FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-10548 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00024- MCE-1 HELAMAN HANSEN, Defendant-Appellant. OPINION Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Argued and Submitted November 15, 2021 San Francisco, California Filed February 10, 2022 Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Jane A. Restani, * Judge. Opinion by Judge Gould * The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 UNITED STATES V. HANSEN SUMMARY ** Criminal Law Vacating convictions on two counts of encouraging or inducing an alien to reside in the United States for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and remanding for resentencing, the panel held that subsection (iv) is overbroad and unconstitutional. The panel interpreted subsection (iv) as prohibiting someone from (1) inspiring, helping, persuading, or influencing, (2) through speech or conduct, (3) one or more specified aliens (4) to come to or reside in the United States in violation of civil or criminal law. The panel rejected the government’s argument that subsection (iv) is limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. Accepting the government’s position that prosecutions for procuring and providing fraudulent documents and identification information to unlawfully present aliens, assisting in unlawful entry, misleadingly luring aliens into the country for unlawful work, and smuggling activities “form the core” of subsection (iv)’s plainly legitimate sweep, the panel wrote that it is apparent that subsection (iv)’s legitimate sweep is relatively narrow. The panel wrote that subsection (iv) covers a substantial amount of speech protected by the First Amendment, given that many commonplace statements and actions could be ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. HANSEN 3 construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States. The panel wrote that subsection (iv)’s narrow legitimate sweep pales in comparison to the amount of protected expression encompassed by the subsection. The panel concluded that subsection (iv) is therefore facially overbroad. The panel affirmed all other counts of conviction in a simultaneously filed memorandum disposition. COUNSEL Carolyn M. Wiggin (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Defender, Sacramento, California; for Defendant- Appellant. Katherine T. Lydon (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Phillip A. Talbert, Acting United States Attorney; United States Attorney’s Office, Sacramento, California; John M. Pellettieri Jr. (argued), Appellate Section, Criminal Division; Lisa H. Miller, Acting Deputy Assistant Attorney General; Kenneth A. Polite Jr., Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee. Vera Eidelman (argued), American Civil Liberties Union Foundation, New York, New York; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, California; Shilpi Agarwal, …
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