IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 18-3597

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL WOOD,

Defendant-Appellant

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION FOR BAIL PENDING APPEAL

The United States submits this opposition to Michael Wood’s motion for bail pending appeal under Federal Rule of Appellate Procedure 9(b) and Local Rule 9.1. The Court should deny the motion because Wood does not raise a substantial question of law or fact that will affect his conviction or sentence under 18 U.S.C. 3143.

 

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BACKGROUND

1. In July 2005, Michael and Mary Wood (defendants), who have four children, were having issues with their nanny. Doc. 125-8, at 49.¹ Defendants therefore recruited a relative from Africa to help with childcare. Doc. 125-8, at 77. Mary’s family in Kenya helped the victim, P.I., travel to Ghana for the ostensible purpose of assisting with defendants’ childcare during their summer vacation there. Doc. 125-8, at 77-82. Once there, defendants confiscated P.I.’s travel documents and informed her that she would be traveling to the United States with them. Doc. 125-8, at 84-85. Defendants then used a fraudulent British passport to bring P.I. to New Jersey in August 2005.   Doc. 125-8, at 85-86.

In the United States, defendants paid P.I. $200 per month but sent 90% of that money directly to P.I.’s family in Africa. Doc. 125-8, at 101-102. From her arrival in August 2005 to June 2006, P.I. provided full-time care for the Woods’ four children and handled defendants’ household chores. Doc. 125-8, at 96-101. Defendants warned P.I. not to talk to anyone outside their house and otherwise threatened and isolated P.I.  Doc. 125-8, at 103-112.

Eventually P.I. surreptitiously called one of Mary’s brothers and informed him about her situation. Doc. 125-8, at 115-116.  Shortly thereafter, another of

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¹ References to “Mot. ” are to page numbers in Wood’s appellate bail motion. References to “Doc. ” are to documents on the district court’s docket. References to “Ex. ” are to the attached exhibits.

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Mary’s brothers concocted a plan without P.I.’s knowledge to remove her from defendants’ home. In  June 2006, the brother picked P.I. up from defendants’ residence and dropped her off at the home of  Mary’s sister Anne Murunga and Anne’s then husband, Newton Adoyo.  Doc. 125-8, at 116-119.

A few weeks later, Mary came to the Murunga-Adoyo household and had a conversation with P.I. urging her return to defendants’ home to provide childcare. Doc. 125-7, at 104-105; Doc. 125-8, at 118.  Adoyo testified that he overheard Mary telling P.I. that the kids missed her, and P.I. testified that she rejected Mary’s request to return to defendants’ household.  Doc. 125-7, at 107; Doc. 125-8, at 118. P.I. explained that this upset Mary, and Adoyo testified that he separated the women after they both became upset. Doc. 125-7, at 107-108; Doc. 125-8, at 118. Throughout this time, defendants retained P.I.’s property even though P.I. lived with the Murunga-Adoyos.  Doc. 125-8, at 119.

2.  On June 9, 2016, a grand jury indicted Michael and Mary Wood.  Doc. 1. Count 1 alleged that defendants engaged in a multi-object conspiracy in violation of 8 U.S.C.  1324(a)(1)(A)(v)(I) between approximately August 2005 and June 28, 2006. The three objects of the conspiracy were to (1) encourage or induce P.I. to come to, enter, or reside in the United States knowing that such activity was illegal; (2) transport or move P.I. in furtherance of a legal violation with knowledge or reckless disregard of P.I.’s illegal presence in the United States; and

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(3) conceal, harbor, or shield P.I. from detection with knowledge or reckless disregard of P.I.’s illegal presence in the United States.  Doc. 1, at 1-4 (citing 8 U.S.C. 1324(a)(1)(A)(ii)-(iv) and (a)(1)(B)(i)). Count 2 alleged that between approximately August 2005 and June 28, 2006, defendants concealed, harbored, or shielded P.I. from detection in violation of Sections 1324(a)(1)(A)(iii) and 1324(a)(1)(B)(i).  Doc. 1, at 4.

