Opposition Brief — United States, Petitioner v. Helaman Hansen

Supreme Court briefOct 28, 2022

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No. 22-179

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA ,

Petitioner,

—v.—

HELAMAN HANSEN ,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

HEATHER E. WILLIAMS

FEDERAL DEFENDER FOR

THE EASTERN DISTRICT

OF CALIFORNIA

CAROLYN M. WIGGIN

ASSISTANT FEDERAL DEFENDER

Counsel of Record

801 I Street, 3rd Floor

Sacramento, California 95814

(916) 498-5700

carolyn_wiggin@fd.org

QUESTION PRESENTED

8 U.S.C. § 1324(a)(1)(A)(iv) (the “encouragement

provision”) prohibits encouraging or inducing a

noncitizen’s entry to or residence in the United States,

knowing, or recklessly disregarding, the fact that the

entry or residence is unlawful. The question presented

is whether—in a case in which the defendant’s sentence

is enhanced under a separate provision because the

defendant was also found to have acted for private

financial gain—the encouragement provision violates

the First Amendment on overbreadth grounds.

TABLE OF CONTENTS

QUESTION PRESENTED .............................................. i

TABLE OF AUTHORITIES .......................................... iv

STATEMENT OF THE CASE........................................ 1

REASONS FOR DENYING THE WRIT ........................ 4

II.

This Case Is a Poor Vehicle To Address the

Constitutionality of the Encouragement

Provision. ................................................................ 6

The question presented is too narrow to

resolve the constitutionality of the

encouragement provision. .............................. 7

This case is a poor vehicle to resolve the

question

presented

because

the

government is defending a construction

of the statute that was not presented to

the jury that convicted Mr. Hansen. ............ 10

The Court of Appeals’ Decision Does Not

Conflict With Any Decision of This Court or

Another Court of Appeals. .................................... 15

III. The Court of Appeals’ Decision Does Not Raise

an Issue of Exceptional Importance..................... 17

IV. The Decision of the Court of Appeals Is

Correct. .................................................................. 20

The Court of Appeals Correctly

Construed the Encouragement Provision.

....................................................................... 21

The Court of Appeals Correctly Held

That The Encouragement Provision is

Facially Overbroad. ...................................... 25

CONCLUSION.............................................................. 29

APPENDIX

Appendix A, Government’s Opposition to Motion

to Dismiss Counts 17 and 18, Nov. 30, 2017 ... 1a

Appendix B, Verdict Form, May 9, 2017 ............... 24a

Appendix C, Reporter’s Transcript of Jury

Instruction given as to Counts 17 and 18

(pp. 1919–20), May 9, 2017 ............................ 32a

Appendix D, Reporter’s Transcript of Jury

Instruction Conference (pp. 1813–16),

May 8, 2017 .................................................... 36a

Appendix E, Defendant’s Proposed Jury

Instructions, Apr. 10, 2017 ............................ 42a

Appendix F, Superseding Indictment,

Mar. 2, 2017 .................................................... 49a

iii

TABLE OF AUTHORITIES

Cases

Americans for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) .............................................. 25

Arizona v. United States,

567 U.S. 387 (2012)................................................... 23

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002)............................................. 20, 28

Brandenburg v. Ohio,

395 U.S. 444 (1969)................................................... 21

Broadrick v. Oklahoma,

413 U.S. 601 (1973)................................................... 27

Central Bank of Denver v. First Interstate Bank,

511 U.S. 164 (1994)................................................... 23

City of Houston v. Hill,

482 U.S. 451 (1987)................................................... 28

DelRio-Mocci v. Connolly Props. Inc.,

672 F.3d 241 (3d Cir. 2012) ................................ 12, 15

Gomez v. United States,

490 U.S. 858 (1989)................................................... 24

Lewis v. City of New Orleans,

415 U.S. 130 (1974)................................................... 28

Loughrin v. United States,

573 U.S. 351 (2014)................................................... 22

McDonnell v. United States,

579 U.S. 550 (2016)................................................... 13

New Hampshire v. Maine,

532 U.S. 742 (2001)................................................... 14

New York Times v. Sullivan,

376 U.S. 254 (1964)................................................... 28

Nielsen v. Preap,

139 S. Ct. 954 (2019) ................................................ 25

Rosemond v. United States,

572 U.S. 65 (2014)..................................................... 24

Russello v. United States,

464 U.S. 16 (1983)..................................................... 22

Saxe v. State College Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) ........................................ 8

Shuttlesworth v. City of Birmingham,

382 U.S. 87 (1965)................................................. 6, 13

Thornhill v. Alabama,

310 U.S. 88 (1940)..................................................... 29

United States v. Caira,

737 F.3d 455 (7th Cir. 2013) .................................... 11

United States v. He,

245 F.3d 954 (7th Cir. 2001) .................................... 21

United States v. Hernandez-Calvillo,

39 F.4th 1297 (10th Cir. 2022), .................... 15, 16, 19

United States v. Rashkovski,

301 F.3d 1133 (9th Cir. 2002) .................................. 21

United States v. Rundo,

990 F.3d 709 (9th Cir. 2021) .................................... 25

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020) ................................................ 9

United States v. Sineneng-Smith,

982 F.3d 766 (9th Cir. 2020) .............................. 21, 23

United States v. Stevens,

559 U.S. 460 (2010)............................................. 25, 28

United States v. Tracy,

456 F. App’x 267 (4th Cir. 2011) .............................. 15

United States v. Williams,

553 U.S. 286 (2008)............................................. 21, 26

Statutes

8 U.S.C. § 1324 et seq. ........................................... passim

8 U.S.C. § 1327 et seq. ................................................... 18

8 U.S.C. § 1328 .............................................................. 18

18 U.S.C. § 1546 ............................................................ 18

18 U.S.C. § 2 .................................................................. 18

18 U.S.C. § 373(a) ................................................... 22, 24

Other Authorities

2 Wayne R. LaFave, Subst. Crim. L. (3d ed.) ........ 20, 24

Merriam–Webster’s Collegiate Dictionary (2002)......... 21

Rules

Manual of Model Crim. Jury Instructions for the

Ninth Circuit § 4.1 (2022 ed.).................................... 11

STATEMENT OF THE CASE

This case concerns the constitutionality of 8 U.S.C.

§ 1324(a)(1)(A)(iv) (the “encouragement provision”),

which prohibits “encourag[ing] or induc[ing] 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.” The

court of appeals held that this statute criminalizes a

substantial amount of speech protected by the First

Amendment and is unconstitutionally overbroad.

1. The government initially indicted Respondent

Helaman Hansen on 16 counts of mail and wire fraud,

and conspiracy to commit mail and wire fraud, under 18

U.S.C. §§ 1341, 1343, 1349 in connection with his

operation of Americans Helping America Chamber of

Commerce (“AHA”), a community-based organization.

The government charged that Mr. Hansen falsely

asserted that through participating in AHA’s adult

adoption program, undocumented United States

residents could gain United States citizenship. See Pet.

App. 2a–3a.

More than a year later, the government filed a

superseding indictment adding two counts charging

violations

Section

1324(a)(1)(A)(iv),

the

encouragement provision, with respect to two

individuals who were also named as victims of the fraud

counts. The superseding indictment also charged Mr.

Hansen under a separate sentencing enhancement

subsection, 8 U.S.C. § 1324(a)(1)(B)(i), alleging that he

violated the encouragement provision for “the purpose of

private financial gain.” Resp. App. 68a. That sentencing

enhancement provision increases the statutory

maximum sentence from five years to ten years for

offenses committed for “commercial advantage or

private financial gain.” 8 U.S.C. § 1324(a)(1)(B)(i)–(ii) .

At trial, the government introduced evidence that

specific people were victims of the fraud counts,

including Epeli Vosa (Count Two) and Mana Nailati

(Count Five). In addition, the government presented

evidence that Mr. Hansen “encouraged or induced” Mr.

