UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-5516 │ v. │ │ YUN ZHENG aka Wendy Zheng; YAN QIU WU aka │ Jason Wu, │ Defendants-Appellants. │ ┘ Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:21-cr-00051—David L. Bunning, District Judge.

Argued: October 18, 2023

Decided and Filed: November 28, 2023

Before: CLAY, KETHLEDGE, and MATHIS, Circuit Judges. _________________

COUNSEL ARGUED: Riddhi Dasgupta, TAFT STETTINIUS & HOLLISTER LLP, Washington, D.C., for Appellant. Javier A. Sinha, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert K. McBride, TAFT STETTINIUS & HOLLISTER LLP, Covington, Kentucky, Sarah C. Larcade, MCKINNEY & NAMEI CO., LPA, Cincinnati, Ohio, for Appellants. Javier A. Sinha, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Kyle M. Winslow, UNITED STATES ATTORNEY’S OFFICE, Ft. Mitchell, Kentucky, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

MATHIS, J., delivered the opinion of the court in which CLAY, J., joined. KETHLEDGE, J. (pg. 15), delivered a separate opinion concurring in part and in the judgment. No. 22-5516 United States v. Zheng, et al. Page 2

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OPINION _________________

MATHIS, Circuit Judge. A jury convicted Yun Zheng and Yan Qiu Wu on four counts of harboring illegal noncitizens for commercial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(A)(v)(II).1 Zheng and Wu now appeal, challenging the district court’s jury instructions. Specifically, they argue that the district court: (1) erred in instructing the jury on the meaning of “harboring” by not including a requirement that Zheng and Wu had acted intentionally and knowingly in shielding the illegal noncitizens from law enforcement; and (2) invaded the province of the jury by giving examples of “harboring” in the jury instructions. Finding no error, we affirm.

I.

Zheng and Wu owned and operated Tokyo Dragon Buffet, Inc., a Chinese restaurant in Alexandria, Kentucky. In 2017, Homeland Security Investigations (“HSI”) began investigating Tokyo Dragon after receiving a tip from a nurse who suspected that Zheng and Wu were trafficking an individual. On September 9, 2021, a federal grand jury indicted Zheng and Wu on four counts of harboring illegal noncitizens for commercial gain and one count of conspiracy for the same.

The trial evidence showed that Zheng and Wu employed individuals of Chinese descent and four Hispanic men at Tokyo Dragon. The Hispanic men were noncitizens who lived and worked in the United States illegally. They lived in the basement of Zheng and Wu’s home. Zheng and Wu transported the men to and from work every day and to the grocery store once a week. Zheng and Wu always paid them in cash, but did not file any paperwork with the Stat