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. ORDER
Filed July 25, 2022
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
*
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
The panel denied on behalf of the court a petition for
rehearing en banc in a case in which the panel’s opinion,
which vacated 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),
held that subsection (iv) is overbroad and unconstitutional
because its narrow legitimate sweep pales in comparison to
the amount of First Amendment protected expression it
encompasses.
Judge Gould concurred in the order denying rehearing en
banc. He wrote that Judge Bumatay’s dissent seeks to
rewrite subsection (iv) by conducting a so-called textual
analysis that fails to analyze the text of subsection (iv) itself;
analyzes additional words not in that section, such as
“aiding,” “abetting,” and “solicitation,” to support the
conclusion it advocates; misreads the opinion, the record,
§ 1324 itself, and precedent; conjures up parades of horribles
belied by its own citations; introduces arguments the
Government’s Petition for Rehearing did not make; and asks
this court improperly to disregard Supreme Court precedent
regarding the applicability of the facial overbreadth doctrine.
Noting that Judge Collins’s dissent does not criticize the
Supreme Court’s existing doctrine of facial overbreadth but
urges that the panel misapplied that doctrine, Judge Gould
wrote that the application of a rule of law that is agreed upon
does not normally warrant en banc or other further review;
**
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
and that in view of the defendant’s fifteen remaining counts
of conviction and the fact that few convictions for deplorable
conduct rely only on subsection (iv), there is not
“exceptional importance” to further review the two counts of
conviction that were reversed under the facial overbreadth
doctrine.
Judge Bumatay—joined by Judges Callahan, Ikuta,
R. Nelson, Lee, VanDyke, Bennett (in all except Part III-A),
and Bress (in Parts I, II, and III-B)—dissented from the
denial of rehearing en banc. He wrote that the panel
(1) misread the statute by blindly relying on lay-dictionary
definitions to reach an overly broad interpretation of the law
instead of following the established principle of looking to
the settled meaning of the statutory terms to understand that
§ 1324(a)(1)(A)(iv) is an ordinary solicitation and aiding-
and-abetting statute and poses no free-speech concerns;
(2) improperly invoked the surplusage canon to disregard
§ 1324(a)(1)(A)(iv) as a solicitation and aiding-and-abetting
statute; (3) failed to respect the constitutional avoidance
canon; and (4) shouldn’t have pulled the trigger on
overbreadth invalidation—a remedy of last resort—even if
the provision could conceivably reach some protected
speech.
Dissenting from the denial of rehearing en banc, Judge
Collins concluded that (1) under the canon of constitutional
avoidance, the court can and should interpret the statute as
being limited to soliciting and facilitating the unlawful entry
of, or the unlawful taking up of residence by, specific aliens;
and (2) so construed, the statute is not facially
unconstitutional. He wrote that facial invalidation is
particularly inappropriate here, given that the defendant was
convicted of an aggravated version of § 1324(a)(1)(A)(vi)
offense, one that required the Government to prove the
4 UNITED STATES V. HANSEN
additional fact that Hansen acted “for the purpose of
commercial advantage or private financial gain.” 8 U.S.C.
§ 1324(a)(1)(B)(i).
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.
UNITED STATES V. HANSEN 5
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-
1
I do not seek joins in this concurrence.
6 UNITED STATES V. HANSEN
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, 140 S. Ct. 1575 (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, 140 S. Ct. 1575, 1578 (2020) (“[W]e now hold that
the appeals panel departed so drastically from the principle
UNITED STATES V. HANSEN 7
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, 140 S. Ct. 1575(2020).
8 UNITED STATES V. HANSEN
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
UNITED STATES V. HANSEN 9
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
2
The Judge Collins dissent, unlike the Judge Bumatay dissent,
makes no assault on the Supreme Court’s existing doctrine of facial
overbreadth. Instead, the Judge Collins dissent urges that we have
misapplied that doctrine because in the Judge Collins dissent’s view
there is little doubt that the legitimate sweep of subsection (iv) “greatly
exceeds any possible overbreadth.” The Judge Collins dissent does not
criticize the Supreme Court’s doctrinal statements on facial overbreadth
and the First Amendment values that doctrine serves. The application of
a rule of law that is agreed upon does not normally warrant en banc or
other further review. See Fed. R. App. P. 35(a); see also S. Ct. R. 10 (“A
10 UNITED STATES V. HANSEN
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 principle), a prior panel of this court
held that subsection (iv) was facially overbroad. See
Sineneng-Smith, 910 F.3d at 485. Most recently, the Tenth
Circuit reached the same conclusion as the Hansen opinion,
holding that subsection (iv) is facially overbroad. See United
petition for a writ of certiorari is rarely granted when the asserted error
consists of erroneous factual findings or the misapplication of a properly
stated rule of law.”). Nor, in view of Hansen’s fifteen remaining counts
of conviction, and the fact that few convictions for deplorable conduct
rely only on subsection (iv), see infra Part IV, is there “exceptional
importance” to further review the two counts of conviction that were
reversed under the facial overbreadth doctrine. Id.
3
The Government did not even cite Tracy in its Petition for
Rehearing.
UNITED STATES V. HANSEN 11
States v. Hernandez-Calvillo, No. 19-3210, __ F.4th __,
2022 WL 2709736 (10th Cir. July 13, 2022). 4
II. Aiding, Abetting, and Solicitation
The main argument advanced by the Judge Bumatay
dissent is that “encourages or induces” should instead be
read to mean “aids, abets, or solicits.” The Judge Bumatay
dissent, while saying that it argues for a textual
interpretation, rewrites subsection (iv)’s plain language,
changing “encourages or induces” to “aids, abets, or
solicits.” This is unsound because immediately below
subsection (iv), Congress expressly criminalized conduct
that “aids or abets,” showing beyond doubt that Congress
knew how to include “aids or abets” when that is what it
meant. See § 1324(a)(1)(A)(v)(ii). As explained in the
Hansen opinion, “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.” 25 F.4th
at 1108 (quoting Loughrin v. United States, 573 U.S. 351,
358 (2014)).
The Judge Bumatay dissent disregards the express
language of subsection (iv) and the Hansen opinion’s
rationale. The Judge Bumatay dissent stresses authorities
that define words not in subsection (iv)—such as “aiding,”
“abetting,” and “solicitation”—instead of authorities that
define the words actually used in subsection (iv)—
4
Not only is Judge Bumatay’s dissent incorrect in stating that we
lead a circuit split, as explained above, but also if we were to rehear the
case and adopt the legal analysis of Judge Bumatay, that mistaken
analysis would create a circuit split between Judge Bumatay’s mistaken
reasoning and the Tenth Circuit decision Hernandez-Calvillo which
adopted reasoning parallel to that of Hansen in its current form.
12 UNITED STATES V. HANSEN
“encourages or induces.” 5 Judge Bumatay’s analysis is not
persuasive: Defining “aiding, abetting, and solicitation” to
sometimes include “encouraging or inducing” sheds no light
on whether the words “encourages or induces” in subsection
(iv) cover a substantial amount of protected conduct. To
determine properly whether “encourages or induces” cover
a substantial amount of protected conduct, one should take
the common-sense approach used in the opinion to define
“encourages or induces” itself. The Judge Bumatay dissent
does not identify a single statute that uses only the words
“encourages or induces” to mean “aids, abets, and solicits.”
It is not surprising that some definitions of aiding,
abetting, and solicitation cited by the Judge Bumatay dissent
contain the words “encourage” or “induce,” just as they
contain other words that, if substituted for “encourages or
induces” in subsection (iv), might also be facially overbroad
(such as “requests,” “hires,” or “otherwise procured”).
Further, the Judge Bumatay dissent’s frequent references to
statutes and authorities referencing “aiding,” “abetting,” and
“solicitation” reinforce the point that when Congress intends
to prohibit aiding, abetting, or soliciting, it includes those
specific words in the statute.
The Judge Bumatay dissent erroneously claims that the
opinion “blindly rel[ied] on lay-dictionary definitions to
reach its overbroad interpretation of the law.” The Judge
Bumatay dissent is off-base for two reasons. First, to
determine the meaning of “encourages” and “induces” in
5
The Judge Bumatay dissent several times cites to United States v.
Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc), as part of this argument.
Lopez too defines aiding and abetting, not encouraging or inducing.
Further, the Government does not cite to Lopez in its briefing or Petition
for Rehearing.
UNITED STATES V. HANSEN 13
subsection (iv), the opinion relied on precedential cases
which, in turn, used dictionary definitions to help determine
the meaning of “encourages” or “induces” in the same or
similar provisions. See Hansen, 25 F.4th at 1108 (citing to
United States v. Thum, 749 F.3d 1143, 1147 (9th Cir. 2014),
which defined “encourages” in subsection (iv), and United
States v. Rashkovski, 301 F.3d 1133, 1136 (9th Cir. 2002),
which defined “induce” in 18 U.S.C. § 2422(a)). As
discussed above, the Judge Bumatay dissent’s proposed
alternative methodology is flawed. Second, the Supreme
Court has often looked to dictionary definitions and the plain
meaning of the text in a statute. See, e.g., HollyFrontier
Cheyenne Ref., LLC v. Renewable Fuels Ass’n, 141 S. Ct.
2172, 2176–78 (2021) (“Where Congress does not furnish a
definition of its own, we generally seek to afford a statutory
term its ordinary or natural meaning.” (internal quotation
marks omitted)). The Supreme Court has also often
analyzed dictionary definitions. See, e.g., Encino
Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1140–41
(2018).
In its haste to equate subsection (iv) with an aiding and
abetting statute, the Judge Bumatay dissent also overlooks
several elements of aiding and abetting that are missing from
any conceivably reasonable reading of subsection (iv). As
explained in the opinion, subsection (iv) would make a poor
aiding and abetting statute because “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.” Hansen, 25 F.4th at 1109
(citing Thum, 749 F.3d at 1148–49). The language of
subsection (iv) cannot be squared with these requirements.
