United States v. David Anderton

Case: 17-40836 Document: 00514603475 Page: 1 Date Filed: 08/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-40836 August 16, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
DAVID ALLEN ANDERTON,
Defendant - Appellant
Appeals from the United States District Court
for the Eastern District of Texas
Before JOLLY, JONES, and HAYNES, Circuit Judges
EDITH H. JONES, Circuit Judge:
David Anderton was convicted of making a false statement in an
immigration document in violation of 18 U.S.C. § 1546(a) (Count 1); conspiracy
to encourage and induce an illegal alien to reside in the United States in
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 2); and encouraging an illegal
alien to reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv)
(Counts 3-6). On appeal, he challenges (1) the constitutionality of
8 U.S.C. § 1324(a)(1)(A)(iv) and his conviction thereunder; (2) whether the
indictment should have been dismissed for failure to state an offense; (3) the
sufficiency of the evidence to sustain a conviction for Count One; (4) the
Case: 17-40836 Document: 00514603475 Page: 2 Date Filed: 08/16/2018
No. 17-40836
constitutionality of some of the search warrants; and (5) the final order of
forfeiture for the property on 2949 West Audie Murphy Parkway. For the
reasons given below, we AFFIRM.
BACKGROUND
Anderton was president of A&A Landscape and Irrigation GP (“A&A”),
a company operating around the greater Dallas, Texas area. In December
2011, Anderton signed a Form I-129 (Petition for a Nonimmigrant Worker) for
A&A, stating that the job would not involve overtime and the visa workers
would be paid “the highest of the most recent prevailing wage that is or will be
issued by the Department [of Labor].” The “prevailing wage” hourly rate at
the time was $8.16 to $11.16 or $12.24 for overtime. Anderton signed this
document under the penalty of perjury.
In 2016, Anderton was charged with violating 18 U.S.C. § 1546(a) (Count
1), 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 2), and 8 U.S.C. § 1324(a)(1)(A)(iv)
(Counts 3-6). Anderton moved to dismiss Count One for failure to state an
offense. He also moved to dismiss Counts Two-Six, arguing that “reckless
disregard” is a constitutionally deficient scienter. The court denied both
motions. Anderton also moved to suppress evidence that was obtained under
search warrants he argued were unconstitutional general warrants. The court
denied this motion.
At trial, three visa workers testified that they worked overtime and were
not paid more for overtime. Two testified that Anderton withheld $1,000 of
their pay for “visa expenses” and one stated that Anderton withheld this
amount from other visa workers as well. They also testified that Anderton
withheld some of their pay for rent. All were paid far less than time and a half
for their overtime and two claimed to have been paid less than minimum wage.
They testified that they were paid for regular time by check and overtime with
2
Case: 17-40836 Document: 00514603475 Page: 3 Date Filed: 08/16/2018
No. 17-40836
cash. Timesheets for these three workers reflected substantial amounts of
overtime.
The former vice president of operations for A&A, Anthony Diesch,
confirmed that workers were paid in part by check and in part by cash.
Further, Anderton instructed that workers who “had papers” were to be paid
partially by check, but other workers would be paid only in cash. According to
Diesch’s records, one employee was paid as little as $5.50 an hour in 2008. In
October 2008, Anderton reported to Diesch there was some “heat” regarding
payroll and they needed to get rid of the payroll spreadsheets. Anderton also
explained that money was withheld from visa workers’ pay to reimburse A&A
for visa expenses.
Diesch described Anderton’s system of writing checks to “Refugio
Rivera,” which he would cash for currency to pay the workers. Leslie
Ducharme, a former employee, testified that Anderton told her to create false
invoices, which were drafted after the checks had been written and purportedly
covered tree purchases. Anderton directed Diesch that the checks must be
written for less than $10,000 because he believed the IRS would flag checks
over that amount.
Blanca Lenal, another government witness and previous A&A employee,
testified that Anderton would ask workers during job interviews whether they
had legal documents. If they lacked legal documentation, he would tell them
they would get paid cash at a rate less than minimum wage. According to
Ducharme, when the Social Security Administration informed A&A that the
names on employee W-2s did not match the social security numbers A&A had
provided, Anderton advised his managers to take the employees off payroll,
and “[t]hey’ll have a different I.D. at another time.” A few weeks later, such
workers would have a new social security number.
3
Case: 17-40836 Document: 00514603475 Page: 4 Date Filed: 08/16/2018
No. 17-40836
The government presented testimony from four A&A employees who
admitted being in the U.S. illegally. Two of these workers stated that Anderton
told them to go back to Mexico and get work visas. When they could not obtain
visas, they so informed Anderton, but he employed them anyway. Finally,
social security records were admitted in evidence, demonstrating that “of 375
names and corresponding social security numbers gleaned from A&A records,
only 128 of the names and numbers matched and 37 of the employee names
had no social security number.”
