staff lived in the house rent‐free.

Mr. McClellan paid the utilities for the house and also pro‐

vided food to these employees.  

On July 2, 2009, Bastida recorded a conversation with

Mr. McClellan in which he raised the issue of the illegal sta‐

tus of “the guys in the back” of the restaurant.3 During the

conversation, Mr. McClellan stated that he had not been

aware of Bastida’s illegal status, but he did “kn[o]w about

the other guys.”4

A subsequent recording on August 12, 2009, captured a

meeting between Mr. McClellan and his kitchen staff.

Mr. McClellan believed that the employees in the back of the

                                                 

3 Gov’t’s Ex. 32, Clip A at 2.

4 Id. at 8. 
No. 14‐2449 5

restaurant should be doing a better job because they were

receiving free rent, utilities, and food.5 A conversation be‐

tween Mr. McClellan and Bastida that same day revealed

that Mr. McClellan was told that “the guys in back” had

“fake” social security numbers, that Mr. McClellan told Bas‐

tida that it was “fine” for those employees to use their fake

numbers, and that Mr. McClellan did not want “the guys in

the back to punch in no longer” using the electronic system

because “a record is produced” and he did not want a paper

trail.6

On March 24, 2010, law enforcement agents executed a

search warrant at The Paragon, the McClellans’ residence,

and the house on St. John Road. There were eight employees

in the restaurant that were working without legal status;

four other individuals without legal status were found in the

St. John Road house.

C.

A grand jury returned a five‐count indictment against

Mr. McClellan: Count 1 charged Mr. McClellan with harbor‐

ing five illegal aliens, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(iii), based on his employment of those aliens

and his providing them with housing at the St. John Road

house; Counts 2 through 4 charged Mr. McClellan with mail

fraud, in violation of 18 U.S.C. § 1341, based on his submis‐

                                                 

5 See id., Clip B1 at 6 (“I’m giving free food, I’m giving a house to stay,

I’m paying light/gas bill ... .”).

6 Id., Clip B2 at 3–4.
6 No. 14‐2449

sion of fraudulent quarterly employment tax reports from

October 2009, January 2010, and April 2010; and Count 5

charged Mr. McClellan and Tina with engaging in a mone‐

tary transaction involving criminally derived property, in

violation of 18 U.S.C. § 1957, based on the transfer of funds

from the T & M account for the purchase of the St. John Road

house.

The case was tried before a jury, which was given the fol‐

lowing instruction with respect to the elements of Count 1:

Count 1 of the indictment charges the

Defendant Michael McClellan with harboring

an alien. In order for you to find the Defendant

guilty of this charge, the Government must

prove each of the following elements beyond a

reasonable doubt:

1. The Defendant harbored the persons

named in the indictment.

2. The persons named in the indictment

were aliens.

3. The persons named in the indictment

remained in the United States in violation of

the law.

4. The Defendant knew that the persons

named in the indictment were not lawfully in

the United States.[7]

Mr. McClellan did not interpose any objection to this instruc‐

tion. The jury returned a guilty verdict on all five counts,

                                                 

7 R.90 at 89.
No. 14‐2449 7

and the court subsequently sentenced Mr. McClellan to a

term of fifty‐one months on each of the five counts, to be

served concurrently. Mr. McClellan timely appealed.8  

II

DISCUSSION

On appeal, Mr. McClellan contends that there was insuf‐

ficient evidence to convict him on any of the counts of the

indictment and that the district court instructed the jury im‐

properly with respect to Count 1. We turn first to the ques‐

tion of the sufficiency of the evidence.

A.

Mr. McClellan first submits that the evidence was insuf‐

ficient to convict him of any of the counts of the indictment.

When a defendant challenges the sufficiency of the evidence,

we will reverse only where, viewing the evidence in the light

most favorable to the verdict, the record demonstrates that

no reasonable jury could have found all the elements of the

crime charged beyond a reasonable doubt. See, e.g., United

States v. Vaughn, 585 F.3d 1024, 1028 (7th Cir. 2009).

                                                 

8 The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We

have jurisdiction over Mr. McClellan’s appeal pursuant to 28 U.S.C. §

1291.
8 No. 14‐2449

1.

