United States v. Helaman Hansen ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10548
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00024-
MCE-1
HELAMAN HANSEN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted November 15, 2021
San Francisco, California
Filed February 10, 2022
Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Jane A. Restani, * Judge.
Opinion by Judge Gould
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 UNITED STATES V. HANSEN
SUMMARY **
Criminal Law
Vacating convictions on two counts of encouraging or
inducing an alien to reside in the United States for private
financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv),
and remanding for resentencing, the panel held that
subsection (iv) is overbroad and unconstitutional.
The panel interpreted subsection (iv) as prohibiting
someone from (1) inspiring, helping, persuading, or
influencing, (2) through speech or conduct, (3) one or more
specified aliens (4) to come to or reside in the United States
in violation of civil or criminal law.
The panel rejected the government’s argument that
subsection (iv) is limited to speech integral to criminal
conduct, specifically solicitation and aiding and abetting.
Accepting the government’s position that prosecutions for
procuring and providing fraudulent documents and
identification information to unlawfully present aliens,
assisting in unlawful entry, misleadingly luring aliens into
the country for unlawful work, and smuggling activities
“form the core” of subsection (iv)’s plainly legitimate
sweep, the panel wrote that it is apparent that subsection
(iv)’s legitimate sweep is relatively narrow.
The panel wrote that subsection (iv) covers a substantial
amount of speech protected by the First Amendment, given
that many commonplace statements and actions could be
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HANSEN 3
construed as encouraging or inducing an undocumented
immigrant to come to or reside in the United States. The
panel wrote that subsection (iv)’s narrow legitimate sweep
pales in comparison to the amount of protected expression
encompassed by the subsection. The panel concluded that
subsection (iv) is therefore facially overbroad.
The panel affirmed all other counts of conviction in a
simultaneously filed memorandum disposition.
COUNSEL
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.
4 UNITED STATES V. HANSEN
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.
1
In a separate memorandum disposition filed simultaneously with
this opinion, we affirm all other counts of conviction.
UNITED STATES V. HANSEN 5
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).
6 UNITED STATES V. HANSEN
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 (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. “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 (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 (2010) (internal quotations and citations omitted). It
is clear from previous convictions under the statute cited by
UNITED STATES V. HANSEN 7
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, 140 S. Ct. 1575, 1578
2
See, e.g., United States v. Ndiaye, 434 F.3d 1270 (11th Cir. 2006);
United States v. Yoshida, 303 F.3d 1145 (9th Cir. 2002); United States
v. Castillo-Felix, 539 F.2d 9 (9th Cir. 1976).
8 UNITED STATES V. HANSEN
(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, 142 S.
Ct 117 (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 (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).
UNITED STATES V. HANSEN 9
(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 (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 acknowledge.
Next, we analyze the meaning of “alien.” The parties
disagree about whether subsection (iv) requires the object of
encouragement or inducement to be a specific alien, or
10 UNITED STATES V. HANSEN
whether it applies to actions directed at the general public.
Subsection (iv) requires the encouragement or inducement
of “an alien,” so we agree with the government that the
subsection requires the encouragement or inducement of a
specific alien or aliens.
Subsection (iv) applies to situations where a defendant
encouraged or induced an alien to “enter, or reside in the
United States . . . in violation of law.” It does not explicitly
state whether it encompasses violations of criminal and or
civil law. As it is generally not a violation of criminal law
for an alien to remain in the United States, we are satisfied
that subsection (iv) covers both criminal and civil violations.
See Arizona v. United States, 567 U.S. 387, 407 (2012) (“As
a general rule, it is not a crime for a removable alien to
remain present in the United States.”).
We also examine subsection (iv)’s surrounding
provisions for textual indicators that may provide additional
clues to its meaning. See Hernandez v. Williams, Zinman &
Parham PC, 829 F.3d 1068, 1073 (9th Cir. 2016). Two
textual indicators stand out. First, the other subsections
criminalize a series of actions: “bring[ing],”
“transport[ing],” “mov[ing],” “conceal[ing],” “harbor[ing],”
or “shield[ing] from detection.” See §§ 1324(a)(1)(A)(i)–
(iii). As we noted above, subsection (iv) encompasses both
speech and actions. The actions covered in the rest of
§ 1324(a)(1)(A) include such a wide range of conduct,
though, that they leave little room for subsection (iv) to
cover additional actions. “It is axiomatic that ‘a statute
should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous,
void or insignificant.’” Thum, 749 F.3d at 1147 (quoting
Corley v. United States, 556 U.S. 303, 314 (2009)).
