Appellate Case: 19-3210 Document: 010110710106 Date Filed: 07/13/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 13, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 19-3210 JOSE FELIPE HERNANDEZ- CALVILLO, Defendant - Appellee. ––––––––––––––––––––––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 19-3211 MAURO PAPALOTZI, Defendant - Appellee. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:16-CR-20097-CM-5/6) _________________________________ 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. Appellate Case: 19-3210 Document: 010110710106 Date Filed: 07/13/2022 Page: 2 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 noncitizen 1 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. 1 Consistent with Supreme Court practice, except when directly quoting statutory language, we “use[] the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020). 2 Appellate Case: 19-3210 Document: 010110710106 Date Filed: 07/13/2022 Page: 3 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, …
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