February 28, 2012

Judge Posner On Harboring, the Dictionary, and Trusting the Government


Deanna Costello's love knew no boundaries. Literally. For years she had a romantic relationship with a man who was not in the United States lawfully. It led to a strong judicial slapdown of the Department of Justice by one of our nation's leading jurists, in United States v. Costello.

Ms. Costello's Boyfriend

Ms. Costello lived in Cahokia, Illinois, perhaps five miles from St. Louis. She lived with a man from Mexico for a year ending in July 2003. That time ended when he was arrested on a federal drug charge. He plead guilty and was sent back to Mexico after his prison sentence.

1378507_heart_shaped_flower_petal.jpgIn March of 2006, Ms. Costello picked her boyfriend up at the bus station in St. Louis. She drove him to her house, where they lived until October 2006. Sadly, he was then arrested on new drug charges, and the couple were again separated. As the court of appeals noted, he "was given a stiff prison sentence."

Ms. Costello was charged with harboring an alien. She went to a stipulated facts trial - basically a trial where she and the government agree what happened, they simply disagree about whether what happened was a crime.

She was convicted. The district court sentenced her to two years probation and a $200 fine.

The Appeal

She appealed. Judge Posner, writing for the Seventh Circuit, reversed, in an opinion as critical of the government as any I've read in a very long time.

Judge Posner concluded, basically, that harboring an alien does not include having a person in the country unlawfully as a live-in boyfriend.

Judge Posner started by noting that "[t]here is no evidence that the defendant concealed
her boyfriend or shielded him from detection" and that, indeed, since he was arrested at her house several times, it's more likely that law enforcement would find him if he was there than, say, at a relative's house.

Or, alternatively,

The defendant in the present case was not trying to encourage or protect or secrete illegal aliens. There is no suggestion that she prefers illegal aliens as boyfriends to legal aliens or citizens. She had a boyfriend who happened to be (as she knew) an illegal alien, and he lived with her for a time.

A Car Ride Is Not Harboring

The district court made much of Ms. Costello having driven the man from the bus station to her house. Judge Posner wasn't impressed with this fact, noting that

the distance was so short--about six miles--that in a pinch he could have walked. And had he wanted to take public transportation he could have used the St. Louis metro transit system; the price of his ticket would have been $2.75. (That is the price today; it probably was lower in 2006.) There is nothing to suggest that the two of them had prearranged the pickup, or that, had she not picked him up, he would have returned to Mexico. (We don't know how long he had been in the United States.)

A car ride is not harboring an alien.

Judge Posner spent considerable time considering the meaning of "harboring" in the statute criminalizing harboring an alien. Judge Posner considered the way "harboring" is used, and the breadth of the anti-harboring statute if "harboring" covers Ms. Costello's conduct.

The Government's View of Harboring Is Absurd

Judge Posner was concerned that the government's view of what counts as harboring sweeps lots and lots of conduct into the criminal law. In perhaps the most awkward - yet at the same time still awesome - sentence he's ever written, Judge Posner asks:

is it likely that Congress intended that parents whose child invites an immigrant classmate who, as they know, is illegally in the country to a sleepover might be branded as criminals even if he didn't accept the invitation, since the statute criminalizes attempts?

The court of appeals also points out the absurd consequences of the government's statutory interpretation,

an illegal alien becomes a criminal by having a wife, also an illegal alien, living with him in the United States; if they have children, born abroad and hence illegal aliens also, living with them, then each parent has several counts of criminal harboring, on the government's interpretation of the statute.

Judge Posner Doesn't Trust The Government

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government's sweeping definition of "harboring." But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend's drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Down with the Dictionary

In perhaps my favorite section of the opinion (though there are many) Judge Posner criticizes the government's use of the dictionary -

"Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings A sign in a park that says "Keep off the grass" is not properly interpreted to forbid the grounds crew to cut the grass.

To try to learn how "harboring" is normally used, Judge Posner turned to Google:

a search based on the supposition that the number of hits per term is a rough index of the frequency of its use--reveals the following:

"harboring fugitives": 50,800 hits
"harboring enemies": 4,730 hits
"harboring refugees": 4,820 hits
"harboring victims": 114 hits
"harboring flood victims": 0 hits
"harboring victims of disasters": 0 hits
"harboring victims of persecution": 0 hits
"harboring guests": 184 hits
"harboring friends": 256 hits (but some involve
harboring Quakers--"Friends," viewed in
colonial New England as dangerous heretics)
"harboring Quakers": 3,870 hits
"harboring Jews": 19,100 hits

It is apparent from these results that "harboring," as the word is actually used, has a connotation--which "sheltering," and a fortiori "giving a person a place to stay"--does not, of deliberately safeguarding members of a specified group from the authorities, whether
through concealment, movement to a safe location, or physical protection.


Because Ms. Costello was not keeping her boyfriend from the authorities - rather she was just keeping him to herself - she was not harboring. She was merely entertaining.

And entertaining an alien is not against the law.

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