I agree with the Judge Bumatay dissent that writing a
statute is “best left to elected officials,” not judges who seek
14 UNITED STATES V. HANSEN
to rewrite the plain language of a statute. The legislature’s
writing of the statute is superior to that of a judge who may
attempt to rewrite the statute sub silentio. It is for this reason
that the opinion did not attempt, as the Judge Bumatay
dissent does, to “rewrite [subsection (iv)] 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.” Hansen, 25 F.4th at 1110–11 (quoting
United States v. Stevens, 559 U.S. 460, 481 (2010)). The
opinion correctly does not try to salvage the flawed language
of subsection (iv); Congress, not the judicial branch, has the
duty to write statutes.
The Judge Bumatay dissent’s lengthy exegesis on early
English and colonial law about solicitation and aiding and
abetting is interesting but largely irrelevant. Doubtless any
of us can benefit in an appropriate case from pondering early
nineteenth-century cases and the words and thoughts of
William Blackstone, Sir Edward Coke, Lord Matthew Hale,
and other treatise authors and legal scholars. But their
general comments give little practical guidance here when
we deal with the plain meaning of a simply phrased statute.
The words “encourages or induces” are better assessed on
their own with the traditional standards for statutory
interpretation used in the Hansen opinion.
The Judge Bumatay dissent’s belabored reasoning does,
however, highlight two additional points that undermine the
Judge Bumatay dissent’s persuasive power. First, the Judge
Bumatay dissent’s approach is in direct conflict with the
principle of Occam’s razor, that the simpler approach is
usually better. The Hansen opinion defines the words that
are actually in subsection (iv). By contrast, the Judge
Bumatay dissent advocates for discarding the words in
UNITED STATES V. HANSEN 15
subsection (iv) and replacing them with words whose
meaning it tries to derive from a scattering of definitions
hundreds of years old. This overcomplicates the inquiry, as
Judge Bumatay’s dissent advocates rewriting subsection
(iv). Second, the Judge Bumatay dissent’s historical
discourse is particularly inapt in the facial overbreadth
context. “Facial overbreadth challenges are permitted
because an overly broad statute may chill the speech of
individuals, including those not before the court.” Hansen,
25 F.4th at 1106 (citing Massachusetts v. Oakes, 491 U.S.
576, 581 (1989)). The examples of protected speech covered
by subsection (iv) cited in the opinion, see id. at 1110, occur
between countless individuals lacking the legal acumen or
time to sift through dozens of sources hundreds of years old
interpreting statutes with different language than subsection
(iv). These individuals’ speech will be chilled regardless of
how a federal appellate judge might personally prefer to
parse the words.
III. Surplusage
The Judge Bumatay dissent makes much of one sentence
in the opinion which references the canon against
surplusage. Contrary to the Judge Bumatay dissent’s
contention, that sentence merely highlighted that Congress
clearly knew how to write “aids and abets”—as it did
immediately below subsection (iv)—and instead chose to
say “encourages or induces” in subsection (iv).
IV. Parades of Horribles
The Judge Bumatay dissent conjures up two fanciful
parades of horribles that undermine its argument. First, the
Judge Bumatay dissent opines that the opinion “may lead to
the invalidation of other federal and state laws that use
similar ‘encourage’ or ‘induce’ language.” To support this
16 UNITED STATES V. HANSEN
contention, the Judge Bumatay dissent cites a variety of
federal and state laws. But, in fact, many of the cited statutes
explicitly criminalize aiding, abetting, or soliciting. This
leads to the conclusion that Congress and state legislative
bodies know how to criminalize aiding, abetting, and
solicitation—by actually criminalizing “aiding, abetting, and
soliciting.”
Second, the Judge Bumatay dissent suggests that the
opinion will prevent the Government from prosecuting
deplorable conduct that was previously criminalized under
subsection (iv). As an initial matter, the opinion only
invalidated subsection (iv) and the two convictions under it,
while leaving intact the rest of the substantial criminal
provisions in § 1324. In support of its contention, the Judge
Bumatay dissent cites seven cases. These cases show just
how hypothetical the Judge Bumatay dissent’s alleged harm
is: In all seven cases (as in Hansen), the defendants could
also be convicted under other criminal statutes. See United
States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002)
(defendant also convicted under 8 U.S.C.
§ 1324(a)(2)(B)(ii)); United States v. Lozada, 742 F. App’x
451, 452 (11th Cir. 2018) (unpublished) (also affirming
defendant’s conviction for defrauding the United States
under 18 U.S.C. § 371); United States v. Pena, 418 F. App’x
335, 337 (5th Cir. 2011) (unpublished) (defendants also
convicted of money laundering under 18 U.S.C.
§ 1956(a)(1)(B)(i)); Edwards v. Prime, Inc., 602 F.3d 1276,
1299−1300 (11th Cir. 2010) (noting the sufficiency of
allegations to state a violation under § 1324(a)(1)(A)(iii));
United States v. Lopez, 590 F.3d 1238, 1243 (11th Cir. 2009)
(also affirming conviction under 8 U.S.C. § 1327); Tracy,
456 F. App’x at 268 (also affirming conviction under
18 U.S.C. § 1542); United States v. One 1989 Mercedes
Benz, 971 F. Supp. 124, 129 (W.D.N.Y. 1997) (denying
UNITED STATES V. HANSEN 17
defendant’s motion for summary judgment and granting
government’s motion for summary judgment also under
8 U.S.C. § 1325(a)); see also Hernandez-Calvillo, __ F.4th
__, 2022 WL 2709736 at *8–9 (noting the Government’s
failure to identify any case in which subsection (iv) is the
only available statutory provision to punish deplorable
conduct). The Judge Bumatay dissent therefore makes clear
that there are very few cases in which a defendant
committing deplorable conduct can only be convicted under
subsection (iv).
V. Constitutional Avoidance
The Judge Bumatay dissent argues that it was “baffling
that [the opinion] decided to give the canon [of constitutional
avoidance] short shrift here.” The Judge Bumatay dissent
then contends that the opinion’s “only response [to the canon
of constitutional avoidance argument] is that ‘the plain
meaning of subsection (iv) does not permit the application
of the constitutional avoidance canon.’” This misreads the
opinion. The opinion conducted a thorough analysis of what
“encourages or induces” meant within the context of § 1324,
subsection (iv)’s plainly legitimate sweep, and the amount
of protected speech in relation to subsection (iv)’s plainly
legitimate sweep. See Hansen, 25 F.4th at 1107–10. Other
than disagreeing with that analysis and calling it “baffling,”
the Judge Bumatay dissent does not identify how the opinion
gave the constitutional avoidance argument “short shrift.”
Instead, the opinion noted “that courts ‘construe[ ] [statutes]
to avoid serious constitutional doubts,’ [and the canon of
constitutional avoidance] only applies when a statute ‘is
readily susceptible to such a construction.’” Hansen,
25 F.4th at 1110 (quoting Stevens, 559 U.S. at 481). Here,
there was no reasonable and plausible interpretation of
18 UNITED STATES V. HANSEN
subsection (iv) that would avoid the facial overbreadth
problem on which the opinion ruled.
VI. The Facial Overbreadth Doctrine
Perhaps most offensive to Supreme Court case law, the
Judge Bumatay dissent takes issue with the facial
overbreadth doctrine, repeatedly referring to the facial
overbreadth doctrine as a “nuclear option.” But the Supreme
Court’s law on facial overbreadth was not pulled like a rabbit
out of a hat. The Hansen opinion relied on the Supreme
Court’s own precedent. See, e.g., Stevens, 559 U.S. at 472–
73; United States v. Williams, 553 U.S. 285, 292–93 (2008);
Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002);
Oakes, 491 U.S. at 581; City of Houston v. Hill, 482 U.S.
451, 458–59 (1987); Members of City Council of City of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800–01
(1984). The Supreme Court, moreover, has very recently
continued to rely on the facial overbreadth doctrine that the
Judge Bumatay dissent so disfavors. See Americans for
Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021).
In addition, not only the Ninth Circuit, but other federal
circuits as well, have recognized and respected the Supreme
Court’s doctrine on facial overbreadth. 6 As the opinion in
Hansen correctly recognized and explained, facial
6
See, e.g., Lerman v. Bd. of Elections in City of New York, 232 F.3d
135, 153 (2d Cir. 2000); Saxe v. State Coll. Area Sch. Dist., 240 F.3d
200, 214–18 (3d Cir. 2001); Liverman v. City of Petersburg, 844 F.3d
400, 409 (4th Cir. 2016); Speet v. Schuette, 726 F.3d 867, 879–80 (6th
Cir. 2013); Bell v. Keating, 697 F.3d 445, 455–61 (7th Cir. 2012); Snider
v. City of Cape Girardeau, 752 F.3d 1149, 1157–59 (8th Cir. 2014);
United States v. Rundo, 990 F.3d 709, 717–19 (9th Cir. 2021), cert.
denied, 142 S. Ct. 865 (2022); FF Cosms. FL, Inc. v. City of Miami
Beach, 866 F.3d 1290, 1301–04 (11th Cir. 2017).
UNITED STATES V. HANSEN 19
overbreadth is “strong medicine.” See 25 F.4th at 1111
(citing United States v. Williams, 553 U.S. 285, 293 (2008)).
On occasion, strong medicine is just what is needed. It is not
a “nuclear option” causing unspeakable damage without any
constraint. It is a Supreme Court doctrine that has its place
in protecting First Amendment freedoms.
The Judge Bumatay dissent relies primarily on a
concurrence by Justice Thomas that no other justice joined.