Vosa and Mr. Nailati to reside in the United States. Both

Mr. Vosa and Mr. Nailati were foreign nationals who

entered the United States on six-month visitor visas.

After arriving in the United States, they participated in

the AHA program. They testified that Mr. Hansen told

them not to worry about leaving the United States when

their visas expired because they were participating in

the AHA program. Resp. C.A. Br. at 3–5; Pet. at 4–6; Pet.

App. 2a–3a, 25a; Resp. App. 33a–34a. In fact, their

participation in the AHA program did not permit them

to overstay their visas or to remain in the United States.

The defense requested that the jury be instructed

that in order to convict a defendant under Counts 17 and

18, the jury must find the government proved the

defendant “substantially” encouraged or induced the

noncitizen to reside in the United States, and that the

defendant “intended” the noncitizen’s residence in the

United States to be in violation of the law. Resp. App.

47a–48a. The government objected to this proposed

instruction, arguing that it added elements not found in

the text of the encouragement provision itself. Resp.

App. 38a–40a. The district judge agreed with the

government, Resp. App. 40a, so the jury was instructed

that to find Mr. Hansen guilty of Counts 17 and 18, it

need only find that he “encouraged or induced” the two

noncitizens to reside in the United States knowing or in

reckless disregard of the fact that their residence would

violate the law. Resp. App. 34a. That is, the jury was not

instructed that the encouragement provision should be

limited in any way, and was therefore left to apply the

literal meaning of its terms.

Nor was the jury instructed that in order to convict

under the encouragement provision, it would need to

find that Mr. Hansen committed the offense for

“commercial advantage or private financial gain.”

Rather, pursuant to its verdict form, the jury first found

that Mr. Hansen was guilty of encouragement or

inducement under Section 1324(a)(1)(A)(iv), and then

independently found that he had committed the offense

for private financial gain, triggering the separate

penalty

enhancement

provision

Section

1324(a)(1)(B)(i). Resp. App. 30a–31a; 34a.

At the close of trial but prior to jury deliberations,

the government dismissed one of the fraud counts. The

jury found Mr. Hansen guilty of the remaining 15 fraud

counts, as well as Counts 17 and 18 under the

encouragement provision. Resp. App. 24a–31a.

Mr. Hansen then moved to dismiss Counts 17 and

18, arguing that the encouragement provision is facially

overbroad in violation of the First Amendment. He also

argued the provision is void for vagueness and

unconstitutional as applied to him. While the

government defended the core encouragement provision,

it no longer rested on the literal meaning of “encourage”

and “induce.” Instead, the government argued for the

first time that those terms did not include all

encouragement, but were limited to facilitation or

solicitation—despite the fact that the jury was not so

instructed. Resp. App. 9a–13a. The district court denied

Mr. Hansen’s motion.

The district court sentenced Mr. Hansen to 240

months on each of the mail and wire fraud counts, and

120 months on each of the encouragement provision

counts, all to be served concurrently. Pet. App. 83a.

2. On appeal, the court of appeals did not disturb

Mr. Hansen’s convictions on the 15 fraud counts, but

unanimously vacated the convictions on Counts 17 and

18 on the ground that the encouragement provision is

facially overbroad. Pet. App. 13a–14a. The court of

appeals reasoned that the plain meaning of the words

“encourage” and “induce” encompasses “inspiring,

helping, persuading, or influencing” through either

“speech or conduct.” Pet. App. 9a. It held that even if

Section 1324(a)(1)(A)(iv) legitimately prohibits some

conduct, “[i]t is clear that subsection (iv) covers a

substantial amount of protected speech,” including

“knowingly telling an undocumented immigrant ‘I

encourage you to reside in the United States,’” a

statement protected by the First Amendment. See Pet.

App. 11a.

The Ninth Circuit denied the government’s petition

for rehearing en banc. Pet. App. 28a–29a.

REASONS FOR DENYING THE WRIT

The government asks this Court to grant

certiorari and hold that the encouragement provision, 8

U.S.C. § 1324(a)(1)(A)(iv), comports with the First

Amendment as applied to prosecutions in which the jury

finds the defendant acted for private financial gain. For

several reasons, this Court should deny the petition.

First,

any

question

regarding

the

constitutionality of Section 1324(a)(1)(A)(iv) is worthy of

this Court’s attention, it is whether the core criminal

offense it creates comports with the First Amendment.

Yet the government does not ask this Court to resolve

that question. Instead, the government’s question

presented asks only whether the encouragement

provision is constitutional as applied to cases where the

government has also sought and obtained a sentencing

enhancement under a separate provision for violations

engaged in for “commercial advantage or private

financial gain.” Pet. at I. The government scarcely made

that narrower argument in the court of appeals, and the

Ninth Circuit did not directly address it. It is no answer

to a facial overbreadth challenge that some limited

applications of a statute might be constitutional. As a

matter of judicial economy and overbreadth doctrine, the

pertinent question is whether the encouragement

provision itself is overbroad on its face. That is the

question the court of appeals actually decided. Yet the

government has not asked this Court to address it.

This case is also a poor vehicle to address whether

the encouragement provision violates the First

Amendment because the government now argues that

Section 1324(a)(1)(A)(iv) should be construed narrowly,

to prohibit only facilitation or solicitation of unlawful

activity, and not all speech that “encourages” or

“induces” a noncitizen to enter or remain in the country

unlawfully, as the statute provides on its face. But Mr.

Hansen’s convictions were not secured pursuant to the

narrowing construction that the government belatedly

urges. The jury was instead instructed to apply the

statute’s plain terms without any narrowing

construction. Accordingly, even if this Court were to

agree with the government’s new construction of the

encouragement provision, it would not alter the result.

The jury did not find that Mr. Hansen committed the

crime of solicitation or facilitation of an immigration

violation, and the government did not request any such

instruction at trial. In fact, the government successfully

fought against any limiting instructions. The

government cannot defend the conviction on the basis of

an interpretation never presented to the jury.

Shuttlesworth v. City of Birmingham, 382 U.S. 87, 92

(1965). The Court should await a case in which the

government sought from the beginning of the case to

limit the statute in the way it now proposes.

Nor is there any pressing reason to take up the

constitutionality of the encouragement provision in this

procedurally flawed setting. There is no split among the

courts of appeals on the constitutionality of the

encouragement provision. The government remains free

to press its new narrowing construction of the

encouragement provision—and attendant constitutional

arguments—in other circuits. And while the Ninth

Circuit decision has facially invalidated the

encouragement provision, the federal government has

other criminal provisions it can use to charge the

facilitation and solicitation conduct it contends is

covered by the provision.

Finally, the decision of the court below is correct.

This Court has long held that encouraging or inducing

illegal conduct is protected by the First Amendment

except in very narrow circumstances, and the

encouragement provision includes none of those

limitations.

This Case Is a Poor Vehicle To Address the

Constitutionality of the Encouragement

Provision.

This case is a poor vehicle to address the

constitutionality of the encouragement provision

because—in two distinct ways—the version of Section

1324(a)(1)(A)(iv) that the government defends as

constitutional in its petition for certiorari does not

correspond with the more expansive version of the

encouragement provision under which the government

prosecuted and the jury convicted Mr. Hansen.

The question presented is too narrow to

resolve the constitutionality of the

encouragement provision.

This case is a poor vehicle for the Court to resolve

the constitutionality of the encouragement provision

because the government has presented a significantly

narrower, and more analytically problematic, question.

The government’s question presented asks not whether

the encouragement provision is overbroad on its face, as

the court of appeals held, but whether “the federal

criminal prohibition against encouraging or inducing

unlawful immigration for commercial advantage or

private financial gain” violates the First Amendment.

