United States v. He, Andy ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2574
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDY HE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 963--Ruben Castillo, Judge.
Argued November 9, 2000--Decided April 2, 2001
Before FLAUM, Chief Judge, and RIPPLE and KANNE,
Circuit Judges.
RIPPLE, Circuit Judge. Andy He was charged with
encouraging and inducing an alien to enter the
United States illegally, in violation of 8 U.S.C.
sec.sec. 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i).
A jury found him guilty as charged, and the
district court sentenced Mr. He to a term of five
months of imprisonment, a $3,000 fine and a two-
year term of supervised release. Mr. He then
appealed his conviction to this court. He argues
that a supplemental instruction given by the
district court had the effect of constructively
amending the indictment. For the reasons set
forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
On December 12, 1999, a Chinese woman arrived at
O’Hare International Airport on a flight from
Narita, Japan. This woman, later identified as
Jin Xing Yang, presented a United States passport
in the name of Pik Sze Chan to an Immigration and
Naturalization Service ("INS") inspector. The
inspector noticed that Yang was unable to speak
English and answer his questions, despite the
fact that her Customs Declaration form was filled
out in English. Given an opportunity to complete
a new Customs Declaration form in English, Yang
was unable to do so. INS inspectors later made a
closer inspection of the passport that Yang had
presented. This inspection revealed that the
passport had been doctored--a second lamination
had been placed over the original passport’s
lamination, and a picture of Yang had been
inserted between the two layers. The inspectors
soon determined that Yang, using the name Pik Sze
Chan, had been traveling with Mr. He, as the two
were seated next to one another on a flight from
Bangkok, Thailand, to Narita and then from Narita
to Chicago. Moreover, airline records
demonstrated that the one-way airline tickets for
Mr. He and Yang’s journey to the United States
had been purchased together at the Bangkok
airport.
Both Yang and Mr. He were then detained by INS
inspectors and interviewed separately. Yang
claimed that she was traveling alone and denied
knowing Mr. He. She carried only a purse with
her, which was devoid of any currency, credit
cards or flight-related information. The purse
did, however, contain a piece of paper with a New
York City address and phone number written on it;
this same information had been listed as Pik Sze
Chan’s address and phone number on the Customs
Declaration form that Yang had presented at the
INS checkpoint.
Meanwhile, Mr. He told inspectors that he had
been traveling alone and had only met Yang when
he sat next to her on the flight to Chicago. When
asked about the slip of paper found in Yang’s
purse, Mr. He admitted that he had written this
information down and given it to Yang and that it
referred to the address and phone number of his
uncle./1 Mr. He also explained that he had
helped Yang fill out her Customs Declaration
form. Inspectors then asked Mr. He to empty his
pockets; when he did, he produced three boarding
passes--two in his own name and one in the name
of Pik Sze Chan. Mr. He was also found to be
carrying a Chinese passport belonging to Jin Xing
Yang, Yang’s Chinese identification card with her
true name on it, and two airline tickets for Mr.
He and Pik Sze Chan to fly from Chicago to New
York in adjoining seats on that day.
Other relevant facts regarding this incident
were later discovered. The altered passport
presented by Yang to the INS inspector had been
reported stolen in New York, where Mr. He then
lived. Flight records also confirmed that Mr. He
and Yang had traveled together on the same flight
from China to Hong Kong and then from Hong Kong
to Bangkok on December 10, 1999, two days before
they were detained in Chicago. Additionally, the
two one-way tickets purchased for Mr. He and Yang
from Bangkok to New York (via Chicago) on
December 12 had cost over $1,800 and were paid
for in cash. A bank receipt found in Mr. He’s
wallet indicated that he had exchanged an amount
of United States currency for Thai currency in
the amount of $1,774, slightly less than the cost
of those tickets, on the previous day.
Mr. He was later arrested and charged in a one-
count indictment with encouraging and inducing an
alien to enter the United States illegally, in
violation of 8 U.S.C. sec.sec. 1324(a)(1)(A)(iv)
and 1324(a)(1)(B)(i).