With respect to Count 1 of the indictment for harboring

under § 1324(a)(1)(A)(iii), Mr. McClellan first submits that

“the government did not prove that [he] knew that any one

of the listed and alleged illegal aliens in Count One were, in

fact, illegal aliens or, with respect to the property at 1747 St.

John St., a resident there.”9 The record establishes, however,

that Francisco Jacobo‐Ortiz, one of the aliens whom Mr.

McClellan was accused of harboring in Count 1, worked in

the kitchen at The Paragon for three years.10 Moreover, in the

recorded conversations between Mr. McClellan and Bastida,

Mr. McClellan acknowledged on several occasions that he

knew that the employees “in the back” of the restaurant, i.e.,

the kitchen area as opposed to the dining room, were ille‐

gal.11 Indeed, in one recorded conversation with Bastida,

Mr. McClellan stated that he had been unaware of Bastida’s

lack of documentation, but he “knew about the other

guys.”12 Finally, Bastida testified that Jacobo‐Ortiz was one

of the employees present at the meeting with Mr. McClellan

in which Mr. McClellan voiced frustration with the employ‐

ees in the back of the restaurant because, he believed, they

should be working harder in light of the fact that they were

receiving free rent, utilities, and food.13 From this evidence,

                                                 

9 Appellant’s Br. 17.

10 R.89 at 48.

11 Gov’t’s Ex. 32, Clip A at 2, 8.

12 Id. at 8.

13 See id., Clip B1 at 6 (“I’m giving free food, I’m giving a house to stay,

I’m paying light/gas bill ... .”).
No. 14‐2449 9

therefore, a reasonable jury could conclude beyond a rea‐

sonable doubt that Mr. McClellan both knew of the illegal

status of Jacobo‐Ortiz and knew that he was living at the St.

John Road house rent‐free.

Mr. McClellan also argues that our recent decision in

United States v. Costello, 666 F.3d 1040 (7th Cir. 2012), clari‐

fied “that the keystone of harboring is concealing the alien

from detection by Government authorities.”14 He maintains

that Costello “reject[ed] the premise that ‘harboring’ can be

equated to ‘simple sheltering in the sense of just providing a

place to stay.’”15 He submits that, because he did not take

“any actions for the purpose of shielding the illegal aliens

from law enforcement detection,”16 his conviction under

§ 1324 cannot stand.

In Costello, the defendant was romantically involved with

a man whom she knew to be an illegal alien, and, at some

point in their relationship, he moved in with the defendant.

The Government posited that the defendant had “harbored”

the alien simply because she had provided him housing. We,

however, rejected the idea that harboring included “letting

your boyfriend live with you.” Costello, 666 F.3d at 1043. In

striving to define harboring, we observed that “‘harboring,’

as the word is actually used has a connotation ... of deliber‐

ately safeguarding members of a specified group from the

authorities, whether through concealment, movement to a

safe location, or physical protection.” Id. at 1044. We also

                                                 

14 Appellant’s Br. 16.

15 Id. (quoting United States v. Costello, 666 F.3d 1040, 1050 (7th Cir. 2012)).

16 Id. at 17.
10 No. 14‐2449

noted that “[t]he prohibition of concealing, shielding from

detection, and harboring ... grew out of the prohibition of

smuggling aliens into the United States.” Id. at 1045. Harbor‐

ing, we continued, should be seen as “plug[ging] a possible

loophole left open by merely forbidding concealing and

shielding from detection.” Id. We gave the following exam‐

ple:

Suppose the owner of a Chinese restaurant in

New York’s or San Francisco’s Chinatown em‐

ploys known illegal aliens as cooks, waiters,

and busboys because they are cheap labor, and

provides them with housing in order to make

the employment, poorly paid though it is,

more attractive, and also because they lack

documentation that other landlords would re‐

quire of would‐be renters. The owner is har‐

boring these illegal aliens in the sense of taking

strong measures to keep them here. Yet there

may be no effort at concealment or shielding

from detection, simply because the immigra‐

tion authorities, having very limited investiga‐

tive resources, may have no interest in rooting

out illegal aliens in Chinese restaurants in Chi‐

natowns. It is nonetheless harboring in an ap‐

propriate sense because the illegal status of the

alien is inseparable from the decision to pro‐

vide housing—it is a decision to provide a ref‐

uge for an illegal alien because he’s an illegal al‐

ien.