Pet. at I (emphasis added). And in the body of its brief,

the government relies on the “financial-gain element” of

a separate penalty enhancement provision to argue that

the encouragement provision is not overbroad under the

First Amendment. See Pet. at 20–21 (arguing that,

“[p]roperly construed, Section 1324(a)(1)(A)(iv) does not

reach the kinds of innocent expressions of support for

noncitizens” that the panel was concerned about,

because “the financial-gain element” limits the

provision’s reach).

But having acted for “commercial advantage or

private financial gain” is not an element of the crime

defined by Section 1324(a)(1)(A)(iv), the provision the

court of appeals held facially overbroad. That provision

criminalizes

“encouragement”

“inducement,”

regardless of motivation. Financial gain is not an

element of the offense. Rather, financial gain is relevant

only to a separate provision providing for penalty

enhancement, Section 1324(a)(1)(B)(i). As Judge Gould

explained, “acting for commercial advantage or financial

gain is not an element of the criminal offense defined in

subsection (iv). Any person can be convicted of that

offense without seeking financial gain . . . .” Pet. App.

33a (Gould, J., concurring in denial of en banc petition).

Accordingly, the jury was not instructed that it would

have to find a financial gain motive in order to find Mr.

Hansen guilty under the encouragement provision.

In the proceedings below, Mr. Hansen challenged

the facial validity of Section 1324(a)(1)(A)(iv), the

encouragement provision. He did not challenge the

validity of the separate sentencing enhancement

provision. See Resp. C.A. Br. at 41–47. The government

did not explain in the proceedings below—or for that

matter, in its petition here—how the facial validity of

the encouragement provision can be saved by reference

to a distinct provision altogether. See Resp. App. 8a–16a.

In the court of appeals, the government referenced the

sentencing enhancer only a couple of times in passing,

and never attempted to explain how a statute’s facial

overbreadth can be defended by focusing on an

independent sentencing enhancement that is not part of

the criminal offense the statute defines and that is only

applicable in a subset of prosecutions under the statute.

As a logical matter, the enhancement provision

cannot save the facial validity of the encouragement

provision. The whole point of the overbreadth doctrine is

that a statute is facially invalid where it covers an undue

amount of protected speech, even if it also covers some

unprotected conduct. Saxe v. State College Area Sch.

Dist., 240 F.3d 200 (3d Cir. 2001) (Alito, J.) (school

district’s ban on speech was unconstitutionally

overbroad under the First Amendment where, in

addition to covering speech that can be barred under the

First Amendment, it covered a substantial amount of

speech protected by the First Amendment). And that is

how the Ninth Circuit approached this case. It

considered and invalidated Section 1324(a)(1)(A)(iv)

itself, without separately addressing the independent

sentencing enhancement provision (which Mr. Hansen

did not challenge). Pet. App. 1a–14a.

Even if the government’s as-applied defense to a

finding of facial overbreadth were otherwise

appropriate, this Court should decline to address the

question the government presents. If the Court were to

resolve that question in the government’s favor—finding

that the First Amendment permits a criminal

prohibition on encouraging or inducing unlawful

immigration for commercial advantage or private

financial gain—that would still not resolve whether

Section 1324(a)(1)(A)(iv) itself is unconstitutionally

overbroad. Going forward, prosecutors would not be sure

whether they can charge a violation of Section

1324(a)(1)(A)(iv) without also alleging a violation of the

sentencing

enhancement

provision in

Section

1324(a)(1)(B)(i), and the public would have no clarity on

whether

Section

1324(a)(1)(A)(iv)

prohibits

constitutionally protected speech where the speaker is

not speaking for commercial advantage or private

financial gain. To answer those questions, this Court

would need to grant certiorari for a third time—

following United States v. Sineneng-Smith, 140 S. Ct.

1575 (2020), and this case.

This case is a poor vehicle to resolve the

question

presented

because

the

government is defending a construction

of the statute that was not presented to

the jury that convicted Mr. Hansen.

This case is also a poor vehicle for deciding whether

Section 1324(a)(1)(A)(iv) is overbroad under the First

Amendment because the government employed an

entirely different interpretation of the statute at trial

from the one it now relies on to defend that statute’s

constitutionality on appeal. In its petition, the

government contends that the encouragement provision

is constitutional because the words “encourage” or

“induce” do not actually prohibit all encouragement and

inducement, but can be narrowly construed as

prohibiting only solicitation or facilitation of unlawful

immigration, or aiding and abetting such conduct. Pet.

at 13–20. 1 But whether or not that is a permissible

construction of the statute, the jury was never so

instructed. Therefore, Mr. Hansen was not convicted

under the statutory interpretation the government now

advances.

Had the jury been instructed that the statute

criminalized aiding and abetting, for example, it would

have been told that it had to find that (1) someone else

committed a specified crime; (2) Mr. Hansen aided,

counseled, commanded, induced or procured that person

with respect to at least one element of the crime; (3) Mr.

Hansen acted with the intent to facilitate the crime; and

(4) Mr. Hansen acted before the crime was complete.

Manual of Model Crim. Jury Instructions for the Ninth

The government appears to use the terms solicitation,

facilitation, and aiding and abetting liability interchangeably

without specifically defining each term. See Pet. at 10, 13, 14, 16.

Circuit § 4.1 (2022 ed.). Had the jury been instructed

that the statute prohibited solicitation, it would have

been told that it had to find both that Mr. Hansen urged

Mr. Vosa and Mr. Nailati to commit crimes and

intended that they commit the crimes. Compare United

States v. Caira, 737 F.3d 455, 463 (7th Cir. 2013)

(upholding jury instruction for solicitation to commit a

violent felony in violation of 18 U.S.C. § 373 where it

“informs the jury that it must find the defendant

‘intended’ that another person engage in conduct

constituting a violent felony.”).

But the government requested no such limiting

instructions

below.

Instead,

the

government

successfully resisted Mr. Hansen’s requests for limiting

instructions, leaving the jury to apply the literal terms

of the statute–“encourage” or “induce.” See supra at 2–3;

Resp. App. 38a–40a.

In particular, the government did not state at the

time of trial—and the jury was accordingly not

instructed—that the words “encourage” or “induce”

should be understood as legal terms of art prohibiting

only solicitation, facilitation, or aiding and abetting.

Compare Resp. App. 38a–40a (no jury instruction

limiting the meaning of “encourage” or “induce”); with

Pet. at 13–14 (arguing that “encourage” and “induce”

should be construed according to their “established

criminal-law meanings,” which the government

variously describes as “accomplice and solicitation

liability” or “assisting or procuring unlawful

immigration”).

In fact, the government argued against a different

limiting instruction proposed by the defense, which

would have required the jury to find “substantial”

encouragement or inducement of immigration

violations. See Resp. App. 38a–40a. That proposed

instruction was based on the Third Circuit’s

interpretation of the encouragement provision. DelRioMocci v. Connolly Props. Inc., 672 F.3d 241 (3d Cir.), cert.

denied, 568 U.S. 821 (2012). In successfully opposing

that limitation, the government did not urge that the

encouragement provision should be subject to a different

limiting construction as a solicitation or facilitation

statute. See Resp. App. 39a. Rather, it took the position

that the jury could apply the plain meaning of

“encourage or induce” without any limiting instruction.

See Resp. App. 40a (government argued that asking the

jury “to find substantial encouragement rather than

encouragement, which is the language of the statute and

the language of the Ninth Circuit model instruction” is

“a dramatic reinterpretation of the statute”); see also

Resp. App. 43a, 47a–48a (Ninth Circuit model jury

instruction at the time required the jury to find only that

“the defendant encouraged or induced [name of alien] to

reside in the United States in violation of law”)

(alteration in original).