The Judge Bumatay dissent argues that the facial
overbreadth doctrine is “suspect” and on a “shaky
foundation.” To state the obvious, a concurrence by a single
justice does not make precedent for the Supreme Court or for
inferior courts like the Ninth Circuit. Instead, the Hansen
opinion properly looked to recent cases in which the
Supreme Court applied the facial overbreadth doctrine. See
Hansen, 25 F.4th at 1106–10 (citing Stevens, 559 U.S. 460;
Williams, 553 U.S. 285; Free Speech Coal., 535 U.S. 234;
Oakes, 491 U.S. 576; Hill, 482 U.S. 451; Taxpayers for
Vincent, 466 U.S. 789).
Of course, the Supreme Court is free to change its
precedent, and if it establishes a new rule, it will be followed
by the Ninth Circuit. But, unless and until the Supreme
Court changes its law (and no change has as yet even been
foreshadowed by a precedential Supreme Court decision),
this court is bound to follow the Supreme Court’s current
precedent, regardless of any Ninth Circuit judge’s personal
view about the correctness of the facial overbreadth doctrine.
Ninth Circuit judges are not empowered to anticipatorily
overrule a Supreme Court doctrine. See Agostini v. Felton,
521 U.S. 203, 237 (1997) (“We reaffirm that ‘[i]f a precedent
of this Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly
20 UNITED STATES V. HANSEN
controls, leaving to this Court the prerogative of overruling
its own decisions.’” (quoting Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))). Judges
on this court cannot discard the Supreme Court’s doctrine on
facial overbreadth merely because they disfavor its
application in any particular case.
BUMATAY, Circuit Judge, joined by CALLAHAN,
IKUTA, R. NELSON, LEE, and VANDYKE, Circuit
Judges; BENNETT, Circuit Judge, in all except Part III-A,
and BRESS, Circuit Judge, in Parts I, II, and III-B,
dissenting from the denial of rehearing en banc:
Today, our court invalidates a 70-year-old alien-
smuggling law—8 U.S.C. § 1324(a)(1)(A)(iv)—which
prohibits “encourag[ing]” or “induc[ing]” aliens to illegally
enter the country. See United States v. Hansen, 25 F.4th
1103 (9th Cir. 2022). We do so under the banner of First
Amendment protection. Freedom of speech is a core
principle in our constitutional republic, but
§ 1324(a)(1)(A)(iv) is no threat to that guarantee. Based on
text, history, and structure, the provision prohibits only
criminal solicitation and aiding and abetting. But instead of
following the statute’s clear meaning, we contort its scope
and then imagine ways the misconstrued law might cover
protected speech. We then wipe away the whole provision
under the overbreadth doctrine—the nuclear option of First
Amendment jurisprudence.
If this sounds familiar, it is. Our court took a similar
approach a few years ago in United States v. Sineneng-Smith,
910 F.3d 461 (9th Cir. 2018). In that case, no party asked
our court to review the alien-smuggling law on overbreadth
grounds. But we took it upon ourselves to pick lawyers to
UNITED STATES V. HANSEN 21
argue that position—and just like that, we held the statute
unconstitutional.
The Supreme Court quickly rebuked our handiwork and
unanimously vacated our decision. See United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1582 (2020). True, the
Court was mostly concerned with our egregious violation of
the party-presentation principle in that case. But Justice
Ginsburg, writing for the full Court, made clear that the
Justices were also unhappy with our substantive holding:
[T]he [Ninth Circuit] panel projected that
§ 1324(a)(1)(A)(iv) might cover a wide
swath of protected speech, including political
advocacy, legal advice, even a grandmother’s
plea to her alien grandchild to remain in the
United States. Nevermind that Sineneng-
Smith’s counsel had presented a contrary
theory of the case in the District Court, and
that this Court has repeatedly warned that
invalidation for [First Amendment]
overbreadth is strong medicine that is not to
be casually employed.
Id. at 1581 (simplified) (emphasis added).
Rather than take the hint, we again strike down the same
statutory provision. Nevermind that the law is perfectly
consistent with the First Amendment under proper principles
of statutory interpretation. Nevermind that the canon of
constitutional avoidance commands us not to construe a
statute in breach of the Constitution when we don’t have to.
And nevermind that the Court disfavors the invalidation of
statutes under the overbreadth doctrine.
*
22 UNITED STATES V. HANSEN
Helaman Hansen operated a fraudulent adult adoption
program that targeted undocumented aliens. Hansen preyed
on their hopes by falsely telling them that they could become
U.S. citizens simply by being adopted. For these false hopes,
Hansen charged as much as $10,000. Hansen defrauded
almost 500 aliens, and, of course, no alien became a U.S.
citizen. For this scheme, the government charged Hansen
with multiple offenses—including two counts of
encouraging or inducing an alien for financial gain under
§ 1324(a)(1)(A)(iv) and (B)(i). A jury convicted him of all
counts.
On appeal, we took the extraordinary step of holding
§ 1324(a)(1)(A)(iv) unconstitutional under the First
Amendment’s overbreadth doctrine. Hansen, 25 F.4th at
1111. In doing so, we gave “encourage” and “induce” a
broad meaning untethered from the criminal law context and
hypothesized that the law would chill “a vast amount of
protected speech related to immigration.” Id. at 1107. To
justify that conclusion, we conjured up a parade of horribles
theoretically prosecutable under the law, such as “advising
an undocumented immigrant about available social services”
or to “take shelter during a natural disaster.” Id. at 1110.
Just as we were wrong in Sineneng-Smith, we are wrong
now. For centuries, the terms “encouraging” and “inducing”
have been recognized in criminal law as referring to
complicity in the commission of a crime. So under
established and settled meaning, § 1324(a)(1)(A)(iv) is just
an ordinary criminal solicitation and aiding-and-abetting
provision. Indeed, in prior versions of the alien-smuggling
law, Congress used the terms synonymously with
“soliciting” and “assisting” another to commit crime. And,
of course, speech that solicits or aids illegal conduct is
“categorically” unprotected by the First Amendment. See
UNITED STATES V. HANSEN 23
United States v. Williams, 553 U.S. 285, 297 (2008).
Reading the law in its proper light thus eliminates the parade
of horribles created by our court and removes any tension
with the First Amendment.
Instead of following this straightforward interpretation,
our court makes mistake after mistake to hold
§ 1324(a)(1)(A)(iv) unconstitutional.
First, we misread the statute by blindly relying on lay-
dictionary definitions to reach an overly broad interpretation
of the law. Instead, we should have looked to the settled
meaning of the statutory terms. As the Court recently
reaffirmed, “[w]here Congress employs a term of art
obviously transplanted from another legal source, it brings
the old soil with it.” George v. McDonough, 142 S. Ct. 1953,
1959 (2022) (simplified). If we had followed this
established principle, we would have understood that
§ 1324(a)(1)(A)(iv) is an ordinary solicitation and aiding-
and-abetting statute and poses no free-speech concerns.
Second, we improperly invoked the surplusage canon to
disregard § 1324(a)(1)(A)(iv) as a solicitation and aiding-
and-abetting statute. To begin, we seemingly conflated the
two concepts and completely ignored solicitation as a
distinct offense. If we had considered solicitation, then we
would have found no surplusage because no other provision
of § 1324 outlaws solicitation. We also misapplied the
surplusage canon to erase aiding-and-abetting liability from
the law. We claimed that because another aiding-and-
abetting provision exists in § 1324(a)(1)(A)(v)(II),
subsection (iv) could not also prohibit aiding and abetting.
See Hansen, 25 F.4th at 1109 (“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.”). But that’s wrong. Subsection (iv) prohibits
24 UNITED STATES V. HANSEN
aiding and abetting a specific thing that no other provision
of § 1324(a)(1)(A) targets. Specifically, subsection (iv)
prohibits the aiding and abetting of an alien “com[ing] to,
enter[ing], or resid[ing] in the United States” in violation of
law, while subsection (v)(II) addresses aiding or abetting a
criminal principal “bring[ing],” “transport[ing],” or
“harbor[ing]” aliens illegally in the United States. 8 U.S.C.
§ 1324(a)(1)(A)(i)−(iv), (v)(II). We thus have no surplusage
problem here.
Third, we failed to respect the constitutional avoidance
canon. Even if exhausting statutory tools doesn’t clearly
show that the law prohibits solicitation and aiding and
abetting, at a minimum, the constitutional avoidance canon
commands that we construe it that way. Ignoring this
principle of avoidance undermines the separation of powers
and aggrandizes our role as judges. In fact, we seemingly
invent the opposite principle—let’s call it the “constitutional
collision canon”—stretching the law to ensure that it violates
the Constitution. Such a canon should be soundly rejected.
And finally, even if the provision could conceivably
reach some protected speech, we still shouldn’t have pulled
the trigger on overbreadth invalidation—a remedy of last
resort. There was no reason to cavalierly strike down the
statute, especially given its long history and vast legitimate
sweep.
This case was an obvious candidate for en banc review.
We now lead a circuit split. See United States v. Tracy,
456 F. App’x 267, 272 (4th Cir. 2011) (unpublished)
(“Although there may be some instances in which we might
find that [8 U.S.C. § 1324(a)(1)(A)(iv)] chills protected
speech, we are unconvinced that the [provision] prohibits a
substantial amount of such speech.”); United States v.
UNITED STATES V. HANSEN 25
Hernandez-Calvillo, — F.4th —, 2022 WL 2709736, at *11
(10th Cir. 2022) (“[W]e hold that [8 U.S.C.
§ 1324(a)(1)(A)(iv)] is substantially overbroad under the
First Amendment.”).
