[00:00:00] Speaker 00:
You can proceed.

[00:00:02] Speaker 03:
Thank you, your honor.

[00:00:03] Speaker 03:
May it please the court, Carolyn Wiggin on behalf of Mr. Helleman Hanson, and I am going to make an effort to follow the clock and reserve five minutes if I can.

[00:00:14] Speaker 03:
Your honors, when we first argued this case to you back in 2021, we thought that the terms encourage and induce carried their plain dictionary meeting within section 1324 A1A4.

[00:00:30] Speaker 03:
In 2023, as we know, the Supreme Court issued its opinion in this case and engaged in statutory interpretation that changed the meaning of this subsection.

[00:00:45] Speaker 03:
The Supreme Court held that tracing the history of Congress's drafting an amendment of this section which goes back to the late 19th century,

[00:00:57] Speaker 03:
The terms encourage and induce within the subsection are really synonyms for the common law crimes of solicitation and aiding and abetting which is also now called facilitation.

[00:01:14] Speaker 03:
And the court held that the old soil surrounding these common law crimes came with the terms and was incorporated into 1324 A1A4.

[00:01:28] Speaker 03:
including the intent or mens rea required for those offenses.

[00:01:33] Speaker 03:
Now I think it's very clear if we look at all the authorities and cases about common law solicitation and aiding and abetting.

[00:01:43] Speaker 03:
they require an intent that the person being spoken to or assisted commit a crime.

[00:01:51] Speaker 03:
And as recently as the Rosemont decision regarding aiding and abetting 18 USC Section 2, the Supreme Court affirmed that aiding and abetting requires intent that another person commit a crime.

[00:02:08] Speaker 03:
So that is still very much part of these

[00:02:11] Speaker 03:
in Kuwait criminal offenses.

[00:02:14] Speaker 03:
And I think this makes this case not difficult because the parties do agree

[00:02:22] Speaker 03:
that overstaying a visa is not a crime.

[00:02:27] Speaker 03:
So whether it's on jury instructions or another one of the issues we've briefed, I think it's very clear that no one alleges that these conversations about visas had to do with commission of a crime.

[00:02:41] Speaker 03:
And so probably the simplest route is to say the jury instruction did not include the proper mens rea, which the government actually agrees with.

[00:02:51] Speaker 03:
And additionally, to say that it's not harmless error because the jury hadn't known that it had to find Mr. Hampson had the specific intent that someone committed a crime by overstaying a visa.

[00:03:09] Speaker 03:
The element wouldn't have been met because that's not a crime.

[00:03:13] Speaker 03:
Now, this court may decide that it's going to

[00:03:21] Speaker 03:
break into a new ground by saying somehow soliciting and aiding and abetting can be founded on an intent that another commit a civil law violation.

[00:03:33] Speaker 03:
I don't think that is supported by the law, but even if this court were to find that, we still have weak evidence on specific intent in this case.

[00:03:46] Speaker 00:
Council, if I could ask you a question, please.

[00:03:51] Speaker 00:
Let's assume that the panel would decide in your favor.

[00:03:57] Speaker 00:
Yes.

[00:03:58] Speaker 00:
In so far as you're saying, these convictions would need to be vacated, because the jury instructions did not require specific intent.

[00:04:15] Speaker 00:
If we did that, why would we not just vacate and remand so that the district court could retry the case with proper jury instruction?

[00:04:29] Speaker 03:
I think that would be an appropriate resolution of this case.

[00:04:34] Speaker 03:
I concede that if it's just a jury instruction error, the government does have the right to retry.

[00:04:40] Speaker 03:
So that would be different than a sufficiency of the evidence holding.

[00:04:45] Speaker 03:
And so I think that is one proper resolution of this appeal.

[00:04:51] Speaker 01:
What in your view would be the appropriate jury instruction on a retrial?

[00:04:56] Speaker 03:
I would think that the definition of encourage or induce that the jury was given, we would argue that it requires the specific intent that the person being spoken to violate the law.

[00:05:18] Speaker 03:
We would argue that because the Supreme Court has

[00:05:21] Speaker 03:
said these are the crimes basically of solicitation and aiding and abetting that that it requires that the defendant must have the specific intent that another person commit a crime we might you know the government might say no it just has to be a specific intent that they violate the law we would probably

[00:05:42] Speaker 03:
have argument about that in district court, but we would ask that the instruction really fall in line with the solicitation and aiding and abetting that the Supreme Court has said are implicitly incorporated into this subsection.

[00:05:59] Speaker 01:
I'm not exactly sure about your answer.

[00:06:01] Speaker 01:
I'm looking at the statute and I'm trying to imagine the jury instruction.

[00:06:05] Speaker 01:
There's two levels of mens rea.

[00:06:07] Speaker 01:
There's intentional.

[00:06:10] Speaker 01:
So, assumingly, it would be intentional solicitation or facilitation.

[00:06:17] Speaker 01:
And then knowing that in reckless disregard, there would be a violation of the law.

[00:06:23] Speaker 01:
But as I hear you, you would be saying there would be a violation of criminal law.

[00:06:28] Speaker 01:
Well, okay, so... To me, that's really the crux of the appeal.

[00:06:33] Speaker 01:
We all know that the intentional miraculously has now appeared in the statute, even though it never did before the Supreme Court decision.

[00:06:43] Speaker 01:
But the question I have is why even with the intentional solicitation or facilitation, it couldn't then be that that

[00:06:58] Speaker 01:
solicitation or facilitation couldn't just be in violation of a law.

[00:07:06] Speaker 03:
Well, the Supreme Court sort of talked about these two parts of the subsection.

[00:07:14] Speaker 03:
So,

[00:07:17] Speaker 03:
The end of the subsection says that the defendant has to know or recklessly disregard that the continued residence would be unlawful.

[00:07:29] Speaker 03:
And I don't think the Supreme Court explicitly touched that part of the subsection.

[00:07:37] Speaker 03:
But what it did say is that the encouragement and inducement part carries

[00:07:47] Speaker 03:
The mens rea that is associated with traditional common law solicitation and aiding and abetting.