It was only after it secured guilty verdicts on

Counts 17 and 18 that the government argued that

“encouraging or inducing” “resembles the doctrine of

aiding and abetting under federal law.” Resp. App. 12a.

Specifically, the government argued that the

encouragement provision is constitutional if understood

pursuant to a limiting construction—namely, that it

“requires an affirmative act of encouragement that could

facilitate or assist an alien” in violating immigration

law, and that “[s]tanding alone, moral support, attempts

to persuade, or abstract advocacy of illegal immigration

do not suffice.” Resp. App. 11a–12a. Furthermore, the

government argued that the limiting construction it

belatedly proposed incorporated the DelRio-Mocci

requirement of “substantial” assistance or offers of

assistance, see Resp. App. 12a, despite successfully

opposing a jury instruction based on DelRio-Mocci that

would have required such a finding, see Resp. App. 38a–

40a. Now, in its certiorari petition, the government

contends that the encouragement provision is limited to

solicitation, facilitation, or aiding and abetting. Pet. at

12–17. But that is not the understanding of the statute

the jury convicted Mr. Hansen of violating.

This Court should not grant review in a case in

which the government did not request jury instructions

reflecting the interpretation of the statute it now

defends. If this Court is inclined to consider whether the

encouragement provision passes muster under the First

Amendment’s overbreadth doctrine, it should await a

case in which the interpretation the government defends

was actually applied by the jury to reach a verdict. That

is not this case.

Critically, even if the Court were to adopt the

government’s proposed narrowing construction in order

to save the encouragement provision, it would not alter

the result in this case. Because Mr. Hansen was

convicted under what was effectively a far broader

understanding of the statute, his conviction would still

need to be vacated. In Shuttlesworth v. City of

Birmingham, for example, the Court vacated a

conviction under an overbroad statute, even though the

statute had subsequently been more narrowly

construed, because it was not clear that the trier of fact

applied the narrowing construction, but may have

applied instead “the literal—and unconstitutional—

terms of the ordinance.” 382 U.S. at 92; see also

McDonnell v. United States, 579 U.S. 550, 579–80 (2016)

(vacating conviction where jury instruction gave an

overly broad definition of term “official act” in criminal

statute). Where, as here, the Court’s adoption of the

petitioner’s argument would not alter the result below,

there is no basis for certiorari.

Moreover, if the Court were to grant this petition,

it would have to grapple with whether the government

is judicially estopped from advancing its new argument

in Mr. Hansen’s case that the encouragement provision

is limited to solicitation, facilitation, or aiding and

abetting. Judicial estoppel “generally prevents a party

from prevailing in one phase of a case on an argument

and then relying on a contradictory argument to prevail

in another phase.” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (citations omitted). It is hard to imagine

a more stark example of such behavior than here: the

government resisted any narrowing construction of

“encourage” or “induce” when the jury was instructed,

obtained convictions, and only thereafter sought to

defend the constitutionality of the encouragement

provision on the ground that the words should be

narrowly construed as terms of art meaning solicitation,

facilitation, or aiding and abetting.

In future cases, the government will presumably

only charge individuals under its narrow reading, and

will support instructions that make that clear to the

jury. As other circuits weigh in on the constitutionality

of the encouragement provision, this Court will have the

opportunity to review the statute’s validity where the

government has taken a consistent position with respect

to the meaning of the encouragement provision before

the jury and on appeal.

II.

The Court of Appeals’ Decision Does Not

Conflict With Any Decision of This Court or

Another Court of Appeals.

There is no conflict among the courts of appeals on

the constitutionality of the encouragement provision.

Both the Ninth Circuit in this case, and the Tenth

Circuit in United States v. Hernandez-Calvillo, 39 F.4th

1297 (10th Cir. 2022), reh’g denied, held that Section

1324(a)((1)(A)(iv) criminalizes a substantial amount of

constitutionally protected speech, and is overbroad in

violation of the First Amendment. Pet. App. 13a–14a;

Hernandez-Calvillo, 39 F.4th at 1303–07. Both the

Hansen and Hernandez-Calvillo courts construed the

words “encourage” and “induce” according to their plain

meanings, and both courts found that the statutory

language is not susceptible of the limiting construction

the government belatedly advanced. Pet. App. 12a;

Hernandez-Calvillo, 39 F.4th at 1307–08. No other

circuit court has decided whether the encouragement

provision violates the First Amendment, let alone

disagreed with the Ninth and Tenth Circuits. 2

Furthermore, no court of appeals has considered

the constitutionality of Section 1324(a)(1)(A)(iv) in a

case in which the jury was instructed that “encourage”

and “induce” should be narrowly construed as legal

The Third Circuit did not consider any constitutional

challenge to the encouragement provision when interpreting it to

require “substantial” encouragement or inducement, nor did it

consider whether such a limiting construction would save the

provision from unconstitutionality. See DelRio-Mocci, 672 F.3d 241.

The Fourth Circuit, in an unpublished decision, held that the

encouragement provision is not overbroad because it can be

narrowly construed as largely an aiding and abetting provision. See

United States v. Tracy, 456 F. App’x 267, 272 (4th Cir. 2011)

(decided without trial after guilty plea).

terms of art prohibiting only solicitation, facilitation, or

aiding and abetting—as the government now asserts. In

both Hansen and Hernandez-Calvillo, the government

argued on appeal—but not at trial, and not in connection

with jury instructions—that the statute should be

limited to solicitation, facilitation, or aiding and

abetting. Pet. App. 9a–10a; Hernandez-Calvillo, 39

F.4th at 1301. Accordingly, in neither case did the jury

consider whether the defendants engaged in solicitation,

facilitation, or aiding and abetting of unlawful activity.

The government did not request in either case a jury

instruction requiring a finding that the conduct

constituted solicitation, facilitation or aiding and

abetting, and opposed the defendants’ requests for

limiting constructions on the ground that the plain

language of the statute was clear. See Resp. App. 9a,

38a–40a (government argued against defense’s proposed

limitation construction and did not propose its own);

Hernandez-Calvillo, 39 F.4th at 1301 (“At trial,

[defendants] 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.”).

Given the lack of circuit split, and the fact that no

court of appeals has even squarely considered the

constitutionality of the encouragement provision in a

case in which a jury convicted under the narrow version

of the statute that the government now belatedly

advances, this Court should allow lower courts to further

consider the issue. There is no need to decide the validity

of a conviction on the basis of jury instructions reflecting

a statutory construction that the government itself no

longer defends as adequate, even if there were a circuit

split. And there is none.

III. The Court of Appeals’ Decision Does Not

Raise an Issue of Exceptional Importance.

The court of appeals’ decision does not raise an

issue of exceptional importance necessitating this

Court’s review. While this Court often grants review

where a federal statutory provision has been

invalidated, this case is unusual for two reasons: 1) as

noted above, the question presented concerns only the

validity of the statute as applied to cases involving

allegations of commercial advantage or private financial

gain, and this case does not provide an opportunity to

address the validity of the encouragement provision

standing alone; and 2) the decision below and other

statutes in the U.S. Code leave the government ample

means to prosecute the conduct it now claims to want to

use the encouragement provision to punish.

First, for the reasons explained above, this case

does not present a question of importance. The question

presented does not take on what the court of appeals

decided—the facial validity of the encouragement

provision—but instead merely seeks to defend the

validity of the statute as applied to cases in which, under

the separate enhancement provision, an individual

acted for commercial advantage or private financial

gain. That narrow question is not sufficiently important

to warrant this Court’s time. And because the

government now defends the encouragement provision

on a theory that was not presented to the jury, the Court

may not even be able to reach the question the

government now asks. If the Court thinks the facial

validity of the encouragement provision is an important

question, that is not the question the government asks

in its petition, and the Court should await a case in

which the government actually tries the case on the

theory it now propounds.