At trial, both defendants made legal and factual arguments that any criminal conduct did not continue past June 9, 2006, and thus fell outside 18 U.S.C. 3298’s ten-year statute of limitations. See Doc. 125-9, at 110-111. The district court rejected defendants’ legal arguments but instructed the jury that the government needed to prove beyond a reasonable doubt that the conspiracy and harboring offenses continued past June 9, 2006. Doc. 125-9, at 124; Doc. 125-10, at 61, 79, 84-85. Both defendants’ closing arguments emphasized the factual dispute regarding the limitations issue. Doc. 125-10, at 127-128, 137-138. During deliberations, the jury requested transcripts of P.I. and Adoyo’s testimony that Wood’s counsel highlighted as relevant to Wood’s limitations defense. Doc. 125- 11, at 11; Doc. 97. The jury convicted defendants of the conspiracy and harboring counts.   Doc. 99.

Both defendants filed motions for judgments of acquittal and new trials (Doc. 125, 128), which the district court denied as to the conspiracy and harboring

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counts (Ex. 4, at 48). The court sentenced each defendant to 20 months’ imprisonment on each count with the sentences to run concurrently.  Doc. 161, 163. The court ordered Michael to self-surrender on January 2, 2019, and Mary to surrender within 30 days of his release.  Doc. 161, 163.  Defendants appealed. Doc. 165, 167. Michael Wood filed a motion in district court for bail pending appeal (Doc. 166), which the court denied (Ex. 2, at 18 19). He then filed this motion.

DISCUSSION

The Bail Reform Act of 1984 creates a presumption that a convicted defendant sentenced to imprisonment “shall * *  *  be detained” during appeal. 18 U.S.C. 3143(b)(1). A defendant can be  released pending appeal only if he shows that (1) he is not a flight risk or a danger to public safety, (2) the appeal is not for purposes of delay, and (3) the appeal “raises a substantial question of law or fact” likely  to result in reversal, a new trial, a non-custodial sentence, or a reduced prison sentence less than the appeal’s expected duration. 18 U.S.C. 3143(b)(1)(B); see United States v. Miller, 753 F.2d  19, 24 (3d Cir. 1985) (defendant bears burden).

For purposes of this motion, the government concedes that Wood is not a flight risk or a danger to public safety and the appeal is not for purposes of delay. The sole issue before this Court is whether the appeal raises a “substantial question

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of law or fact” likely to result in reversal, a new trial, a non-custodial sentence, or a reduced prison term shorter than the appeal.

A “substantial question” is one “of more substance than would be necessary to a finding that it was not frivolous.” United States v. Smith, 793 F.2d 85, 89 (3d Cir. 1986) (citation omitted). There  are no categories of substantial questions, and the determination must be made on a case-by-case basis.  Ibid.  For a question to be substantial, the Court must find that it “is either novel,”  “has not been decided by controlling precedent,” or “is fairly doubtful.”  Miller, 753 F.2d at 23. Substantial questions are those that are fairly debatable among jurists. Smith, 793 F.2d at 89-90.

Wood contends that there are two issues that are substantial and merit bail pending appeal.  Neither issue satisfies Section 3143(b).

A. Wood’s Sufficiency Challenge Is Insubstantial Because Record Evidence Supports The Jury’s Rejection Of His Limitations Defense

Wood contends (Mot. 15-17) that his sufficiency-of-the-evidence challenge to his convictions raises a substantial question because the evidence that his criminal activity continued past June 9, 2006,  and into the limitations period is insufficient. This argument is not substantial because there was sufficient evidence that defendants’ criminal activity continued past June 9, 2006, and a properly  instructed jury relied on this evidence to reject Wood’s limitations defense.

