United States v. Hernandez-Calvillo

39 F.4th 1297

UNITED STATES of America, Plaintiff - Appellant,

v.Jose Felipe HERNANDEZ-CALVILLO, Defendant - Appellee.

United States of America, Plaintiff - Appellant,

v.Mauro Papalotzi, Defendant - Appellee.

No. 19-3210

No. 19-3211

United States Court of Appeals, Tenth Circuit.

FILED July 13, 2022

James I. Pearce, Attorney, Appellate Section, Criminal Division, Department of Justice, Washington, D.C. (Stephen R. McAllister, United States Attorney, and James A. Brown, Assistant United States Attorney, Topeka, Kansas; and Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., with him on the briefs), for Plaintiff - Appellant.

Mark C. Fleming of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts (Robert N. Calbi of Law Offices of Robert N. Calbi, Kansas City, Missouri; Daniel T. Hansmeier, Appellate Chief, and Melody Brannon, Federal Public Defender, Kansas Federal Public Defender, Kansas City, Kansas; Eric L. Hawkins and Kevin R. Palmer of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts; and Thomas G. Sprankling of Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California, with him on the brief), for Defendants - Appellees.

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

This appeal involves the constitutionality of a federal immigration statute that makes it a crime to encourage or induce a noncitizen¹ to reside in the United States, knowing or recklessly disregarding that such residence violates the law. 8 U.S.C. § 1324(a)(1)(A)(iv). After a jury convicted Jose Hernandez-Calvillo and Mauro Papalotzi (collectively, Appellees) of conspiring to commit this crime, they challenged the statute as overbroad under the First Amendment and successfully moved to dismiss the indictment on that basis. The government appeals.

We affirm. Section 1324(a)(1)(A)(iv) ’s plain language targets protected speech, and neither the government's nor the dissent's proposed limiting construction finds support in the statute's text or surrounding context. And when properly construed, the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression. For these reasons, we conclude that § 1324(a)(1)(A)(iv) is substantially overbroad, and the district court properly dismissed the indictment.

Background²

Appellees’ convictions stem from their role in an alleged scheme to employ noncitizens in the drywall-installation business. At the heart of the operation was Jose R. Torres Drywall, a company run by Jose Torres-Garcia with the help of two other individuals, Marcos Stubbs and Isaac Gallegos. Despite what its name might suggest, Torres Drywall did no drywall work. Its true business was to act as a "financial intermediary" between construction companies and subcontracted construction crews primarily composed of noncitizens. App. vol. 3, 378. In a nutshell, the companies hired the crews for drywall projects and paid for the work by writing checks to Torres Drywall, whose operators in turn cashed the checks for the leaders of each crew (in exchange for a cut of the wages) so the leaders could pay their crew members. Torres Drywall also supplied the crews with insurance documents that the companies required before hiring the crews. Appellees each led construction crews that were paid by Torres Drywall for work performed for Keith Countess's drywall company, Plaster Masters, L.C.

Based on this scheme, a grand jury indicted Appellees, another crew leader, Stubbs, Gallegos, Plaster Masters, and Countess on several federal immigration crimes.³ The first count alleged that the defendants conspired to encourage or induce noncitizens to reside in the United States. See 8 U.S.C. § 1324(a)(1)(A)(iv) (punishing 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"), (v)(I) (proscribing "conspiracy to commit any of the preceding acts"). The remaining counts alleged specific instances of encouraging or inducing particular noncitizens to reside in the United States, or of aiding and abetting such encouragement or inducement, in violation of § 1324(a)(1)(A)(iv) and (v)(II).⁴ The indictment did not allege that any of the noncitizens encouraged or induced to reside in the United States by this scheme were members of Appellees’ crews. The government separately charged Torres-Garcia for his role in the scheme.

Only Appellees went to trial. The government dismissed the case against Plaster Masters. And the other individual defendants—Stubbs, Gallegos, Countess, the other crew leader, and Torres-Garcia—all pleaded guilty in exchange for favorable sentencing recommendations and agreeing to testify at Appellees’ trial.