Second, invalidation of the encouragement

provision leaves the government with multiple statutory

tools for prosecuting solicitation, facilitation, or aiding

and abetting of immigration violations—the only

conduct it now claims the statute covers. These offenses

can be charged under many other federal criminal

provisions. It is a crime to create and disseminate

fraudulent immigration documents, 18 U.S.C. § 1546; to

hire, recruit, and profitably refer unauthorized workers

for employment, 8 U.S.C. §§ 1324(a), (c); to aid or assist

the entry of certain inadmissible noncitizens, id. § 1327;

to import or attempt to import noncitizens for immoral

purposes, id. § 1328; and to bring undocumented

noncitizens to the country other than at a designated

port of entry, to transport undocumented noncitizens

within the country, and to conceal, harbor, or shield

them from detection, id. § 1324(a)(1)(A)(i)–(iii). In

addition, it is a crime to aid and abet the commission of

any offense listed in Section 1324(a)(1)(A) or to engage

in a conspiracy to commit those offenses. See id

§ 1324(a)(1)(A)(v). Finally, 18 U.S.C. § 2 provides that

anyone who “aids, abets, counsels, commands, induces

or procures” any federal crime, which would include

criminal immigration violations, is punishable as a

principal.

In addition to immigration-specific laws, there are

other tools at the government’s disposal. Mr. Hansen’s

case demonstrates as much. He was charged with 13

counts of mail fraud and 3 counts of wire fraud, and

convicted on 15 of those counts (all but the one the

government itself dismissed), for which he was

sentenced to 240 months. Denying review in this case

will not disturb those mail and wire fraud convictions.

The importance of the issue is even more limited

given

the

government’s

argument

that

the

encouragement provision should be interpreted

narrowly as prohibiting only solicitation, facilitation, or

aiding and abetting. See Pet. 13–20. The government

has not pointed to a significant category of conduct

covered by Section 1324(a)(1)(A)(iv), if it were so

construed, that is not also reached through other federal

criminal prohibitions. The impact of denying review of

the court of appeals’ decision is therefore not significant,

either in Mr. Hansen’s specific case or for the federal

government more broadly. See also Pet. App. 31a–32a

(Gould, J., concurring in denial of en banc petition)

(noting that few convictions for deplorable conduct rely

only on the encouragement provision).

The mere fact that some state criminal laws

prohibit encouraging certain unlawful conduct does not

warrant a grant of certiorari. See Br. of Amici Curiae

Arizona, et. al at 3–9. The decision below does not

implicate any of those statutes, which cover a wide range

of contexts and statutory schemes, and each of which

would require its own First Amendment analysis. Many

of the provisions cited by amici prohibit encouraging

criminal conduct, including crimes involving violence,

whereas the provision at issue here concerns

encouragement of civil and nonviolent immigration

violations. See id. (collecting examples). These

differences mean that the First Amendment analysis in

these cases will be distinct. See Hernandez-Calvillo, 39

F.4th at 1308–09 (discussing Supreme Court

jurisprudence on unprotected speech that is integral to

criminal conduct).

In addition, each state law is subject to definitive

construction by the respective state court of last resort.

How those statutes are interpreted is a matter of state

law generally not reviewable by this Court, and will

affect any First Amendment analysis. Whether these

various state laws can be fairly read as facilitation or

solicitation prohibitions will vary, and will turn entirely

on state law. See 2 Wayne R. LaFave, Subst. Crim. L.

§ 11.1 (3d ed.) (stating that offender must solicit another

person “to commit a crime”); id. § 13.3(c) (explaining that

accomplice liability does not attach “[i]f the acts of the

principal . . . are found not to be criminal”). Many of the

state statutes included in the amici’s appendix involve

soliciting illegal sex with a minor, which can be

proscribed without running afoul of the First

Amendment. 3

In sum, the decision of the court of appeals in this

case does not resolve—let alone necessarily affect—the

issue of numerous state statutes that use the words

“encourage” and “induce” in a variety of very different

contexts.

IV. The Decision of the Court of Appeals Is

Correct.

The Ninth Circuit correctly read the words

“encourage” and “induce” in Section 1324(a)((1)(A)(iv) in

light of their plain meaning, and properly held that they

criminalize a substantial amount of speech protected by

the First Amendment. Acknowledging that invalidating

a statute “for overbreadth is strong medicine that is not

3 Ashcroft v. Free Speech Coal., 535 U.S. 234, 251–52 (2002)

(“The Government, of course, may punish adults who provide

unsuitable materials to children . . . and it may enforce criminal

penalties for unlawful solicitation.”).

to be casually employed,” the court of appeals correctly

held

that

the

encouragement

provision

unconstitutionally overbroad. Pet. App. 13a.

The

Court

Construed

Provision.

Appeals

Correctly

the

Encouragement

The court of appeals correctly concluded that the

statute’s broad prohibition on “encouraging” or

“inducing” immigration violations proscribes a

substantial amount of protected speech, and is therefore

unconstitutionally overbroad.

1. The Ninth Circuit properly held that Section

1324(a)(1)(A)(iv)’s

blanket

prohibition

any

“encourag[ing]” or “induc[ing]” of unlawful activity

impermissibly covers an extraordinarily broad range of

protected speech. The word “encourage” means “to

inspire with courage, spirit, or hope . . . to spur on . . . to

give help or patronage to.” United States v. Thum, 749

F.3d 1143, 1147 (9th Cir. 2014) (alterations in original)

(citations omitted); see also United States v. SinenengSmith, 982 F.3d 766, 773 (9th Cir. 2020), cert. denied,

142 S. Ct. 117 (2021) (same); United States v. He, 245

F.3d 954, 959–60 (7th Cir. 2001) (same). To “induce” is

to “move by persuasion or influence.” United States v.

Rashkovski, 301 F.3d 1133, 1136 (9th Cir. 2002) (quoting

Merriam–Webster’s Collegiate Dictionary (2002)).

Merely encouraging someone to engage in illegal

activity is protected by the First Amendment. See United

States v. Williams, 553 U.S. 286, 300 (2008) (the First

Amendment protects the statement “I encourage you to

obtain child pornography”); Brandenburg v. Ohio, 395

U.S. 444, 448–49 (1969) (speech encouraging illegal

conduct is protected unless it is intended and likely to

incite imminent illegal conduct). Indeed, a prohibition

on mere encouragement and inducement is so plainly

unconstitutional that the government does not even

defend the statute as the court of appeals construed it.

Instead, it counters that “properly construed,” the

encouragement provision actually allows much

encouragement and inducement, and prohibits only

soliciting or aiding and abetting illegal activity. Pet. at

20. But, for two reasons, the court of appeals properly

rejected that view.

First,

the

government’s

suggestion

that

“encourage” means “aid,” “abet,” or “solicit” is belied by

Congress’s use of those specific words elsewhere. Indeed,

Congress included an actual aiding-and-abetting

provision as a separate subsection in the same statute

that contains the encouragement provision. See 8 U.S.C.

§ 1324(a)(1)(A)(v)(II). “[W]hen ‘Congress includes

particular language in one section of a statute but omits

it in another’—let alone the very next provision—[the

Supreme Court] ‘presume[s]’ that Congress intended a

difference in meaning.” Loughrin v. United States, 573

U.S. 351, 358 (2014) (quoting Russello v. United States,

464 U.S. 16, 23 (1983)). Likewise, Congress knows how

to use the word “solicit” when it wants to prohibit

solicitation, as evidenced by 18 U.S.C. § 373(a), which

provides that “[w]hoever . . . solicits, commands, induces,

or otherwise endeavors to persuade such other person to

engage in” a violent felony is subject to prosecution.

