United States v. Hansen

• Decision Date: 25 July 2022
• Docket Number: 17-10548
• Citation: 40 F.4th 1049 (Mem)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Helaman HANSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

40 F.4th 1049 (Mem)

UNITED STATES of America, Plaintiff-Appellee,

v.Helaman HANSEN, Defendant-Appellant.

No. 17-10548

United States Court of Appeals, Ninth Circuit.

Filed July 25, 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.

Order;

Concurrence by Judge Gould ;

Dissent by Judge Bumatay ;

Dissent by Judge Collins

ORDER

Judges McKeown and Gould have voted to deny Appellee's petition for rehearing en banc. Judge Restani recommends denying the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration. See Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED .

GOULD, Circuit Judge, concurring in the order denying the petition for rehearing en banc:

I concur in the order denying rehearing en banc.¹

Judge Bumatay's dissent (the "Judge Bumatay dissent") from the denial of rehearing en banc is wrong on the law and incorrect in method. As for Judge Collins's dissent (the "Judge Collins dissent"), it does not appear to challenge the facial overbreadth doctrine generally; rather, it appears to disagree with the Hansen opinion's application of this Supreme Court precedent. I address the lengthy Judge Bumatay dissent in depth and the Judge Collins dissent in footnote 2 infra.

In arguing for en banc rehearing, the Judge Bumatay dissent seeks to rewrite subsection (iv) by conducting a so-called textual analysis that fails to analyze the text of subsection (iv) itself. Rather, the Judge Bumatay dissent analyzes additional words not in that section, such as "aiding," "abetting," and "solicitation," to support the conclusion it advocates. In the course of its argument essentially rewriting subsection (iv), the Judge Bumatay dissent misreads the opinion, the record, § 1324 itself, and precedent; conjures up parades of horribles belied by its own citations; and introduces arguments the Government's Petition for Rehearing did not make. The Judge Bumatay dissent ends by asking us improperly to disregard Supreme Court precedent regarding the applicability of the facial overbreadth doctrine.

I. Correcting the Record

As an initial matter, I comment on several issues upon which the Judge Bumatay dissent is confused or mistaken.

A. The Judge Bumatay dissent mischaracterizes the holding of Sineneng-Smith , ––– U.S. ––––, 140 S. Ct. 1575, 206 L.Ed.2d 866 (2020)

The Judge Bumatay dissent begins by invoking the Supreme Court's unanimous decision vacating and remanding a separate Ninth Circuit panel's decision regarding the constitutionality of subsection (iv). The Judge Bumatay dissent contends that the Supreme Court in its prior decision was only "mostly concerned" with the prior panel's violation of the party-presentation principle, but also expressed views about the merits of subsection (iv). A fair reading of Sineneng-Smith shows that the Judge Bumatay dissent's position is incorrect. The Supreme Court's only holding in Sineneng-Smith was that the panel violated the party-presentation principle. See United States v. Sineneng-Smith , ––– U.S. ––––, 140 S. Ct. 1575, 1578, 206 L.Ed.2d 866 (2020) ("[W]e now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit's judgment and remand"). The Supreme Court made no holding concerning the merits of the facial overbreadth challenge to subsection (iv).

The Court in Sineneng-Smith was unanimously concerned with the party presentation-principle, the fact that the parties in that case had not even briefed facial overbreadth, and the fact that the Ninth Circuit had requested amicus briefing on the issue of overbreadth. Even the Government's Petition for Rehearing recognizes that the Supreme Court in Sineneng-Smith did not make a decision on the merits. See Pet. for Reh'g at 1 ("[T]he Supreme Court ultimately reversed on alternative grounds in [ Sineneng-Smith ], without resolving the merits of the overbreadth issue").