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1. The Applicable Legal Standard And Trial Evidence Render This Issue Insubstantial

a. As a threshold matter, this Court reviews sufficiency challenges with substantial deference to the jury’s verdict; Wood thus bears a “heavy burden” on appeal. United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). On sufficiency review, the Court views the evidence in the light most favorable to the government and draws all inferences in favor of the verdict. United States v.  Inigo, 925 F.2d 641, 649 (3d Cir. 1991). The Court cannot “weigh evidence or determine the credibility of witnesses in making this determination.”  United States v. Beckett, 208 F.3d 140,  151 (3d Cir. 2000). Given the “highly deferential” standard of review, United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000), Wood cannot show that the sufficiency question is substantial,  particularly in light of the evidentiary record and the centrality of the limitations issue at trial.

b. Even if this Court considers the merits of Wood’s challenge, sufficient evidence supported the jury’s conclusion that Wood’s criminal activity continued past June 9, 2006. Specifically, the record shows that the purpose of both offenses was for defendants to get low-cost childcare and household help.  Doc. 125-8, at 50, 96-97. P.I. provided these services from approximately August 2005 to sometime in June 2006, when Mary Wood’s siblings first heard that defendants were mistreating P.I.  Doc. 125-8, at 96.  At that point (i.e., sometime in June

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2006), Mary’s brother picked up P.I. and dropped her off at the Murunga-Adoyo residence.  Doc. 125-8, at 115-118.

But P.I.’s presence at the Murunga-Adoyo household did not end the Woods’ criminal conduct. Rather, Adoyo testified that Mary Wood came to Adoyo’s house “a few weeks after” P.I.’s June 2006 arrival and engaged in a heated conversation with P.I.  Doc. 125-7, at 104.  Adoyo testified that both women were upset, that Mary told P.I. that “the kids miss [her],” and that Mary had raised her voice. Doc. 125-7, at 106-107. P.I. testified that Mary asked her to return to the Wood household but that she told Mary that she “wasn’t coming with her,” which upset Mary.  Doc. 125-8, at 118.  And, during this time period, even as P.I. resided at the Murunga-Adoyo household, defendants kept P.I.’s possessions at their home.  Doc. 125-8, at 119.

A reasonable jury could infer from this testimony that Mary’s attempt to retrieve P.I. extended the Woods’ criminal conduct—conspiring to harbor P.I. and harboring P.I. for the purposes of low-cost childcare and domestic help beyond June 9, 2006. As the district court explained, “the crime continued until, at least until Mary went and tried to get [P.I.] back,” which was weeks into June 2006. Ex. 4, at 6.²  The court thus held that the evidence did not support defendants’ post-

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² Although P.I. and Newton Adoyo’s testimony conflicted on how long after P.I.’s departure the conversation between Mary and P.I. took place, the district
(continued...)

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trial arguments that the criminal activity ended when P.I. left their house.  “This is a scheme that continued up through some point later in June of 2006 of harboring this victim so that she could continue to reside in the United States and continue to provide services to the defendants in the United States.”  Ex. 4, at 49.

c. The limitations issue was a central focus of trial, and the jury closely considered this evidence. The district court, at Wood’s request, instructed the jury regarding its obligation to find beyond a reasonable doubt that the criminal activity continued past June 9, 2006. At the outset, the court instructed the jury that “the Government must prove beyond a reasonable doubt the conspiracy alleged in Count One continued on or after June 9, 2006, and some element of the alien harboring alleged in Count Two took place on or after June 9, 2006.” Doc. 125-10, at 61. When instructing on the conspiracy count, the court reiterated that “the Government must prove beyond a  reasonable doubt that the conspiracy alleged in Count One continued on or after June 9th, 2006.” Doc. 125-10, at 79.  And, the court repeated for a third time that “the Government must prove beyond a reasonable doubt that the conspiracy continued on or after June 9th, 2006” and that “the Government must prove beyond a reasonable doubt that some element of alien harboring took place on or after June 9, 2006.”  Doc. 125-10, at 84-85.