The jury convicted Anderton on all counts. After the criminal trial, the
jury convened to hear a forfeiture motion and found that the company’s
property at 2949 West Audie Murphy Parkway was used to facilitate all six
counts of the offenses. Over Anderton’s repeated objections, the district court
granted the final order of forfeiture covering this property.
Anderton moved unsuccessfully for acquittal and for a new trial. The
court sentenced him to five years’ probation, a $60,000 fine ($10,000 per count),
and restitution exceeding $19,000.
Anderton timely appealed.
STANDARDS OF REVIEW
This court reviews preserved challenges to the sufficiency of an
indictment de novo. United States v. Grant, 850 F.3d 209, 214 (5th Cir. 2017).
If a defendant fails to preserve an issue in the district court, this court will
review the objection for plain error. United States v. Fairley, 880 F.3d 198, 206
(5th Cir. 2018). Plain error “requires that there was (1) error, (2) that is plain,
and (3) that affects substantial rights.” Id. (citation omitted). Courts “should
correct a forfeited plain error that affects substantial rights if the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018)
(citations and quotation marks omitted).
4
Case: 17-40836 Document: 00514603475 Page: 5 Date Filed: 08/16/2018
No. 17-40836
If a defendant preserves a sufficiency of the evidence claim, it is reviewed
de novo but “with substantial deference to the jury verdict.” United States v.
Suarez, 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). This court affirms
convictions “if a reasonable trier of fact could conclude . . . the elements of the
offense were established beyond a reasonable doubt.” Id. (citation omitted).
“Factual findings in a ruling on a motion to suppress are reviewed for
clear error” and questions of law are reviewed de novo. United States v. Moore,
805 F.3d 590, 593 (5th Cir. 2015). Furthermore, the “evidence is viewed in the
light most favorable to the prevailing party.” Id.
DISCUSSION
I. Counts Two-Six
(a)Challenges to Section 1324(a)(1)(A)(iv), (v)
Pursuant to 8 U.S.C. § 1324(a)(1)(A)(iv), it is illegal to “encourage[] or
induce[] an alien to come to, enter, or reside in the United States, knowing or
in reckless disregard of the fact that such . . . residence is or will be in violation
of law.” Subsection (v) criminalizes conspiracy to that end. Anderton argues
that this statute is unconstitutionally vague as applied to him for several
reasons. He contends that the terms “encourage” and “induce” are so broad as
to have no discernible parameters and may include many activities, such as
engaging in charitable or educational relationships with illegal aliens, that are
not inherently illegal. He asserts that making such conduct a felony offense
under a mens rea of reckless disregard of other persons’ illegal presence
exacerbates the vagueness, particularly because various statutes and
regulations strictly limit an employer’s ability to question the immigration
status of new or existing hires. Finally, he likens his situation to cases in which
other provisions of Section 1324 have been construed to require the defendant’s
active concealment of illegal aliens’ status. See, e.g., United States v. Varkonyi,
5
Case: 17-40836 Document: 00514603475 Page: 6 Date Filed: 08/16/2018
No. 17-40836
645 F.2d 453, 459 (5th Cir. 1981) (illegal harboring does not include “mere
employment”); DelRio Mocci v. Connolly Props. Inc., 672 F.3d 241, 247 (3d Cir.
2012) (“knowingly renting an apartment to an alien lacking lawful
immigration status” does not constitute illegal harboring). We discuss each of
these propositions in turn.
As to vagueness, Justice Scalia summed up, “[o]ur cases establish that
the Government violates this guarantee [of the Due Process clause] by taking
away someone’s life, liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.” Johnson v. United States,
135 S. Ct. 2551, 2556 (2015) (citing Kolender v. Lawson, 461 U.S. 352, 357-58,
103 S. Ct. 1855, 1858 (1983)). This court is concerned that the instant statutes
of conviction, Sections 1324 (a)(1)(A)(iv) and (v), are extremely broad and the
consequences of a felony conviction are harsh. Whether these terms are
unconstitutionally vague is another matter. Courts must indulge a
presumption of constitutionality and carefully examine a statute before finding
it unconstitutional. Skilling v. United States, 561 U.S. 358, 405-06,
130 S. Ct. 2896, 2929-30 (2010).
Anderton acknowledges, moreover, that he did not assert the vagueness
of “encourage” and “induce” in the district court. Consequently, our appellate
review is confined to “plain error,” the standards of which are noted above. In
the absence of relevant circuit precedent, Anderton relies on general principles
and cites no similar case law concerning the vagueness doctrine to demonstrate
error that was or is “plain.” The lack of legal authority “is often dispositive in
the plain-error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir.
