Reported / Citable
Background
A federal grand jury charged Andres Wilkinson III in a four-count indictment. Count One alleged concealing, harboring, or shielding a noncitizen from detection, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Counts Two through Four alleged transporting that person within the United States in furtherance of her unlawful presence, in violation of § 1324(a)(1)(A)(ii).
Wilkinson moved to dismiss the indictment, arguing that both provisions were facially vague and vague as applied to him in violation of the Fifth Amendment’s Due Process Clause. At the pretrial stage, the magistrate judge considered the indictment’s allegations as true and declined to consider evidence concerning the adequacy of the grand-jury evidence.
The Court’s Holding
Magistrate Judge Brian C. Bajew recommended denying the motion. The report concluded that §§ 1324(a)(1)(A)(ii) and (iii) are not facially unconstitutional because their text provides an ordinary person adequate notice of prohibited conduct and does not encourage arbitrary or discriminatory enforcement.
The report also rejected Wilkinson’s as-applied challenge. Fifth Circuit precedent supplies meaning to the statutory terms: harboring requires conduct that substantially facilitates an unlawfully present noncitizen’s ability to remain in the country, while transportation requires a direct and substantial relationship to the person’s unlawful presence. The indictment alleged conduct fitting those provisions, and Wilkinson’s asserted lack of criminal intent presented a fact question for the jury rather than a basis for pretrial dismissal.
Key Takeaways
- This was a report and recommendation, not a final ruling on the dismissal motion.
- Section 1324’s harboring and transportation provisions survive the defendant’s facial vagueness challenge.
- Whether transportation was undertaken in furtherance of unlawful presence ordinarily turns on intent and is for the jury to resolve.
Why It Matters
The recommendation reinforces that established Fifth Circuit interpretations of § 1324 provide sufficient limits on the statute’s reach for due-process purposes. Defendants generally cannot use a Rule 12 motion to contest intent or the prosecution’s evidence where the indictment itself adequately alleges the offense.