And our decision may lead to the invalidation of other
federal and state laws that use similar “encourage” or
“induce” language. See, e.g., 18 U.S.C. § 2(a) (“aids, abets,
counsels, commands, induces or procures [the commission
of an offense against the United States]”); 18 U.S.C.
§ 373(a) (“[w]hoever . . . solicits, commands, induces, or
otherwise endeavors to persuade” another to engage in a
crime of violence); Haw. Rev. Stat. Ann. § 705-510(1)
(“commands, encourages, or requests”); Mont. Code Ann.
§ 45-4-101(1) (“commands, encourages, or facilitates”);
Idaho Code Ann. § 18-204 (“aid and abet . . . advise[] and
encourage[]”); Nev. Rev. Stat. Ann. § 195.020 (“aids or
abets . . . , counsels, encourages, hires, commands, induces
or otherwise procures”) (emphases added).
Indeed, this case is already wreaking havoc in our court.
Compare Marquez-Reyes v. Garland, 36 F.4th 1195,
1201−07 (9th Cir. 2022) (explaining that Hansen doesn’t
apply to 8 U.S.C. § 1182(a)(6)(E)(i), which affects any alien
who “knowingly has encouraged, induced, assisted, abetted,
or aided any other alien” to enter the country illegally), with
id. at 1209−13 (Berzon, J., dissenting) (arguing that Hansen
does apply).
For these reasons, I respectfully dissent from the denial
of rehearing en banc.
26 UNITED STATES V. HANSEN
I.
At its core, this case concerns the scope of what 8 U.S.C.
§ 1324(a)(1)(A)(iv) criminalizes. 1 If the provision is a
straightforward solicitation and aiding-and-abetting statute
(as I will show), we have little free-speech concerns. That’s
because “speech integral to criminal conduct” is a
categorical exception to the First Amendment. United States
v. Stevens, 559 U.S. 460, 468–69 (2010). It’s thus important
to understand the common law concepts of solicitation and
aiding and abetting. So I begin there.
Solicitation is a “well-established (and distinct) type of
inchoate crime.” Cortes-Maldonado v. Barr, 978 F.3d 643,
651 (9th Cir. 2020). It prohibits the act of trying to persuade
another to commit an unlawful offense with intent for the
crime to be committed. See Wayne R. LaFave, 2 Subst.
Crim. L. § 11.1 (3d ed. 2017). With solicitation, the crime
is complete the moment a person “entice[s], advise[s],
incite[s], order[s,] or otherwise encourage[s]” another to
commit the underlying offense. Id. The offense solicited
need not be completed. Id.
Before the 1800s, it was generally accepted that
solicitation of perjury, bribery, and forgery were crimes. Id.
§ 11.1(a) (citing Rex v. Johnson, 80 Eng. Rep. 753 (1679)
and Rex v. Vaughan, 98 Eng. Rep. 308 (1769)). But it wasn’t
until the turn of the 19th century, that solicitation as a general
crime was recognized by English courts. See Rex v. Higgins,
102 Eng. Rep. 209 (1801). There, a man was charged with
1
The provision provides that “[a]ny person who—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.” 8 U.S.C.
§ 1324(a)(1)(A)(iv).
UNITED STATES V. HANSEN 27
soliciting a servant to steal his master’s goods. Id. Even
though the servant didn’t carry out the theft, the court held
that the solicitation was its own crime. Id. Since Higgins,
solicitation has been accepted as a common law offense in
both the United States and England. LaFave, supra,
§ 11.1(a). As an early state court held, “[t]he very act of
advising to the commission of a crime is of itself unlawful.”
Commonwealth v. Bowen, 13 Mass. 356, 359 (1816).
Aiding and abetting, or more succinctly “facilitation,”
resembles solicitation, but it requires the commission of a
crime. At common law, “a person may be responsible for a
crime he has not personally carried out if he helps another to
complete its commission.” Rosemond v. United States,
572 U.S. 65, 70 (2014). For aiding-and-abetting liability to
attach, a person must, in part, “assist[] or participate[] in the
commission of the underlying substantive offense,” and
“someone [else] [must have] committed the underlying
substantive offense.” United States v. Thum, 749 F.3d 1143,
1148−49 (9th Cir. 2014) (simplified). It’s a broad form of
criminal liability and “comprehends all assistance rendered
by words, acts, encouragement, support, or presence.” Reves
v. Ernst & Young, 507 U.S. 170, 178 (1993) (simplified).
Historically, the common law divided aiders and abettors
into two buckets. First were second-degree principals, who
were “aiders and abettors present at the scene of the crime.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).
Second were accessories before the fact, who were “aiders
and abettors who helped the principal before the basic
criminal event took place.” Id. As a seminal criminal
treatise explains, accessory-before-the-fact liability was
described as “order[ing], counsel[ing], encourag[ing], or
otherwise aid[ing] and abet[ting] another to commit a felony
and who [was] not present at the commission of the offense.”
28 UNITED STATES V. HANSEN
LaFave, supra, § 13.1(c). Today, we focus less on this
distinction and consider “aiders and abettors who fall into
the [two] categories” as simply criminal facilitators. See
Duenas-Alvarez, 549 U.S. at 189.
Speech that creates criminal liability under either
solicitation or aiding and abetting is unprotected. The First
Amendment establishes that “Congress shall make no law
. . . abridging the freedom of speech.” U.S. Const. amend. I.
But “speech integral to criminal conduct” is one of the
“historic and traditional categories” of excepted, punishable
speech. Stevens, 559 U.S. at 468 (citing Simon & Shuster,
Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S.
105, 127 (1991); Giboney v. Empire Storage & Ice Co.,
336 U.S. 490, 498 (1949)). And speech that constitutes
criminal solicitation or facilitation falls within this
exception. See Williams, 553 U.S. at 297 (holding that
solicitation is “categorically excluded from First
Amendment protection”); Rosemond, 572 U.S. at 73
(approving of the federal aiding-and-abetting statute, which
“comprehends all assistance rendered by words, acts,
encouragement, support, or presence” (simplified)); see
generally Eugene Volokh, The “Speech Integral to Criminal
Conduct” Exception, 101 Cornell L. Rev. 981 (2016).
With this understanding of first principles, let’s turn to
§ 1324(a)(1)(A)(iv).
II.
Section 1324(a)(1)(A)(iv) punishes any person who
“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.” In addition, “in the case of a violation . . .
in which the offense was done for the purpose of commercial
UNITED STATES V. HANSEN 29
advantage or private financial gain,” the person will be fined
or imprisoned for up to 10 years, or both. 8 U.S.C.
§ 1324(a)(1)(B)(i).
When Congress used the terms “encourage” and
“induce” in § 1324(a)(1)(A)(iv), it was not legislating in a
vacuum. Rather, it enacted the provision against the
backdrop of those words having settled meaning in the
criminal law. For hundreds of years, both terms were
historically bound up with liability for criminal complicity.
So it’s clear Congress was targeting those types of crimes—
solicitation (when the underlying crime isn’t committed) and
facilitation (when the underlying crime is committed)—
when enacting § 1324(a)(1)(A)(iv). The text, history, and
structure of § 1324 confirms this.
A.
First, some history. From before our Founding, to the
late 19th century, to the modern era, crimes involving
solicitation and facilitation were defined with terms
tantamount to “encourage” and “induce.”
Starting back in the 17th century, Edward Coke wrote
that accessory-before-the-fact liability attached to “all those
that incite, procure, set on, or stir up any other to do the fact,
and are not present when the fact is done.” 2 Edward Coke,
Institutes of the Laws of England 182 (6th ed. 1681). He
also said that it applies to “all persons counselling, abetting,
plotting, assenting, consenting, and encouraging to do the
act, and are not present when the act is done.” Id.
Closer to our Founding, William Blackstone described
accessory-before-the-fact liability as “procur[ing],
counsel[ing], or command[ing] another to commit a crime”
and explained that “[i]f A then advises B to kill another, and
30 UNITED STATES V. HANSEN
B does it in the absence of A, now B is principal, and A is
accessory in the murder.” 4 William Blackstone,
Commentaries on the Laws of England 36−37 (1769); see
also 1 Matthew Hale, The History of the Pleas of the Crown
615 (1736) (noting that to “procure, counsel, command, or
abet another to commit a felony” while being absent from
the commission of the crime creates accessory-before-the-
fact liability).
This common law understanding persisted throughout
the 19th century. For example, an 1816 state court approved
of a charge against a prison inmate for “induc[ing],
encourag[ing], and fix[ing] the intention, and ultimately
procur[ing] the perpetration” of the suicide of another
inmate, who was set for execution. Bowen, 13 Mass. at
358−60. And prominent legal scholar Francis Wharton
explained that “[i]t has been settled in England that if a man
encourages another to murder himself, and he is present
abetting him while he does so, such man is guilty of murder
as a principal.” Francis Wharton, A Treatise on the Criminal
Law of the United States 230 (1846).
Further, at that time, English laws outlawing criminal
encouragements and inducements were well established.
For example, an English law punished “any person [who]
entice[d] or encourage[d] any artificer employed in printing
calicoes, cottons, muslins, or linens, to leave the kingdom.”
4 Jacob Giles, The Law-Dictionary: Explaining the Rise,
Progress, and Present State, of the English Law 235 (1811)
(emphasis omitted). Another law provided that “[a]n
attempt to induce a man to advise the king under the
influence of a bribe, is criminal, though never carried into
execution.” 1 Giles, supra, at 370.
UNITED STATES V. HANSEN 31
Early legal dictionaries also used variants of
“encourage” and “induce” to describe criminal solicitation
and aiding and abetting. Consider these definitions from the
1790s to the 1880s:
- 1 Richard Burn, A New Law Dictionary 4, 7 (1792):
• Accessary before the fact: One who “procure[s],
counsel[s], command[s], or abet[s] another to
commit a felony.”
