In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1333

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                 v.

X IANG H UI Y E,
                                             Defendant-Appellant.


            Appeal from the United States District Court
                 for the Central District of Illinois.
             No. 06 CR 30069—Jeanne E. Scott, Judge.



  A RGUED F EBRUARY 20, 2009—D ECIDED N OVEMBER 17, 2009




  Before B AUER, M ANION, and S YKES, Circuit Judges.
   M ANION, Circuit Judge. Xiang Hui Ye was indicted on
one count of concealing, harboring, or shielding
from detection illegal aliens, and one count of hiring
illegal aliens. A jury convicted Ye on both counts,
and the district court sentenced him to 33 months’ im-
prisonment. Ye appeals, arguing that the court erred in
instructing the jury on the meaning of “shielding,” a
statutory-based term. Relying on a non-statutory
2                                               No. 08-1333

standard adopted by several other circuits, Ye claims that
the district court’s definition of “shielding” was too
vague and too broad. Ye also contends that the evidence
was insufficient to prove he intended to prevent the
government from detecting his illegal alien employees.
For the reasons that follow, we affirm.


                             I.
   Xiang Hui Ye was part-owner and manager of Buffet
City, a restaurant in Springfield, Illinois. In 2005, govern-
ment officials began an investigation of Buffet City’s
hiring practices after receiving a tip from a former restau-
rant employee that illegal aliens might be working
there. Ye eventually was indicted under 8 U.S.C.
§§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i) for concealing, har-
boring, or shielding from detection persons he knew were
illegal aliens for the purpose of commercial advantage
or private financial gain (a felony), and under 8 U.S.C.
§ 1324a(a)(1)(A) for hiring persons he knew were illegal
aliens (a misdemeanor).
  At trial, the jury was presented with the following
evidence. Investigators visited Buffet City in April 2005
and observed numerous Chinese and Hispanic workers.
Ye did not have I-9 forms for any of the employees.1 An



1
  “Form I-9, Employment Eligibility Verification Form” is a
document in which an employer hiring an individual for
employment in the United States attests under penalty of
                                               (continued...)
No. 08-1333                                                   3

agent advised Ye that I-9 forms and certain other employ-
ment documents were required by law. He eventually
submitted I-9 forms for some of the Chinese workers, but
not for any of the Hispanic employees. The Hispanic
workers were paid $1000 monthly salaries in cash, with-
out taxes withheld. Ye later met with the Hispanic em-
ployees and informed them that they were fired from
their jobs, but that they would be rehired if they could
produce immigration documents. Ye advised them
that they could purchase fake documents in Chicago,
which he would accept. One Hispanic worker was
rehired, even though the documents he produced
were not in his name.
  In August 2005, immigration officials visited Buffet
City again and observed four Hispanic workers. Ye said
he did not have I-9 forms or payroll records for them
because they did not have Social Security numbers. Ye
also told agents the Hispanic workers were living in an
apartment that he was leasing. In December 2005, agents
arrested five Hispanic illegal aliens who were working
at Buffet City. Ye said he did not have I-9 forms for
those illegal aliens because they did not have any im-
migration documents.


1
  (...continued)
perjury that he has verified, by examining certain documents,
that the employee is not an unauthorized alien. 8 U.S.C.
§ 1324a(b)(1); 8 C.F.R. § 274a.2. The employer is required to
retain the I-9 for the later of three years after the employee’s
hire date or one year after his termination date. 8 U.S.C.
§ 1324a(b)(3).
4                                                No. 08-1333

  Three Chinese illegal aliens who had worked at Buffet
City testified that they were hired by Ye without
producing any immigration documents and that he
provided housing to them and other illegal aliens. Evi-
dence was also presented that Ye had signed and sub-
mitted reports to the Illinois Department of Employment
Security that listed only the wages paid to Chinese
workers who had Social Security numbers. No Hispanic
names were on those forms.
  Ye testified he knew illegal Chinese and Hispanic
aliens worked at the restaurant and that all of the Hispan-
ics were illegal aliens. He stated he had helped with
the hiring of the illegal aliens. Ye admitted entering lease
agreements and making rent payments for apartments
where illegal aliens lived, and also providing them
with transportation to work. Ye declared he did not
ask illegal aliens to fill out job applications, tax forms, or
other employment documents, even though he knew
such documents were required by law. Ye also acknowl-
edged not keeping time cards for the illegal aliens, even
though time cards were maintained for other employees.
  After retiring for deliberation, the jury sent a note to
the court requesting definitions of the statutory-based
terms “concealing” and “shielding.” Ye objected to the
district court giving any definitions to the jury; the gov-
ernment thought definitions were warranted. The
district court agreed with the government and gave the
jury definitions for the two terms. The jury found Ye
guilty on both counts of the indictment. Ye then moved
for a judgment of acquittal or, alternatively, a new trial,
No. 08-1333                                               5

which the district court denied. The court sentenced Ye
to 33 months’ imprisonment. This appeal followed.


