United States v. Anderton

• Decision Date: 16 August 2018
• Docket Number: No. 17-40836,17-40836
• Citation: 901 F.3d 278
• Parties: UNITED STATES of America, Plaintiff - Appellee v. David Allen ANDERTON, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

901 F.3d 278

UNITED STATES of America, Plaintiff - Appellee

v.David Allen ANDERTON, Defendant - Appellant

No. 17-40836

United States Court of Appeals, Fifth Circuit.

August 16, 2018

Thomas Edward Gibson, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Plano, Robert Austin Wells, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Tyler, for Plaintiff–Appellee.

Shirley L. Baccus-Lobel, Law Offices of Shirley Baccus-Lobel, Dallas, Jason Scott Gilbert, Counsel, Watkins & Eager, P.L.L.C., Jackson, for Defendant–Appellant.

Before JOLLY, JONES, and HAYNES, Circuit Judges

EDITH H. JONES, Circuit Judge:

David Anderton was convicted of making a false statement in an immigration document in violation of 18 U.S.C. § 1546(a) (Count 1); conspiracy to encourage and induce an illegal alien to reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 2); and encouraging an illegal alien to reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 3-6). On appeal, he challenges (1) the constitutionality of 8 U.S.C. § 1324(a)(1)(A)(iv) and his conviction thereunder; (2) whether the indictment should have been dismissed for failure to state an offense; (3) the sufficiency of the evidence to sustain a conviction for Count One; (4) the constitutionality of some of the search warrants; and (5) the final order of forfeiture for the property on 2949 West Audie Murphy Parkway. For the reasons given below, we AFFIRM.

BACKGROUND

Anderton was president of A&A Landscape and Irrigation GP ("A&A"), a company operating around the greater Dallas, Texas area. In December 2011, Anderton signed a Form I-129 (Petition for a Nonimmigrant Worker) for A&A, stating that the job would not involve overtime and the visa workers would be paid "the highest of the most recent prevailing wage that is or will be issued by the Department [of Labor]." The "prevailing wage" hourly rate at the time was $8.16 to $11.16 or $12.24 for overtime. Anderton signed this document under the penalty of perjury.

In 2016, Anderton was charged with violating 18 U.S.C. § 1546(a) (Count 1), 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 2), and 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 3-6). Anderton moved to dismiss Count One for failure to state an offense. He also moved to dismiss Counts Two-Six, arguing that "reckless disregard" is a constitutionally deficient scienter. The court denied both motions. Anderton also moved to suppress evidence that was obtained under search warrants he argued were unconstitutional general warrants. The court denied this motion.

At trial, three visa workers testified that they worked overtime and were not paid more for overtime. Two testified that Anderton withheld $1,000 of their pay for "visa expenses" and one stated that Anderton withheld this amount from other visa workers as well. They also testified that Anderton withheld some of their pay for rent. All were paid far less than time and a half for their overtime and two claimed to have been paid less than minimum wage. They testified that they were paid for regular time by check and overtime with cash. Timesheets for these three workers reflected substantial amounts of overtime.

The former vice president of operations for A&A, Anthony Diesch, confirmed that workers were paid in part by check and in part by cash. Further, Anderton instructed that workers who "had papers" were to be paid partially by check, but other workers would be paid only in cash. According to Diesch's records, one employee was paid as little as $5.50 an hour in 2008. In October 2008, Anderton reported to Diesch there was some "heat" regarding payroll and they needed to get rid of the payroll spreadsheets. Anderton also explained that money was withheld from visa workers' pay to reimburse A&A for visa expenses.

Diesch described Anderton's system of writing checks to "Refugio Rivera," which he would cash for currency to pay the workers. Leslie Ducharme, a former employee, testified that Anderton told her to create false invoices, which were drafted after the checks had been written and purportedly covered tree purchases. Anderton directed Diesch that the checks must be written for less than $10,000 because he believed the IRS would flag checks over that amount.

Blanca Lenal, another government witness and previous A&A employee, testified that Anderton would ask workers during job interviews whether they had legal documents. If they lacked legal documentation, he would tell them they would get paid cash at a rate less than minimum wage. According to Ducharme, when the Social Security Administration informed A&A that the names on employee W-2s did not match the social security numbers A&A had provided, Anderton advised his managers to take the employees off payroll, and "[t]hey'll have a different I.D. at another time." A few weeks later, such workers would have a new social security number.

