THE U.S. Court of Appeals for the Ninth Circuit on Monday once again remanded and reversed the conviction of Lili Zhang Tydingco for harboring a minor alien.
According to 9th Circuit Judges Diarmuid O’Scannlain, Eric David Miller, and Kenneth K. Lee, the district court abused its discretion in admitting Rebecca Castro’s sham-marriage and witness-tampering testimony.
The U.S. government reasons that the prior act and the charged offense both involved Tydingco’s “agreeing to help Chinese citizens circumvent U.S. immigration laws for her own financial benefit,” the 9th Circuit judges said.
“That rationale is devoid of record support: There was no evidence that Tydingco received, or expected to receive, any financial benefit for her role in the sham-marriage proposal.”
Further, “Castro’s testimony does not tend to make it more probable that Tydingco knew that X.N., the alien she was charged with harboring, was in the United States illegally.”
According to the 9th Circuit judges, “The evidence may have demonstrated that Tydingco knew that marriage is one pathway to citizenship, but that knowledge has no logical connection to whether she knew that X.N., a minor student, was not authorized to remain in the United States.”
The 9th Circuit judges likewise found that the district court abused its discretion in admitting Castro’s testimony that Tydingco encouraged her to leave the jurisdiction so that she would be unable to testify.
“The relevance of this testimony came from the fact that it suggested consciousness of guilt. But that theory of relevance depends on the underlying sham-marriage testimony, which, as we have explained, should not have been admitted.”
The admission of Castro’s testimony was not harmless, reiterated the 9th Circuit judges.
“As we observed when we reversed Tydingco’s conviction after her first trial, substantial evidence emerged from which a reasonable jury could infer that [Tydingco] — despite knowing of facts from which a reasonable person would infer the risk of X.N.’s presence being unlawful — did not actually draw that inference herself.”
Tydingco’s defense theory was plausible, the judges said, “and Castro’s inadmissible propensity testimony directly undermined that defense. The limiting instructions did not cure the error,” they added.
The district court told the jury that it could give Castro’s testimony such weight as the jury felt it deserved for the purpose of proving Tydingco’s knowledge and consciousness of guilt.
“But because the testimony was not relevant to those issues, the jury should not have been able to give it any weight. By telling the jury that it could consider the evidence — which was relevant only for its forbidden propensity inference — the [district] court wrongly invited the jury to rely on prejudicial evidence that it should not have heard in the first place,” the 9th Circuit judges said.
“Because the limiting instructions were ineffective, and the evidence went to the heart of Tydingco’s defense, the [U.S.] government has not established that it is more probable than not that the error did not materially affect the verdict,” the 9th Circuit judges added.
On June 17, 2020, District Court for the NMI Chief Judge Ramona V. Manglona sentenced Tydingco to 90 days’ imprisonment for harboring a minor alien.
In September 2019, following two and a half hours of deliberation, jurors found Tydingco guilty of one count of harboring a minor alien.
It was the second time she was convicted of the same charge.
In June 2016, she and her husband, Francisco Muna Tydingco, were convicted of harboring a 10-year-old girl they brought from China in 2013.
The jury found Mrs. Tydingco guilty of harboring an alien and Mr. Tydingco guilty of aiding and abetting his wife.
On Sept. 13, 2013, the Tydingcos and their two minor children went to China where they met with the parents of a 10-year-old girl. The couple brought the girl to Saipan and enrolled her in a public school two weeks after arrival.
The girl’s CNMI parole visa expired on Nov. 5, 2013, but she stayed with the Tydingcos until Feb. 19, 2015.
In denying the defendants’ motion for acquittal, Judge Manglona said there was no question that the 10-year-old girl was an alien who remained in the U.S. in violation of federal immigration law; or that the Tydingcos harbored her by giving her shelter in their home.
On Dec. 9, 2016, Mrs. Tydingco was sentenced to 10 months’ imprisonment while Mr. Tydingco was sentenced to 21 months’ imprisonment.
The Tydingcos appealed to the Ninth Circuit, which remanded their conviction to the district court for a new trial. The Ninth Circuit judges said the jury could have convicted the defendants on an invalid theory.
On May 10, 2019, the U.S. government opted not to pursue the charge against Mr. Tydingco, and asked the federal court to dismiss the case against him.
But Assistant U.S. Attorney Garth Backe refiled a superseding indictment against Mrs. Tydingco, charging her with harboring an illegal minor alien.
In June 2020, Lili Tydingco, through attorney Bruce Berline, filed the second appeal to the 9th Circuit.
The prosecution can now either retry the case or dismiss the charge, Variety learned.