2015). In fact, our sister circuit has affirmed convictions under these statutes
where the defendants were employers of multiple illegal aliens. United States
6
Case: 17-40836 Document: 00514603475 Page: 7 Date Filed: 08/16/2018
No. 17-40836
v. Khanani, 502 F.3d 1281 (11th Cir. 2007). Given this background, it would
be difficult to find plain error.
Looking to the statutory language, we are strongly inclined to conclude
that “encourage” and “induce” are sufficiently clear to provide fair notice to the
public and guide law enforcement. The district court instructed the jury
succinctly that “[e]ncourage means to knowingly instigate, help or advise.
Induce means to knowingly bring about, to effect or cause or to influence an
act or course of conduct.” See United States v. He, 245 F.3d 954, 957 (7th Cir.
2001). The instructions respond to Anderton’s complaint that this aspect of
Section 1324(a)(1)(A)(iv) fails to require purposeful conduct.
The Third Circuit discussed these terms in the course of rejecting a RICO
claim based on an apartment owner’s having rented to illegal aliens. DelRio-
Mocci, 672 F.3d at 248-50. The court reached a narrower interpretation than
the acts of offering mere “help” or “advice” to aliens, terms included in the
district court’s instructions here. As the Third Circuit would have it, dictionary
definitions provide that “encourage” and “induce” imply conduct “incit[ing]
aliens to remain in this country unlawfully when they would otherwise not
have done so.” Id. at 250. Anderton urges this court to adopt that
interpretation. For two reasons, we need not do so. First, the Third Circuit
acknowledged that cases using “help” and “advise” to expound the statutory
provision had actually involved far more activity in support of illegal aliens’
entering or remaining in the U.S. Id. Second, Anderton’s conduct, in
employing illegal aliens over a period of years with persistent disregard for
federal immigration law, plainly exerted influence on the aliens’ decisions to
remain here illegally in the U.S. Thus, this was not a case of episodic or
humanitarian aid, which could give rise to vagueness issues on an as-applied
basis. A facial attack on a non-First Amendment statute can prevail only if
the statute is unconstitutional in all applications or lacks any “plainly
7
Case: 17-40836 Document: 00514603475 Page: 8 Date Filed: 08/16/2018
No. 17-40836
legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472, 130 S. Ct. 1577,
1587 (2010) (citations omitted).
As for the requirement that a defendant exhibit “reckless disregard” that
an alien’s residence in the U.S. will be illegal, the government points out that
recklessness is a common mens rea feature in criminal law generally and in
several provisions of Section 1324 itself. See 8 U.S.C. §§ 1324(a)(1)(A)(ii), (iii),
(iv), and 1324(a)(1)(C)(2). Courts are bound to “follow Congress’ intent as to
the required level of mental culpability for any particular offense.” United
States v. Bailey, 444 U.S. 394, 406, 100 S. Ct. 624, 632 (1980). This court has
previously affirmed use of the reckless disregard standard in immigration
prosecutions. See, e.g., United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th
Cir. 2002) (discussing Section 1324(a)(1)(A)(ii) (alien transportation)); see also
United States v. Dominguez, 661 F.3d 1051, 1063-64 (11th Cir. 2011) (citing
Section 1324(a)(2) (smuggling aliens)); Khanani, 502 F.3d at 1286-87
(discussing 1324(a)(1)(A)(iii) and (iv)).
Anderton also analogizes his conduct to cases signaling that “mere
renting” to illegal aliens or “mere employment” alone cannot establish illegal
immigration conduct. See, e.g., Villas at Parkside Partners v. City of Farmers
Branch, 726 F.3d 524, 529-30 (5th Cir. 2013) (en banc) (furnishing housing
without more is not illegal “harboring” under Section 1324(a)); Varkonyi,
645 F.2d at 459 (harboring does not include “mere employment”); DelRio-
Mocci, 672 F.3d at 248-50 (mere apartment rentals to illegal aliens did not
violate Section 1324(a)(1)(A)(iv)). However, as pointed out by our sister circuit,
when the elements of Section 1324(a)(1)(A)(iv) are properly stated to the jury,
they require “a level of knowledge and intent beyond the mere employment of
illegal aliens.” Khanani, 502 F.3d at 1289.
In sum, Anderton’s threshold challenges to the statute of conviction fail
to establish reversible error.