While the government argues that there is no

surplusage problem because Section 1324(a)(1)(A)(v)(II)

does not extend aiding-and-abetting liability to

violations of immigration law writ large, but only to

violations of the other provisions in its subsection, see

Pet. at 18–19, that misses the point. The issue is not

surplusage. Rather, the use of “aid” or “abet” in a closely

adjoining provision shows that Congress knew how to

use those terms when it meant them. It chose to use that

language in subclause (a)(1)(A)(v)(II) but not in

subclause (a)(1)(A)(iv), the encouragement provision.

That choice shows that the encouragement provision is

not confined to aiding or abetting. Pet. App. 9a– 10a; see

also Central Bank of Denver v. First Interstate Bank, 511

U.S. 164, 176–77 (1994) (“Congress knew how to impose

aiding and abetting liability when it chose to do so. . . .

[W]e presume it would have used the words ‘aid’ and

‘abet’ in the statutory text.”).

Second, the encouragement provision does not

include important requirements of aiding-and-abetting

and solicitation provisions. Much of the illegal conduct

the provision is concerned with, including residing

unlawfully in the United States, isn’t a crime at all, but

merely a civil infraction. As the Ninth Circuit recognized

in a separate opinion, one can be convicted under the

encouragement provision merely for misinforming an

undocumented immigrant and giving her false hope she

can legally live in the United States; there is no

requirement that the defendant encourage the

undocumented person to commit a crime. SinenengSmith, 982 F.3d at 777. In this case, the government’s

theory was that Mr. Hansen encouraged Mr. Vosa and

Mr. Nailati to overstay their visas—a civil, not criminal,

violation. 4 By contrast, under the “established criminallaw meanings” the government now invokes, “aidingand-abetting” requires that the defendant help another

4 See Arizona v. United States, 567 U.S. 387, 407 (2012) (“As

a general rule, it is not a crime for a removable alien to remain

present in the United States.”).

person to commit a crime, 5 and solicitation requires the

defendant to intend that another person commit a

crime. 6

The government argues that the court of appeals

erred in using dictionary definitions to interpret

“encourage” and “induce” rather than “established

criminal-law meanings.” Pet. at 17–18. But the

government points to no case holding that in the context

of a criminal statute, “encourage” and “induce,” when

used in the absence of other verbs that convey

facilitation or solicitation, do not reflect their plain

meaning, namely, that of “inspiring, helping,

persuading, or influencing . . . through speech or

conduct.” Pet. App. 9a. If the government is claiming

that the words were transplanted from a source that

would give them meanings contrary to their literal

dictionary definitions, it does not identify that source.

Moreover, a jury member who is not instructed

otherwise will understand statutory terms according to

their plain meaning. So, too, will members of the public,

who will read the statute as written.

Nor does the canon of constitutional avoidance save

the encouragement provision. Cf. Pet. at 20–21. That

canon applies only “if a reasonable alternative

interpretation poses no constitutional question.” Gomez

v. United States, 490 U.S. 858, 864 (1989). “The canon

‘has no application’ absent ‘ambiguity.’” Nielsen v.

5 Under 18 U.S.C. § 2, “a person may be responsible for a crime

he has not personally carried out if he helps another to complete its

commission.” Rosemond v. United States, 572 U.S. 65, 70 (2014).

6 2 LaFave, Subst. Crim. L. § 11.1(a) (describing solicitation

as asking that another commit a criminal offense); 18 U.S.C.

§ 373(a) (requiring that defendant intend that another person

commit a specified felony).

Preap, 139 S. Ct. 954, 972 (2019). Here, the statute as

written plainly states that it is a crime to encourage an

undocumented resident to remain in the United States

if done with knowledge or reckless disregard for the fact

that the residence violates the law. 8 U.S.C.

§ 1324(a)(1)(A)(iv). In this case, “there is no reason to

deviate from the usual principle that Congress said what

it meant and meant what it said.” United States v.

Rundo, 990 F.3d 709, 718 (9th Cir. 2021), cert. denied,

142 S. Ct. 865 (2022). And again, the government did not

try the case below on the basis of a “constitutional

avoidance” construction, but instead successfully urged

that the jury be instructed to apply the plain meaning of

the statute’s terms. See supra Part I.

The Court of Appeals Correctly Held That

The Encouragement Provision is Facially

Overbroad.

Having properly construed the statute in light of its

plain meaning, the court of appeals then turned to

overbreadth analysis, and properly concluded that the

encouragement provision is facially overbroad. A statute

is overbroad where “a substantial number of [the

statute’s] applications are unconstitutional, judged in

relation to the statute’s plainly legitimate sweep.”

United States v. Stevens, 559 U.S. 460, 472–73 (2010)

(cleaned up). In Americans for Prosperity Found. v.

Bonta, 141 S. Ct. 2373, 2387–88 (2021), this Court

recently held that the California Attorney General’s

requirement that charities disclose their donors was

invalid under the overbreadth doctrine, reasoning that

disclosure requirements can chill exercise of the First

Amendment’s

freedom

association.

The

encouragement provision has at least as sweeping a

chilling effect.

The Ninth Circuit correctly determined that the

encouragement

provision’s

unconstitutional

applications exceed its “plainly legitimate sweep.” Pet.

App. 11a–14a. While the government suggests that the

court improperly minimized the legitimate sweep of

Section 1324(a)(1)(A)(iv) and dreamed up “fanciful

hypotheticals,” Pet. at 18, this critique is unfounded.

The court of appeals acknowledged that the

encouragement provision encompasses some conduct

that is not protected by the First Amendment. Pet. App.

10a. But it noted that the circumstances in which

encouragement can be criminalized consistent with the

First Amendment are narrow, and that the

encouragement provision, on its face, covers a

substantial amount of protected speech, including

encouraging an undocumented immigrant to take

shelter during a natural disaster, advising an

undocumented immigrant about available social

services, telling a tourist that she is unlikely to face

serious consequences if she overstays her tourist visa, or

providing legal advice to undocumented immigrants

about the costs and benefits of remaining in the United

States. Pet. App. 11a.

In addition, when this Court noted “the tendency of

our overbreadth doctrine to summon forth an endless

stream of fanciful hypotheticals,” Williams, 553 U.S. at

301, it pointed first to a fact pattern that would not

violate the statute at issue and second to conduct

extremely unlikely to occur in the real world: a

mainstream movie intentionally advertising that it

contains actual children engaging in actual or simulated

sex on camera. Id. By contrast, the court of appeals here

considered realistic scenarios that violate the statute as

written, including giving an undocumented person legal

advice to stay in the country unlawfully to improve his

chance of future immigration relief, encouraging an

undocumented immigrant to take shelter, or

encouraging an undocumented immigrant to take

advantage of an available social service. Pet. App. 11a.

These are not fanciful hypotheticals but everyday

scenarios, and they fully support “a judicial prediction or

assumption that the statute’s very existence may cause

others not before the court to refrain from

constitutionally protected speech or expression.”

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

The government claims that the jury’s

determination that Mr. Hansen acted for private

financial

gain

somehow

narrows

Section

1324(a)(1)(A)(iv) sufficiently to avoid violating the First

Amendment. Pet. at 12–13. That argument fails for two

reasons. First, acting for “the purpose of commercial

advantage or private financial gain,” 8 U.S.C.

1324(a)(1)(B)(i), is not an element of Section

1324(a)(1)(A)(iv), and the jury need make no finding

about acting for commercial advantage or private

financial gain to find a violation of the encouragement

provision. The private financial gain element is a

distinct

penalty

enhancement

provision.

The

encouragement provision stands alone, and the jury

found that Mr. Hansen violated the encouragement

provision. Resp. App. 30a–31a. The fact that the jury

also found he acted for private financial gain under a

separate provision does not narrow the encouragement

provision. It must stand or fall on its own, because it

imposes criminal sanctions on its own. See supra Part I.