B. District Court Proceedings
Mr. He’s trial commenced on March 13, 2000. At
the initial jury instruction conference two days
later, before the jury retired to begin
deliberations, the district court instructed the
jury regarding the elements of the offense as
follows:
Title 8, United States Code Section
1324(a)(1)(a) provides any person who encourages
or induces an alien to come to, enter, or reside
in the United States, knowing, or in reckless
disregard of, the fact that such coming to,
entry, or residence is or will be in violation of
law shall be guilty of an offense against the
United States.
To sustain the charge in the indictment, the
government must prove the following propositions:
First, that Jin Xing Yang was an alien;
Second, that the defendant encouraged or induced
Jin Xing Yang to enter the United States in
violation of law;
And, third, that the defendant knew, or was in
reckless disregard of, the fact that Jin Xing
Yang’s entry into the United States would be in
violation of the law.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should
find the defendant guilty.
If, on the other hand, you find from your
consideration of all the evidence that any of
these propositions has not been proved beyond a
reasonable doubt, then you should find the
defendant not guilty.
R.58-3 at 481-82. The jury then began its
deliberations.
After less than two hours, the jury sent a
request to the court for additional instructions.
The jury’s note read as follows:
We need a better definition of encouraged or
induced.
Does this differ from aiding and abetting?
[signature of the jury foreperson]
R.36. The prosecution and defense counsel then
met with the district court to discuss this note.
The Government suggested that the jury be
provided with the definitions of "encourage" and
"induce" found in Black’s Law Dictionary. The
district court agreed that these formulations
would be helpful and suggested that a response to
the jury’s request should include a few of the
several dictionary definitions listed for both
words. Mr. He’s attorneys objected, on the ground
that the district court’s proposed definitions of
the two words were overly broad. Additionally,
all parties, including the district court, agreed
that in order that the jury not be confused in
their deliberations, it should be instructed that
"aiding and abetting" was a separate legal
concept that was not before them in this case.
As a result of this discussion, the court
submitted the following supplemental instruction
to the jury:
MEMBERS OF THE JURY:
In answer to your specific questions,
"encourage" means to knowingly instigate, help or
advise. "Induce" means to knowingly bring on or
about, to affect, cause or to influence to an act
or course of conduct.
The concept of aiding and abetting is not before
you in any of the Court’s instructions.
Please use the answer in conjunction with all of
your instructions in your deliberations.
JUDGE RUBEN CASTILLO
R.37 (emphasis in original). Because one element
of the offense required that Mr. He have acted
knowingly or in reckless disregard for the fact
that Yang’s entry into the United States was
illegal, the district court included the word
"knowingly" in its definitions of "encourage" and
"induce."
Shortly after receiving this supplemental
instruction, the jury returned its verdict,
finding Mr. He guilty as charged. On June 7,
2000, the district court sentenced Mr. He to five
months of imprisonment, a $3,000 fine and a two-
year term of supervised release.
II
DISCUSSION
Mr. He contends that the district court’s
supplemental instruction was erroneous because it
relied on a dictionary definition of common
English words and impermissibly broadened the
scope of the indictment against him. We review
the district court’s choice of a supplemental
jury instruction for abuse of discretion./2 See
United States v. Snyder, 189 F.3d 640, 646 (7th
Cir. 1999), cert. denied, 527 U.S. 1097 (2000);
United States v. Rios-Calderon, 80 F.3d 194, 197
(7th Cir. 1996). We have noted that "[o]nce it is
clear that a jury has difficulties concerning the
original instructions, reinstruction is
appropriate." United States v. Lakich, 23 F.3d
1203, 1208 (7th Cir. 1994) (citation and
quotation marks omitted); see also United States
v. Sanders, 962 F.2d 660, 677 (7th Cir. 1992).