[00:07:57] Speaker 01:
We know, for example, that under a 1326 violation,

[00:08:03] Speaker 01:
let's say you're returning, that that's a criminal violation.

[00:08:07] Speaker 01:
Right, being found in after you've been deported.

[00:08:09] Speaker 01:
After you've been deported, now you're coming back.

[00:08:11] Speaker 01:
It is a crime to be found in the United States.

[00:08:13] Speaker 01:
So that would be easy that it would be definitely a violation of the law, whereas simply residing in

[00:08:24] Speaker 01:
But without any criminal violation or history, that would be a civil violation or civil immigration.

[00:08:31] Speaker 01:
Most of the time that is just a civil violation.

[00:08:35] Speaker 01:
So should we give any credence to what was probably congressional intent, which is it just needs to be a violation of the law?

[00:08:45] Speaker 03:
Well, the Congress did say

[00:08:49] Speaker 03:
that the defendant has to know or recklessly disregard that it's in violation of the law.

[00:08:55] Speaker 03:
Now what the Supreme Court has said is that Congress also implicitly simply streamlined the intent associated with encourage and induce.

[00:09:06] Speaker 03:
So it said that encourage and induce really are the crimes of solicitation and

[00:09:15] Speaker 03:
aiding and abetting.

[00:09:16] Speaker 03:
And I agree, the statute is kind of crazy the way it comes out, but I do know that in that Supreme Court opinion, and I could find the language to talk about when I do my rebuttal, they said, Justice Barrett said, you know, sometimes you can have a lesser mens rea as to one part and a greater mens rea as to another part.

[00:09:37] Speaker 03:
And she seemed to be saying, because we had argued, hey, the only mens rea is this last part, and that's not enough.

[00:09:45] Speaker 03:
And she said, that doesn't matter.

[00:09:47] Speaker 03:
I should say the Supreme Court said that.

[00:09:49] Speaker 03:
And that just like 18 USC section two, which is our aiding and abetting statute, doesn't say anything explicitly about mens rea, we know that it includes the mens rea of,

[00:10:06] Speaker 03:
assisting somebody in commission of a crime.

[00:10:09] Speaker 01:
And so what do you make of the Supreme Court's kind of little aside, like, well, there is this argument about criminal versus civil, but we're not novel argument, but we're not going there.

[00:10:21] Speaker 03:
I think that they addressed the question on which cert was granted, which is the overbreath and

[00:10:29] Speaker 03:
They did not think it was necessary to resolve that question in order to decide that the statute is not overbroad.

[00:10:39] Speaker 03:
Because I think their argument was, and it was a different take on overbreath than I've seen in prior Supreme Court decisions, but the focus was on the fact that there hadn't been a lot of prosecutions that they found troubling, whereas

[00:10:58] Speaker 03:
You know, we had said what we're worried about is people who read this law and try to follow it, not sure what it means, so their speech is chilled.

[00:11:08] Speaker 03:
So the Supreme Court seemed to be saying, here's the reason we really don't care about all the speech it might get to.

[00:11:16] Speaker 03:
One of those being, I just think they thought we don't have to decide this issue to decide the over breath because it's not enough high value speech to be worth striking a statute.

[00:11:30] Speaker 03:
Instead, we're going to construe it narrowly.

[00:11:33] Speaker 03:
And they likely did not really focus on the Ninth Circuit briefing we did, which is saying, hey, in this case,

[00:11:43] Speaker 03:
Mr. Hanson actually was talking about a civil offense.

[00:11:47] Speaker 03:
I just don't think they reached that issue.

[00:11:51] Speaker 02:
Let me ask a question.

[00:11:52] Speaker 02:
If you think that the statute that encourage or induce means the intentional encouragement of a crime or the provision of assistance to a wrongdoer with the intent to further the commission of a crime, then why are you saying it should go back for a new trial?

[00:12:13] Speaker 02:
Is there any evidence of a crime here?

[00:12:17] Speaker 03:
There is not.

[00:12:19] Speaker 03:
Now, normally, we as defense counsel can't really

[00:12:26] Speaker 03:
do a motion to dismiss saying, we don't think the government's going to be able to prove this at trial.

[00:12:31] Speaker 03:
We have to wait for the trial to happen.

[00:12:33] Speaker 03:
At the end, we might say, do a Rule 29 motion saying, they didn't prove it.

[00:12:39] Speaker 03:
So I don't know that we could prevent the government from taking it to trial and trying to prove that he encouraged a crime.

[00:12:49] Speaker 02:
Don't I don't know of any way in which this was a crime But I don't know that they wouldn't have the right to try to prove the elements of the offense But I know there was a whole trial it just can't Extending it back for a resentencing would not be the appropriate thing to do.

[00:13:06] Speaker 03:
Well, I mean if you If you decide that on some of the

[00:13:17] Speaker 03:
Issues three to four really, I think, say this conviction is reversed and there's no further proceedings in district court except new sentencing because now counts 17 and 18 have been reversed.

[00:13:31] Speaker 03:
On the first issue, the jury instructions

[00:13:35] Speaker 03:
My understanding is that when there's a reversal and there was a bad jury instruction on the ground, normally the government does have the right to retry based on the correct jury instructions.

[00:13:49] Speaker 03:
I can't predict exactly what evidence they'll introduce.

[00:13:53] Speaker 03:
I would love it if I could figure out a mechanism to do a pretrial motion to dismiss.

[00:14:00] Speaker 03:
saying there's no way they can prove that these elements but normally that isn't allowed.

[00:14:05] Speaker 03:
So I'd probably have to wait till the end of trial.

[00:14:08] Speaker 03:
If they didn't prove he encouraged or induced a crime, that's when I would say there's insufficient evidence here.

[00:14:17] Speaker 01:
And so I want to also try to understand the practical impact of this appeal.

[00:14:24] Speaker 01:
If count 17 and 18 were dropped,

[00:14:28] Speaker 01:
He would have the same sentence, is that right?

[00:14:31] Speaker 03:
Well, he'd have, he'd still have advisory guidelines that were the same.

[00:14:39] Speaker 03:
Now, Judge England, when he sentenced Mr. Hanson back in 2017, I believe it was, had found him guilty of all the counts and ran the sentences concurrently for all the counts.