The government presented testimony from four A&A employees who admitted being in the U.S. illegally. Two of these workers stated that Anderton told them to go back to Mexico and get work visas. When they could not obtain visas, they so informed Anderton, but he employed them anyway. Finally, social security records were admitted in evidence, demonstrating that "of 375 names and corresponding social security numbers gleaned from A&A records, only 128 of the names and numbers matched and 37 of the employee names had no social security number."

The jury convicted Anderton on all counts. After the criminal trial, the jury convened to hear a forfeiture motion and found that the company's property at 2949 West Audie Murphy Parkway was used to facilitate all six counts of the offenses. Over Anderton's repeated objections, the district court granted the final order of forfeiture covering this property.

Anderton moved unsuccessfully for acquittal and for a new trial. The court sentenced him to five years' probation, a $60,000 fine ($10,000 per count), and restitution exceeding $19,000.

Anderton timely appealed.

STANDARDS OF REVIEW

This court reviews preserved challenges to the sufficiency of an indictment de novo. United States v. Grant , 850 F.3d 209, 214 (5th Cir. 2017). If a defendant fails to preserve an issue in the district court, this court will review the objection for plain error. United States v. Fairley , 880 F.3d 198, 206 (5th Cir. 2018). Plain error "requires that there was (1) error, (2) that is plain, and (3) that affects substantial rights." Id. (citation omitted). Courts "should correct a forfeited plain error that affects substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Rosales-Mireles v. United States , ––– U.S. ––––, 138 S.Ct. 1897, 1906, ––– L.Ed.2d –––– (2018) (citations and quotation marks omitted).

If a defendant preserves a sufficiency of the evidence claim, it is reviewed de novo but "with substantial deference to the jury verdict." United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). This court affirms convictions "if a reasonable trier of fact could conclude ... the elements of the offense were established beyond a reasonable doubt." Id. (citation omitted).

"Factual findings in a ruling on a motion to suppress are reviewed for clear error" and questions of law are reviewed de novo. United States v. Moore , 805 F.3d 590, 593 (5th Cir. 2015). Furthermore, the "evidence is viewed in the light most favorable to the prevailing party." Id.

DISCUSSION

I. Counts Two-Six

(a) Challenges to Section 1324(a)(1)(A)(iv), (v)

Pursuant to 8 U.S.C. § 1324(a)(1)(A)(iv), it is illegal to "encourage[ ] or induce[ ] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such ... residence is or will be in violation of law." Subsection (v) criminalizes conspiracy to that end. Anderton argues that this statute is unconstitutionally vague as applied to him for several reasons. He contends that the terms "encourage" and "induce" are so broad as to have no discernible parameters and may include many activities, such as engaging in charitable or educational relationships with illegal aliens, that are not inherently illegal. He asserts that making such conduct a felony offense under a mens rea of reckless disregard of other persons' illegal presence exacerbates the vagueness, particularly because various statutes and regulations strictly limit an employer's ability to question the immigration status of new or existing hires. Finally, he likens his situation to cases in which other provisions of Section 1324 have been construed to require the defendant's active concealment of illegal aliens' status. See, e.g., United States v. Varkonyi , 645 F.2d 453, 459 (5th Cir. 1981) (illegal harboring does not include "mere employment"); DelRio Mocci v. Connolly Props. Inc. , 672 F.3d 241, 247 (3d Cir. 2012) ("knowingly renting an apartment to an alien lacking lawful immigration status" does not constitute illegal harboring). We discuss each of these propositions in turn.

As to vagueness, Justice Scalia summed up, "[o]ur cases establish that the Government violates this guarantee [of the Due Process clause] by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015) (citing Kolender v. Lawson , 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) ). This court is concerned that the instant statutes of conviction, Sections 1324 (a)(1)(A)(iv) and (v), are extremely broad and the consequences of a felony conviction are harsh. Whether these terms are unconstitutionally vague is another matter. Courts must indulge a presumption of constitutionality and carefully examine a statute...