The court’s power to reinstruct includes within
it the power to reformulate or supplement
instructions previously provided to the jury. See
Lakich, 23 F.3d at 1208; Sanders, 962 F.2d at
677. In our review of a supplemental jury
instruction, "we consider: (1) whether the
instructions as a whole fairly and adequately
treat the issue; (2) whether the supplemental
instruction is a correct statement of the law;
and (3) whether the district court answered the
jury’s specific question correctly." Snyder, 189
F.3d at 646; see also United States v. Alexander,
163 F.3d 426, 428 (7th Cir. 1998) (per curiam).
In this case, we believe the district court in
no way abused its discretion in providing the
supplemental jury instruction at issue. At the
outset, we note that the jury instructions as a
whole fairly and adequately treated the issues in
this case. The jury had been told that to convict
Mr. He of the charges against him, it must find
that: (1) Yang was an alien, (2) Mr. He
encouraged or induced Yang to enter the United
States in violation of the law and (3) Mr. He
knew, or was in reckless disregard of, the fact
that Yang’s entry would violate the law. Mr. He
does not argue that this initial statement of the
law was incorrect. Thereafter, when the jury
communicated that it was uncertain as to the
meaning of the terms "encourage" or "induce," it
was permissible for the district court to provide
it with a definition of those terms. In similar
situations, when a jury has asked for a
definition of a key term after deliberations have
begun, we have noted that "the court would have
failed to treat [the] issue fairly or adequately
if it had not issued a supplemental instruction."
Alexander, 163 F.3d at 428-29; see also Snyder,
189 F.3d at 646 (finding that the court’s
providing of the dictionary definition of the
term "sale" to include the term "trade" was
proper, after the jury sent the judge a note
asking whether trading was considered selling);
United States v. Romero, 57 F.3d 565, 573 (7th
Cir. 1995) (supplemental instruction responding
to jurors’ request for definition of "possess"
was proper, where it accurately stated the law
and where district court "took pains to avoid
highlighting the instruction by reminding the
jury that it ’shouldn’t make [its] determination
based on what one instruction says’")./3
Moreover, the district court took great pains to
ensure that the supplemental instruction was
understood by the jury in the larger context of
the prerequisites for conviction under the
statute. Because 8 U.S.C. sec. 1324(a)(1)(A)(iv)
requires that Mr. He acted knowingly or in
reckless disregard of the fact that Yang’s entry
into the United States was illegal, the district
court inserted the word "knowingly" before the
definitions provided for "encourage" and
"induce." Additionally, to ensure that the jury
considered not only the meaning of the words
defined in the supplemental instruction, but also
the other elements of the crime, the district
court added that the jury should "use the
[supplemental instruction] in conjunction with
all of [its] instructions in [the]
deliberations." R.37 (emphasis in original).
These precautions also help to establish that the
jury instructions as a whole were a fair and
adequate treatment of the issues in this case.
The supplemental instruction was a correct
statement of the law. Mr. He points to no
authority suggesting that the synonyms provided
by the district court in the supplemental
instruction are not proper definitions for the
terms "encourage" and "induce" generally or that
they inappropriately distort their meanings under
the statute. These definitions were taken
directly from Black’s Law Dictionary/4 and
conform to other dictionary definitions of those
words. See, e.g., Merriam Webster’s Collegiate
Dictionary 381 (10th ed. 1996) (defining
"encourage" as "to inspire with courage, spirit,
or hope . . . to spur on . . . to give help or
patronage to"), id. at 594 (defining "induce" to
mean "to move by persuasion or influence . . . to
call forth or bring about by influence or
stimulation . . . to cause the formation of");
American Heritage Dictionary 657 (2d ed. 1985)
(defining "induce" as "[t]o lead or move by
influence or persuasion . . . [t]o bring about
the occurrence of; cause")./5 Moreover, we also
note that Mr. He apparently did not find fault
with the general practice of providing the jury
with explanatory definitions of statutory terms.
In its initial instructions to the jury, the
district court defined the statutory terms
"alien," "knowingly," and "reckless disregard,"
definitions to which Mr. He raised no objection.