Id. (emphasis in original). In short, we explained that, by

housing his illegal employees, “[t]he restaurant owner in our
No. 14‐2449 11

example provides an inducement to illegal aliens.” Id. at

1046. We then concluded that a defendant is guilty of har‐

boring for purposes of § 1324 by “providing ... a known ille‐

gal alien a secure haven, a refuge, a place to stay in which

the authorities are unlikely to be seeking him.” Id. at 1050.

Here, unlike the defendant in Costello, Mr. McClellan and

his employees were not “cohabiting,” nor was he simply

providing aliens with a place to stay. Instead, Mr. McClel‐

lan’s situation mirrors that of the restaurant scenario in Cos‐

tello. The recorded conversations reveal that Mr. McClellan

knew that “the guys in the back” did not have legal status,

that he instructed them not to punch in in the same manner

as other employees, and that he provided them with housing

to help compensate them for the otherwise low wages that

he was paying them.17 Therefore, as in Costello, he was “har‐

boring these illegal aliens in the sense of taking strong

measures to keep them here.” Id. at 1045.

According to Mr. McClellan, however, Costello does not

merely require a showing that the defendant’s actions had

the effect of shielding the aliens from detection; instead, he

contends that “Costello established that the individual’s alien

status must be the driving purpose for the provision of shel‐

ter such that there also exists the intent by the defendant to

help the alien avoid detection by the authorities.”18

Mr. McClellan’s argument mirrors the argument raised

by the defendant in another recent § 1324 case, United States

v. Campbell, 770 F.3d 556 (7th Cir. 2014), cert. denied, 135 S. Ct.

                                                 

17 See supra at 4–5.

18 Reply Br. 4.
12 No. 14‐2449

1724 (2015). In Campbell, the defendant had recruited young

women, who had overstayed their visas, into his “Family” of

prostitutes and provided them with housing. Id. at 561. Fol‐

lowing his § 1324 convictions, he appealed and argued that

Costello established a requirement that “the individual’s al‐

ien status must be the driving purpose for the provision of

shelter such that there also exists the intent by the defendant

to help the alien avoid detection by the authorities.” Id. at

569 (internal quotation marks omitted). Campbell main‐

tained that the district court had erred therefore by “failing

to instruct the jury regarding this intent element.” Id. at 570.

On plain error review, we affirmed Campbell’s convic‐

tion. We determined that we did not have to resolve the is‐

sue of intent because  

[e]ven if Campbell [were] correct that the Gov‐

ernment must establish that he provided [the

young women] shelter for the purpose of evad‐

ing detection by law enforcement or immigra‐

tion authorities, ... any instructional error in

this regard did not affect Campbell’s substan‐

tial rights. Although preventing detection by

law enforcement was not Campbell’s sole pur‐

pose for providing [the young women] with

housing and employment, and for concealing

their identities and whereabouts, the evidence

amply showed such prevention was an integral

part of Campbell’s overall “Family” plan.

Id. (footnote omitted).

Although the facts here are not as egregious as those in

Campbell, here, as in Campbell, there is evidence that provid‐
No. 14‐2449 13

ing the illegal workers with housing and utilities enabled the

workers to avoid detection by authorities and enabled

Mr. McClellan to continue to employ them at low wages,

keep up his profit margins, and lessen his employment tax

burdens. This connection, as we pointed out in Costello, is the

key to distinguishing § 1324 harboring from simply provid‐

ing housing to a known alien: harboring “con‐

not[es] ... deliberately safeguarding members of a specified

group from the authorities, whether through concealment,

movement to a safe location, or physical protection.” 666

F.3d at 1044; cf. United States v. Vargas‐Cordon, 733 F.3d 366,

382 (2d Cir. 2013) (stating that harboring under § 1324 re‐

quires an “inten[tion] to help prevent the detection of the al‐

ien by the authorities”). Therefore, if our statement in Costel‐

lo were not sufficiently clear, we hold that, when the basis

for the defendant’s conviction under § 1324(a)(1)(A)(iii) is

providing housing to a known illegal alien, there must be

evidence from which a jury could conclude, beyond a rea‐

sonable doubt, that the defendant intended to safeguard that

alien from the authorities. Such intent can be established by

showing that the defendant has taken actions to conceal an

alien by moving the alien to a hidden location or providing

physical protection to the alien. See Costello, 666 F.3d at

1044.19  

                                                 