[00:14:57] Speaker 03:
Right.

[00:14:57] Speaker 03:
So now we'd say there's these two counts that aren't there anymore.

[00:15:02] Speaker 01:
There is... Nothing to run concurrent.

[00:15:05] Speaker 03:
Right.

[00:15:05] Speaker 03:
And two counts have been eliminated and this court has held before that in that circumstance you do have a right to a new sentencing hearing.

[00:15:14] Speaker 03:
And of course under Pepper we could talk about everything that's happened in the last seven years to Mr. Hanson.

[00:15:20] Speaker 01:
Right.

[00:15:20] Speaker 01:
But the bottom line is he could get the exact same sentence on the two counts.

[00:15:25] Speaker 01:
on which the conviction stands, correct?

[00:15:28] Speaker 03:
Well, so there's 15 standing fraud counts that would still be there.

[00:15:33] Speaker 01:
That would still be there?

[00:15:34] Speaker 01:
Yes.

[00:15:35] Speaker 01:
That would get him the same?

[00:15:36] Speaker 03:
The same advisory guideline range.

[00:15:38] Speaker 01:
The same advisory guidelines.

[00:15:40] Speaker 03:
And we would make our arguments based on everything that's happened in the last, you know,

[00:15:46] Speaker 03:
Under Pepper, we are allowed to talk about what's happened between now and the first sentencing, make our arguments for variances.

[00:15:54] Speaker 01:
So this is all the fraud business, basically?

[00:15:58] Speaker 03:
The 15 fraud counts, yes, still stand.

[00:16:01] Speaker 03:
They produced the same advisory guidelines range as we'd have now, but we'd have those two fewer counts of conviction.

[00:16:15] Speaker 03:
If the court has nothing further now, I'll try to reserve my last few minutes.

[00:16:22] Speaker 00:
Yeah, I have nothing.

[00:16:25] Speaker 00:
Judge Rossani, any questions?

[00:16:27] Speaker 00:
Nothing.

[00:16:28] Speaker 00:
Okay, Judge McEwen, no.

[00:16:30] Speaker 00:
So I think reserving your time is fine.

[00:16:33] Speaker 03:
Thank you.

[00:16:37] Speaker 00:
So then we'll hear from counsel for appellees.

[00:16:43] Speaker 04:
Good morning, Your Honors.

[00:16:44] Speaker 04:
May it please the Court, Sonya Ralston for the United States.

[00:16:48] Speaker 04:
I'd like to begin on the jury instruction issue regarding the mismatch theory.

[00:16:53] Speaker 04:
Reading the Supreme Court's opinion at pages 783 to 784, I think it's clear that the court rejected the statutory construction claim on which their jury instruction argument now rests.

[00:17:06] Speaker 04:
The court says that the defendant's First Amendment overbreadth claim is premised entirely on the point that the statute, as a matter of statutory construction, covers soliciting, facilitating, encouraging, whatever,

[00:17:23] Speaker 04:
both criminal and civil violations.

[00:17:26] Speaker 04:
The court says that the defendant has conceded that if it covers only that action regarding criminal violations, the statute is constitutional.

[00:17:37] Speaker 04:
Now why, if the court believed that facilitation and solicitation, as it said the statute means, covers only criminal solicitation, facilitation of criminal offenses, that was not the end of the matter.

[00:17:51] Speaker 04:
Instead, the court goes on to say, even if we accept his argument that there could be some First Amendment problem with this mismatch theory, which the court called novel, that the statute would not be over broad, that the legitimate sweep would still outweigh any protected conduct.

[00:18:15] Speaker 04:
Now, that analysis has nothing to do, right?

[00:18:18] Speaker 04:
It has no work to do if the statute itself covers only solicitation and facilitation of criminal offenses, okay?

[00:18:28] Speaker 04:
Otherwise, the statute would be smaller than the First Amendment and there could be never an applied challenge, right?

[00:18:35] Speaker 04:
It would be like a fraud statute where every time you violate the statute, it's necessarily unprotected conduct.

[00:18:42] Speaker 04:
So I think there's no way to read the Supreme Court's opinion, citing Arizona versus United States, as the dissent agrees that the statute itself covers solicitation and facilitation of civil offenses.

[00:18:59] Speaker 04:
Now, once that's true, I think the question here, the primary question for the court, is whether the instruction below, which omitted the specific intent element, is harmless.

[00:19:10] Speaker 04:
And I'd like to talk about the evidence.

[00:19:12] Speaker 04:
But first, I just wanted to clarify, Judge McEwen, your question about the proper instructions.

[00:19:18] Speaker 04:
If you look at the court's new model jury instructions, I think they are correct.

[00:19:24] Speaker 04:
They say for the purposes of this, they've added a piece that echoes the language from Hanson.

[00:19:29] Speaker 04:
that says, for the purposes of this statute, the term encourage or induce means the intentional encouragement of an unlawful act or the provision of assistance to a wrongdoer with the intent to further the commission of an offense.

[00:19:41] Speaker 04:
Otherwise, the jury instructions are the same as they were before, the model instructions, which is the instructions that the court gave during the trial.

[00:19:50] Speaker 04:
I agree with my friend on the other side that if the court believes

[00:19:55] Speaker 04:
The evidence is not harmless.

[00:19:57] Speaker 04:
The remedy is to vacate and remand.

[00:20:00] Speaker 04:
It is not to enter a judgment of acquittal.

[00:20:03] Speaker 04:
And then back in district court, the government would make an independent determination about whether to go forward with a new trial.

[00:20:10] Speaker 04:
And if so, the defendant's remedy would be to ask for a Rule 29 motion based on the jury instructions as the court construes them at that point.

[00:20:20] Speaker 01:
Let me go back to this, the mismatch in the kind of the tail end of the Supreme Court's opinion.

[00:20:26] Speaker 01:
So it's not clear to me what the Supreme Court is looking at as the over breadth of the statute and the target on appeal or on cert to the Supreme Court was the First Amendment implications of an over breadth.

[00:20:43] Speaker 01:
So when the court says here,

[00:20:49] Speaker 01:
Even we don't need to address his, what they call the mismatch theory, because even if he's right, the overbreath challenge fails.