Mr. He argues that as a result of the
supplemental instruction, the jury might have
thought that it could convict him for "merely
influencing, or somehow affecting [Yang’s]
entry," so that the fact that "Mr. He translated
some unspecified language for Ms. Yang could be
interpreted by the jury to satisfy the inducing
element." Appellant’s Br. at 11, 13. This
argument fails to take into account the effect of
the initial jury instructions that set forth all
of the elements that must be found to find Mr. He
guilty of violating the statute and all the
safeguards that the district court inserted in
the supplemental instruction. Read in the context
of all the instructions, the definitions included
in the supplemental instruction made clear, for
example, that for Mr. He to have "induced" Yang’s
entry under the meaning of the law, he had to
"influence" or "affect" her to come to, enter or
reside in the United States. It would also have
been clear that Mr. He must have known, or have
acted in reckless disregard of, the fact that
Yang’s coming to, entry or residence in the
United States was in violation of the law. As a
result, the instructions, read as a whole, could
not have led the jury to believe that it could
find Mr. He guilty if, as he claimed, he simply
met Yang on the trip to Chicago and innocuously
helped her to translate some information during
the flight.
The district court answered the jury’s specific
question correctly. The jury required more
information regarding the meaning of the terms
"encourage" and "induce," and the district court
provided an accurate dictionary definition of
those terms to assist the jury. The district
court has broad discretion in determining how
best to respond to such a question; if the answer
was adequately provided in previous instructions,
the court might choose simply to refer the jury
back to those instructions for guidance. See
United States v. Span, 170 F.3d 798, 802 (7th
Cir.), cert. denied, 528 U.S. 862 (1999). In this
case, however, the court believed that to address
effectively the jury’s request for a "better
definition" of the two terms, R.36, it needed to
provide a supplemental instruction including
words defining those terms. As we have on other
occasions, we hold that this use of a definition
is an appropriate answer to the jury’s specific
question regarding the meaning of a key term in
its deliberations. See Snyder, 189 F.3d at 646;
Alexander, 163 F.3d at 429; Romero, 57 F.3d at
573.
In light of our conclusion that the supplemental
instruction given by the district court
accurately stated the law, Mr. He’s claim that
the instruction constructively amended the
indictment against him must also fail. An
indictment is constructively amended, in
violation of the Fifth Amendment, "when . . . the
court (usually through its instructions to the
jury) . . . broadens the possible bases for
conviction beyond those presented by the grand
jury." United States v. Cusimano, 148 F.3d 824,
829 (7th Cir. 1998) (citation and quotation marks
omitted). However, we have often noted that "not
every variation from the verbiage of the
indictment, either in terms of proof or jury
instructions, constitutes a constructive
amendment." United States v. Baker, 227 F.3d 955,
960 (7th Cir. 2000), cert. denied, 121 S. Ct.
1095 (2001); see also United States v. Pigee, 197
F.3d 879, 886 (7th Cir. 1999), cert. denied, Webb
v. United States, 529 U.S. 1044 (2000), cert.
denied, Lipscomb v. United States, 120 S. Ct.
2735 (2000); United States v. Willoughby, 27 F.3d
263, 266 (7th Cir. 1994). To constructively amend
an indictment, the jury instructions must go
"’beyond the parameters of the indictment in that
it establishes offenses different from or in
addition to those charged by the grand jury.’"
Baker, 227 F.3d at 960 (quoting Pigee, 197 F.3d
at 886).
The indictment against Mr. He charged that he
"did encourage and induce an alien, specifically
a citizen of China, to come to, enter, and reside
in the United States, knowing and in reckless
disregard of the fact that such coming to, entry,
and residence was and would be in violation of
law." R.12. The district court’s definitions of
"encourage" and "induce" in the supplemental
instructions did not alter the essential meaning
of those words, and the jury instructions as a
whole track the statutory prerequisites of 8
U.S.C. sec. 1324(a)(1)(A)(iv), which were set out
in the indictment. Therefore, the supplemental
jury instructions did not constructively amend
the indictment against Mr. He.
Conclusion
The Supreme Court has noted that "[w]hen a jury
makes explicit its difficulties a trial judge
should clear them away with concrete accuracy."
