9.3 ALIEN—HARBORING (8 U.S.C. § 1324(a)(1)(A)(iii))
The defendant is charged in [Count _______ of] the indictment with [attempted] harboring of an alien in violation of Section 1324(a)(1)(A)(iii) of Title 8 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, [name of alien] was an alien;
Second, [name of alien] was not lawfully in the United States;
Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien] was not lawfully in the United States; [and]
Fourth, the defendant [harbored, concealed, or shielded from detection] [attempted to harbor, conceal, or shield from detection] [name of alien] for the purpose of avoiding [his] [her] detection by immigration authorities[.] [; and]
[Fifth, the defendant did something that was a substantial step toward committing the crime.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.]
An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien is not lawfully in this country if the person was not duly admitted by an Immigration Officer.
See Comment to Instructions 9.1 (Alien—Bringing to United States (Other than Designated Place)) and 9.2 (Alien–Illegal Transportation).
Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person. In such cases, a special jury finding is required.
For an attempt to commit the crime, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).