[00:21:00] Speaker 01:
I'm not sure if that completely answers the question.

[00:21:03] Speaker 01:
So in other words, the statute might not be overbroad from a First Amendment standpoint.

[00:21:12] Speaker 01:
But given what the Supreme Court did in the old soil business on the solicitation, don't we still have the question of whether or not the violation of the law must be criminal or civil?

[00:21:32] Speaker 04:
I don't think so.

[00:21:34] Speaker 04:
Let me clarify something and then explain.

[00:21:36] Speaker 04:
So first, as a matter of clarification, I think we need to separate out the statutory construction question.

[00:21:43] Speaker 04:
What does the statute cover?

[00:21:46] Speaker 04:
And then the First Amendment question, the constitutional question.

[00:21:49] Speaker 04:
I agree with that.

[00:21:49] Speaker 04:
OK, what is protected speech?

[00:21:51] Speaker 04:
What the Supreme Court there is doing is talking about that First Amendment question.

[00:21:55] Speaker 04:
It's saying there could be an as-applied challenge.

[00:21:58] Speaker 04:
So they say even if it's not overbroad, as-applied challenges can take it from here.

[00:22:03] Speaker 04:
So when they're saying there, they're saying even if the statute covers some protected conduct, a First Amendment as-applied challenge could address that.

[00:22:14] Speaker 04:
And if you go back two paragraphs, and this is the paragraph that starts, Hanson has no quibble with that conclusion.

[00:22:22] Speaker 04:
The prior paragraph is that speech that is integral to criminal conduct is unprotected categorically.

[00:22:30] Speaker 04:
So when they say that conclusion, that's what they're talking about.

[00:22:35] Speaker 04:
To the extent that the clause criminalizes speech that solicits or facilitates a criminal violation,

[00:22:40] Speaker 04:
says, in fact, he concedes that he would lose if the clause covered only solicitation and facilitation of criminal conduct.

[00:22:48] Speaker 04:
If the court agreed with him about the statutory construction argument, it would have stopped there and said, we agree.

[00:22:57] Speaker 04:
Clause 4 covers only solicitation and facilitation of criminal conduct, and therefore is neither overbroad nor touches any protected speech.

[00:23:08] Speaker 04:
Instead, the court goes on.

[00:23:11] Speaker 04:
to talk about, well, even if he's right that there could be protected conduct or protected speech that solicits civil violations, then the statute, the ratio between protected speech and unprotected speech wouldn't be unbalanced.

[00:23:28] Speaker 04:
You only get to that ratio question if that solicitation of civil violation is encompassed within the statute.

[00:23:37] Speaker 04:
If the statute only is narrower than the First Amendment, that's the end of the matter.

[00:23:43] Speaker 04:
There's nothing to weigh, nothing to balance in a fraud prosecution or a fraud statute or a true threats statute.

[00:23:53] Speaker 04:
We're not asking, well, is it over broad?

[00:23:56] Speaker 04:
Because the statute itself covers only unprotected speech.

[00:24:03] Speaker 01:
And so I think if there's... You know, I have a little trouble saying this is all about speech because it's also about conduct.

[00:24:09] Speaker 04:
I agree.

[00:24:10] Speaker 01:
And so when you frame it only in terms of the speech, it kind of hijacks the underlying question, and that is this civil versus criminal.

[00:24:22] Speaker 01:
So I don't know why you frame it completely in this speech characterization.

[00:24:30] Speaker 04:
So I want to be clear that

[00:24:33] Speaker 04:
Okay, so if I could ask a question back just to clarify to make sure I understand when you talk about conduct Do you mean the defendants conduct or the conduct of the immigrant?

[00:24:43] Speaker 04:
No, the defendants the defendants conduct.

[00:24:45] Speaker 04:
Okay.

[00:24:45] Speaker 04:
Yes, so this the Statute subsection four covers both speech and conduct right right and I don't see any reason why and

[00:24:58] Speaker 04:
this idea that the Supreme Court's only talking about speech.

[00:25:02] Speaker 04:
They say if the statute covers only conduct, then there's no First Amendment challenge at all.

[00:25:08] Speaker 04:
And here, they say they're talking about speech, that the First Amendment prohibits Congress to criminalize speech that solicits or facilitates a civil violation.

[00:25:21] Speaker 04:
That's his argument, that that is out of the thing.

[00:25:24] Speaker 04:
And so that's why I'm focusing on speech.

[00:25:28] Speaker 01:
I'm trying to figure out like if the case goes back and if the government decides to retry the case and we insert the new instruction which basically is the intentionality with respect to the solicitation and facilitation depending on which word is used whether it's the statutory word and then that's explained or you

[00:25:54] Speaker 01:
take the explanation inserted in the instruction.

[00:25:57] Speaker 01:
So you have to have intentionality as to solicitation facilitation and then you need the knowing and reckless with respect to violation of a law.

[00:26:12] Speaker 01:
So wouldn't if we just were to remand, wouldn't we just put the district court back in the soup as to whether violation of the law means

[00:26:23] Speaker 01:
that the word criminal needs to be inserted in there.

[00:26:26] Speaker 01:
Do you see what I'm saying?

[00:26:27] Speaker 01:
I do, and I think I can answer that.

[00:26:30] Speaker 01:
Here we're talking about this kind of abstract speech up here with the Supreme Court, but now we're down to the case.

[00:26:37] Speaker 04:
Right, OK.

[00:26:38] Speaker 04:
So I think the way to answer that is to separate out elements two and three in the jury instructions.

[00:26:45] Speaker 04:
And so element two talks about,

[00:26:47] Speaker 04:
uh, encouraged or induced the alien to come to enter reside in the United States in violation of law.

[00:26:55] Speaker 04:
Okay.

[00:26:55] Speaker 04:
So I think that that we're talking about whether the residents in fact is in violation of the law.

[00:27:03] Speaker 04:
Right.

[00:27:03] Speaker 04:
And did he intend them to reside in a way that is in fact in violation of the law.

[00:27:08] Speaker 04:
And then element three has this extra mens rea requirement about knowledge or reckless disregard.

