United States v. Sineneng-Smith

• Decision Date: 04 December 2018
• Docket Number: No. 15-10614,15-10614
• Citation: 910 F.3d 461
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Evelyn SINENENG-SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

910 F.3d 461

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.Evelyn SINENENG-SMITH, Defendant-Appellant.

No. 15-10614

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 18, 2017 San Francisco, California

Reargued and Resubmitted February 15, 2018 Pasadena, California

Filed December 4, 2018

Daniel F. Cook (argued), Bodega Bay, California, for Defendant-Appellant.

Susan B. Gray (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Section; United States Attorney’s Office, San Francisco, California; Elizabeth D. Collery (argued), Attorney, Criminal Division; John P. Cronan, Principal Deputy Assistant Attorney General; Kenneth A. Blanco, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

Mark C. Fleming (argued) and Megan E. Barriger, Wilmer Cutler Pickering Hale & Dorr LLP, Boston, Massachusetts; Beth C. Neitzel, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, D.C.; for Amici Curiae Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild.

Annie Hudson-Price (argued) and Mark Rosenbaum, Public Counsel, Los Angeles, California, for Amicus Curiae Public Counsel.

Stephen R. Sady (argued), Chief Deputy Federal Public Defender; Lisa Ma, Research and Writing Attorney, Portland, Oregon; Carmen A. Smarandoiu, Assistant Federal Public Defender, San Francisco, California; for Amicus Curiae Federal Defender Organizations of the Ninth Circuit.

Lee Rowland (argued), Cecillia D. Wang, Anand Balakrishnan, ACLU Foundation, New York, New York; Christine Patricia Sun, American Civil Liberties Union Foundation of Northern California, Inc.; for Amici Curiae American Civil Liberties Union, and American Civil Liberties Union of Northern California.

Eugene Volokh, Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California, as Amicus Curiae.

Elliott Schulder, Tina M. Thomas, Nicole Y. Roberts, Covington & Burling LLP, Washington, D.C.; Robin Wechkin, Sidley Austin LLP, Seattle, Washington; for Amicus Curiae National Association of Criminal Defense Lawyers.

Dennis J. Herrera, City Attorney; Christine Van Aken, Chief of Appellate Litigation; Yvonne T. Mere, Chief of Complex and Affirmative Litigation; Molly M. Lee and Matthew S. Lee, Deputy City Attorneys; Office of the City Attorney, San Francisco, California; for Amicus Curiae City and County of San Francisco.

Stephen W. Manning, Innovation Law Lab, Portland, Oregon; Kari Hong, Boston College Law School, Newton, Massachusetts; for Amici Curiae Oregon Interfaith Movement for Immigrant Justice, Causa Immigrant Rights Coalition of Oregon, Catholic Charities of Oregon, and Immigration Counseling Services of Oregon.

Emily T. Kuwahara, Crowell & Moring LLP, Los Angeles, California; Harry P. Cohen and Gary A. Stahl, Crowell & Moring LLP, New York, New York; Noor Taj, Crowell & Moring LLP, Washington, D.C.; Niyati Shah, John C. Yang, Asian Americans Advancing Justice | AAJC, Washington, D.C.; for Amicus Curiae Asian Americans Advancing Justice | AAJC.

Before: A. Wallace Tashima, Marsha S. Berzon, and Andrew D. Hurwitz,^* Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

INTRODUCTION

Defendant-Appellant Evelyn Sineneng-Smith was convicted on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) & § 1324(a)(1)(B)(i).¹ Section 1324(a)(1)(A)(iv) ("Subsection (iv)") permits a felony prosecution of any person who "encourages or induces an alien to come to, enter, or reside in the United States" if the encourager knew, or recklessly disregarded "the fact that such coming to, entry, or residence is or will be in violation of law." We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what "encourages or induces" means.

The parties have widely divergent views about how to interpret the statute. Sineneng-Smith and several amici contend that encourage and induce carry their plain meaning and, therefore, restrict vast swaths of protected expression in violation of the First Amendment. The government counters that the statute, in context, only prohibits conduct and a narrow band of unprotected speech.

We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that "encourage" does not mean encourage, and that a person cannot "induce" another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – "I encourage you to stay here."

The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

Sineneng-Smith operated an immigration consulting firm in San Jose, California. Her clients were mostly natives of the Philippines, unlawfully employed in the home health care industry in the United States, who sought authorization to work and adjustment of status to obtain legal permanent residence (green cards). Sineneng-Smith assisted clients with applying for a "Labor Certification," and then for a green card. She signed retainer agreements with her clients that specified the purpose of the retention as "assisting [the client] to obtain permanent residence through Labor Certification." The problem was that the Labor Certification process expired on April 30, 2001; aliens who arrived in the United States after December 21, 2000, were not eligible to receive permanent residence through the program. See Esquivel-Garcia v. Holder , 593 F.3d 1025, 1029 n.1 (9th Cir.2010). Sineneng-Smith knew that the program had expired. She nonetheless continued to sign retainer agreements with her clients and tell them that they could obtain green cards via Labor Certifications. And she also continued to sign new retainer agreements purportedly to assist additional clients in obtaining Labor Certification. At least two of Sineneng-Smith’s clients testified that they would have left the country if Sineneng-Smith had told them that they were not eligible for permanent residence. Sineneng-Smith’s words and acts which allegedly violated the statute were alleged to have occurred from 2001 to 2008.

B. Procedural History

On July 14, 2010, a grand jury returned a ten-count superseding indictment charging Sineneng-Smith with, as relevant to this appeal, three counts of violating 8 U.S.C. § 1324(a)(1)(A)(iv) & § 1324(a)(1)(B)(i) – encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law.

Before trial, Sineneng-Smith moved to dismiss the immigration counts of the superseding indictment. Sineneng-Smith argued that: (1) her conduct was not within the scope of Subsection (iv); (2) Subsection (iv) is impermissibly vague under the Fifth Amendment; and (3) Subsection (iv) violates the First Amendment because it is a content-based restriction on her speech. The district court denied the motion to dismiss, but did not explicitly address the First Amendment argument.

After a twelve-day trial, the jury found Sineneng-Smith guilty on all three counts of violating Subsection (iv) and § 1324(a)(1)(B)(i), and all three counts of mail fraud. Sineneng-Smith then moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), renewing the arguments from her motion to dismiss and contending that the evidence elicited at trial did not support the verdicts. The district court concluded that sufficient evidence supported the convictions for two of the three § 1324 counts and two of the three mail fraud counts.²

Sineneng-Smith timely appealed, again arguing that the charges against her should have been dismissed for the reasons asserted in her motion to dismiss, and that the evidence did not support the convictions. We first held oral argument on April 18, 2017, and submitted the case for decision. Subsequent to submission, however, we determined that our decision would be significantly aided by further briefing. On September 18, 2017, we filed an order inviting interested amici to file briefs on the following issues:

1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?

2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?

3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?

We received nine amicus briefs,³ as well as supplemental briefs from both Sineneng-Smith and the government. On February 15, 2018, we again held oral argument and resubmitted the case for decision.

STANDARD OF REVIEW

The government urges us to review Sineneng-Smith’s First Amendment overbreadth claim for plain error, arguing that she waived the issue by not raising it until we requested supplemental briefing.

Although Sineneng-Smith never specifically argued overbreadth before our request for supplemental briefing, she has consistently maintained that a conviction under the statute would violate the First Amendment. Sineneng-Smith’s motion to dismiss argued that "[t]he crime alleged here is rooted in speech content – performing...