19 Mr. McClellan also argues that his case is distinguishable from Costello

and United States v. Campbell, 770 F.3d 556 (7th Cir. 2014), cert. denied, 135

S. Ct. 1724 (2015), because, in addition to discovering illegal aliens em‐

ployed at The Paragon in the St. John Road house, authorities also dis‐

covered other residents, some of whom were in the country illegally, and

others who had legal status. See R.89 at 209–10. The fact that Mr. McClel‐

lan was not harboring other aliens, however, does not diminish the evi‐

(continued...)
14 No. 14‐2449

Here, the record supports the jury’s conclusion that

Mr. McClellan intended to safeguard his employees from the

authorities. Like the defendant in Campbell, keeping his em‐

ployees’ legal status “off the radar” was important to the

profitable running of his business, The Paragon. Indeed, the

contract for the sale of the St. John Road house was negotiat‐

ed during the same time period as the purchase of The Para‐

gon.20 The location of the home minimized the illegal em‐

ployees’ exposure to the general public, and the free rent

and utilities both made their lower wages more attractive

and prevented them from engaging in other commercial

transactions, which may have exposed their illegal status.

There was deliberate action on Mr. McClellan’s part that

made detection of the employees living at the St. John Road

house more difficult. Consequently, the elements of harbor‐

ing under § 1324(a)(1)(A)(iii) are satisfied.

2.

Mr. McClellan next argues that there was insufficient ev‐

idence to convict him of mail fraud under 18 U.S.C. § 1341

(Counts 2 through 4) because the Government did not estab‐

lish that, in submitting the false quarterly employment tax

                                                                                                             

(...continued)

dence that, with respect to illegal aliens employed at The Paragon, the

provision of housing and utilities close to the workplace significantly

diminished the likelihood that they would be discovered and concomi‐

tantly benefitted Mr. McClellan’s business endeavors.

20 See Gov’t’s Ex. 37.
No. 14‐2449 15

statements, he intended to defraud the State of Indiana.21 “A

mail fraud conviction requires three elements: (1) a scheme

or artifice to defraud, (2) the use of the mailing system for

the purpose of executing the scheme, and (3) the defendant’s

participation in the scheme with the intent to defraud.” Unit‐

ed States v. Giovenco, 773 F.3d 866, 869 (7th Cir. 2014). Intent

to defraud is evidenced by “a ‘willful act ... with the specific

intent to deceive or cheat, usually for the purpose of getting

financial gain for one’s self or causing financial loss to an‐

other.’” United States v. Leahy, 464 F.3d 773, 786 (7th Cir.

2006) (quoting United States v. Britton, 289 F.3d 976, 981 (7th

Cir. 2002)). Intent to defraud “may be established by circum‐

stantial evidence.” United States v. Stephens, 421 F.3d 503, 509

(7th Cir. 2005) (internal quotation marks omitted).

Mr. McClellan argues that, because the practice of paying

illegal workers in cash was established by the former owners

of The Paragon, he was merely an unwitting participant in

any illegality: “The only connection between [Mr. McClel‐

lan’s] alleged actions and any loss [to the State] was that he

                                                 

21 18 U.S.C. § 1341 provides:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, ...

for the purpose of executing such scheme or artifice or

attempting so to do, places in any post office or author‐

ized depository for mail matter, any matter or thing

whatever to be sent or delivered by the Postal Service, or

deposits or causes to be deposited any matter or thing

whatever to be sent or delivered by any private or com‐

mercial interstate carrier, ... shall be fined under this ti‐

tle or imprisoned not more than 20 years, or both ... .
16 No. 14‐2449

trusted dishonest individuals to operate his business. The

record does not establish a fraudulent scheme to defraud

anyone of anything.”22 This is not the case. Bastida testified

that, at Mr. McClellan’s direction, he would pay the “back of

the house” employees in “cash, and some others half and

half, half check and half cash.”23 Mr. McClellan also instruct‐

ed him to set aside cash tickets and to bring them into

Mr. McClellan’s office at night.24 The cash from those tickets

would be used to pay the employees. Far from being duped

by dishonest prior owners, therefore, Mr. McClellan had full

knowledge of how his employees were being paid and that

their wages, or at least part of them, were not being reported

for tax purposes.