                            II.
   On appeal, Ye makes two arguments, both pertaining
to his conviction under 8 U.S.C. § 1324(a)(1)(A)(iii). The
first is that the supplemental instruction the district
court gave the jury on the meaning of “shielding” was
erroneous; the second is that the evidence was insuf-
ficient to prove he intended to prevent the government
from detecting his illegal alien employees.


A. Supplemental Jury Instruction
  Ye claims the district court’s instruction on the
meaning of “shielding” was erroneous because it was too
vague and too broad. The usual standard of review for
whether a jury instruction accurately states the law is
de novo. United States v. Thornton, 

, 745 (7th
Cir. 2008). But under Federal Rule of Criminal Procedure
30(d), when a party disagrees with a jury instruction it
“must inform the court of the specific objection and the
grounds for the objection. . . . Failure to object in accor-
dance with this rule precludes appellate review, except
as permitted under [plain error review].” Because Ye
likely did not comply with Rule 30(d), our review
6                                                    No. 08-1333

perhaps should be for plain error only.2 United States v.
Wheeler, 

, 689 (7th Cir. 2008). And under
that standard of review, we rarely reverse a conviction
because of an improper jury instruction to which
no objection was offered. 

Ye did comply with Rule 30(d) and
preserved the argument he advances on appeal,


2
   After the jury requested definitions of “concealing” and
“shielding,” Ye asked the district court to allow the jury “to use
their common sense and their knowledge in the ways of the
world in applying the terms in the sense that it is presented
in the instructions.” The government requested specific defini-
tions of the terms. The district court agreed with the govern-
ment, and after the court read the instruction in its final form,
the court and Ye’s counsel had an exchange in which Ye’s
counsel agreed to the “acceptable wording” of the instruction
subject to his prior objection. The court made clear that Ye
had objected to its providing any definition of the statutory
terms; rather, Ye wanted the jury to rely on its common sense
understandings of the statute as written. Ye’s post-trial
motion reiterated the substance of his objection: “The Court
defined the word[s] ‘shielding’ and ‘concealing’ for the jury
as opposed to the Defendant’s desire to have the common
sense interpretations to be had.”
  Ye’s argument on appeal, however, attacks the propriety of
the language the court used. The government maintains that
because Ye’s objection at trial differs significantly from the
objection he raises on appeal, he has forfeited the argument
that the supplemental instruction was too vague and too
broad. Because the district court was not presented with this
issue, Ye’s objection likely fell short of the specificity required
by Rule 30(d).
No. 08-1333                                                7

he cannot prevail under de novo review because the in-
struction was not an erroneous statement of the law.
Under 8 U.S.C. § 1324(a)(1)(A)(iii), it is unlawful when
a person “knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the
United States in violation of law, conceals, harbors, or
shields from detection, or attempts to conceal, harbor, or
shield from detection, such alien in any place, including
any building or any means of transportation.” As our
sister circuits have recognized, “conceal,” “harbor,” and
“shield from detection” have independent meanings,
and thus a conviction can result from committing (or
attempting to commit) any one of the three acts. United
States v. Rubio-Gonzalez, 

, 1073 (5th Cir. 1982)
(“Section 1324(a)[(1)(A)(iii)] by its express terms may be
violated in any one of several ways—by harboring, or
by concealing, or by shielding from detection or by at-
tempting to do any of these.”); United States v. Cantu,

, 1180 (5th Cir. 1977) (“shield from detec-
tion” and “conceal” are not redundant); United States v.
DeEvans, 

, 430 n.3 (9th Cir. 1976) (“ ‘[H]arbor’
has a different meaning than ‘conceal.’ ”). The only term
at issue here is “shield from detection.”
  “Statutory interpretation begins with the plain
language of the statute.” United States v. Berkos, 

, 396 (7th Cir. 2008). This court assumes that
the purpose of the statute is communicated by the
ordinary meaning of the words Congress used; there-
fore, absent any clear indication of a contrary purpose,
the plain language is conclusive. 

dictionary
8                                                    No. 08-1333

from 1952 3 tells us that the verb form of “shield” means
“to cover with or as with a shield; to cover from danger
or the like; to defend; to protect from distress, assault,
injury, or the like” or “to ward off; to keep off or
out.” W EBSTER’S N EW INTERNATIONAL D ICTIONARY 2312
(2d ed. 1952). The noun “detection” means “the laying
open of what was concealed or hidden, or of that which
tends to elude observation; discovery.” 