Bollenbach v. United States, 326 U.S. 607, 612-13
(1946). We believe the district court fulfilled
its responsibilities in this regard. It certainly
did not abuse its discretion in fashioning the
supplemental jury instruction. Therefore, the
judgment of the district court is affirmed.
AFFIRMED
/1 Authorities later discovered that the address
correlated with the former address of Mr. He’s
brother, not that of his uncle. Additionally, the
Customs Declaration form that Mr. He had filled
out for himself was later found to contain an
incorrect address.
/2 The Government argues that we should review this
issue for plain error because Mr. He failed to
raise below the argument that the district
court’s additional definitions for the terms
"encourage" and "induce" constructively amended
the indictment. The Government notes that Mr.
He’s attorneys objected to the use of these
definitions as being "far too broad." The
Government points out, however, that when the
attorneys argued to the court that the
supplemental instruction "might actually lead to
a material change in the indictment," R.58-3 at
488, they were referring only to language
regarding the applicability of the term "aiding
and abetting," not to the proposed definitions
for "encourage" or "induce." Therefore, because
Mr. He did not specifically argue that the
definitions for "encourage" and "induce" would
themselves constructively amend the indictment,
the Government asserts that Mr. He has waived
that objection on appeal. We need not determine
whether such waiver occurred, however, due to our
determination that the district court’s
supplemental instruction was proper under any
standard of review.
/3 Mr. He suggests that we should find the
supplemental instruction in error for the same
reason that we have consistently admonished
district courts not to attempt to define the term
"reasonable doubt." See, e.g., United States v.
Blackburn, 992 F.2d 666, 668 (7th Cir. 1993);
United States v. Bardsley, 884 F.2d 1024, 1029
(7th Cir. 1989); United States v. Glass, 846 F.2d
386, 387 (7th Cir. 1988). However, we have taken
this approach regarding the concept of reasonable
doubt due to the well-noted difficulties created
by attempts to find a precise definition for that
standard of proof. See, e.g., Gacy v. Welborn,
994 F.2d 305, 312 (7th Cir. 1993) (noting that
"[b]urdens of proof and persuasion are hard to
explain"); Blackburn, 992 F.2d at 668 (noting
that definitions of reasonable doubt have a
likelihood of "confus[ing] juries more than the
simple words themselves"); United States v. Hall,
854 F.2d 1036, 1039 (7th Cir. 1988) ("An attempt
to define reasonable doubt presents a risk
without any real benefit."); Glass, 846 F.2d at
387 (explaining that "[a]ttempts to explain the
term ’reasonable doubt’ do not usually result in
making it any clearer to the minds of the jury")
(citation and quotation marks omitted). However,
where, as here, a definition of a statutory term
can provide jurors with helpful information that
does not alter the statutory requirements for
conviction, the giving of such a definition is in
no way precluded.
/4 The entire definition provided by Black’s Law
Dictionary for "encourage" is as follows: "In
criminal law, to instigate; to incite to action;
to give courage to; to inspirit; to embolden; to
raise confidence; to make confident; to help; to
forward; to advise." Black’s Law Dictionary 527
(6th ed. 1990). The entire definition given for
"induce" is: "To bring on or about, to affect,
cause, to influence to an act or course of
conduct, lead by persuasion or reasoning, incite
by motives, prevail on." Id. at 775.
/5 Additionally, in different contexts, we have
noted approvingly definitions of the term
"induce" that were similar to the definition
chosen by the district court. See, e.g., Drobny
v. Commissioner, 113 F.3d 670, 678 (7th Cir.
1997) (defining "induce" as "’to lead or move by
influence or persuasion,’ ’to bring about the
occurrence of; cause’") (quoting American
Heritage Dictionary 657 (2d ed. 1982)); United
States v. Smith, 253 F.2d 95, 98 (7th Cir. 1958)
(defining "induce" as "to lead on; to influence;
to prevail on; to move by persuasion or
influence") (citing Webster’s New International
Dictionary (2d ed. 1958)).