Therefore, the most natural meaning of subsection (iv) is that
UNITED STATES V. HANSEN 11
it encompasses speech, which is not already covered by the
other provisions.
The second textual indicator from the surrounding
provisions is that § 1324(a)(1)(A) already includes an aiding
and abetting provision. See § 1324(a)(1)(A)(v)(II). As the
Supreme Court observed, “when ‘Congress includes
particular language in one section of a statute but omits it in
another’—let alone in the very next provision—this Court
‘presume[s]’ that Congress intended a difference in
meaning.” Loughrin v. United States, 573 U.S. 351, 358
(2014) (quoting Russello v. United States, 464 U.S. 16, 23
(1983)). Subsection 1324(a)(1)(A)(v)(II), then, strongly
suggests that subsection (iv) should not also be read as an
aiding and abetting provision.
We therefore interpret subsection (iv) as prohibiting
someone from (1) inspiring, helping, persuading, or
influencing, (2) through speech or conduct, (3) one or more
specified aliens (4) to come to or reside in the United States
in violation of civil or criminal law.
3. Subsection (iv)’s Plainly Legitimate Sweep
The next question for us is whether subsection (iv)
“criminalizes a substantial amount of protected expressive
activity.” Williams, 553 U.S. at 297. The government may
restrict speech “in a few limited areas,” including obscenity,
defamation, fraud, incitement, and speech integral to
criminal conduct. Stevens, 559 U.S. at 468 (internal citations
omitted). Here, the government argues that subsection (iv)
is limited to speech integral to criminal conduct, specifically
solicitation and aiding and abetting.
This reading of subsection (iv), though, is not supported
by the statutory text. As noted above, § 1324(a)(1)(A)(v)(II)
12 UNITED STATES V. HANSEN
includes a separate provision for aiding and abetting,
implying that Congress intended for the provisions to have
different meanings. See Loughrin, 573 U.S. at 358.
Interpreting subsection (iv) as different from aiding and
abetting also avoids any related concerns that either it or
§ 1324(a)(1)(A)(v)(II) is superfluous. See Corley, 556 U.S.
at 314. Further, the elements necessary for an aiding and
abetting conviction in this Circuit require that the
government prove elements not contained in subsection (iv),
making subsection (iv) a poor aiding and abetting statute.
Specifically, aiding and abetting requires someone to have
committed an underlying criminal offense and for the
accused to have assisted or participated in the commission
of that offense. Thum, 749 F.3d at 1148–49.
Despite its flawed reading of subsection (iv), the
government is surely correct that subsection (iv)
encompasses some criminal conduct. The government states
that prosecutions for procuring and providing fraudulent
documents and identification information to unlawfully
present aliens, assisting in unlawful entry, misleadingly
luring aliens into the country for unlawful work, and
smuggling activities “form the core” of subsection (iv)’s
plainly legitimate sweep. The government provides a few
examples of such successful prosecutions. Accepting the
government’s position that these prosecutions “form the
core” of subsection (iv)’s plainly legitimate sweep, it is
apparent that subsection (iv) has a relatively narrow
legitimate sweep. Further, many of these crimes seem also
to be encompassed by the other subsections of
1324(a)(1)(A), leaving subsection (iv)’s plainly legitimate
sweep little independent work to do.
UNITED STATES V. HANSEN 13
4. Protected Speech in Relation to Subsection (iv)’s
Plainly Legitimate Sweep
On its own “[t]he prospect of crime . . . by itself does not
justify laws suppressing protected speech.” Free Speech
Coal., 535 U.S. at 245. An overbroad statute infringes on a
substantial amount of constitutionally protected speech
when there is “a realistic danger that the statute itself will
significantly compromise recognized First Amendment
protections of parties not before the Court,” Members of City
Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 801 (1984), or the statute is “susceptible of
regular application to protected expression,” City of Houston
v. Hill, 482 U.S. 451, 467 (1987).