• Abet: “[I]s to stir up or incite, encourage or set
on; one who promotes or procures a crime.
Abettors of murder, are such as command,
procure, or counsel others to commit a
murder[.]” (emphasis deleted).
- 1 Giles, supra, at 14:
• To Abet: “In our law signifies to encourage or set
on; the substantive abetment is used for an
encouraging or instigation. An abettor is an
instigator or setter on; one that promotes or
procures a crime.” (emphasis deleted).
- 1 John Bouvier, Law Dictionary Adapted to the
Constitution and Laws of the United States of
America, and of the Several States of the American
Union 30−31 (1839):
• To Abet: “[C]rim. law. To encourage or set
another on to commit a crime[.] To abet another
to commit a murder, is to command, procure, or
counsel him to commit it.”
32 UNITED STATES V. HANSEN
• Abettor: “[I]s one who encourages or incites,
encourages or sets another on to commit a
crime.”
- William Cochran, The Students’ Law Lexicon A
Dictionary of Legal Words and Phrases 2, 142
(1888):
• Abet: “[T]o aid, encourage, or incite another to
commit a crime.”
• Incite: “[T]o stimulate or induce a person to
commit a crime. This is a misdemeanor, whether
the crime be committed or not.”
- Henry Campbell Black, A Dictionary of Law 6, 419,
617 (1891):
• Encourage: “In criminal law. To instigate; to
incite to action; to give courage to; to inspirit; to
embolden; to raise confidence; to make
confident. See Aid.”
• Abet: “In criminal law. To encourage, incite, or
set another on to commit a crime. To abet
another to commit a murder is to command,
procure, or counsel him to commit it.”
• Inducement: “In criminal evidence. Motive; that
which leads or tempts to the commission of
crime.”
Moving forward to the 20th century, the same
terminology was used to define solicitation and facilitation.
In Fox v. Washington, for example, the Supreme Court
recognized that a state statute prohibiting the publication of
UNITED STATES V. HANSEN 33
material “advocating, encouraging or inciting . . . which
shall tend to encourage or advocate disrespect for law” was
a common law solicitation or facilitation provision. 236 U.S.
273, 275 (1915) (simplified); see also id. at 277 (recognizing
that “encouragements . . . directed to a particular persons’
conduct, generally would make him who uttered them guilty
of a misdemeanor if not an accomplice or a principle in the
crime encouraged”). Justice Holmes understood the statute
as “encouraging an actual breach of law,” which is “an overt
breach and technically criminal act.” Id. at 277. Under that
narrow construction, Justice Holmes thought the law could
not be used to “prevent publications merely because they
tend to produce unfavorable opinions of a particular statute
or of law in general.” Id. And so the law was no
“unjustifiable restriction of liberty” and comported with the
freedom of speech. Id.; see also Cox v. Louisiana, 379 U.S.
559, 563 (1965) (explaining the familiar principle that “[a]
man may be punished for encouraging the commission of a
crime”).
And more recently, courts have used “encouraging” and
“inducing” to define criminal complicity. For example, in
Williams, the Court equated “induce” with “solicit.”
553 U.S. at 294. There, the Court said that the solicitation
statute at issue “penalizes speech that accompanies or seeks
to induce a transfer of child pornography.” Id. Our court
sitting en banc has also understood this settled meaning. In
United States v. Lopez, we explained that an abettor
“commands, counsels or otherwise encourages the
perpetrator to commit the crime,” and a facilitator “aid[s],
counsel[s], command[s], induce[s] or procure[s] [the
principal] to commit each element” of the crime. 484 F.3d
1186, 1199 (9th Cir. 2007) (en banc) (simplified).
34 UNITED STATES V. HANSEN
Modern dictionaries also recognize the established
meaning of the terms in the criminal context. In legal
dictionaries, “abet” has been defined as “[t]o encourage,
incite, or set another on to commit a crime.” Black’s Law
Dictionary (4th ed. 1951). That dictionary also used the term
synonymously with “encourag[ing], counsel[ing],
induc[ing], or assist[ing]” the commission of crime. Id. The
2019 edition of Black’s retains a similar meaning for “abet”:
“[t]o aid, encourage, or assist (someone), esp. in the
commission of a crime.” Black’s Law Dictionary (11th ed.
2019). And it defines criminal inducement as “entic[ing] or
urging another person to commit a crime.” Id. Even lay
dictionaries understand the words as terms of art to define
criminal complicity. See, e.g., Webster’s Third New
International Dictionary 3 (2002) (defining “abet” as to
“incite, encourage, instigate, or countenance,” as in “the
commission of a crime”); Webster’s New International
Dictionary 4 (2d ed. 1958) (same).
Longstanding federal and state statutes also employ
“encourage,” “induce,” and other variants to define criminal
solicitation and aiding and abetting. For example, one
federal statute punishes as solicitation “[w]hoever . . .
solicits, commands, induces, or otherwise endeavors to
persuade” another to engage in a crime of violence.
18 U.S.C. § 373(a). Another punishes as aiding and abetting
a person who “aids, abets, counsels, commands, induces or
procures [the commission of an offense against the United
States].” 18 U.S.C. § 2(a). The Model Penal Code defines
solicitation as “command[ing], encourag[ing], or
request[ing] another person to engage in specific [unlawful]
conduct.” Model Penal Code § 5.02(1) (1985). And many
UNITED STATES V. HANSEN 35
state statutes defining solicitation 2 and accessory liability3
look the same.
B.
With this understanding of the well-settled meaning of
“encourage” and “induce,” I return to the statutory provision
at issue: encouraging and inducing an alien to illegally enter
the country under 8 U.S.C. § 1324(a)(1)(A)(iv). Its statutory
history confirms Congress’s goal to prohibit criminal
solicitation and facilitation. And that’s how we should have
interpreted the provision.
i.
In 1885, Congress enacted the statute that would later
become 8 U.S.C. § 1324. That statute criminalized
“knowingly assisting, encouraging or soliciting the
migration or importation of any alien or aliens, foreigner or
foreigners, into the United States.” Alien Contract Labor
2
See, e.g., Ariz. Rev. Stat. Ann. § 13-1002(A) (“commands,
encourages, requests or solicits”); Idaho Code Ann. § 18-2001 (“solicits,
importunes, commands, encourages or requests”); Haw. Rev. Stat. Ann.
§ 705-510(1) (“commands, encourages, or requests”); Mont. Code Ann.
§ 45-4-101(1) (“commands, encourages, or facilitates”); Wyo. Stat. Ann.
§ 6-1-302(a) (“commands, encourages or facilitates”); Colo. Rev. Stat.
§ 18-2-301(1) (“commands, induces, entreats, or otherwise attempts to
persuade another person”); Tex. Penal Code Ann. § 15.03(a) (“requests,
commands, or attempts to induce”).
3
See, e.g., Idaho Code Ann. § 18-204 (“aid and abet . . . advise[]
and encourage[]”); Nev. Rev. Stat. Ann. § 195.020 (“aids and abets [or]
counsels, encourages, hires, commands, induces or otherwise
procures”); Colo. Rev. Stat § 18-1-603 (“aids, abets, advises, or
encourages”); Tex. Penal Code Ann. § 7.02(a)(2) (“solicits, encourages,
directs, aids, or attempts to aid”); Utah Code Ann. § 76-2-202 (“solicits,
requests, commands, encourages, or intentionally aids”).
36 UNITED STATES V. HANSEN
Law, ch. 164, § 3, 23 Stat. 332, 333 (1885). Thus, from the
beginning, we know that Congress intended “encouraging”
to take on a similar meaning as “assisting” or “soliciting”
illegality. That’s because “a word is given more precise
content by the neighboring words with which it is
associated.” Williams, 553 U.S. at 294 (describing the
“commonsense canon of noscitur a sociis”); see also id. at
294−95 (construing “promotes” and “presents” to mean
“solicits” in a statute punishing any person who “advertises,
promotes, presents, distributes, or solicits” child
pornography). Indeed, the Court understood that the statute
“punish[ed] those who assist in introducing, or attempting to
introduce, aliens in violation of [Congress’s] prohibition.”
Lees v. United States, 150 U.S. 476, 480 (1893).
Congress’s use of “encouragement” to refer to
solicitation and facilitation remained consistent through
1903 and 1907 updates. For example, the 1903 version of
the law made it unlawful to (1) “prepay the transportation or
in any way to assist or encourage the importation or
migration of any alien into the United States”; (2) “assist or
encourage the importation or migration of any alien by a
promise of employment through advertisements”;
(3) “directly or through agents, either by writing, printing, or
oral representations, solicit, invite, or encourage the
immigration of any aliens into the United States”; and
(4) “[t]o knowingly aid[], advise[], or encourage[] any such
person to apply for or to secure [unlawful] naturalization.”
Immigration Act of 1903, ch. 1012, § 5, 32 Stat. 1213,
1214−15, 1222. Again, Congress used “encourage” in the
same breath as criminal “assist[ance]” and “solicit[ation]”—
demonstrating their equivalence.
The 1907 version was similar. It made it unlawful to
(1) “prepay the transportation or in any way to assist or
UNITED STATES V. HANSEN 37
encourage the importation or migration of any contract
laborer or contract laborers into the United States”;
(2) “assist or encourage the importation or migration of any
alien by promise of employment through advertisements
printed and published in any foreign country”; and
(3) “either by writing, printing, or oral representation, solicit,
invite, or encourage the immigration of any aliens into the
United States.” Immigration Act of 1907, ch. 1134, § 5, 34
Stat. 898, 900.