[00:27:14] Speaker 04:
that it is in violation of law.

[00:27:17] Speaker 04:
So that, as the Supreme Court says, tells us something we wouldn't usually know, that here, ignorance of the law is a type of defense.

[00:27:27] Speaker 04:
So if you genuinely think that this is legal, then that is a defense under the third element.

[00:27:33] Speaker 04:
So I think if you separate that out, it helps a little bit to go back to this question about whether the residing in is in violation of law.

[00:27:41] Speaker 04:
Is he encouraging them to reside in?

[00:27:44] Speaker 04:
and is that residing in violation of the law?

[00:27:47] Speaker 04:
I don't see any reason why in violation of law, in that sense, has to be criminal, especially because, again, I think the Supreme Court's opinion clearly covers that every court to have addressed this

[00:28:01] Speaker 04:
says that it covers it, right?

[00:28:02] Speaker 04:
This court twice in Senator Smith, this court in the prior opinion in Hanson, the Supreme Court here.

[00:28:08] Speaker 04:
Many of the other cases from other circuits involve solicitation, involve defendants who reside in, who've already come to the United States and are staying.

[00:28:18] Speaker 04:
They involve this type of visa fraud, passport fraud, immigration, like falsely getting green cards, falsely getting immigration documents for people who are already here.

[00:28:28] Speaker 04:
And so I think that

[00:28:30] Speaker 04:
To hold that the statute doesn't cover the encouragement, inducement, solicitation, facilitation of civil violations would mean that essentially probably 90% of the convictions obtained under this statute are invalid, which I thought you were just describing some conduct, not encouragement.

[00:28:50] Speaker 02:
I mean, just simply encouragement.

[00:28:53] Speaker 02:
You're talking about fraud to get green cards.

[00:28:56] Speaker 02:
I mean, it sounds like,

[00:29:00] Speaker 02:
some kind of cases that aren't really like this, that aren't speech cases.

[00:29:06] Speaker 02:
So to be clear, the problem is- You said 90% of the convictions are going.

[00:29:12] Speaker 02:
I'm having a hard time with that.

[00:29:14] Speaker 04:
So I will admit, I haven't read every Section 4 case, so I'm ballparking that.

[00:29:19] Speaker 04:
But the ones I have read a lot that are about this type of fraud.

[00:29:22] Speaker 04:
And when I say, like, passport fraud, I mean fraud on the immigrant on the promise of getting

[00:29:30] Speaker 04:
official documents of some kind.

[00:29:32] Speaker 04:
So that's Synanang Smith, that's this case, that's Tracy.

[00:29:36] Speaker 04:
And I think that in those cases, what we're talking about is the promise made to the immigrant, right?

[00:29:42] Speaker 04:
that is, in some sense, fraudulent.

[00:29:45] Speaker 04:
It's the promise, I'm going to get you this document.

[00:29:50] Speaker 04:
I'm going to get you a work permit.

[00:29:51] Speaker 04:
I'm going to get you citizenship that allows you to stay in the United States.

[00:29:57] Speaker 04:
And that speech is what induces the immigrant to stay in violation of law.

[00:30:05] Speaker 04:
And it's fraud, as the Supreme Court said, that many cases, like Hanson's, involve fraud.

[00:30:12] Speaker 04:
are therefore unprotected in that sense as well.

[00:30:15] Speaker 04:
And so I think that that's the fraud.

[00:30:17] Speaker 04:
The fraud is on the immigrant.

[00:30:19] Speaker 04:
It's the speech to the immigrant that induces the payment.

[00:30:22] Speaker 04:
That's the fraud.

[00:30:23] Speaker 04:
And that fraud involves promising to get some kind of immigration benefit from the government.

[00:30:31] Speaker 01:
But isn't that a different charge?

[00:30:33] Speaker 04:
So the filing a false document with the government, that would be a different charge.

[00:30:39] Speaker 04:
But the promise to the immigrant that I will file a document for you to get you a benefit, that's the subsection four.

[00:30:47] Speaker 01:
I want to give you a line.

[00:30:50] Speaker 01:
Can I just stop you there?

[00:30:51] Speaker 01:
I just want to understand that.

[00:30:53] Speaker 01:
So if I'm talking to the immigrant and I basically say, I can get you these documents, that'll permit you to reside here.

[00:31:04] Speaker 01:
You're saying that that doesn't come under other fraud elements, but comes under 1324 subsection I-4.

[00:31:12] Speaker 04:
So I'll say that is both, depending on the method of the fraud, a mail and wire fraud and a subsection 4 violation, as it is in this case.

[00:31:23] Speaker 04:
These promises are the basis of counts 2 and 6 of the mail fraud statutes.

[00:31:30] Speaker 04:
And they are the basis of the subsection 4, 1324,

[00:31:35] Speaker 04:
convictions.

[00:31:36] Speaker 04:
So it's the same conduct, same speech, same promises that underlie both the fraud and the immigration violations.

[00:31:45] Speaker 04:
Does that make sense?

[00:31:47] Speaker 01:
Yeah, it does.

[00:31:47] Speaker 01:
I mean, I understand what you're saying and there's a certain appeal to that in terms of what I think Congress was trying to get at, which was basically

[00:32:00] Speaker 01:
not helping somebody commit immigration fraud, I mean that seems to be or immigration violations which by and large depending on your circumstances are civil rather than criminal.

[00:32:13] Speaker 01:
But I guess where I stop kind of is that in doing that,

[00:32:26] Speaker 01:
If this intentionality is now appended to the sort of the beginning of the phrase, does that sort of aiding and abetting solicitation or whatever carry with it that you're aiding and abetting or soliciting something that must be a criminal violation historically?

[00:32:51] Speaker 04:
So I think we agree, this is a statutory interpretation question.

[00:33:02] Speaker 04:
They say that this is the first time ever that you would aid and abet a civil violation, that that could be a crime.

[00:33:08] Speaker 04:
It's simply not true.

[00:33:09] Speaker 04:
We have legions of examples where, for example, in the state context where states deal with minors in alcohol or other controlled substances, and they'll say, well, if the minor possesses alcohol, it's a civil violation.