Thus
defined, the term “shield from detection” essentially
means “to protect from or to ward off discovery.”
  In light of that understanding, there appears to be no
problem with the district court defining “shielding” for
the jury as “the use of any means to prevent the detec-
tion of illegal aliens in the United States by the Govern-
ment”; “to prevent the detection” is certainly a fair
and accurate approximation of “to protect from or to
ward off discovery.” Ye takes issue with the “use of any
means” language, however, arguing it misstates the law
because it is too vague and too broad. To support his
position, he points to the Fifth Circuit’s opinion in
Cantu and argues that § 1324(a)(1)(A)(iii) only proscribes
conduct “tending substantially to facilitate an alien’s


3
  “[T]he most relevant time for determining a statutory term’s
meaning” is the year of the provision’s enactment. MCI
Telecomms. Corp. v. Am. Tel. & Tel. Co., 

, 228 (1994).
Accordingly, we examine how the words “shield from detec-
tion” were commonly employed and understood in 1952, the
year in which that language was added to the predecessor
version of § 1324(a)(1)(A)(iii). Act of March 20, 1952, Pub. L. 82-
283, 66 Stat. 26.
No. 08-1333                                                     9

‘remaining in the United States illegally.’ 

(quoting United States v. Lopez, 

, 441 (2d Cir.
1975)).
   We disagree. The “use of any means” language is not
vague: that wording refers to the methods a person may
use to protect an alien from discovery (i.e., the forms
that such conduct may take) and is consistent with
§ 1324(a)(1)(A)(iii),4 which does not limit the types of
conduct that can constitute shielding from detection. The
“use of any means” language is not overbroad either.
As elaborated below, § 1324(a)(1)(A)(iii) criminalizes
all conduct that fits the definition of “shield from detec-
tion,” not merely conduct that “tends substantially to
facilitate” an alien’s evasion of discovery. The “use of
any means” language is overbroad only if the statute
first is narrowed judicially by the “tends substantially
to facilitate” overlay that several circuits have endorsed,
which we now discuss.
  The “conduct tending substantially” terminology origi-
nated in Lopez, where the Second Circuit was defining
the statutory term 

. With
that language, the Lopez court rejected the defendant’s
argument that under § 1324 the government had to
prove his assistance to aliens was part of the smuggling
process, i.e., connected to the aliens’ illegal entries into


4
   Congress did not consider the “any means” language vague:
the same subsection (iii) refers to “any means of transportation.”
Hence, the district court’s use of the term in the instruction
is statutorily consistent.
10                                                   No. 08-1333

the country. 

Rather, the Second Circuit held
that, in using the word “harbor,” Congress intended to
“encompass conduct tending substantially to facilitate
an alien’s ‘remaining in the United States illegally.’ ” 

(emphasis added). Hence, the Lopez court’s principal
point was that the proscriptive reach of “harbor” is not
limited to conduct related to the entry of aliens into
the country.
  In Cantu, the Fifth Circuit quoted the “tending sub-
stantially” language from Lopez, though it did so only
to reject the defendant’s argument (similar to the defen-
dant’s argument in Lopez) that “shield from detection” only
prohibits smuggling-related shielding 

. As with the court in Lopez, the Cantu court’s
point was that § 1324 prohibits a defendant’s helping
aliens to remain in (as opposed merely to enter into) the
country illegally. Cantu did not address the extent to
which that conduct tended to facilitate the aliens’ re-
maining in the country illegally.
  Nevertheless, the Second and Fifth Circuits, as well as
several other courts of appeals subsequently have em-
ployed “conduct tending substantially” in analyzing
§ 1324(a)(1)(A)(iii), explicitly stating or implicitly sug-
gesting that language is a separate element necessary for
conviction under the statute. See, e.g., United States v.
Ozcelik, 

, 100 (3d Cir. 2008); United States v.
Tipton, 

, 595 (8th Cir. 2008); United States v.
DeJesus-Batres, 

, 160 (5th Cir. 2005); United
States v. Kim, 

, 574 (2d Cir. 1999). In our
opinion, however, that phrase should not be adopted in
this Circuit.
No. 08-1333                                               11

   Neither “conduct tending substantially” nor any similar
wording appears in the text of the current statute or
its previous versions, nor is it even mentioned in the
legislative history, where we retreat only when there is
a gap in the law. Rather, it is merely a judicial addition
to the statute. Section 1324(a)(1)(A)(iii) provides that
when a person “conceals, harbors, or shields from detec-
tion” an illegal alien (or attempts to do the same), he has
committed a felony. Whether that conduct “tends sub-
stantially” to assist an alien is irrelevant, for the statute
requires no specific quantum or degree of assistance.
  Congress could not have been clearer: it said that con-
cealing, harboring, or shielding from detection an alien
is unlawful conduct, regardless of how effective a defen-
dant’s efforts to help the alien might tend to be. If
a person commits a relatively nominal act that is pro-
scribed by § 1324(a)(1)(A)(iii), the executive branch has
the discretion to forego prosecution. Courts’ overlaying
the statute with the “tending substantially” veneer ap-
propriates that discretion and also invades the province
of Congress by de-criminalizing lesser forms of con-
duct—i.e., actions that only “tend slightly or moderately”
to help an alien.
  The Ozcelik case is illustrative of the imprudence of
adopting the “conduct tending substantially” standard.