With the 1917 iteration, Congress added “inducement”
as another variant of the soliciting and assisting language. It
updated the statute to make it unlawful to (1) “in any way to
induce, assist, encourage, or solicit . . . the importation or
migration of any contract laborer or contract laborers into the
United States”; and (2) “induce, assist, encourage, or solicit
. . . any alien to come into the United States by promise of
employment through advertisements.” Immigration Act of
1917, ch. 29, § 5, 39 Stat. 874, 879. The noscitur canon
makes clear that “induce” also takes on a similar meaning to
criminal “asssist[ance]” and “solicit[ation].” And there’s
certainly no evidence that Congress intended to encompass
non-criminal conduct by the inclusion of the word
“inducement.”
Indeed, the Court also interpreted “induce” in the 1917
law to mean the solicitation or facilitation of a crime. See
United States v. Hoy, 330 U.S. 724 (1947). There, a man
was charged for “writ[ing] a letter to certain persons living
in Mexico to induce them to come to the United States to
work for him.” Id. at 725. In the letter, he assured the aliens
that he would “arrange everything,” and get them out on
bond if they were caught by immigration officials. Id. In
analyzing the case, the Court described the 1917 law’s
solicitation and facilitation provision as a “prohibition
38 UNITED STATES V. HANSEN
against employers inducing laborers to enter the country.”
Id. at 731.
In 1952, Congress streamlined its language in enacting
the modern-day § 1324 statute. The new version made it
unlawful to “willfully or knowingly encourage[] or induce[],
either directly or indirectly, the entry into the United States
of—any alien . . . not duly admitted by an immigration
officer or not lawfully entitled to enter or reside within the
United States[.]” Immigration and Nationality Act, ch. 477,
66 Stat. 163, 229 (1952) (8 U.S.C. § 1101 et seq.). Once
again, there’s nothing to suggest that Congress altered the
meaning of the immigration statute by reducing the number
of operative verbs to two.
And a few decades later, Congress made final tweaks to
the provision—giving the statute its current form. In 1986,
Congress amended the law to punish a person who
“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.” Immigration Reform and Control Act,
Pub. L. No. 99-603, 100 Stat. 3359 (1986) (current version
at 8 U.S.C. § 1324(a)(1)(A)(iv)).
Then in 1996, Congress added enhanced penalties for
conduct undertaken for the “purpose of commercial
advantage or private financial gain.” Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, div. C Tit. II, Subtit. A., § 203(a), (b), 110 Stat.
3009, 3009−565 (1996) (codified as 8 U.SC.
§ 1324(a)(1)(B)(i)). At the same time, Congress added
punishments for conspiracy and for aiding or abetting the
other provisions of § 1324. Id. (codified as 8 U.S.C.
§ 1324(a)(1)(A)(v)(I)−(II)).
UNITED STATES V. HANSEN 39
With that overview, we can now interpret the meaning of
§ 1324(a)(1)(A)(iv).
ii.
When it comes to statutory interpretation, we must
always be mindful of “the specific context in which the
language is used, and the broader context of the statute as a
whole.” Yates v. United States, 574 U.S. 528, 537 (2015)
(simplified). And while we often look to the ordinary
meaning of the statute, sometimes looking at dictionary
definitions in isolation can lead us astray. See, e.g., Bloate
v. United States, 559 U.S. 196, 205 n.9 (2010). As we’ve
recently said, “when a phrase is obviously transplanted from
another legal source,” such as other legislation or the
common law, “it brings the old soil with it.” United States
v. Randall, 34 F.4th 867, 875 (9th Cir. 2022) (simplified). In
other words, when Congress adopts a phrase with a settled
meaning “absent some indication to the contrary, we
presume that Congress chose to give the phrase its
established meaning.” Id. Indeed, the Court recently
explained that “[t]he point of the old-soil principle is that
when Congress employs a term of art, that usage itself
suffices to adopt the cluster of ideas that were attached to
each borrowed word.” McDonough, 142 S. Ct. at 1963
(simplified). Here we have buckets of soil to understand
Congress’s meaning.
From before the Founding until today, both in statutes
and in common law, the terms “encourage” and “induce”
have been used to define solicitation and aiding and abetting.
Congress knew that when it began passing criminal
immigration laws in 1885. So when interpreting
§ 1324(a)(1)(A)(iv)’s prohibition of “encourag[ing] or
induc[ing] an alien to [illegally] come to, enter, or reside in
the United States,” our duty is to apply settled meaning.
40 UNITED STATES V. HANSEN
Thus, the best reading of the provision is that it prohibits the
solicitation and facilitation of the underlying offense—
coming to, entering, or residing in the country in violation of
law. In other words, subsection (iv) is just an ordinary
solicitation and facilitation provision.
Once subsection (iv) is understood as a solicitation and
facilitation statute, to be charged, any words of
encouragement or inducement must be tied to the speaker’s
“purpose of promoting or facilitating [the offense’s]
commission.” Model Penal Code § 5.02(1). That’s because
those crimes “require as one element the mens rea to achieve
the commission of a particular crime.” United States v.
Vidal, 504 F.3d 1072, 1079 (9th Cir. 2007) (en banc); see
also Charles E. Torcia, Wharton’s Criminal Law § 38 (15th
ed. 1993) (describing an accomplice as one who “with the
intent to promote or facilitate the commission of the crime,
. . . solicits, requests, or commands the other person to
commit it, or aids the other person in planning or committing
it” and noting that “[t]he absence of mens rea precludes one
from being an accomplice”).
And even if those crimes encompass some speech,
speech “that is intended to induce or commence illegal
activities” is “undeserving of First Amendment protection.”
Williams, 553 U.S. at 298. As the Court said back in 1893,
“[i]f congress has power to exclude [certain aliens], as . . . it
unquestionably has, it has the power to punish any who assist
in their introduction” into the country. Lees, 150 U.S. at 480.
Contrary to our holding then, the provision does not
outlaw “commonplace statements and actions” or “general
immigration advocacy.” Hansen, 25 F.4th at 1107, 1110.
We reached this erroneous conclusion by broadly defining
“encourage” and “induce” under ordinary dictionary
definitions without checking whether the terms are
UNITED STATES V. HANSEN 41
specialized terms-of-art in the criminal law context. Id. at
1108−09. Indeed, we’ve recognized that this language
criminalizes criminal complicity many times before, and it’s
unclear why we failed to do so here. See, e.g., Lopez,
484 F.3d at 1199 (“[W]e have stated that an abettor is one
who, with mens rea commands, counsels or otherwise
encourages the perpetrator to commit the crime.”
(simplified)).
The statutory structure also supports reading the
provision as a solicitation and facilitation law. First,
although the statute is silent on this question, we have held
that § 1324(a)(1)(A)(iv) requires a criminal mens rea
consistent with criminal complicity. “[T]o convict a person
of violating section 1324(a)(1)(A), the government must
show that the defendant acted with criminal intent, i.e., the
intent to violate United States immigration laws.” United
States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002)
(simplified). So, under our own interpretation, to convict a
person under subsection (iv), the defendant must encourage
or induce an alien to enter the United States with “the intent
to violate United States immigration laws.” Id. (simplified).
This mens rea requirement makes clear that subsection (iv)
is a solicitation and facilitation provision because a
defendant must act with “criminal intent.” Id.Second, the offense at issue in this case requires proof
that the defendant acted to obtain “commercial advantage or
private financial gain.” 8 U.S.C. § 1324(a)(1)(B)(i). So
when subsection (iv) is charged with § 1324(a)(1)(B)(i), as
here, it requires a financial incentive—a common criminal
purpose. That eliminates the concern “that commonplace
statements” about politics or immigration policy would be
swept up by § 1324(a)(1)(A)(iv)—as our court imagined.
Hansen, 25 F.4th at 1110. Any statements prosecuted under
42 UNITED STATES V. HANSEN
this law must be designed to make money off the targeted
aliens—fitting solicitation and facilitation.
Finally, as we recognized, “the subsection requires the
encouragement or inducement of a specific alien or aliens,”
Hansen, 25 F.4th at 1108, which corresponds with the
requirement for specificity in soliciting and facilitating
crime. See Williams, 553 U.S. at 300 (emphasizing that a
child-pornography solicitation statute does not target
abstract advocacy because it refers to a “particular piece” of
child pornography with the intent to transfer it); see also
Volokh, supra, at 993−94 (recognizing that specificity is the
dividing line between punishable solicitation and protected
advocacy).
Once understood as a criminal solicitation and
facilitation statute, the parade of horribles made up by our
court fades away. We contended that the law punishes
(1) “encouraging an undocumented immigrant to take
shelter during a natural disaster”; (2) “advising an
undocumented immigrant about available social services”;
(3) “telling a tourist that she is unlikely to face serious
consequences if she overstays her tourist visa”; or
(4) “providing certain legal advice to undocumented
immigrants.” Hansen, 25 F.4th at 1110. But none of those
examples involve any proof of “mens rea to achieve the
commission of a particular crime.” Vidal, 504 F.3d at 1079.
That means one thing: the law does not reach abstract
advocacy. It only prohibits speech that targets particular
aliens with a proper criminal intent.
iii.
Contrary to our court’s reasoning, interpreting
§ 1324(a)(1)(A)(iv) as a solicitation and facilitation
provision does not create a surplusage problem. Hansen
UNITED STATES V. HANSEN 43
suggested that subsection (iv) could not be an aiding-and-
abetting provision because § 1324(a) has another aiding-
and-abetting provision. Hansen, 25 F.4th at 1108−09. To
be sure, § 1324(a)(1)(A)(v)(II) creates criminal liability for
anyone who “aids or abets the commission of any of the
preceding acts”—meaning subsections (i) through (iv). But
our court incorrectly took this as proof that subsection (iv)
was not an aiding-and-abetting provision. See Hansen,
25 F.4th at 1109 (“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.”).
But the surplusage canon is only employed to avoid
“entirely redundant” provisions in a statute. Kungys v.