8
Case: 17-40836 Document: 00514603475 Page: 9 Date Filed: 08/16/2018
No. 17-40836
(b) Sufficiency of the Evidence
Counts Three to Six of the indictment alleged Anderton, “for the purpose
of commercial advantage and private personal gain, encouraged and induced
[four identified] illegal aliens to reside in the United States, knowing and in
reckless disregard of the fact that such residence would be in violation of the
law.” Anderton argues that these allegations fail to establish a violation of the
law. The facts proven at trial contradict this contention.
Initially, Anderton argues that he could not have caused aliens to reside
in the United States if they were already here. This is a red herring; the
government was not required to prove that Anderton caused illegal aliens to
enter the United States. The statute alternatively criminalizes encouragement
to “reside” here, and that is what was shown at trial. Anderton continues,
however, that merely residing in the United States as an illegal alien is not a
crime, hence, he could not have induced or encouraged residence that would be
“in violation of the law” (citing Arizona v. United States, 567 U.S. 387, 407,
132 S. Ct. 2492, 2505 (2012)). This, too, is wrong. This court has recognized
that “[a]lthough ‘[a]s a general rule, it is not a crime for a removable alien to
remain present in the United States,’ it is a civil offense.” Texas v. United
States, 787 F.3d 733, 757 n.62 (2015) (quoting Arizona, 567 U.S. at 407,
132 S. Ct. at 2505). Aliens who reside here without authorization are “in
violation of law” for purposes of Sections 1324(a)(1)(A)(iv) and (v).
Anderton principally contends that the statutory framework and case
law establish that mere employment of illegal aliens is not a felony.
Specifically, he points to 8 U.S.C. § 1324a(a)(1)(A) and (2), which are
misdemeanor offenses that explicitly prohibit the knowing hiring or continued
employment of aliens who are unauthorized with respect to such employment.
The misdemeanor provisions can be distinguished from the convictions at issue
here by the requirements of “inducing” and “encouraging” aliens to reside
9
Case: 17-40836 Document: 00514603475 Page: 10 Date Filed: 08/16/2018
No. 17-40836
illegally in the United States; criminalizing “knowing employment” lacks the
concepts of instigation and influence embodied in the felony offense. In any
event, the existence of a lesser grade of offense does not prevent the
government from charging the more serious offense where the facts justify it.
The government recites the evidence that went well beyond Anderton’s
“mere employment” of illegal aliens. Summarizing this evidence, the
government showed that “Anderton knew that most of his workers [were] not
lawfully present and that he worked with others at A&A to employ them,
anyway; that he took advantage of their illegal status; that he rented or
facilitated rental of living space to some of them; and that he assisted some in
attaining public benefits.” Despite Anderton’s possible exploitation of the
undocumented workers, the totality of his conduct persistently and knowingly
provided inducements and encouragements to the employees to reside in the
United States. Legally sufficient evidence supports the convictions.
II. Count One False Statement Offense
Count One charged Anderton with making a false statement in an
immigration document in violation of 18 U.S.C. § 1546(a) because he stated in
the December 2011 I-129 petition that he would pay visa workers $8.16 to
$11.16 an hour for regular work and $12.24 an hour for overtime when “he
knew” he would pay the workers substantially less.
Anderton argues the truth or falsity of his statements depended on
future events, that is, whether he would in fact pay his workers according to
legal requirements. Therefore, he contends, the indictment impermissibly
charged a crime of “pure intent.” This court rejected a similar argument in
United States v. Shah, a false statement case under 18 U.S.C. § 1001. 44 F.3d
285 (5th Cir. 1995). Shah held that “a promise may amount to a ‘false,
fictitious or fraudulent’ statement if it is made without any present intention
of performance and under circumstances such that it plainly, albeit implicitly,
10
Case: 17-40836 Document: 00514603475 Page: 11 Date Filed: 08/16/2018
No. 17-40836
represents the present existence of an intent [not] to perform.” Id. at 294. The
district court did not err when it held that Count One stated an offense because
“a person’s statement that he intends to do something when he has no present
intention of doing it is a false statement of existing fact.” See Shah, 44 F.3d at
293.
Anderton also challenges the sufficiency of evidence to support this
count, arguing that the evidence did not show his intent to underpay visa
workers when he signed the I-129 petition. He charges that the government
presented testimony from only three visa workers and improperly extrapolated
that A&A’s visa workers generally were underpaid. Anderton criticizes the
government for not presenting certain kinds of evidence (for example, payroll
tax records) or a forensic accounting analysis to prove systematic
underpayments. In contrast, Anderton introduced a forensic accounting
analysis purportedly refuting the government’s position. Anderton also offered
evidence that visa workers were paid better than prevailing wage rates and
that a year-long Department of Labor investigation concluded with no action.