In his reply, Mr. McClellan maintains that he installed a

new computer system that kept track of cash withdrawals

from the register, and, therefore, there is no evidence of

fraudulent intent to hide those transactions from the State.25

Bastida testified, however, that the cash transactions were

not recorded in the same method as other transactions, but

were recorded in “Mike’s training mode.”26 The fact that

cash transactions were being tracked differently than other

transactions indicates that Mr. McClellan wanted to know

how much cash was coming out of the register, but does not

                                                 

22 Appellant’s Br. 20.

23 R.89 at 28.

24 See id. at 33–34.

25 It is not clear from the referenced testimony when during Mr. McClel‐

lan’s ownership this occurred.

26 Id. at 203.
No. 14‐2449 17

suggest he intended to be forthcoming with the State as to

those transactions. Indeed, nothing in the record indicates

that he was using those records to ensure that he was

providing accurate information to the State or calculating

accurate withholdings for tax purposes.27

3.

Lastly, Mr. McClellan challenges his conviction for mon‐

ey laundering under 18 U.S.C. § 1957. Section 1957 of Title 18

provides that “[w]hoever ... knowingly engages or attempts

to engage in a monetary transaction in criminally derived

property of a value greater than $10,000 and is derived from

specified unlawful activity, shall be punished ... .” In the in‐

dictment, the Government alleged that Mr. McClellan

fraudulently had submitted reimbursement forms to the

State of Illinois on behalf of T & M, that T & M in fact had

been reimbursed for over $200,000 of services that were nev‐

                                                 

27 Mr. McClellan also cites United States v. Knox, 624 F.3d 865 (7th Cir.

2010), for the proposition that Mr. McClellan had to “personally au‐

thor[]” false or fraudulent documents in order to be guilty of fraud. Ap‐

pellant’s Br. 20. Because he relied on other employees “to run the daily

operations of the Paragon,” he contends, he cannot be guilty of fraud. Id.

Knox simply does not speak to the situation here. In Knox, the de‐

fendant pleaded guilty to the crimes charged, and the defendant’s argu‐

ment on appeal was limited to alleged errors in the application of the

Sentencing Guidelines. We therefore did not have an occasion to discuss

the evidentiary requirements for the underlying crimes. Moreover, even

if Knox established such a requirement, here there was ample evidence of

Mr. McClellan’s involvement in the day‐to‐day operations of The Para‐

gon. 
18 No. 14‐2449

er provided, and that Mr. McClellan used those funds to

purchase the St. John Road house.

Mr. McClellan’s sole argument on this count is that there

was not sufficient evidence to establish that he intended to

defraud the State of Illinois. Instead, he pins the entire

fraudulent scheme on Lopez. According to Mr. McClellan,

he “delegated the authority of the day‐to‐day operations of

the daycare to Fransis [Lopez]. Fransis was the one who as‐

sisted the mothers with filling out the applications and

would falsify the attendance and meal records.”28

Mr. McClellan’s arguments, however, ignore Lopez’s tes‐

timony that she was acting at Mr. McClellan’s and Tina’s in‐

struction in leaving portions of applications blank and in‐

creasing the “Healthy Start” meal tallies. It also ignores

Sanchez’s testimony that Mr. McClellan would increase the

number of meals allegedly consumed by children on the re‐

imbursement claims submitted to the State of Illinois.