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(...continued)
court correctly acknowledged that it was within the jury’s province to assess the witnesses’ credibility and resolve any conflicting testimony.  Ex. 4, at 22-23.

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This Court presumes the jury followed these instructions. See United States v. Hodge, 870 F.3d 184, 205 (3d Cir. 2017).  But even apart from that presumption, the trial shows that the jury focused on this critical date. Michael Wood’s counsel argued in closing that the jury should “focus [their] deliberations on * * *  the statute of limitations.”  Doc. 125-10, at 127.  Counsel reiterated that the jury must find “unanimously” and “beyond a reasonable doubt” that the “Government has proved criminal conduct occurring on or after June 9, 2006.” Doc. 125-10, at 128. Turning to the facts, counsel argued that any criminal activity ended when P.I. moved to the Murunga-Adoyo residence and that the government had not established that the move happened after June 9, 2006. Doc. 125-10, at 137-138.  During its deliberations, the jury requested transcripts of P.I. and Adoyo’s testimony regarding Mary’s conversation with P.I. at the Murunga-Adoyo residence. Doc. 125-11, at 11; Doc. 97. Counsel’s argument and the jury’s request make clear that jurors focused on ensuring that part of the criminal scheme (here, Mary’s attempt to return P.I. to her residence to engage in low-cost childcare) continued past June 9, 2006 and that they did so based on evidence in the record.

2.  Wood’s Arguments Against The Verdict Lack Merit

Wood’s arguments against the verdict do not render his sufficiency claim substantial.  Wood’s assertion (Mot. 16) that he was not involved in criminal

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activity after June 9, 2006, is meritless because he is responsible for Mary Wood’s conduct, including her attempt to retrieve P.I. for defendants’ benefit.

“[A] defendant is liable for his own and his co-conspirators’ acts for as long as the conspiracy continues unless he withdraws prior to the conspiracy’s termination.”  United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002). To avoid liability for Mary’s conduct, Michael must provide “evidence of complete withdrawal,” i.e., “a full confession to the authorities or communication to his co- conspirators that he has abandoned the enterprise and its goals.” United States v. Detelich, 351 F. App’x 616, 620 (3d Cir. 2009) (citation omitted). Because there is no evidence of withdrawal, Michael is responsible for Mary’s ongoing harboring activity of trying to get P.I. to provide low-cost childcare and housework to them.  As the district court held, “Michael Wood never withdrew from the conspiracy as is required under the law, and, therefore, he is responsible for the substantive acts of Mary Wood.”  Ex. 4, at 49.

Wood’s assertion (Mot. 17) that his conspiracy and harboring offenses ended when P.I. moved to the Murunga-Adoyo household and that the Mary-P.I. conversation was a new offense also lacks merit. This argument relies on one case regarding the federal kidnapping statute, in which the Supreme Court held that a kidnapping offense ends for venue purposes when the victim is freed. See Mot. 17 (citing United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999)).  But the

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argument that the victim’s removal from defendants’ home is akin to freedom and thus ends the offense does not apply in the harboring context because, unlike the kidnapping statute (18 U.S.C. 1201), the harboring statute (8 U.S.C. 1324) does not require that the victim be seized or restrained.  Rather, the statute here requires only that the defendant, for financial gain, conceal, harbor, or shield an alien from detection with knowledge or reckless disregard of the alien’s unlawful presence in the United States.  See 8 U.S.C. 1324(a)(1)(A)(iii) and (a)(1)(B)(i).