Second, even if this Court were to consider the

constitutionality of the encouragement provision only in

cases where individuals acted for commercial advantage

or private financial gain, that would not cure the

statute’s overbreadth. Constitutionally-protected speech

can be, and often is, uttered for financial gain. See, e.g.,

New York Times v. Sullivan, 376 U.S. 254 (1964) (speech

by a for-profit corporate media entity is protected under

the First Amendment). The same is true of the speech at

issue here. For example, a lawyer for a noncitizen client

has a First Amendment right to advise the client that

she should continue to live unlawfully in the United

States in order to accrue a long enough period of

residence to apply for adjustment of status. The fact that

she might charge a fee for her service does not reduce

her First Amendment right to do so. Similarly, the First

Amendment protects the speech of someone telling their

undocumented spouse that the spouse’s continued

employment in the United States is necessary to

financially support their family, even if that encourages

the spouse to remain in the country. The private

financial gain that would redound to the family does not

narrow the spouse’s First Amendment right.

The overbreadth doctrine has long played an

essential part in making real the First Amendment’s

prohibition against statutes that, on their face, prohibit

substantial amounts of protected speech. See, e.g.,

Stevens, 559 U.S. 460 (invalidating statute barring

depictions of animal cruelty that could prohibit, for

example, depictions of legal hunting); Ashcroft v. Free

Speech Coal., 535 U.S. 234 (2002) (invalidating statute

prohibiting indecency on the Internet that could prohibit

non-obscene sexually explicit depictions of minors that

are of serious literary, artistic, political, or scientific

value); City of Houston v. Hill, 482 U.S. 451 (1987)

(invalidating ordinance that could prohibit verbal

criticism directed at police officers); Lewis v. City of New

Orleans, 415 U.S. 130 (1974) (invalidating ordinance

prohibiting “opprobrious” language toward or about

police officers because it could chill criticism of police);

Thornhill v. Alabama, 310 U.S. 88 (1940) (invalidating

state statute that could prohibit the dissemination of

information about a labor dispute). Like these laws, the

encouragement provision sweeps far too broadly. If the

government seeks to criminalize only aiding and

abetting, it can and should draft a statute that does just

that.

The court of appeals correctly concluded that a

law criminalizing the mere encouragement or

inducement of largely civil infractions violates the First

Amendment.

CONCLUSION

For the foregoing reasons, this Court should deny

the petition for a writ of certiorari.

Respectfully submitted,

Heather E. Williams

FEDERAL DEFENDER FOR THE

EASTERN DISTRICT OF

CALIFORNIA

Carolyn M. Wiggin

Counsel of Record

Assistant Federal Defender

801 I Street, 3rd Floor

Sacramento, CA 95814

(916) 498-5700

carolyn_wiggin@fd.org

Counsel for Respondent

OCTOBER 28, 2022

APPENDIX

APPENDIX A

PHILLIP A. TALBERT

UNITED STATES ATTORNEY

ANDRÉ M. ESPINOSA

KATHERINE T. LYDON

ASSISTANT U. S. ATTORNEYS

501 I STREET, SUITE 10-100

SACRAMENTO, CA 95814

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

Case No. 2:16-CR-0024 MCE

UNITED STATES OF AMERICA,

Plaintiff,

HELAMAN HANSEN,

Defendant.

GOVERNMENT’S OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS

INDICTMENT

_____

Date: December 14, 2017

Time: 10:00 am

Judge: Hon. Morrison C. England, Jr.

_____

After trial, a jury convicted Defendant Helaman

Hansen (Defendant) of twelve counts of mail fraud (18

U.S.C. § 1341) (Counts 1-9; 11-13), three counts of wire

fraud (18 U.S.C. § 1343) (Counts 14-16), and two

counts of encouraging and inducing illegal

immigration for private financial gain (8 U.S.C. §§

1324(a)(1)(A)(iv) and (B)(i)) (Counts 17, 18). More

than six months later, and more than nine months

after the deadline under Rule 12(b) passed, Defendant

moves to dismiss Counts 17 and 18 of the superseding

indictment, claiming the underlying criminal statutes

are overbroad and void for vagueness under the First

Amendment. The Court should deny the untimely and

frivolous motion.

First, Defendant’s motion is grossly untimely.

On that basis alone, the Court should deny it.

Moreover, Defendant offers no explanation for why

the Court should excuse his neglect. The First

Amendment is not a new development in the law and

none of the cases on which Defendant relies were

decided after the pretrial motion deadline in this case.

That this argument only recently occurred to

Defendant is not good cause to excuse his

untimeliness. Second, even if the Court reaches the

merits of Defendant’s arguments, and it need not, the

statutes at issue, when properly construed, are not

plainly overbroad or unconstitutionally vague.

Accordingly, and for the following reasons, the Court

should deny Defendant’s motion.

FACTUAL AND PROCEDURAL SUMMARY

Defendant founded and ran Americans Helping

America Chamber of Commerce (“AHA”), a purported

nonprofit that, along with an affiliated Hansencontrolled organization, Native Hawaiians and Pacific

Islanders (“NHPI”), claimed to provide advice and

assistance to adult illegal aliens residing in California

and elsewhere in navigating United States

immigration laws. AHA’s business activities included

the marketing,

sale,

and maintenance of

“memberships” to victims of its fraudulent “Migration

Program,” an elaborate adult-adoption program that

was based on the false promise that adult illegal aliens

residing in the United States could achieve citizenship

after being legally adopted by an American citizen and

completing a list of additional tasks. In reality, adult

adoptions are not paths to citizenship. To conceal the

scheme and avoid detection by victims and others

Defendant and his agents were evasive about the

technical details and purported legal foundation of

AHA’s fraudulent Migration Program. In some

instances, Defendant told skeptics that AHA’s

fraudulent Migration Program was authorized under

a United Nations law that superseded United States

law. Additionally, Defendant encouraged and induced

two victims who were lawfully in the United States on

visas – and participants in Defendant’s fraudulent

Migration Program (to whom Defendant has falsely

promised citizenship) – to overstay their visas to

ensure their participation in the program, from which

Defendant financially benefited.

A federal grand jury in the Eastern District of

California returned a superseding indictment on

March 2, 2016, charging Hansen with thirteen counts

of mail fraud (18 U.S.C. § 1341) (Counts 1-13), three

counts of wire fraud (18 U.S.C. § 1343) (Counts 14-16),

two counts of Encouraging and Inducing Illegal

Immigration for Private Financial Gain (8 U.S.C. §

1324(a)(1)(A)(iv) & (B)(i)) (Counts 17, 18), and a

criminal forfeiture allegation. CR 62. A jury trial

began on April 17, 2017, and, on May 9, 2017, the jury

convicted Defendant on all counts in the superseding

indictment, except for Count 10, which the

government moved to dismiss following its case-inchief. CR 107148.

After several continuances, sentencing is

scheduled for December 14, 2017. On November 9,

2017, Defendant filed a Motion to Dismiss Counts 17

and 18 of the superseding indictment. CR 165. The

motion is scheduled to be heard on December 14, 2017.

See CR 165. Defendant’s motion asserts a

constitutional challenge to 8 U.S.C. § 1324(a)(1)(A)(iv),

which was also recently raised by a panel of the United

States Court of Appeals for the Ninth Circuit in

United States v. Evelyn Sineneng-Smith, No. 1510614. By stipulation of the parties, the Court ordered

the United States to file this opposition to Defendant’s

motion on or before November 30, 2017. CR 171.

II.

ARGUMENT

Defendant’s Motion is Untimely and

the Court Should Deny it Without

Reaching the Merits

Defendant’s motion is grossly untimely and the

Court should deny it without reaching the merits. Rule

12(b)(3) of the Federal Rules of Criminal Procedure

sets forth a list of motions that must be brought before

trial. That list includes motions concerning “a defect

in the indictment,” including “failure to state an

offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). Under Rule

12, a late-filed motion is untimely and may be denied

on that basis alone. Fed. R. Crim. P. 12(c)(3). Upon a

showing of good cause by the late-moving party, a

court may but need not consider the merits of an

untimely motion under Rule 12(b)(3). See Fed. R.