At trial, Appellees proposed a jury instruction to define what it means to "encourage" or "induce" someone to unlawfully reside in the United States. The government opposed the instruction, arguing that the jury could give those terms their ordinary meaning based on its own understanding. The district court agreed, rejecting the instruction. And when, during deliberations, the jury requested "a different/further definition or clarification of ‘intentionally induced or encouraged,’ " the district court declined, instead instructing the jury to "use [its] collective judgment and experience to decide the issues." App. vol. 3, 464.

Ultimately, the jury found Appellees guilty of conspiring to encourage or induce but not guilty of the three individual counts of encouraging or inducing. Before sentencing, Appellees moved to dismiss the conspiracy count on First Amendment overbreadth grounds.⁵ Specifically, they argued that the object of the conspiracy—encouraging or inducing noncitizens to reside in the United States under § 1324(a)(1)(A)(iv) —is facially unconstitutional because it proscribes a substantial amount of protected speech. The district court agreed and granted the motion, vacating Appellees’ convictions and dismissing the indictment. The government appeals.

Analysis

The sole issue before us is a facial constitutional challenge to § 1324(a)(1)(A)(iv), which we refer to as subsection (A)(iv). Ordinarily, success on such a challenge requires a showing that the statute at issue could never be applied in a permissible, constitutional manner; all potential applications of the statute must be unconstitutional. See United States v. Stevens , 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). But this requirement is relaxed somewhat when, as here, a litigant attacks a statute as overbroad under the First Amendment. Id. at 473, 130 S.Ct. 1577. In that context, the party asserting the facial challenge need only show that "a substantial number of [the statute's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."⁶ Id. (quoting Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ). Put more concretely, to prove a statute's overbreadth (and thus its facially invalidity), the challenger must show that it "prohibits a substantial amount of protected speech." United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

Here, the government disputes the district court's determination that subsection (A)(iv) is substantially overbroad. To resolve this dispute, we proceed in two steps. First, we "construe the challenged statute," because "it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Id. at 293, 128 S.Ct. 1830. Second, we consider "whether the statute, as we have construed it, criminalizes a substantial amount of protected expressi[on]." Id. at 297, 128 S.Ct. 1830. At both steps, our review is de novo. See United States v. Friday , 525 F.3d 938, 948 (10th Cir. 2008) (reviewing dismissal de novo because district court based its decision on interpretation of governing criminal statutes); United States v. Brune , 767 F.3d 1009, 1015 (10th Cir. 2014) (reviewing First Amendment overbreadth claim de novo).

I. Statutory Construction

When assessing an overbreadth challenge, the usual rules of statutory construction apply. See Brune , 767 F.3d at 1022. As when interpreting any statute, we start with the statute's plain language and "assume that the legislative purpose is expressed by the ordinary meaning of the words used." United States v. Torres-Laranega , 476 F.3d 1148, 1157 (10th Cir. 2007) (quoting FTC v. Kuykendall , 466 F.3d 1149, 1154 (10th Cir. 2006) ). We also consider the context in which the words appear in the overall statutory scheme. See Brune , 767 F.3d at 1022. If applying these tools produces "serious ... doubts" about the statute's constitutionality, we "may impose a limiting construction on [the] statute" that avoids the constitutional problem. Stevens , 559 U.S. at 481, 130 S.Ct. 1577 (first quoting FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 516, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) ; and then quoting Reno v. Am. Civ. Liberties Union , 521 U.S. 844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ). A limiting construction is appropriate, however, only if the statute is "readily susceptible" to one; we cannot "rewrite a ... law to conform it to constitutional requirements." Id. (alteration in original) (quoting Reno , 521 U.S. at 884–85, 117 S.Ct. 2329 ). Further, because we presume that Congress drafts constitutional legislation, invalidation requires "a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison , 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

Subsection (A)(iv), the provision challenged as overbroad here, makes it a crime to "encourage[ ] or...