Finally, to the extent Wood contends that the government’s position on the legal significance of P.I.’s move to the Murunga-Adoyo household shifted during trial (see Mot. 15-16), the district court repeatedly and properly rejected this argument. In denying bail pending appeal, the court stated that the government “put the defendant on notice, starting with the indictment, as to what the time frame was going to be here, and they proved the same crime, the same elements, and the same time period as they alleged.”  Ex. 2, at 18.  The court rejected Wood’s contention that he was unaware that the government would rely on the Mary-P.I. conversation after P.I. went to the  Murunga-Adoyo household, stating that it found “there was no surprise to the defense counsel as to where this was going once the victim moved out.” Ex. 2, at 18; Ex. 4, at 3-4 (“I am puzzled somewhat by your claim that you were apparently kind of caught by surprise when

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the Government argued and presented evidence that the crime continued after June 10th.”).

In sum, sufficiency is not a substantial question because, as the district court concluded, the limitations issue “was a jury fact question as to whether or not the acts that were done to try to get [P.I.] back, which took place, the jury found, weeks after she had left the house, is supported by the evidence, and there is evidence to support that, so I don’t think it can be a substantial question.” Ex. 2, at 18.

B. Wood’s Challenge To His Conspiracy Conviction Would Not Affect The Jury Verdict Or Substantially Reduce His Prison Sentence, And Does Not Raise A Substantial Question

Wood’s argument regarding his conspiracy conviction (Mot. 11-15) also does not warrant bail pending appeal. Wood was convicted of a multi-object conspiracy under 8 U.S.C. 1324(a)(1)(A)(v). The three objects were: (1) encouraging or inducing an alien to come to, enter, or reside in the United States knowing that such activity is or will be illegal; (2) transporting, moving, or attempting to transport or move an alien in furtherance of a legal violation where the defendant knows the alien remains in the United States illegally; and (3) harboring or attempting to harbor an alien who the defendant knows is in the United States illegally. Wood argues (Mot. 12) that the first two objects of the conspiracy are legally invalid and thus require reversal of his conspiracy

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conviction. Specifically, he argues that defendants induced P.I. to enter the United States and transported her only in 2005, which is outside of the limitations period.

The Court need not consider whether this question is substantial because even if it were, Wood cannot satisfy Section 3143(b)(1)(B).  Resolving the question in Wood’s favor would not result in reversal of his conspiracy conviction, nor would reversal lead to a reduced prison sentence shorter than the expected duration of the appeal. If the Court nevertheless reaches the issue, Wood does not raise a substantial question because he misreads the statute that creates the objects of the conspiracy and misinterprets Yates v. United States, 354 U.S. 298 (1957).

1. Even Resolving This Issue In Wood’s Favor Would Not Affect The Verdict Or Substantially Reduce His Prison Sentence

The Court need not reach whether Wood’s arguments regarding the first two objects of the conspiracy are substantial because even if the Court were to resolve that issue in his favor, that would neither require reversal of the conspiracy conviction nor substantially reduce his prison sentence. That is because the jury convicted Michael Wood of a substantive alien-harboring offense in addition to conspiracy, which is important for two reasons.

a. Even if the Court were to conclude that the first two objects of the conspiracy—the “inducing entry” and “transporting” objects (Mot. 12)—are legally invalid as time-barred (which, as discussed  below, they are not), any such error would not affect the conspiracy conviction.  Wood concedes (Mot. 13) that

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the third object—alien harboring under 8 U.S.C. 1324(a)(1)(A)(iii)—has a ten-year limitations period. Wood’s argument hinges on his contention that “the Court cannot tell which theory [the  jury] predicated the conspiracy verdict upon”:  the first two, which he contends are legally invalid, or the third, which is undoubtedly valid.  Mot. 13.

