Immigration conviction of union official reversed
By Tony Leys
The Des Moines Register, May 19, 2009
http://www.desmoinesregister.com/article/20090519/NEWS/905190370/1001/NEWS
A Marshalltown union official who was convicted of helping illegal immigrants has won an appeal of the case and probably will not be retried.
Braulio Pereyra-Gabino was charged in the wake of 2006 immigration raids at Swift meatpacking plants in Marshalltown and five other towns around the country.
He was convicted last year of concealing illegal immigrants but acquitted of charges of identity theft and Social Security fraud.
The 8th U.S. Circuit Court of Appeals overturned the conviction last month, saying the trial judge gave unfairly vague instructions to jurors about what prosecutors needed to prove.
Pereyra-Gabino was a local vice president of the United Food and Commercial Workers union, which represents workers at what is now a JBS meatpacking plant. After he was convicted last year, he was sentenced to one year and one day in prison, which was stayed while he appealed the case.
The prosecution's evidence included a secretly made tape of a union-recruiting talk Pereyra-Gabino gave to about 28 new Hispanic workers at the plant. In its ruling, the 8th Circuit said the workers all had passed identity checks by the company. During the talk, Pereyra-Gabino suggested employees use authentic documents outside of work, regardless of what they'd used in the plant, the court said.
He reportedly told the new workers that he could help them obtain lawyers if needed, and that they should call him if they ever were arrested. He also discouraged them from telling him what their immigration status was.
Pereyra-Gabino's lawyer argued in court that those comments were protected under the First Amendment right to free speech. But the Appeals Court based its ruling on his claim that jury instructions were vague about what prosecutors needed to prove. It noted the instructions did not require jurors to find that the defendant harbored any individual worker whom he knew to be in the country illegally.
'It is true that jury instructions need not be 'technically perfect or even a model of clarity,' ' the court wrote. 'Nevertheless, they must inform the jury of the essential elements of the offense charged and the government's burden of proof, … both of which the instructions failed to do in this instance.'
The court went on to say the government's proof 'is not overpowering.'
His lawyer, Keith Rigg, said Pereyra-Gabino continues to work at the Marshalltown plant but no longer holds a union office. A prosecution spokesman said the case probably will not be retried.
