United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, District Judge.
Now pending before the Court is the Report and Recommendation ("R&R") (Doc. 128) of the Honorable Erin L. Setser, Magistrate Judge for the Western District of Arkansas. The Government has filed objections (Doc. 130), and Petitioner Marcio De Oliveira has filed a response (Doc. 131). The Magistrate's R&R concerns Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 68), filed pursuant to 28 U.S.C. § 2255. In light of the Government's objections to the R&R, the Court has conducted a thorough de novo review of the record, focusing in particular on the portions of the R&R to which specific objections have been made, in accordance with 28 U.S.C.§ 636(b)(1)(C). After review, the Court finds that the objections lodged by the Government offer neither law nor fact requiring departure from the Magistrate's findings. Accordingly, the Magistrate's R&R (Doc. 128) is ADOPTED, the Motion to Vacate (Doc. 68) is GRANTED, De Oliveira's guilty plea and sentence are VACATED, and the matter will be set for jury trial by separate order.
On April 22, 2009, De Oliveira was charged with four counts of aiding and abetting others in knowingly concealing, harboring, and shielding an alien from detection for the purpose of commercial advantage or private financial gain, "in reckless disregard of the fact" that the alien had come to, entered, and remained in the United States illegally, all in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). (Doc. 13). De Oliveira was scheduled for trial to commence on Monday, August 31, 2009; however, on Friday, August 28, 2009, De Oliveira entered into a plea agreement (Doc. 23) wherein he agreed to plead guilty to two of the four counts in the Indictment.
An essential element of the offense of harboring an illegal alien is knowledge of the alien's undocumented status. In other words, to violate 8 U.S.C. § 1324(a)(1)(A)(iii), one must either know that the individual who is being concealed or harbored is, in fact, an illegal alien, or one must recklessly disregard the fact of the alien's unlawful presence. 8 U.S.C. § 1324(a)(1)(A)(iii); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008) (evidence was sufficient to support convictions for harboring illegal aliens when jury could "conclude that the [defendants] knew or recklessly disregarded the fact that the aliens were unlawfully in the country"). When De Oliveira appeared with his retained counsel, Herbert Southern, at the change of plea hearing, the Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas, pointed out that the facts recited in the plea agreement indicated De Oliveira's knowledge that the workers were "foreign nationals"-not illegal aliens (Doc. 49, p. 13). Judge Hendren noted this discrepancy in open court and asked De Oliveira, "And you knew [the individuals named in the Indictment] were here illegally?" To which De Oliveira clearly responded, "No." Id.
The record indicates that at that point in the proceedings, De Oliveira's counsel, Mr. Southern, began questioning his client directly on the issue of what his client knew:
Mr. Southern: Well, you did know that you didn't have verification that they were legal, and you hadn't-
De Oliveira: Yes.
Mr. Southern: - pursued to -
De Oliveira: Yeah.
Mr. Southern: - ascertain -
De Oliveira: Yeah.
Mr. Southern: So it's reasonable to say that you did know, or should have known, that they were illegals; is that correct?
De Oliveira: That is correct.
(Doc. 49, pp. 13-14) ...