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7th Circuit affirms restaurateur’s harboring conviction

July 22, 2015

The 7th Circuit Court of Appeals Tuesday affirmed an Illinois businessman’s conviction of harboring illegal immigrants in a northern Indiana restaurant he owned along with a nearby house where his workers lived.

Michael B. McClellan was convicted of the harboring charge, three counts of mail fraud, and a count of engaging in a monetary transaction involving criminally derived property. McClellan, of Calumet City, Illinois, and his wife, Tina, operate a daycare that the record shows inflated the number of lower-income children attending in order to increase reimbursement from government programs.

McClellan purchased the Paragon Restaurant in Shererville in 2008, which had been under investigation for allegations its former owners employed illegal immigrants who lived in a house across the street also owned by the restaurant owner. McClelland also purchased the house, according to the government, using money illegally derived from the falsified daycare reimbursement records.

The 7th Circuit rejected McClellan’s argument that the jury should have been instructed that the harboring statute required jurors assess whether he provided shelter to the illegal immigrants for the specific purpose of shielding them from government detention. Circuit Judge Kenneth F. Ripple wrote that the jury instruction mirrored statute and there was no controlling case law or pattern jury instruction containing the intent language.

“The evidence at trial was sufficient to find Mr. McClellan guilty of the charged offenses beyond a reasonable doubt. Additionally, the district court did not commit plain error in instructing the jury on the elements of harboring,” Ripple wrote for the panel in United States of America v. Michael B. McClellan, 14-2449.

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