Appeal from the United States District Court for the Southern District of Iowa.
The opinion of the court was delivered by: Murphy, Circuit Judge
Submitted: March 12, 2009
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
Braulio Pereyra-Gabino was convicted by a jury of concealing or shielding from detection illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), and sentenced to twelve months and one day imprisonment which was stayed by the district court. On appeal Pereyra-Gabino challenges the sufficiency of the indictment and the evidence and argues that his First Amendment rights were violated by the prosecution, the jury instructions were flawed, and a sentencing enhancement should not have been applied. We reverse.
Swift and Company operates a meat packaging plant in Marshalltown, Iowa. The plant employs approximately 2,200 people, a significant portion of whom are Hispanic. As required by law, applicants for employment at Swift must complete an I-9 form and submit two types of identification in order to ensure eligibility for work in the United States. Swift also voluntarily participates in E-Verify,*fn1 a social security number verification protocol operated by the Department of Homeland Security and the Social Security Administration which is designed to provide further assurance of employment eligibility.
Pereyra-Gabino was a senior representative at Swift for the United Food and Commercial Workers Union Local 1149. On behalf of the union, Pereyra-Gabino recruited new members and represented plant workers in their interaction with Swift management. Because Pereyra-Gabino is a native Spanish speaker his recruiting and representation duties typically were directed at Swift's Hispanic employees. Another senior union representative performed similar functions for English speaking employees.
On August 22, 2006, an undercover Immigration and Customs Enforcement (ICE) agent attended a union orientation presentation made to new employees by Pereyra-Gabino. Each of the employees in attendance had already completed the I-9 and E-Verify protocols. During the hour long presentation, which was recorded by the ICE agent, Pereyra-Gabino made several statements which the prosecution considered evidence of concealing or shielding from detection illegal aliens. First, Pereyra-Gabino instructed employees to use authentic identification documents outside of the Swift plant regardless of the form of identification they had presented at work. Second, he offered to facilitate the provision of legal assistance in the event employees were subject to wage garnishment or other penalties associated with their employment identity. Third, Pereyra-Gabino provided his contact number for use in the event a plant worker was apprehended by law enforcement. Finally, he discouraged employees from disclosing their immigration status to him. At trial the prosecution introduced evidence of a contrasting presentation delivered to new English speaking employees in October 2006 by Pereyra-Gabino's counterpart which appeared to be focused on union specific matters.
Pereyra-Gabino was charged on April 25, 2007 with concealing or shielding from detection aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The indictment states in relevant part:
On or about June, 2003, and to the present . . . defendant, BRAULIO PEREYRA-GABINO, knowing or in reckless disregard of the fact that aliens, namely, employees of Swift and Company had come to, entered and remained in the United States in violation of law, did conceal, and shield from detection and attempted to conceal, and shield from detection such aliens . . . .
Pereyra-Gabino moved to dismiss the indictment, claiming that the charge was impermissibly vague in violation of the Due Process Clause of the Fifth Amendment because it failed to inform him of the specific date of the acts charged or the specific aliens allegedly concealed and shielded. He also argued that the indictment was duplicitous in violation of the Due Process Clause and his Sixth Amendment right to a unanimous jury verdict because it charged him with shielding and concealing multiple aliens while the allowable unit of prosecution under the statute is a single alien. As Pereyra-Gabino explained, "[b]y listing 'employees of Swift and Company' . . . the conduct charged could involve any of hundreds of individuals who may have worked at the Swift plant in the last four years."
Despite finding deficiencies with the indictment, the district court denied the motion. Although it agreed that the indictment was probably duplicitous, the court concluded that "any duplicity in the indictment can be cured by an appropriate instruction to the jury requiring that it must unanimously agree on Mr. PereyraGabino's guilt with respect to a specific alien(s)." The district court further determined that the indictment was not vague because the dates of the alleged conduct and the identity of the aliens shielded and concealed are not essential elements of the offense charged. It nevertheless found a bill of particulars to be necessary, explaining "while the form used by the Government in the present case may not render this indictment defective . . . the Government cannot put Mr. Pereyra-Gabino in a more difficult position than if it had charged the offense in a more appropriate manner."
The government filed a bill of particulars on October 5, 2007. Paragraph one stated in relevant part:
The new worker orientation at Swift consists of a series of meetings. . . . On August 22, 2006, the recorded presentation by the union was given to newly hired Spanish speaking employees by Pereyra-Gabino. A list of participants was prepared broken down by language, sex, employee ID#, name, last four digits of the SS#, and shift.
The government attached a list of twenty eight employees who allegedly attended this meeting. It claimed that six of the individuals had been identified by ICE as "suspect." Paragraph two of the bill stated that "[s]everal individual aliens have cooperated with the government regarding their Swift employment and the activity of Pereyra-Gabino" and listed seven such people, including Veronica Martinez-Mesa, the only one among them who later testified at trial. Paragraph three of the bill stated that "[o]ther individual Swift employees have rented apartments from Pereyra-Gabino. An advertisement would be placed in the Swift plant with a telephone number. ...