It is clear that subsection (iv) covers a substantial amount
of protected speech. Many commonplace statements and
actions could be construed as encouraging or inducing an
undocumented immigrant to come to or reside in the United
States. For example, the plain language of subsection (iv)
covers knowingly telling an undocumented immigrant “I
encourage you to reside in the United States.” Such a
statement is protected by the First Amendment. See
Williams, 553 U.S. at 300 (explaining that the statement “I
encourage you to obtain child pornography” is protected
speech); cf. United States v. Rundo, 990 F.3d 709, 717 (9th
Cir. 2021) (“[L]ike the Fourth Circuit, we conclude that the
First Amendment protects speech tending to ‘encourage’ or
‘promote’ a riot.”). Hansen and amici provide numerous
other examples of protected speech prosecutable according
to the plain text of the statute, including encouraging an
undocumented immigrant to take shelter during a natural
disaster, advising an undocumented immigrant about
available social services, telling a tourist that she is unlikely
to face serious consequences if she overstays her tourist visa,
14 UNITED STATES V. HANSEN
or providing certain legal advice to undocumented
immigrants.
Examples of protected speech encompassed by
subsection (iv) include everyday statements or conduct that
are likely repeated countless times across the country every
day. Subsection (iv) “create[s] a criminal prohibition of
alarming breadth” comparable to other statutory provisions
the Supreme Court has held are facially overbroad. See
Stevens, 599 U.S. at 474. For example, in Stevens the Court
held that a statute prohibiting animal cruelty which
encompassed depictions of hunting was facially overbroad,
see id. at 474–76, while in Free Speech Coalition the Court
held that a statute prohibiting the depiction of child
pornography which encompassed movie adaptions of
Romeo and Juliet and the movie “American Beauty” was
facially overbroad, see 535 U.S. at 247–48.
By contrast, subsection (iv)’s plainly legitimate sweep,
according to the government, is narrow and pales in
comparison to the amount of protected expression that is
encompassed by subsection (iv).
Nor are the examples of protected speech encompassed
by subsection (iv) a mere hypothetical parade of horribles.
The government has previously argued “that giving illegal
aliens advice to remain in the United States while their status
is disputed constitutes felonious conduct under
§ 1324(a)(1)(A)(iv) because it constitutes encouragement or
inducement under the statute.” See United States v.
Henderson, 857 F. Supp. 2d 191, 203 (D. Mass. 2012). The
chilling effect of subsection (iv) is substantial.
The government’s other arguments to save subsection
(iv) are unpersuasive. The canon of constitutional avoidance
does not salvage the government’s position. While it is true
UNITED STATES V. HANSEN 15
that courts “construe[] [statutes] to avoid serious
constitutional doubts,” this canon only applies when a statute
“is readily susceptible to such a construction.” Stevens,
559 U.S. at 481 (quoting Reno v. Am. Civil Liberties Union,
521 U.S. 844, 884 (1997)) (internal quotation omitted).
Here, the plain meaning of subsection (iv) does not permit
the application of the constitutional avoidance canon. See
id. (“[W]e will not rewrite a law to conform it to
constitutional requirements for doing so would constitute a
serious invasion of the legislative domain and sharply
diminish Congress’s incentive to draft a narrowly tailored
law in the first place.”) (simplified and internal citations
omitted).
The government’s argument that actual prosecutions
show its narrow interpretation of subsection (iv) is
unconvincing. Previous prosecutions do not change the
plain meaning of a statute. Also, the government’s
interpretation of subsection (iv)’s reach is subject to change
and is irrelevant: “the First Amendment protects against the
government; it does not leave us at the mercy of noblesse
oblige. We would not uphold an unconstitutional statute
merely because the government promised to use it
responsibly.” See Stevens, 559 U.S at 480. Moreover, the
government has actually carried out at least one troubling
prosecution under subsection (iv): in Henderson, the
government prosecuted a government employee under
subsection (iv) for “advis[ing her undocumented] cleaning
lady generally about immigration law practices and
consequences.” 857 F. Supp. 2d at 193. Henderson makes
plain the ability of subsection (iv) to chill speech. We apply
the overbreadth doctrine so that legitimate speech relating to
immigration law shall not be chilled and foreclosed.
16 UNITED STATES V. HANSEN
CONCLUSION
We are mindful that invalidating subsection (iv) for
overbreadth is “‘strong medicine’ that is not to be ‘casually
employed.’” Williams, 553 U.S. at 293 (quoting Los Angeles
Police Dept. v. United Reporting Publishing Corp., 528 U.S.
32, 39 (1999)). However, for the reasons we have set forth
above, subsection (iv) is overbroad and unconstitutional.
We vacate Hansen’s convictions on Counts 17 and 18 and
remand to the district court for resentencing.
VACATED AND REMANDED IN PART.