Mr. McClellan, at bottom, asks us to ignore Lopez’s tes‐

timony establishing his fraudulent intent. We will set aside a

jury’s credibility determination, however, only if the testi‐

mony was “exceedingly improbable,” meaning that it was

“internally inconsistent or implausible on its face.” United

States v. Johnson, 729 F.3d 710, 715 (7th Cir. 2013) (internal

quotation marks omitted). Mr. McClellan does not argue that

Lopez’s testimony falls into either of these categories, and,

consequently, we will not disturb the jury’s verdict on Count

5.

                                                 

28 Appellant’s Br. 21.
No. 14‐2449 19

B.

Mr. McClellan also maintains that it was reversible error

for the district court to fail to instruct the jury “that it needed

to assess whether [he] provided shelter to the illegal aliens

named in the Indictment for the specific purpose of shield‐

ing them from government detection.”29

Generally speaking,  

[w]e review jury instructions de novo to

determine whether, taken as a whole, they cor‐

rectly and completely informed the jury of the

applicable law. We defer to the district court’s

phrasing of an instruction that accurately states

the law; however, we shall reverse when the

instructions misstate the law or fail to convey

the relevant legal principles in full and when

those shortcomings confuse or mislead the jury

and prejudice the objecting litigant.

Huff v. Sheahan, 493 F.3d 893, 899 (7th Cir. 2007) (citations

omitted) (internal quotation marks omitted).

Here, however, Mr. McClellan failed to object at trial to

the instruction of which he now complains and, consequent‐

ly, has forfeited the objection. United States v. Wiley, 475 F.3d

908, 917 (7th Cir. 2007). We review forfeited objections to ju‐

ry instructions for plain error only. See id. “In order to re‐

verse for plain error, we must find (1) error (2) that is plain,

and (3) that affects the defendant’s substantial rights.”

                                                 

29 Appellant’s Br. 14.
20 No. 14‐2449

Campbell, 770 F.3d at 558 (quoting United States v. Aslan, 644

F.3d 526, 540 (7th Cir. 2011)). Even after a defendant has

made these showings, however, the decision to correct an

error “is left within the discretion of the court of appeals,

and we ‘should not exercise that discretion unless the error

seriously affects the fairness, integrity or public reputation of

judicial proceedings.’” Id. (quoting United States v. Olano, 507

U.S. 725, 732 (1993)).

Here, we cannot conclude that the district court commit‐

ted plain error in instructing the jury. An individual violates

8 U.S.C. § 1324(a)(1)(A)(iii) if he “conceals, harbors or shields

from detection ... [an] alien in any place,” “knowing or in

reckless disregard of the fact that an alien has come to, en‐

tered, or remains in the United States in violation of law.”

The district court instructed the jury that the Government

must prove beyond a reasonable doubt that:  

1. The Defendant harbored the persons

named in the indictment.

2. The persons named in the indictment

were aliens.  

3. The persons named in the indictment

remained in the United States in violation of

the law.

4. The Defendant knew that the persons

named in the indictment were not lawfully in

the United States.[30]

The instruction, therefore, mirrors the statutory language.

Moreover, contrary to Mr. McClellan’s assertion, the district

                                                 

30 R.90 at 89.
No. 14‐2449 21

court did not leave the jury asea with respect to the defini‐

tion of “harbor[].”31 Critically, the district court instructed

the jury that “[t]o harbor an alien means to provide a known

alien with a secure haven, a refuge, or a place to stay where

it is unlikely that the authorities will be seeking him.”32 This

instruction restates, almost to the letter, the definition of

harboring that we set forth in Costello, 666 F.3d at 1050 (de‐

fining “harboring” as “providing ... a known illegal alien a

secure haven, a refuge, a place to stay in which the authori‐

ties are unlikely to be seeking him”).

Mr. McClellan nevertheless argues that the instructions

“failed to properly advise the jury that it needed to assess

whether [he] provided shelter to the illegal aliens named in

the Indictment for the specific purpose of shielding them

from government detection.”33 According to Mr. McClellan,

“[t]his Court has previously noted that a district court com‐

mits reversible error by failing to instruct a jury on the spe‐

cific intent requirement of the harboring statute when doing

so may have changed the outcome at trial.”34 He relies on Yu

Tian Li v. United States, 648 F.3d 524 (7th Cir. 2011), in sup‐

port of this contention.  

