United States v. Hansen

• Decision Date: 10 February 2022
• Docket Number: No. 17-10548,17-10548
• Citation: 25 F.4th 1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Helaman HANSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.4th 1103

UNITED STATES of America, Plaintiff-Appellee,

v.Helaman HANSEN, Defendant-Appellant.

No. 17-10548

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2021 San Francisco, California

Filed February 10, 2022

Carolyn M. Wiggin (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Defender, Sacramento, California; for Defendant-Appellant.

Katherine T. Lydon (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Phillip A. Talbert, Acting United States Attorney; United States Attorney's Office, Sacramento, California; John M. Pellettieri Jr. (argued), Appellate Section, Criminal Division; Lisa H. Miller, Acting Deputy Assistant Attorney General; Kenneth A. Polite Jr., Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

Vera Eidelman (argued), American Civil Liberties Union Foundation, New York, New York; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; Shilpi Agarwal, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Northern California.

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Jane A. Restani,^* Judge.

OPINION

GOULD, Circuit Judge:

Helaman Hansen ("Hansen") appeals his conviction and 240-month sentence for twelve counts of mail fraud, three counts of wire fraud, and two counts of encouraging or inducing illegal immigration for private financial gain. On appeal, he argues that the district court improperly denied his motion to dismiss his convictions for the two counts of encouraging or inducing an alien to reside in the United States for financial gain (Counts 17 and 18) because 8 U.S.C. § 1324(a)(1)(A)(iv) is unconstitutional. We have jurisdiction under 28 U.S.C. § 1291 and hold that § 1324(a)(1)(A)(iv) is facially overbroad.¹

FACTS AND PROCEDURAL HISTORY

Between at least October 2012 and September 2016, Hansen operated an organization called Americans Helping America Chamber of Commerce ("AHA"). AHA ran a program that purported to help undocumented immigrants become U.S. citizens through adult adoption (the "Program"). Hansen falsely told victims that many immigrants had become U.S. citizens through the Program. However, Hansen admitted to federal agents that no one had achieved U.S. citizenship through the Program, and it is not possible to become a U.S. citizen through adult adoption. Counts 17 and 18 were based on Hansen twice encouraging or inducing victims to overstay their visas.

In Spring 2017, a jury found Hansen guilty of twelve counts of mail fraud, three counts of wire fraud, and two counts of encouraging or inducing unlawful immigration for private financial gain. The trial lasted eleven days and thirty-seven witnesses testified; witnesses included victims, former employees, investigators, and Hansen (who testified twice). At least 471 victims participated in the Program and each paid between $550 and $10,000. An FBI analyst testified that Hansen and AHA had more than $1.8 million in revenue.

On November 9, 2017, Hansen moved to dismiss Counts 17 and 18 on constitutional grounds. He argued that § 1324(a)(1)(A)(iv) is facially overbroad, void for vagueness, and unconstitutional as applied to him. The district court denied his motion. The district court sentenced Hansen to 240 months for each of the mail and wire fraud counts, and 120 months for each of the encouraging unlawful immigration for private financial gain counts, all to be served concurrently.

Hansen timely appealed. On appeal, Hansen and amici argue that § 1324(a)(1)(A)(iv) ("subsection (iv)") is unconstitutional for four reasons: it is (1) facially overbroad, (2) overbroad as applied to Hansen, (3) void for vagueness, and (4) a content-and viewpoint-based criminal prohibition of speech that cannot survive strict scrutiny.

STANDARD OF REVIEW

"We review de novo the constitutionality of a statute." United States v. Mohamud , 843 F.3d 420, 432 (9th Cir. 2016).