In addition to testimony from three visa workers, the government
introduced A&A time sheet records for visa workers as well as evidence that
he systematically underpaid non-visa workers. When the district court denied
Anderton’s motion for acquittal, it held that the “evidence demonstrate[d] that
Defendant had a pattern of underpaying both visa and non-visa workers before
and during the time he filled out the Petition and had the intent to continue to
underpay workers and charge visa fees.”
Anderton’s arguments and evidence were presented to the jury, which
was entitled to weigh the evidence, and still convicted him. As noted above,
this court decides only whether the evidence admitted at trial was sufficient
for “a reasonable trier of fact [to] conclude . . . the elements of the offense were
11
Case: 17-40836 Document: 00514603475 Page: 12 Date Filed: 08/16/2018
No. 17-40836
established beyond a reasonable doubt.” Suarez, 879 F.3d at 630 (citation
omitted). There was sufficient evidence to convict on this count.
III. The Search Warrants
Anderton argues that the search warrants were not particularized and
essentially authorized a general search in violation of the Fourth Amendment.
He presented these arguments to the district court in a motion to suppress,
which was denied. 1 Attachment F to the warrant lists the items to be searched
for/seized. Anderton argues that Attachment F:
. . . authorized the seizure of all business records without
limitation and all personal records pertaining in any way to
financial matters, and all electronic devices and electronic storage
devices and electronic media, also without limitation, at any of the
search warrant locales, and all electronic mail from the business
account.
(emphasis removed). He contends that “there were no limits upon what could
be searched for and what could be seized.” (emphasis removed). Anderton
argues that the good-faith exception cannot apply here because the warrant
“fail[s] to particularize the place to be searched or the things to be seized,” and
it does not apply to general searches. United States v. Leon, 468 U.S. 897, 923,
104 S. Ct. 3405, 3421 (1984)).
Anderton mischaracterizes the breadth of Attachment F. For example,
Attachment F does not state that “all employee records” may be seized.
Instead, it permits the seizure of: “[e]mployee earning and leave statements,
employee payroll records, employee time sheets, H2-B visa employee passport
and visa records, I-129 Nonimmigrant Worker petition records, U.S. citizen
1 The court also held that Anderton did not have standing to challenge some of the
searches, a ruling Anderton does not contest on appeal.
12
Case: 17-40836 Document: 00514603475 Page: 13 Date Filed: 08/16/2018
No. 17-40836
applicant rejection letters, [and] contractor invoices.” 2 The descriptions of
other types of items, although broad, are sufficiently particularized as to
confine the discretion of the officers conducting the search. After all, “generic
language is permissible if it particularizes the types of items to be seized.”
United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (emphasis in
original) (citation omitted). United States v. Leon held that “evidence obtained
by officers in objectively reasonable good-faith reliance upon a search warrant
is admissible.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992)
(citing Leon, 468 U.S. at 922-23, 104 S. Ct. at 3420). Attachment F was
sufficiently particular for the good-faith exception to apply.
IV. The Order of Forfeiture
Anderton disputes the order of forfeiture based on his claim that the
government did not meet its burden to identify precisely where the A&A office
was located, 2949 West Audie Murphy Parkway. Specifically, Anderton argues
that the government failed to provide the correct legal description of the
property at trial. Instead, the government offered legal descriptions of over
300 acres, less than 10 of which were ultimately forfeited. Consequently, the
government never “established a nexus between [the unique legal description
of this parcel of real property] and the offense.” See Fed. R. Crim.
P. 32.2(b)(1)(A) (alteration supplied by Anderton).
This contention is meritless. A government trial exhibit accurately
described the location of the A&A office at 2949 W. Audie Murphy Parkway,
except that it erroneously included a half acre that had been sold to the State
of Texas as a right-of-way. This portion of the property was dismissed from
2 This is not Anderton’s only mischaracterization of Attachment F. He claims that it
allows “all personnel and payroll records” to be seized, when it actually allows seizure of
“[p]ersonnel and payroll/commission records for all employees that appear to be engaged in
the business."
13
Case: 17-40836 Document: 00514603475 Page: 14 Date Filed: 08/16/2018
No. 17-40836
the final order of forfeiture. Anderton does not contend that he received
inadequate notice that the government sought to forfeit this property, nor does
he contend that it was not subject to forfeiture. His only complaint is that the
property description presented by the government included an extra half acre
(which was corrected in the final forfeiture order). No error is presented.
For the foregoing reasons, Anderton’s convictions and the final order of
forfeiture are AFFIRMED.
14