But the Court can tell that the jury relied on the third, valid theory, i.e., that the object of the conspiracy was to engage in alien harboring that continued into June 2006. That is because the  jury convicted defendants of engaging in the underlying substantive alien-harboring offense within the limitations period. The jury’s verdict demonstrates that any error regarding the validity of  the two objects of the conspiracy that Wood challenges would be harmless. Reversal of the conspiracy conviction would thus be inappropriate because “errors of the Yates variety are subject  to harmless-error analysis.” Skilling v. United States, 561 U.S. 358, 414 (2010). The district court concluded as much, stating that “defendants were convicted of harboring, [a] substantive count of harboring, beyond a reasonable doubt, so I don’t think there is a substantial question” on conspiracy. Ex. 2, at 19.

b. Bail pending appeal is also inappropriate regardless of Wood’s conspiracy argument because he would be subject to a significant sentence for his alien-harboring conviction even absent his conspiracy conviction.  The sentence

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for alien harboring would likely exceed the duration of this appeal, requiring denial of his motion.  See 18 U.S.C. 3143(b)(1)(B).

The district court calculated Wood’s recommended Guidelines sentence to be 15 to 21 months and imposed a 20-month sentence. Even if the conspiracy conviction (Count 1) were vacated, the  Guidelines calculation would not change, and Wood would likely receive a prison sentence on the substantive alien- harboring conviction (Count 2) that exceeds this appeal’s expected duration. The  base offense level (12) is the same for the conspiracy and alien-harboring convictions. See Sentencing Guideline § 2L1.1(a)(3). The two counts were grouped together under Section 3D1.2(a),  and the base offense level for the group as a whole was 12 under Section 3D1.3(a), which applies as the group’s offense level the highest offense level for any single count. The court then applied a  two- level vulnerable victim enhancement under Section 3A1.1(b)(1). Even if the conspiracy conviction were vacated, the alien-harboring conviction alone, without grouping, would have the  same base offense level of 12; the same vulnerable victim enhancement would apply; and the recommended prison sentence would remain at 15 to 21 months. There is no dispute regarding these Guidelines calculations, nor is there reason to believe the court would impose a sentence on

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Count 2 shorter than the duration of the appeal, which forecloses granting Wood’s motion.³

2. Wood’s Challenge To His Conspiracy Conviction Does Not Raise A Substantial Question

Regardless, Wood’s argument regarding his conspiracy conviction does not raise a substantial  question because he misconstrues the statute and Yates.

a.  Wood Reads The Statute Defining The Conspiracy’s Objects Too Narrowly

Wood contends (Mot. 12) that defendants’ inducement of P.I.’s entry to the United States and transportation of her occurred outside the limitations period. But the argument that such conduct was completed on August 13, 2005, ignores the breadth of those statutory prohibitions. Properly understood, both objects cover defendants’ conduct in June 2006.

As for the first object of the conspiracy—namely, “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States,” 8 U.S.C. 1324(a)(1)(A)(iv)—Wood contends that it “cannot survive the end of the entry or

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³ Anne Murunga’s sentence also suggests that Wood’s sentence on the alien-harboring conviction would be longer than the duration of this appeal. Murunga pleaded guilty to one count of alien harboring (8 U.S.C. 1324(a)(1)(A (iii) and (a)(1)(B)(i)), and the district court sentenced her to 18 months’ imprisonment. See Judgment, United States v. Murunga, No. 14-cr-175 (E.D. Pa. Nov. 20, 2018) (Doc. 174). Though there are differences between Murunga and Wood’s cases, the duration of her sentence for violating the same statute suggests that Wood would receive a sentence for alien harboring that would be longer than this appeal’s duration.

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inducement.” Mot. 12. But it does.  The statute criminalizes not only encouragement or inducement to enter the United States but also encouragement or inducement to reside in the United States, which Wood ignores.  See 8 U.S.C. 1324(a)(1)(A)(iv). Mary’s attempt to retrieve P.I. weeks after P.I. moved to the Murunga-Adoyo residence in June 2006 and defendants’ withholding of P.I.’s possessions (pp. 8-9, supra) violate the statute because Mary’s actions encouraged or induced P.I. to reside in the United States. Courts have recognized that the statute applies even where “the illegal alien[] in question already resided in the United States at the time * *  *  the alleged wrongful encouragement or inducement occurred.” United States v. Martinez, 900 F.3d 721, 731 n.8 (5th Cir. 2018) (collecting cases). The district court thus found there was no substantial question, concluding that the statute “is pretty plain about encouraging and inducing an alien to reside in the United States.”  Ex. 2, at 19.⁴