. There, the defendant had been charged and
convicted under § 1324(a)(1)(A)(iii). 

The
evidence showed the defendant had advised an alien
on how to evade detection, including instructing him to
go to and from work in silence, not to get involved in
12                                                  No. 08-1333

any activity, not to tell anyone his address, and to stay
generally low-key. 

The Third Circuit
adopted the “conduct tending substantially” language
as an element of § 1324(a)(1)(A)(iii). 

accord
United States v. Cuevas-Reyes, 

, 122 n.2 (3d Cir.
2009) (“[O]ur decision in Ozcelik read [the ‘conduct
tending substantially to facilitate’] prong into the
statute; indeed, it was that case’s central holding.”) The
court then reversed the defendant’s conviction, finding
the evidence was insufficient because it did not show
that the defendant’s actions tended substantially to
facilitate the alien’s remaining in the country illegally. 

Ozcelik demonstrates how what was originally
an obscure, benign non-statutory phrase in one court’s
opinion (Lopez) can be transmuted into an offense
element that raises the threshold for a conviction under
§ 1324(a)(1)(A)(iii).
  Because we decline to import that statutory interpreta-
tion into the law of this Circuit,5 we conclude that the
district court’s supplemental jury instruction was not
erroneous.


B. Sufficiency of the Evidence
  Ye also argues that the evidence was insufficient to
prove he intended to prevent government authorities



5
  Because this decision creates a conflict among circuits, it has
been circulated to all judges of this court in regular active
service under Circuit Rule 40(e). No judge favored a hearing
en banc.
No. 08-1333                                                     13

from detecting the presence of the illegal aliens.6 “A
defendant attacking the sufficiency of the evidence used
to convict him faces a nearly insurmountable hurdle.”
United States v. Morris, 

, 665-66 (7th Cir. 2009)
(quotation marks and citations omitted). Viewing the
evidence in the light most favorable to the government,
we will reverse a conviction only if no rational jury could
have found the defendant guilty beyond a reasonable
doubt. 

   At trial, Ye admitted he knew illegal aliens worked at
Buffet City and that all of the Hispanic workers were
illegal aliens. He admitted he did not require the illegal
aliens to fill out job applications, tax forms, or other
employment documents. Ye admitted he filled out
required I-9 forms only for his legal employees; he also
acknowledged that he did not keep time cards for his
illegal workers, even though he kept them for his legal
workers. Had these records been maintained properly,
the illegal aliens could have been exposed. A reasonable
jury could have concluded that Ye’s poor paperwork
management was indicative of an intent to prevent the
government from discovering the illegal aliens.



6
  The district court instructed the jury that in order to convict
Ye on the § 1324(a)(1)(A)(iii) count, it had to find he “concealed,
harbored or shielded from detection an illegal alien intending
to prevent government authorities from detecting the presence of
such alien.” (emphasis added). Neither party challenged this
instruction, so we do not decide whether the italicized
portion is an accurate statement of the law.
14                                             No. 08-1333

  Ye also leased apartments for the illegal aliens, thereby
permitting them to keep their identities under wraps. In
addition, Ye paid the Hispanic illegal aliens in cash. He
submitted reports to the Illinois Department of Employ-
ment Security listing only the wages paid to Chinese
workers who had Social Security numbers; the names of
Hispanic and Chinese illegal aliens without Social
Security numbers were not included in those reports.
Ye also told the Hispanic illegal aliens he fired that he
would rehire them if they returned with any docu-
ments—even bad ones—and suggested they could pur-
chase fake documents in Chicago. And one of the fired
Hispanic illegal aliens was rehired after producing obvi-
ously falsified documents. This ample evidence was
sufficient to permit a reasonable jury to find beyond a
reasonable doubt that Ye intended to prevent the gov-
ernment from detecting the illegal aliens.


                            III.
  The district court did not misstate the law when it
defined the term “shielding” in the supplemental jury
instruction. In addition, the evidence presented at trial
was sufficient for the jury to find beyond a reasonable
doubt that Ye’s actions were done with an intent to
prevent the government from detecting illegal aliens.
Accordingly, we A FFIRM the judgment of the district court.




                          11-17-09