The Judge Bumatay dissent recognizes the weakness of how it frames the issue at the outset with reference to Sineneng-Smith , because it soon thereafter excludes the opinion's alleged failure to adhere to Sineneng-Smith from the Judge Bumatay dissent's purported list of errors committed in the opinion. If the Hansen opinion had violated clear Supreme Court precedent in Sineneng-Smith , that violation would be a central thrust of the Judge Bumatay dissent; but, the Judge Bumatay dissent's later silence is a recognition that the opinion violated no such precedent. I note that two separate and unanimous panels of this Circuit have held that subsection (iv) is facially overbroad. See United States v. Hansen , 25 F.4th 1103, 1111 (9th Cir. 2022) ; United States v. Sineneng-Smith , 910 F.3d 461, 485 (9th Cir. 2018), vacated and remanded , ––– U.S. ––––, 140 S. Ct. 1575, 206 L.Ed.2d 866 (2020).

B. The Judge Bumatay dissent misstates Hansen's conviction under subsection (iv)

The Judge Bumatay dissent emphasizes the deplorable conduct that Hansen committed. I agree that the conduct was deplorable and egregiously fraudulent. But although Hansen's conduct was deplorable, such a determination does not bear on the opinion's analysis of a facial overbreadth challenge. The facial overbreadth doctrine is not concerned with the defendant's conduct, but rather with the amount of legitimate speech that would be chilled or deterred by the provision that the opinion held unconstitutional, in relation to the amount of speech that can constitutionally be prohibited.

Further, the Judge Bumatay dissent is incorrect regarding the facts of Hansen's convictions and sentencing. Contrary to the Judge Bumatay dissent, Hansen was not convicted under subsection (iv) for defrauding approximately 500 aliens. The counts of conviction and sentencing under subsection (iv) related to Hansen encouraging and inducing only two specific aliens to overstay their visas. See Hansen , 25 F.4th at 1105–06. Hansen was also convicted of twelve counts of mail fraud and three counts of wire fraud for defrauding the approximately 500 aliens. Id. at 1105. The panel affirmed these convictions in a simultaneously-filed memorandum disposition (which memorandum disposition the Judge Bumatay dissent ignores). See id. at 1105 n.1 ; United States v. Hansen , No. 17-10548, 2022 WL 424827, at *1 (9th Cir. Feb. 10, 2022). Hansen was sentenced to 240 months for each of the fifteen fraud violations and 120 months for both of the two subsection (iv) violations, all to be served concurrently. Hansen , 25 F.4th at 1106. The opinion's reversal of the two subsection (iv) convictions did not negate all of Hansen's other convictions for which he was punished and sentenced.

C. The Judge Bumatay dissent misinterprets the mens rea requirement at issue

The Judge Bumatay dissent is correct that Hansen's subsection (iv) conviction and sentence also "requires proof that the defendant acted to obtain ‘commercial advantage or private financial gain’ " under 8 U.S.C. § 1324(a)(1)(B)(i). However, the Judge Bumatay dissent is incorrect to the extent it suggests that "[a]ny statements prosecuted under this law must be designed to make money off the targeted aliens—fitting solicitation and facilitation." As the very next subsection of the statute, ignored by the Judge Bumatay dissent, makes clear, an individual can be convicted under subsection (iv) regardless of whether he acted to obtain commercial advantage or private financial gain. See 8 U.S.C. § 1324(a)(1)(B)(ii). Hansen did not challenge the constitutionality of § 1324(a)(1)(B)(i). See Resp. to Pet. for Reh'g at 7 n.1. In short, acting for commercial advantage or financial gain is not an element of the criminal offense defined in subsection (iv). Any person can be convicted of that offense without seeking financial gain.²

D. The Judge Bumatay dissent manufactures an imaginary circuit split

The Judge Bumatay dissent errs when it contends that the opinion "lead[s] a circuit split" and cites United States v. Tracy , 456 F. App'x 267, 272 (4th Cir. 2011) (unpublished).³ Tracy is an unpublished case. As in the Ninth Circuit, in the Fourth Circuit "[u]npublished opinions are not binding precedent." See Tracy , 456 F. App'x at 268. The Hansen opinion cannot have created a split with the Fourth Circuit relating to Tracy because Tracy was not a precedential opinion of that circuit. Simply put, there is no circuit split. Cf. Reynolds Metals Co. v. Ellis , 202 F.3d 1246, 1249 (9th Cir. 2000). Only two other Courts of Appeals panels have analyzed a facial overbreadth challenge to subsection (iv) in precedential opinions. In a briefly precedential opinion (before the opinion was vacated due to the party-presentation...