The same flaw infects Wood’s argument on the conspiracy’s second object—namely, “transport[ing], or mov[ing] or attempt[ing] to transport or move such alien within the United States by means of transportation or otherwise, in

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⁴ United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007), which Wood cites (Mot. 12), is inapposite.  That case concerns 8 U.S.C. 1324(a)(2), which criminalizes “bring[ing] or attempt[ing] to bring” an alien into the United States knowing that the alien cannot legally come to, enter, or reside in the United States. Wood ignores the difference between bringing an alien to the United States and encouraging an alien to reside in the United States.

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furtherance of [the alien’s illegal presence],” 8 U.S.C. 1324(a)(1)(A)(ii). Wood contends that any transportation scheme ended when he brought P.I. to the United States. Mot. 12. But Mary’s attempt to retrieve P.I. and withholding of P.I.’s possessions advance this object because Mary was trying to “transport or move” P.I. from the Murunga-Adoyo residence back to defendants’ household.  See 8 U.S.C. 1324(a)(1)(A)(ii). That transportation would not be merely incidental to P.I.’s legal status  or the goals of the conspiracy. Rather, the goal of such transportation was to address the Woods’ need for low-cost childcare and household help, i.e., the reason P.I. was in the country illegally. Courts have recognized that an employer’s transportation of aliens whom they know are working for them illegally is not “incidental.” See United States v. One 1982 Chevrolet Crew-Cab Truck VIN 1GCHK33M9C143129, 810 F.2d 178, 182 (8th Cir. 1987). Accordingly, the district court correctly concluded that Mary Wood’s conduct “would contemplate transporting” P.I. and that there was no substantial question as to this object of the conspiracy’s legal validity.  Ex. 2, at 19.

Wood’s argument that a five-year statute of limitations applies to these two objects (Mot. 13) fails because the conduct extended to late June 2006. Wood’s theory is that the shorter limitations period applies because the limitations period was extended from five to ten years in January 2006. But the plain language of the statute and the evidence make clear that defendants advanced these criminal

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objectives well into June 2006 through Mary’s attempt to return P.I. to their home. That the statute of limitations was not extended until January 2006 is irrelevant.

Because defendants’ scheme to encourage P.I. to reside in the United States, transport P.I. within the United States, and harbor P.I. from detection all persisted into late June 2006, there is no substantial question regarding conspiracy.

b. Yates Does Not Apply Because The Statute Here Does Not Require An Overt Act And Because Wood’s Challenge Is To Factual Sufficiency, Not A Legal Defect

Even if Wood correctly interpreted the statute, his challenge to his conspiracy conviction is still insubstantial because his reliance Yates (Mot. 13-14) is misplaced for two reasons.

i. Yates does not apply where, as here, the conspiracy statute does not require the jury to find that specific objects of the conspiracy happened during the limitations period. In Yates, the  Supreme Court vacated a conspiracy conviction where the defendant had been convicted of (1) conspiring to advocate for the overthrow of the government, and (2) organizing the Communist Party.  See 354 U.S. at 300-301. The Court found that the second object fell outside the limitations period as a matter of law. See id. at 312. The Court rejected the government’s argument that it should  nevertheless affirm due to harmlessness. See id. at 311. Importantly, Yates concerned the general federal conspiracy statute, 18 U.S.C. 371, which requires an overt act.  The Court vacated the  defendant’s conviction because

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it was not clear whether the jury relied on the overt act for advocacy—which would have been allowed—or the overt act for organization—which was time- barred and legally invalid. See Yates, 354 U.S. at 311-312 (“[W]e have no way of knowing whether the overt act found by the jury was one which it believed to be in furtherance of the ‘advocacy’ rather than the ‘organizing’ objective of the alleged conspiracy.”).