United States, 485 U.S. 759, 778 (1988) (plurality opinion).
It only comes into play if an interpretation would render one
provision as having “no consequence.” Nielsen v. Preap,
139 S. Ct. 954, 969 (2019) (plurality opinion) (simplified).
We have none of these concerns here.
First, we ignored analyzing § 1324(a)(1)(A)(iv) as a
solicitation provision. If we had, we would have recognized
that no other provision of § 1324 punishes solicitation. So
that’s one reason why there’s no surplusage problem here.
And second, subsection (iv) and subsection (v)(II)
prohibit the aiding and abetting of different things. As we
have previously recognized:
The “encourages or induces” offense,
§ 1324(a)(1)(A)(iv), criminalizes the act of
encouraging the alien herself to illegally
enter or reside in the United States, whereas
aiding and abetting the principal in a
“bringing to” offense, § 1324(a)(2)(B)(ii),
criminalizes the act of aiding, counseling,
44 UNITED STATES V. HANSEN
inducing or encouraging not the alien but the
principal, the person or venture who is
illegally bringing the alien to the United
States.
United States v. Singh, 532 F.3d 1053, 1059 (9th Cir. 2008).
While Singh interpreted a neighboring provision,
§ 1324(a)(2)(B)(ii), that subsection employs identical
language as § 1324(a)(1)(A)(i), and so Singh’s logic directly
governs. Thus, subsection (iv) prohibits the aiding and
abetting of an alien to “come to, enter, or reside in the United
States” in violation of law, while subsection (v)(II) outlaws
aiding and abetting a principal from committing the other
alien-smuggling violations—“bring[ing],” “transport[ing],”
and “harbor[ing]” aliens illegally. See 8 U.S.C.
§ 1324(a)(1)(A)(i)−(iii). Indeed, subsection (v)(II) can even
prohibit aiding and abetting an encourager under subsection
(iv). See, e.g., United States v. Lopez, 590 F.3d 1238, 1250
(11th Cir. 2009) (recognizing that (v)(II) can harmoniously
modify subsection (iv)). So again, there is no surplusage
problem. We were thus wrong to invoke that canon to avoid
concluding that § 1324(a)(1)(A)(iv) targets solicitation and
facilitation.
Nor does the 1996 addition of subsection (v)(II) change
the meaning of subsection (iv), which was enacted some
50 years prior. Our court was wrong to hold otherwise. See
Hansen, 25 F.4th at 1108−09 (“Subsection
1324(a)(1)(A)(v)(II) . . . strongly suggests that subsection
(iv) should not also be read as an aiding and abetting
provision.”). It would be “entirely unrealistic to suggest that
Congress” meant to expand the scope of encourage and
induce “by such an oblique and cryptic route” as simply
adding an aiding-or-abetting provision in a different
subsection 50 years later. BP Am. Prod. Co. v. Burton,
UNITED STATES V. HANSEN 45
549 U.S. 84, 99 (2006). Indeed, “later laws that do not seek
to clarify an earlier enacted general term and do not depend
for their effectiveness upon clarification, or a change in the
meaning of an earlier statute, are beside the point in reading
the first enactment.” Gutierrez v. Ada, 528 U.S. 250, 257–
58 (2000) (simplified). So there is no reason to believe that
Congress upended the well-settled meaning of “encourage”
and “induce” in subsection (iv) by adding a separate aiding-
and-abetting provision. From the day they were enacted to
today, those terms have referred to the same thing—
solicitation and facilitation.
iv.
Even if any doubt remains about § 1324(a)(1)(A)(iv)’s
reach, under the constitutional avoidance canon, we are
required to construe the provision as a criminal solicitation
and facilitation provision. When “a serious doubt” is raised
about the constitutionality of an act of Congress, it is a
“cardinal principle” that courts will “first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided.” Jennings v. Rodriguez, 138 S. Ct.
830, 842 (2018) (simplified). If a “fairly possible”
interpretation averts a clash with the Constitution, id., we
must follow it. See Boos v. Barry, 485 U.S. 312, 330−31
(1988) (explaining that federal courts not only have the
“power” but also “the duty” to narrowly construe federal
statutes when possible to avoid constitutional issues). Such
a doctrine is rooted in the separation of powers; we respect
Congress by not holding that it violated its duty to follow the
Constitution unless it’s necessary.
We’ve had no problems liberally applying the canon to
avoid constitutional questions in the past—especially in the
immigration context. See, e.g., Rodriguez v. Robbins,
46 UNITED STATES V. HANSEN
804 F.3d 1060, 1078−85 (9th Cir. 2015) (construing
8 U.S.C. §§ 1225(b), 1226(c) and 1226(a) to require a bond
hearing despite the statutory text), rev’d sub nom. Jennings,
138 S. Ct. at 852. Indeed, we’ve invoked the canon even
when it “inflict[ed] linguistic trauma” on the text of the
statute. Jennings, 138 S. Ct. at 848. That’s why it’s baffling
that our court decided to give the canon short shrift here.
Not only is it “fairly possible” to construe
§ 1324(a)(1)(A)(iv) as a solicitation and facilitation
provision, it’s the best reading. Hundreds of years of
authorities use “encourage,” “induce,” and other near
synonyms to define solicitation and facilitation. Further, the
structure of § 1324(a)(1)(A) supports reading subsection (iv)
that way. The provision’s mens rea requirement, the
financial-gain element, and specificity all narrow its scope.
Given that the provision is “readily susceptible” to a
construction that avoids protected speech, we should’ve
adopted it. Stevens, 559 U.S. at 481 (simplified). Our
court’s only response is that “the plain meaning of
subsection (iv) does not permit the application of the
constitutional avoidance canon,” Hansen, 25 F.4th
at 1110—but as the above shows, that’s wrong.
Rather than force the statute into a direct collision with
the Constitution, we should have taken the more textually
appropriate road and read § 1324(a)(1)(A)(iv) as a
solicitation and facilitation provision. Under this
interpretation, the law easily survives First Amendment
scrutiny and there is no reason to reach the overbreadth
doctrine. But even if this law reaches some speech, it is a
poor candidate for overbreadth invalidation.
UNITED STATES V. HANSEN 47
III.
A.
The overbreadth doctrine is the nuclear option of First
Amendment law. With it, a federal court can essentially
level a federal statute if the law “prohibits a substantial
amount of protected speech.” Williams, 553 U.S. at 292.
Such a doctrine is a facial challenge on steroids. With facial
challenges, courts may only invalidate a law if “no set of
circumstances exists under which the [law] would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987). But with
overbreadth, courts may wipe out laws merely by finding
that a “substantial amount” of protected speech is impacted,
even if “some of [the law’s] applications [are] perfectly
constitutional.” Williams, 553 U.S. at 292.
That’s a huge expansion of our Article III powers. So to
balance-out that power, courts must “vigorously enforce[]
the requirement that a statute’s overbreadth be substantial,
not only in an absolute sense, but also relative to the statute’s
plainly legitimate sweep.” Id. And “there must be a realistic
danger” that the statute “significantly compromise[s] First
Amendment protections.” Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984).
“[T]he mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge.” Id.
at 800. Overbreadth invalidation is “strong medicine” that
is “not [to be] casually employed” and must only be used as
an option of “last resort.” Los Angeles Police Dep’t v.
United Reporting Pub. Corp., 528 U.S. 32, 39 (1999)
(simplified).
The overbreadth doctrine should be rarely used
especially because it appears to be ahistorical and atextual.
48 UNITED STATES V. HANSEN
As Justice Thomas has explained, the doctrine first arrived
in the mid-20th century with Thornhill v. Alabama, 310 U.S.
88 (1940), with no indication that the doctrine was rooted in
the history or text of the First Amendment. Sineneng-Smith,
140 S. Ct. at 1583 (Thomas, J., concurring). Rather, the
Court has justified overbreadth invalidation in terms of
“policy considerations and value judgments.” Id. at 1584. It
has said that First Amendment freedoms are “supremely
precious” with “transcendent value to all society,” and so a
court may strike down a statute if it decides that “the possible
harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that protected
speech of others may be muted[.]” Id. (simplified); see
generally Richard H. Fallon, Making Sense of Overbreadth,
100 Yale L. J. 853, 855 (1991) (explaining in detail how
“First Amendment overbreadth is largely a prophylactic
doctrine, aimed at preventing a chilling effect” (simplified)).
Essentially, Justice Thomas observed that the doctrine
lets judges decide what “serves the public good.” Sineneng-
Smith, 140 S. Ct. at 1584. But as he notes, there is no
historical evidence to suggest judges were given such a
power “to determine whether particular restrictions of
speech promoted the general welfare.” Id. (quoting Jud
Campbell, Natural Rights and the First Amendment,
127 Yale L. J. 246, 259 (2017)). In Justice Thomas’s view,
the overbreadth doctrine is just “the handiwork of judges,
based on the misguided notion that some constitutional
rights demand preferential treatment.” Id. at 1588
(simplified).
Indeed, to apply the doctrine, judges must become
storytellers and bean counters. We first make up the most
outrageous violations of free speech we can think of and then
count whether those imaginary scenarios are “substantial”
UNITED STATES V. HANSEN 49
enough. Such a creative calculus is beyond our competence.
We are at our best when we stick to the facts presented in the
record—not when we speculate about “imaginary cases” and
sift through “an endless stream of fanciful hypotheticals.”
See id. at 1586 (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450 (2008) and Williams,
553 U.S. at 301) (simplified). Those balancing and policy
judgments are best left to elected officials.
On top of its suspect historical roots, the overbreadth
doctrine also clashes with traditional standing principles.