DISCUSSION

Because we hold that subsection (iv) is facially overbroad, we do not reach Hansen and amici's other arguments. See Ashcroft v. Free Speech Coal. , 535 U.S. 234, 258, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

1. Overbreadth Challenge

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST. amend. I. "The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere." Free Speech Coal. , 535 U.S. at 244, 122 S.Ct. 1389. "The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others." Massachusetts v. Oakes , 491 U.S. 576, 581, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). Facial overbreadth challenges are permitted because an overly broad statute may chill the speech of individuals, including those not before the court. Id. There are two situations in which a facial overbreadth challenge can succeed: (1) when a party establishes that there is "no set of circumstances under which [the statute] would be valid or that the statute lacks any plainly legitimate sweep;" and (2) where "a substantial number of [the statute's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens , 559 U.S. 460, 472–73, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotations and citations omitted). It is clear from previous convictions under the statute cited by the government,² and likely from Hansen's conduct here, that subsection (iv) has at least some "plainly legitimate sweep," so we focus our analysis on the second situation.

Hansen and amici argue that subsection (iv) encompasses a vast amount of protected speech related to immigration, including general immigration advocacy. By contrast, the government interprets subsection (iv) as a narrow prohibition on speech integral to criminal conduct, specifically solicitation and aiding and abetting.

As an initial matter, two courts of appeals, both in non-precedential decisions, have examined whether subsection (iv) is overbroad. In an unpublished decision, the Fourth Circuit held that subsection (iv) is not overbroad because it does not prohibit a substantial amount of protected speech, interpreting the provision as largely prohibiting criminal aiding and abetting. See United States v. Tracy , 456 F. App'x 267, 272 (4th Cir. 2011). A separate panel of this Court reached the opposite conclusion, recently holding that "[s]ubsection (iv) criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment." United States v. Sineneng-Smith , 910 F.3d 461, 485 (9th Cir. 2018) (" Sineneng-Smith I "). However, the Supreme Court vacated and remanded Sineneng-Smith I because "the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion" by deciding the case on arguments originally raised by amici. United States v. Sineneng-Smith , ––– U.S. ––––, 140 S. Ct. 1575, 1578, 206 L.Ed.2d 866 (2020). On remand, the panel affirmed the defendant's conviction under subsection (iv) without analyzing the overbreadth challenge. See United States v. Sineneng-Smith , 982 F.3d 766, 776 n.3 (9th Cir. 2020), cert. denied , ––– U.S. ––––, 142 S. Ct 117, 211 L.Ed.2d 36 (2021). Although Sineneng-Smith I was vacated on other grounds, we conclude that much of its thorough analysis is persuasive on the overbreadth issue. We add our thoughts reinforcing that conclusion of overbreadth.

2. Statutory Construction

When analyzing an overbreadth challenge, courts first construe the statute. United States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Section 1324 states:

(a) Criminal penalties

(1)(A) Any person who—

...

(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law

...

shall be punished as provided in subparagraph (B).

(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—

(i) in the case of ... violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under Title 18, imprisoned not more than 10 years, or both ....

To ascertain the meaning of the operative words in subsection (iv), we begin with the meanings of "encourage" and "induce." In subsection (iv) " ‘to encourage’ means ‘to inspire with courage, spirit, or hope ... to spur on ... to give help or patronage to,’ " and we have "equated ‘encouraged’ with ‘helped.’ " United States v. Thum , 749 F.3d 1143, 1147 (9th Cir. 2014). In a similar statutory provision, we defined "induce" as "to move by persuasion or influence." United States v. Rashkovski , 301 F.3d 1133, 1136 (9th Cir. 2002). These definitions accord with the plain meanings of encourage and induce. See Thum , 749 F.3d at 1147 (quoting Merriam Webster's Collegiate Dictionary); Rashkovski , 301 F.3d at 1136–37 (same). Encourage and induce are not part of a series of words that shed additional light on their meaning in subsection (iv). The doctrine of noscitur a sociis does not apply. Cf. Williams , 553 U.S. at 294–95, 128 S.Ct. 1830 (applying noscitur a sociis to help determine the meaning of two words in a series of five words). As used in subsection (iv), encourage and induce can apply to both speech and conduct, a conclusion both parties a...