Yates does not require the same result where the conspiracy statute at issue does not require an overt act.  Unlike the general conspiracy statute, the plain text of other conspiracy statutes, such as the provision here, Section 1324(a)(1)(A)(v)(I), do not require any overt act.  See United States v. Bey, 736 F.2d 891, 893-894 (3d Cir. 1984). For a statute that does not require an overt act, the crime is the agreement to violate the law, not the underlying object or overt acts. That is, defendants violated Section 1324(a)(1)(A)(v)(I) as soon as they made an agreement to engage in any of the conduct prohibited under Sections 1324(a)(1)(A)(i) to (iv). Wood’s liability for that  conspiracy continues until the conspiracy ends or he withdraws from it, even if defendants stop engaging in one or more objects of the conspiracy. While the conspiracy itself must continue into the limitations period for the jury to convict, no particular object of the conspiracy needs to continue into the limitations period. That is precisely what the jury found. The district court instructed the jury that it could convict only if the United States

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proved beyond a reasonable doubt that there was an agreement to engage in one or more of the objects of the conspiracy and that the conspiracy extended past June 9, 2006.  Doc. 125-10, at 61,  79, 84-85.  The jury found both.

ii. Yates also does not apply when the defendant’s challenge is to the evidentiary support for some objects of a multi-object conspiracy. That is, where a defendant is convicted of a multi-object  conspiracy, the verdict must be upheld as long as there is sufficient evidence on one object, even if there is insufficient evidence on another. See Griffin v. United States, 502 U.S. 46, 56 (1991)  (distinguishing Yates).

Here, to the extent Wood contends that there was a defect in the evidence as it pertains to some of  the objects of the charged conspiracy, he is alleging a factual rather than legal flaw. At bottom,  Wood’s argument is not that there was some legal defect in the conspiracy charge, but rather that  the evidence was insufficient that two of the objects of the conspiracy continued into the  limitations period. While statute of limitations is frequently a question of law, in this case, the limitations issue  was a factual question for the jury. Because the issue here is one of factual sufficiency, rather  than legal validity, the Court must affirm if there is sufficient evidence for any of the objects  of the conspiracy. See Griffin, 502 U.S. at 60. Because the jury’s guilty verdict on the  substantive alien-harboring conviction makes clear that the harboring object of the conspiracy  continued into

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the limitations period (see pp. 14-15, supra), Wood raises no substantial question of law or fact  regarding his conspiracy conviction.

CONCLUSION

The Court should deny Wood’s motion.

Respectfully submitted,

ERIC S. DREIBAND
Assistant Attorney General

s/    Vikram Swaruup

ERIN H. FLYNN
VIKRAM SWARUUP
Attorneys
Department of Justice

Civil Rights Division

Appellate  Section

Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
(202) 616-5633

CERTIFICATE OF COMPLIANCE

I certify that the attached UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION FOR BAIL PENDING  APPEAL:

(1) complies with the type-volume limitation in Federal Rule of Appellate Procedure 27(d)(2)(C)  because it contains 5190 words; and

(2) complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been  prepared in a proportionally spaced typeface using Word 2016, in 14-point Times New Roman font.

s/   Vikram   Swaruup

VIKRAM SWARUUP
Attorney

Date:  December 19, 2018

CERTIFICATE OF SERVICE

I hereby certify that on December 19, 2018, I electronically filed the foregoing UNITED STATES’  OPPOSITION TO DEFENDANT’S MOTION FOR BAIL PENDING APPEAL with the Clerk of the Court for the United States Court of Appeals for the Third Circuit using the appellate CM/ECF system.

I further certify that all parties are CM/ECF registered, and service will be accomplished by the  appellate CM/ECF system.

s/ Vikram Swaruup

VIKRAM SWARUUP
Attorney