Ordinarily, the rule is that a person may not challenge a law
that “may conceivably be applied unconstitutionally to
others, in other situations not before the Court.” Broadrick
v. Oklahoma, 413 U.S. 601, 610 (1973). But overbreadth is
“a constitutional anomaly” that relaxes the standing
requirement to protect against the chilling of speech. United
States v. Yung, 37 F.4th 70, 76 (3rd Cir. 2022); see also
Sineneng-Smith, 140 S. Ct. at 1586−87 (Thomas, J.,
concurring) (explaining the overbreadth doctrine’s departure
from traditional standing principles). Just recently, the Court
has reasserted its preference for a “strict standard for facial
constitutional challenges” and has eschewed the dilution of
the “third-party standing doctrine.” See Dobbs v. Jackson
Women’s Health Org., 142 S. Ct. 2228, 2275 (2022).
Given the overbreadth doctrine’s shaky foundation, we
must be cautious in deploying it. While we have a duty to
follow Supreme Court precedent, we must also “resolve
questions about the scope of [] precedents in light of and in
the direction of the constitutional text and constitutional
history.” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir.
2020) (Bumatay, J., dissenting from the denial of rehearing
en banc) (simplified). The text and history here counsel us
not to expand the doctrine, but to pause before applying it.
50 UNITED STATES V. HANSEN
See Yung, 2022 WL 2112794, at *2 (“Courts must hesitate
before stopping the government from prosecuting conduct
that it has the power to ban.”).
B.
Here there’s no justification for deploying the nuclear
option. Even if § 1324(a)(1)(A)(iv) somehow reaches
protected speech, that reach is far outweighed by the
provision’s broad legitimate sweep. Consider just a few
concrete examples of the activity legitimately punishable by
subsection (iv):
• Escorting illegal aliens onto a plane bound for the
United States. Yoshida, 303 F.3d at 1150.
• Arranging fraudulent marriages for aliens to receive
permanent residency. United States v. Lozada,
742 F. App’x 451, 453−55 (11th Cir. 2018)
(unpublished).
• Selling H-2B work visas to illegal aliens for
American jobs that don’t exist. United States v.
Pena, 418 F. App’x 335, 338−39 (5th Cir. 2011)
(unpublished).
• Facilitating the employment of illegal aliens by
providing them with fraudulent social security
numbers. Edwards v. Prime, Inc., 602 F.3d 1276,
1295−97 (11th Cir. 2010).
• Picking up illegal aliens from the Bahamas and
boating them to the United States. United States v.
Lopez, 590 F.3d 1238, 1252 (11th Cir. 2009).
UNITED STATES V. HANSEN 51
• Providing fraudulent travel documents and
instructions to illegal aliens to facilitate travel to the
United States. Tracy, 456 F. App’x at 269−71.
• Lying on behalf of an illegal-alien passenger to an
immigration inspector about the alien’s citizenship
and purpose for entry. United States v. One 1989
Mercedes Benz, 971 F. Supp. 124, 128 (W.D.N.Y.
1997).
What’s on the other side of the ledger? According to our
court, there’s United States v. Henderson, 857 F. Supp. 2d
191 (D. Mass. 2012) and some inapposite hypotheticals. But
on closer inspection, those examples don’t help our court’s
case.
Our court cites Henderson for the proposition that a
person could be prosecuted under § 1324(a)(1)(A)(iv) for
simply advising an alien “generally about immigration law
practices and consequences.” Hansen, 25 F.4th at 1111
(quoting Henderson, 857 F. Supp. 2d at 193). But we only
tell half the story. In that case, the government prosecuted a
U.S. Customs and Border Patrol supervisor for employing
an undocumented alien, knowing that the employee was in
the country illegally and even coaching the employee on
how to evade immigration authorities while residing in the
country. Henderson, 857 F. Supp. 2d at 195−97. The district
court reversed the conviction and doubted that the facts
supported a conviction, and the government never retried the
case. Id. at 200−14. Henderson is thus a poor reason to
invalidate an entire law. Even if Henderson were convicted
under a properly construed § 1324(a)(1)(A)(iv) (as a
solicitation and facilitation statute), it’s doubtful the First
Amendment permits a CBP supervisor, whose job includes
enforcing immigration laws, to knowingly violate those laws
52 UNITED STATES V. HANSEN
by employing an illegal alien and advising that alien on how
to reside in the country illegally.
And as discussed earlier, our court’s hypotheticals are
irrelevant. For example, we say that the phrase—“I
encourage you to reside in the United States”—is
prosecutable under § 1324(a)(1)(A)(iv). Hansen, 25 F.4th at
1110 (citing Williams, 553 U.S. at 300). But that’s not true
under the proper reading of the statute. That statement
doesn’t direct a specific alien to violate the law and doesn’t
show the speaker’s intent to violate immigration law. So
while Williams noted the line between abstract advocacy and
criminal solicitation, the provision can’t target abstract
advocacy under a proper interpretation.
So even if we apply the overbreadth doctrine, I can’t find
any—let alone a substantial amount of—protected speech
that can be swept up by the provision’s reach. It was thus
inappropriate for us to invalidate § 1324(a)(1)(A)(iv) for
overbreadth. By doing so, we “short circuit the democratic
process by preventing [a] law[] embodying the will of the
people from being implemented in a manner consistent with
the Constitution.” Wash. State Republican Party, 552 U.S.
at 451.
IV.
For these reasons, I respectfully dissent from the denial
of rehearing en banc.
UNITED STATES V. HANSEN 53
COLLINS, Circuit Judge, dissenting from the denial of
rehearing en banc:
For reasons similar to those recounted in Judge
Bumatay’s dissent, I conclude that (1) under the canon of
constitutional avoidance, we can and should interpret the
statute at issue here as being limited to soliciting and
facilitating the unlawful entry of, or the unlawful taking up
of residence by, specific aliens; 1 and (2) so construed, the
statute is not facially unconstitutional. See Milavetz, Gallop
& Milavetz, P.A. v. United States, 559 U.S. 229, 239 (2010)
(stating that, under “the canon of constitutional avoidance,”
a reading of the statutory words that is “fairly possible” and
1
This reading of the statute is narrower than the one that the
Government apparently advocated in United States v. Hernandez-
Calvillo, ___ F.4th ___, 2022 WL 2709736 (10th Cir. 2022). There, the
defendants’ charge for conspiring to violate 8 U.S.C. § 1324(a)(1)(A)(iv)
apparently rested on the theory that the object of their illegal employment
scheme was to encourage and induce aliens who were already
unlawfully present in the U.S. to continue that unlawful presence. It is
not clear to me that the statute should be read so broadly. The prohibition
on encouraging or inducing a particular alien to “come to, enter, or reside
in the United States,” 8 U.S.C. § 1324(a)(1)(A)(iv), is most naturally
read, I think, to reach those who encourage or induce particular aliens to
acquire an unlawful presence or residence that they do not already have.
(One does not normally speak of “inducing” another to do what he or she
is already doing.) Moreover, the first two listed verbs (“come to” and
“enter”) plainly refer to such an acquisition, and under the principle of
noscitur a sociis, the third verb (“reside in”) should be read the same
way. See Yates v. United States, 574 U.S. 528, 543 (2015) (stating that
the principle “avoid[s] ascribing to one word a meaning so broad that it
is inconsistent with its accompanying words, thus giving unintended
breadth to the Acts of Congress” (citation omitted)). The prosecution in
Defendant Helaman Hansen’s case is fully consistent with this narrower
reading, because his indictment rests on the theory that he used his sham
adult-adoption program to persuade two specific aliens to overstay their
visas before their visas had expired.
54 UNITED STATES V. HANSEN
that avoids the constitutional difficulty is to be preferred); cf.
also United States v. Williams, 553 U.S. 285, 298–300
(2008) (holding that solicitation of an illegal transaction is
“categorically excluded from First Amendment protection”).
Facial invalidation is particularly inappropriate here,
given that Defendant Helaman Hansen was convicted of an
aggravated version of the § 1324(a)(1)(A)(iv) offense, one
that required the Government to prove the additional fact
that Hansen acted “for the purpose of commercial advantage
or private financial gain.” 8 U.S.C. § 1324(a)(1)(B)(i).
Because proof of that specific purpose raised the applicable
statutory maximum from 5 years to 10 years, compare id.with id. § 1324(a)(1)(B)(ii), that purpose constitutes an
element of Hansen’s offense and was required to be found
by the jury beyond a reasonable doubt. Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). In Hansen’s case, the jury
in its verdict made such a specific finding as to both of the
§ 1324(a)(1)(A)(iv) charges against him. Hansen therefore
did not suffer any conviction for the lesser offense, but only
for the greater one. Accordingly, the relevant First
Amendment issue before the panel in this case was whether
the statutory language defining the aggravated version of the
offense at issue—i.e., the offense defined by 8 U.S.C.
§ 1324(a)(1)(A)(iv), (B)(i)—is facially unconstitutional.
That question is easy. The additional element of acting “for
the purpose of commercial advantage or private financial
gain,” id. § 1324(a)(1)(B)(i), substantially narrows the reach
of the relevant language in a way that, in my view, leaves
little doubt that its “plainly legitimate sweep” greatly
UNITED STATES V. HANSEN 55
exceeds any plausible overbreadth. 2 Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973).
For these reasons, I agree that the panel seriously erred
in facially invalidating the relevant statute, and I respectfully
dissent from our failure to rehear this case en banc.
2
This represents an additional point of distinction between this case
and Hernandez-Calvillo. There, the court concluded that, on the facts
before it, the § 1324(a)(1)(B)(i) “enhancement does not apply to [the
defendants’] offense” and “is therefore not an element of [the
defendants’] crimes.” 2022 WL 2709736, at *8 n.19. Here, by contrast,
the opposite is true.