[00:33:24] Speaker 04:
But any adult who aids and abets, who solicits the minor to do that possessing of the alcohol,

[00:33:31] Speaker 04:
That's a crime.

[00:33:34] Speaker 04:
And so it's not like this outlandish idea that the legislature would say, we think it is worse for someone to help someone else violate the law.

[00:33:46] Speaker 04:
In cases like this one, I think is a good example, where the immigrants who are committing the civil violations are victims.

[00:33:53] Speaker 04:
They are unwitting.

[00:33:54] Speaker 04:
They don't know that they're committing the violations.

[00:33:56] Speaker 04:
In fact, they're asking Mr. Hanson, is it OK if I stay?

[00:33:59] Speaker 04:
And he says, yes.

[00:34:01] Speaker 04:
And to be clear on that, the jury rejected his only factual defense at trial when it convicted him the first time.

[00:34:09] Speaker 04:
His defense was, I never made those statements.

[00:34:11] Speaker 04:
And that's at 1594 in his own testimony.

[00:34:14] Speaker 04:
And by convicting him the first time, the jury rejects that factual claim.

[00:34:20] Speaker 04:
I think here, the victims, the immigrants, are also subject to a really hefty penalty, removal, exclusion, sometimes permanent exclusion, and that consequence can't be visited on a U.S.

[00:34:35] Speaker 04:
citizen defendant who aids and abets or solicits that civil violation.

[00:34:39] Speaker 04:
So it makes sense for Congress in their legislative policy judgment to say we want to visit a criminal penalty, a serious penalty on the person who's aiding and abetting this, even if it's civil, violation that has such serious consequences that we can't put those same serious consequences on the defendant who's often a citizen, as here.

[00:35:02] Speaker 04:
And so I think that

[00:35:06] Speaker 04:
Legislatively, right, policy judgment, that makes a lot of sense.

[00:35:09] Speaker 04:
And I don't think there's any reason to read into the statute the word criminal, violation of criminal law, right, that it is not anathema, right, it's not absurd for soliciting and abating, aiding and abetting to cover soliciting and aiding and abetting of civil violations.

[00:35:28] Speaker 01:
I want to go back to your other statement, make sure I understand it, and that had to do with

[00:35:34] Speaker 01:
you're talking about a whole plethora of cases under this subsection four where the defendant was facilitating a civil violation.

[00:35:48] Speaker 01:
And those are reported cases.

[00:35:50] Speaker 01:
Because I didn't, you know, your brief, I have to say, didn't quite hit the nail on the head with respect to this argument.

[00:35:58] Speaker 01:
So that's why I'm a little left in the dark about the government's

[00:36:03] Speaker 04:
So I think, I'm just checking my notes here.

[00:36:10] Speaker 04:
You know, I think Tracy, the Fourth Circuit case is about overstaying the

[00:36:29] Speaker 04:
In this court's construction in Garland, in the Marquez-Reyes case, it's talking about a different statute that has induced, assisted, aided abetted.

[00:36:44] Speaker 04:
And in there, it's talking about what induced might mean under kind of a no cedar associates rule.

[00:36:58] Speaker 04:
It's not here.

[00:36:59] Speaker 04:
The Supreme Court's logic isn't violation of law means criminal because encouraged and solicited, and therefore that's what encouraged and solicited means.

[00:37:11] Speaker 04:
In that case, the court isn't saying that encouraged and solicited

[00:37:26] Speaker 04:
Entry is criminal.

[00:37:27] Speaker 04:
That statute is about entering, getting somebody to enter the United States.

[00:37:30] Speaker 04:
Entry is criminal.

[00:37:31] Speaker 04:
And therefore, the court says, well, the terms induced and encouraged mean criminal, like old soil solicitation facilitation, because entry is criminal.

[00:37:44] Speaker 04:
It has to be criminal.

[00:37:45] Speaker 04:
The object has to be criminal in that case.

[00:37:47] Speaker 04:
And they're not saying the other way around.

[00:37:51] Speaker 04:
They're not saying, well, once you decide that solicitation facilitation, like the Supreme Court did here,

[00:37:58] Speaker 04:
is that criminal law, then the violation of law has to be criminal.

[00:38:02] Speaker 04:
Right here, the Supreme Court decides this facilitation solicitation issue for entirely separate reasons.

[00:38:09] Speaker 04:
It's looking at the history of the statute.

[00:38:11] Speaker 04:
It's looking at congressional intent.

[00:38:13] Speaker 04:
And it doesn't rely on this violation of law thing.

[00:38:16] Speaker 00:
Council, I'd like to ask you to pause this argument.

[00:38:19] Speaker 00:
I'm going to let you finish your answer to Judge McEwen.

[00:38:23] Speaker 00:
But also Judge Rastani had a question that she was about to ask.

[00:38:29] Speaker 02:
It's OK.

[00:38:30] Speaker 02:
I will withdraw my question.

[00:38:33] Speaker 00:
OK, well, then I have a question, too.

[00:38:35] Speaker 00:
But let's finish answering Judge McEwen first, and I'll give you my simplistic question.

[00:38:45] Speaker 04:
OK, and I would just also say that

[00:38:49] Speaker 04:
The harboring statute, which is part sub 2 of 1324, is similar in violation of law.

[00:38:57] Speaker 04:
That's not a speech statute.

[00:38:58] Speaker 04:
It's a conduct statute.

[00:39:00] Speaker 04:
But one of the things is that you harbor people when they're already in the United States.

[00:39:05] Speaker 04:
And that's therefore a civil violation.

[00:39:11] Speaker 02:
Harboring is conduct.

[00:39:15] Speaker 04:
I agree.

[00:39:16] Speaker 04:
I agree it's conduct.

[00:39:17] Speaker 04:
But the question here is, what does the statute mean when it says you're intending that they reside in violation of law?

[00:39:27] Speaker 04:
And so I think that that kind of sheds some light about what violation of law means, because the residing, the continued presence, is almost always a civil violation.

[00:39:37] Speaker 04:
That's what Arizona v. United States says.

