United States v. Ozcelik
2008 U.S. App. LEXIS 11242, 527 F.3d 88, 2008 WL 2169398 (2008)
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Rule of Law:
Giving an undocumented alien general advice to keep a low profile and stay out of trouble does not, by itself, constitute the crime of concealing, harboring, or shielding from detection under 8 U.S.C. § 1324(a)(1)(A)(iii). The conduct must tend to substantially facilitate the alien's ability to remain in the United States illegally.
Facts:
- Tunc Tuncer, a Turkish citizen, remained in the United States after his student visa expired, making him 'out of status' and subject to deportation.
- A mutual acquaintance introduced Tuncer to Hakan Ozcelik, a U.S. Customs and Border Protection Officer.
- Ozcelik told Tuncer that for $2,300, he could have friends within the Immigration and Naturalization Service (INS) alter Tuncer's records to fix his immigration status.
- During their conversations, Ozcelik advised Tuncer to 'stay low key for 5-6 months,' 'not get involved in anything,' and commented that it was 'a good thing' Tuncer was living at a different address from the one on file with immigration authorities.
- After being contacted by an Immigration and Customs Enforcement (ICE) agent, Tuncer began cooperating with law enforcement.
- In a recorded meeting arranged by law enforcement, Tuncer gave Ozcelik $2,300 in government-provided cash.
- Ozcelik never provided Tuncer with any physical shelter, transportation, false documents, or specific warnings about any impending immigration investigations.
Procedural Posture:
- A federal grand jury indicted Hakan Ozcelik in a two-count indictment for seeking a bribe and attempting to conceal, harbor, and shield from detection an illegal alien.
- The case was tried before a jury in the U.S. District Court, which is the federal trial court.
- The jury returned a verdict convicting Ozcelik on both counts.
- Ozcelik filed a renewed motion for judgment of acquittal, which the District Court denied.
- The District Court sentenced Ozcelik to concurrent terms of twenty-seven months imprisonment on each count.
- Ozcelik, as the appellant, appealed his conviction to the United States Court of Appeals for the Third Circuit.
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Issue:
Does providing general advice to an undocumented alien to 'keep a low profile' and avoid drawing attention to oneself constitute an attempt to conceal, harbor, or shield that alien from detection in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)?
Opinions:
Majority - Sloviter, Circuit Judge
No, merely providing general advice to an undocumented alien to keep a low profile does not rise to the level of concealing, harboring, or shielding from detection. To violate the statute, a defendant's conduct must tend to substantially facilitate an alien's illegal presence in the country. The court adopted the 'substantially facilitate' test from other circuits, holding that the statute criminalizes conduct that provides affirmative assistance, not just general, common-sense advice. The court distinguished Ozcelik's actions from prior cases involving convictions for providing shelter, employment, false documentation, or warnings about imminent raids. Ozcelik's advice to 'lay low' and stay out of trouble was characterized as an 'obvious proposition that anyone would know' and did not substantially make it easier for Tuncer to remain in the U.S. illegally or avoid detection. Therefore, the evidence was insufficient to support a conviction on this charge.
Analysis:
This decision formally adopts the 'substantially facilitate' test for harboring and shielding an alien within the Third Circuit, aligning it with other federal appellate courts. It clarifies the threshold for criminal liability under 8 U.S.C. § 1324, establishing that mere words of general advice, without more concrete action, are insufficient for a conviction. The ruling raises the evidentiary bar for prosecutors, requiring them to demonstrate that a defendant took affirmative steps that meaningfully assisted an alien in evading immigration authorities, rather than simply offering obvious suggestions. This provides a clearer distinction between criminal harboring and non-criminal association or communication.