In Li, trial counsel had proposed a jury instruction “mod‐

eled after one used in the Eleventh Circuit,” which did not

                                                 

31 Appellant’s Br. 14 (arguing that the district court did not “clarify is‐

sues” or “educate the jury” with respect to the meaning of “harboring”

(internal quotation marks omitted)).

32 R.90 at 90.

33 Appellant’s Br. 14.

34 Id. at 13. 
22 No. 14‐2449

contain specific intent language, because “there was no con‐

trolling case law nor pattern jury instruction for alien‐harboring

in the Seventh Circuit.” 648 F.3d at 528 (emphasis added). Af‐

ter his conviction for harboring an illegal alien for the pur‐

pose of commercial advantage or private financial gain, Li

filed a motion under 28 U.S.C. § 2255, in which he main‐

tained that his counsel had been ineffective for, among other

reasons, failing to request “a specific intent instruction.” Li,

648 F.3d at 529. The district court denied relief, and we af‐

firmed. We stated:  

Under the Strickland standard, we certainly

cannot say that it was outside the realm of rea‐

sonable professional assistance for Li’s counsel

to propose a jury instruction similar to that

used by the Eleventh Circuit and reflecting the

general intent requirement in several other cir‐

cuits, where there was no controlling law in this

Circuit.

Id. at 528 (emphasis added). We did note that “there is room

to argue that Li’s counsel should have requested a specific

intent instruction” based on case law from the Ninth Circuit.

Id. at 529 (citing United States v. You, 382 F.3d 958, 966 (9th

Cir. 2004)). Nevertheless, we concluded that, even if it were

error for Li’s counsel not to ask for a different instruction, Li

had not demonstrated that the proposed instruction adverse‐

ly affected his defense because “the evidence clearly indicat‐

ed that Li’s covert acts were taken with a purposeful attempt

to violate the law.” Id. at 530.

Nothing in our analysis in Li establishes that a specific in‐

tent instruction is required for violations of

§ 1324(a)(1)(A)(iii), much less that the failure to give such an
No. 14‐2449 23

instruction was plain error. Indeed, we noted on more than

one occasion in Li that there was no law from this circuit

holding that § 1324 incorporates a specific intent require‐

ment and, relatedly, no circuit law requiring a specific intent

instruction. We also observed that counsel’s general intent

instruction was consistent with the approach of several other

circuits. Li, 648 F.3d at 528–29 (citing, among other authori‐

ties, United States v. Khanani, 502 F.3d 1281, 1287, 1289 (11th

Cir. 2007), in which the court concluded that a

§ 1324(a)(1)(A)(iii) instruction, similar in all material respects

to the one given here, “correctly addressed all elements of

the offenses”). On plain error review, we cannot grant relief

“unless the error is clear under current law.” Olano, 507 U.S.

at 734. Because the “operative legal question”—whether §

1324(a)(1)(A)(iii) contains a specific intent requirement—was

“unsettled,” the district court did not commit plain error.

United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (per

curiam) (internal quotation marks omitted).

Here, the jury was instructed on the elements of the of‐

fense. That instruction required the jury to find beyond a

reasonable doubt that the defendant knew the persons

whom he was harboring were not lawfully within the Unit‐

ed States. The jury was further instructed that “[t]o harbor

an alien means to provide a known alien with a secure ha‐

ven, a refuge, or a place to stay where it is unlikely that the

authorities will be seeking him.”35 These instructions, to‐

gether, told the jury that, in order to convict, it had to find

that Mr. McClellan knew the individuals for whom he was

providing lodging were illegal aliens and that he provided

                                                 

35 R.90 at 90.
24 No. 14‐2449

the housing at least in part for the purpose of keeping their

presence unknown to the authorities—to allow them to live

“under the radar.” The jury was therefore properly oriented

as to its task, and Mr. McClellan suffered no injustice from

having the case submitted under these instructions.

Conclusion

The evidence at trial was sufficient to find Mr. McClellan

guilty of the charged offenses beyond a reasonable doubt.

Additionally, the district court did not commit plain error in

instructing the jury on the elements of harboring under 8

U.S.C. § 1324(a)(1)(A)(iii). His convictions therefore are af‐

firmed.

AFFIRMED