[00:39:39] Speaker 04:
And I think, again, going back to this concept, I don't think the Supreme Court would have

[00:39:45] Speaker 04:
kept going in its opinion if it thought saying solicitation facilitation means only criminal violations.

[00:39:54] Speaker 04:
Because you just stop there, right?

[00:39:56] Speaker 04:
The defendant concedes he loses if that's what the statute means.

[00:40:02] Speaker 04:
If he's conceded, he lost.

[00:40:03] Speaker 04:
If that's what the statute means, if you agree that that's what the statute means, you just stop there.

[00:40:09] Speaker 04:
And I don't think the court would have continued for two more paragraphs delving into this concept of as applied challenges if it agreed with him that that's what the statute means.

[00:40:20] Speaker 04:
Judge Gould, I want to make sure I answer your question.

[00:40:26] Speaker 00:
Judge McEwen, do you have a full answer to your last question?

[00:40:30] Speaker 01:
Yes.

[00:40:31] Speaker 01:
I mean, I have a lot of questions, but I want to hear your question.

[00:40:33] Speaker 00:
My question is this.

[00:40:35] Speaker 00:
It's probably a question generated by lack of understanding, but I'll still ask it.

[00:40:43] Speaker 00:
And that is, if Hanson's alleged crime is a specific intent, crime has to count 17 and 18.

[00:40:56] Speaker 00:
And if we know that, so that those two counts can't stand, we'll have to be vacated.

[00:41:08] Speaker 00:
Why is it necessary for us to go further than that?

[00:41:13] Speaker 00:
Chief Justice Roberts seems often to be quoted saying that if it's not necessary to decide something,

[00:41:26] Speaker 00:
then it's necessary not to decide it in substance.

[00:41:31] Speaker 00:
If that's true, then although the question Judge McEwen raised about whether the commission of a violation of a law has to be a criminal law or could be a civil law, it's not really necessary for us to decide that.

[00:41:53] Speaker 00:
As I see it, although we'd be leaving plaintiff in the same soup with some uncertainty, why do we need to decide that now?

[00:42:08] Speaker 04:
I agree completely that if the court finds that it's not a harmless error, that the omission of the intent isn't harmless, such that you're going to vacate, you don't have to say anything about this.

[00:42:19] Speaker 04:
You can just vacate and send it back

[00:42:22] Speaker 04:
And if we choose to retry him on these counts, we will fight this out in district court about what the proper jury instruction should be.

[00:42:29] Speaker 04:
And if he gets convicted again and we come back, that would be the time to decide this question.

[00:42:35] Speaker 00:
So we would not vacate this conviction in total, but just vacate the conviction on those two counts.

[00:42:47] Speaker 04:
That's correct.

[00:42:48] Speaker 04:
I agree with my colleague that if you vacate on those two counts, there does need to be a resentencing.

[00:42:56] Speaker 01:
Right.

[00:42:56] Speaker 01:
But also... She said a retrial.

[00:43:02] Speaker 01:
You want a retrial, you'd have the opportunity for a retrial, wouldn't you?

[00:43:06] Speaker 01:
Yes.

[00:43:06] Speaker 04:
Yes, yes.

[00:43:07] Speaker 04:
So there would be an opportunity for retrial on counts 17 and 18.

[00:43:09] Speaker 04:
Correct.

[00:43:11] Speaker 04:
And either we go forward on those,

[00:43:14] Speaker 04:
And whatever happens, happens.

[00:43:15] Speaker 04:
But even if we were to choose not to go forward on those two counts, the whole sentence would be subject to re-entry of judgment, at least.

[00:43:29] Speaker 01:
The other alternative, which you raise in your brief, is that if you employ the harmless error standard, then

[00:43:41] Speaker 01:
we would look to see whether there was enough evidence in the record with respect to intentionality.

[00:43:48] Speaker 01:
If we did that, wouldn't we also still have to determine whether the violation of law could be civil?

[00:43:59] Speaker 04:
Yes.

[00:44:00] Speaker 04:
So I think if you're

[00:44:02] Speaker 04:
If you want to agree with us that the error is harmless, which we'd love, you do have to answer this question in the negative.

[00:44:11] Speaker 04:
It's not just criminal conduct.

[00:44:13] Speaker 04:
You have to say that the statute, violation of law, includes violation of civil law.

[00:44:18] Speaker 01:
But if we don't do that, and we just remand it, and you decide to go back to trial, then we just put back in the district court lap this question of

[00:44:28] Speaker 01:
whether the word criminal needs to go in front of violation of law when the jury is instructed.

[00:44:35] Speaker 04:
That's correct.

[00:44:36] Speaker 04:
And I understand that there's some dissatisfaction with that as being incomplete.

[00:44:42] Speaker 04:
But the question, technically, is if you're going to remand the case, it's not squarely presented because it hasn't been tested on the facts.

[00:44:52] Speaker 04:
We don't have the benefit of the district court's view.

[00:44:55] Speaker 04:
We haven't had the chance to.

[00:44:57] Speaker 04:
kind of fight that out about how jury instructions ought to be phrased to include that idea.

[00:45:03] Speaker 04:
And so I think if you're going to remand, reaching out to decide that question goes further than you need to to decide the case.

[00:45:14] Speaker 01:
Well, that's generally my preference.

[00:45:16] Speaker 01:
I would note the Supreme Court doesn't always follow its own admonition on that topic.

[00:45:21] Speaker 04:
I would agree with that.

[00:45:24] Speaker 01:
But you also intimated that

[00:45:29] Speaker 01:
Mr. Hanson hadn't really raised this in the district court.

[00:45:33] Speaker 04:
He didn't.

[00:45:36] Speaker 01:
Pardon?

[00:45:36] Speaker 04:
He didn't.

[00:45:37] Speaker 04:
He didn't ask for a jury instruction limiting it to criminal law.

[00:45:41] Speaker 01:
He didn't ask for a jury instruction on that, but he did raise this issue about the circumstance of a violation of civil law not criminal.

[00:45:53] Speaker 01:
He did raise that as to

[00:45:57] Speaker 01:
why the statute was unconstitutional as to him.

[00:46:02] Speaker 04:
Yes, but I would say that the premise of his over-breath argument is that the statute, as a statutory construction matter, covers violations of civil law.

[00:46:20] Speaker 04:
And I think, as the Supreme Court says,

[00:46:25] Speaker 04:
He wisely didn't press an as applied challenge in that court.

[00:46:29] Speaker 04:
I think the court calls that decision wise because his speech and conduct, his conduct in part, and his speech to the extent it's just speech is clearly prescribed as fraud.

[00:46:43] Speaker 04:
It's not protected.

[00:46:46] Speaker 04:
For that reason, the as applied challenge has to fail for the same reasons in synoning Smith, right?

[00:46:51] Speaker 04:
I think it's essentially identical statements as synoning Smith.

[00:46:56] Speaker 00:
It's a promise.

[00:46:57] Speaker 00:
I'm sorry to interrupt, but you are 10 minutes over your time, and so unless...

[00:47:03] Speaker 00:
Judge McEwen has further questions.

[00:47:06] Speaker 01:
I have no further questions.

[00:47:07] Speaker 01:
Thank you.

[00:47:08] Speaker 00:
Judge Rastani?

[00:47:10] Speaker 00:
No.

[00:47:11] Speaker 00:
I think we should probably let your argument conclude and we'll let the appellant have some rebuttal time.

[00:47:24] Speaker 00:
Thank you counsel.

[00:47:25] Speaker 03:
Thank you your honors.

[00:47:27] Speaker 03:
I will try to

[00:47:29] Speaker 03:
Be brief in replying here.

[00:47:31] Speaker 03:
This is such an interesting and conceptually complicated case.

[00:47:36] Speaker 03:
I want to start where the discussion with my friend here ended, which is about Hanson raising the issues at various points.

[00:47:47] Speaker 03:
It's important to remember that when the jury instruction debate was happening in this case,

[00:47:55] Speaker 03:
Neither Mr. Hanson nor the government dreamed that this statute was going to be interpreted the way it was in the Supreme Court.

[00:48:05] Speaker 03:
Mr. Hanson modestly asked for a substantial assistance and an intent element to be added.

[00:48:15] Speaker 03:
And the government fought that in district court, saying that is not what this statute requires.

[00:48:23] Speaker 03:
You're trying to change the elements.

[00:48:26] Speaker 03:
Neither party thought that this case, that the statute was ultimately going to be construed that the way it was by the Supreme Court.

[00:48:36] Speaker 03:
So now we have the Hanson Supreme Court decision.

[00:48:39] Speaker 03:
It very clearly says,

[00:48:42] Speaker 03:
that the concepts of soliciting and aiding and abetting are incorporated in that statute.

[00:48:49] Speaker 03:
We certainly would have asked for the elements of those offenses to be part of the jury instructions.

[00:48:58] Speaker 03:
And I think we've talked about because Mr. Hanson is still on direct appeal, he gets the benefit of new Supreme Court decisions.

[00:49:10] Speaker 03:
Now, my colleague has interpreted the Supreme Court's decision in this case to, she says that if you read it, they clearly meant to keep open the possibility that this applies to civil offenses.

[00:49:28] Speaker 03:
But I believe, if you read it, 75% is probably dedicated to criminal law terms of art, the history of the common law.

[00:49:37] Speaker 03:
I don't think they would have gone into all that detail if they were not trying to incorporate criminal law concepts into the offense.

[00:49:47] Speaker 00:
Would you agree with your colleague on the other side of the case that our panel really doesn't need to decide that issue?

[00:49:58] Speaker 03:
Your Honor, I do agree.

[00:49:59] Speaker 03:
I think the narrowest ground you could send it back on is to say the jury instruction did not require specific intent.

[00:50:11] Speaker 03:
The parties agree that was an error.

[00:50:15] Speaker 03:
The evidence, the government hasn't shown that Smith is neither requirement of proving beyond a reasonable doubt that a properly instructed jury would have convicted because the evidence was

[00:50:28] Speaker 03:
not so strong on intent to purpose to cause a law violation in this case.

[00:50:35] Speaker 03:
You wouldn't even have to go into that detail.

[00:50:38] Speaker 03:
It was an error.

[00:50:39] Speaker 03:
It wasn't a harmless error.

[00:50:41] Speaker 03:
The case goes back to district court and it's the government's choice whether to retry on Count 17 and 18.

[00:50:47] Speaker 03:
If it decides not to, we simply have a new sentencing hearing.

[00:50:52] Speaker 03:
That's the narrowest ground.

[00:50:54] Speaker 03:
I think that if the court

[00:50:57] Speaker 03:
affirms or finds harmless error, then as my colleague acknowledged, it would be saying this extends to civil law violations.

[00:51:06] Speaker 03:
And we really haven't even opened the can of worms, and I'm not going to now, but if it extends to civil law violations, we have the vagueness problem that I will leave my briefs to talk about where immigration attorneys do

[00:51:23] Speaker 03:
intentionally tell their clients to stay here unlawfully for immigration benefits.

[00:51:27] Speaker 03:
They specifically intend that civilly unlawful conduct to occur.

[00:51:32] Speaker 03:
So we have a huge vagueness problem if this extends to civil violations.

[00:51:37] Speaker 03:
But you do not have to resolve that to resolve this appeal.

[00:51:42] Speaker 00:
Thank you, counsel.

[00:51:43] Speaker 00:
Thank you.

[00:51:44] Speaker 00:
Are there any questions from Judge McEwan or Judge Rastani?

[00:51:50] Speaker 01:
I have nothing either.

[00:51:52] Speaker 00:
I have nothing either.

[00:51:53] Speaker 00:
So I want to thank both counsel for your very informative and helpful advocacy.

[00:52:01] Speaker 00:
Our court really depends almost entirely, well, maybe not entirely, but to a great extent on the advocacy of counsel.

[00:52:16] Speaker 00:
You've shown us, both of you, that the talents of the bar are essential to our function.

[00:52:25] Speaker 00:
So I thank you both.

[00:52:28] Speaker 00:
And this case shall be submitted.

[00:52:31] Speaker 00:
And the panel will advise of our decision in due course.

[00:52:37] Speaker 01:
My thanks to counsel also.