Crim. P. 12(c)(3). Failure to bring timely motions

under Rule 12(b)(3), or show good cause for relief from

the Rule, results in waiver of those claims. 1 United

States v. Buffington, 815 F.2d 1292, 1304 (9th Cir.

1987) (“As a general rule, claims of defects in an

indictment must be raised prior to trial,” or they are

waived). See also United States v. Torres, 908 F.2d

1417, 1424 (9th Cir. 1990) (affirming the denial of a

motion to suppress as untimely under Rule 12);

United States v. Villasenor-Chavez, 560 F. App’x 653,

655 (9th Cir. 2014) (unpublished) (affirming denial of

suppression motion as untimely when filed eleven

days after the Rule 12(b) motion deadline).

Here, the Court ordered all pretrial motions

under Rule 12(b) filed no later than February 2, 2017.

CR 44. Defendant filed his pending motion to Dismiss

Counts 17 and 18 of the superseding indictment on

November 9, 2017, more than nine months late.

Defendant makes no effort at all to state good cause to

excuse his untimely motion. He mentions only the

1 Before 2014, Rule 12 contained a subsection stating: “[a]

party waives any Rule 12(b)(3) defense, objection, or request not

raised by the deadline the court sets under Rule 12(c) or by any

extension the court provides.” See United States v. Scott, 705

F.3d 410, 415 (9th Cir. 2012). In 2014 subsection (e) was merged

into subsection (c). See Advisory Committee Notes to 2014

Amendments to Rule 12. As amended, new paragraph (c)(3)

“governs the review of untimely claims, previously addressed in

Rule 12(e). Rule 12(e) provided that a party ‘waives’ a defense

not raised within the time set under Rule 12(c). Although the

term waiver in the context of a criminal case ordinarily refers to

the intentional relinquishment of a known right, Rule 12(e) has

never required any determination that a party who failed to

make a timely motion intended to relinquish a defense,

objection, or request that was not raised in a timely fashion.

Accordingly, to avoid possible confusion the Committee decided

not to employ the term ‘waiver’ in new paragraph (c)(3).” Id.

constitutional inquiry into 8 U.S.C. § 1324(a)(1)(A)(iv)

recently initiated by the Ninth Circuit panel in United

States v. Evelyn Sineneng-Smith, No. 15-10614. Yet,

that cannot justify his untimeliness. A constitutional

challenge to a criminal statute is perhaps unique

among the collection of pretrial motions most typically

raised under Rule 12(b). However, the concepts of

statutory overbreadth and vagueness are elementary

and taught to thousands of first year law students

every year across the country. There is nothing so

novel or obscure about those concepts as to make

thoughtful reliance on them impossible without

assistance from judges of the Ninth Circuit—

especially here, where Defendant is represented by

multiple experienced and able counsel.

The First Amendment is not a new development

in the law. Defendant could have, and should have,

timely raised his constitutional challenge. None of the

cases on which he now relies was decided after the

pretrial motion deadline. That Defendant simply did

not think of the argument until it recently came to his

attention in a case currently before the Ninth Circuit

does not constitute good cause to excuse the

untimeliness of his motion. Indeed, at least one other

defendant in another Circuit managed to assert

identical overbreadth and vagueness challenges—and

did so more than six years ago. See United States v.

Tracy, 456 F. App’x 267, 271 (4th Cir. 2011) (denying

First Amendment overbreadth and vagueness

challenge to 1324(a)(1)(A)(iv), which supported

defendant’s

conspiracy

conviction

under

1324(a)(1)(A)(v)(I)). Here, Defendant simply failed to

file a timely motion.

The mandatory pretrial motion requirement in

Rule 12(b)(3) is designed to promote finality of motion

practice by forcing litigants to make timely arguments

so that courts may decide any pivotal or dispositive

issues before investing judicial resources in trial. See

e.g., United States v. Smith, 866 F.2d 1092, 1097 (9th

Cir. 1989) (observing that one purpose of Rule 12 is

“conservation of judicial resources by facilitating the

disposition of cases without trial”); accord Davis v.

United States, 411 U.S. 233, 241 (1973). 2 The Court

should apply the plain language of Rule 12 in this

instance, and enforce its deadlines. Defendant makes

no effort to present good cause to excuse his untimely

motion, which is more than nine months late.

Consequently, the Court should deny the motion

without reaching the merits.

8 U.S.C. §§ 1324(a)(1)(A)(iv) and (B)(i)

Are Not Overbroad Under the First

Amendment

Even if the Court reached the merits of

Defendant’s argument, and it should not, the motion

must fail because the statute at issue is not

unconstitutionally overbroad or vague.

Davis involved an earlier version of Rule 12. See

Advisory Committee Notes to 1974 and 2002 Amendments to

Rule 12. In Davis, the Supreme Court warned if defendants

were allowed to flout the deadlines to bring mandatory pretrial

motions under Rule 12, “there would be little incentive to

comply with its terms when a successful attack might simply

result in a new indictment prior to trial. Strong tactical

considerations would militate in favor of delaying the raising of

the claim in hopes of acquittal, with the thought that if those

hopes did not materialize, the claim could be used to upset an

otherwise valid conviction at a time when reprosecution might

well be difficult.” 411 U.S. at 241.

The Overbreadth Doctrine

Courts may invalidate a law for overbreadth

under the First Amendment only if “a substantial

number of its applications are unconstitutional,

judged in relation to the statute’s plainly legitimate

sweep.” Washington State Grange v. Washington

State Republican Party, 552 U.S. 442, 449 & n.6

(2008) (quotation marks omitted). “[M]anifestly,” this

doctrine is “strong medicine,” and should be applied

“sparingly and only as a last resort.” Broadrick v.

Oklahoma, 413 U.S. 601, 613 (1973). To determine

whether a statute is overbroad, this Court must (1)

construe the challenged statute to determine its

reach; and (2) examine whether the statute

“criminalizes a ‘substantial amount’ of expressive

activity.” Powell’s Books, Inc. v. Kroger, 622 F.3d

1202, 1208 (9th Cir. 2010). An overbroad statute may

be invalidated only if it is “not readily subject to a

narrowing construction.” Erznoznik v. City of

Jacksonville, 422 U.S. 205, 216 (1975).

The Reach of the Relevant Statute

The “statute of conviction” at issue in this case is

not 8 U.S.C. § 1324(a)(1)(A)(iv), standing alone.

Rather, the superseding indictment charged and the

jury found that Defendant acted “for the purpose of

commercial advantage or private financial gain” under

8 U.S.C. § 1324(a)(1)(B)(i). Section 1324(a)(1)(B)(i)

specifies a higher maximum sentence, and thus

establishes a separate aggravated offense. See

Apprendi v. New Jersey, 530 U.S. 466, 476, 490 (2000).

Accordingly, the statutes of conviction are 8 U.S.C. §§

1324(a)(1)(A)(iv) and (B)(i).

Elements

As set forth in Ninth Circuit Model Criminal Jury

Instruction 9.4, Section 1324(a)(1)(A)(iv) contains

three elements:

•

First, [name of alien] was an alien;

Second, the defendant encouraged or

induced [name of alien] to [come to] [enter]

[reside in] the United States in violation of

law; and

Third, the defendant [knew] [acted in

reckless disregard of the fact] that [name of

alien]’s [coming to] [entry into] [residence in]

the United States would be in violation of

the law.

Further, as charged in this case, the defendant

must have “the purpose of commercial advantage or

private financial gain.” 8 U.S.C. § 1324(a)(1)(B)(i).

Meaning of “Encourage[ ]” and

“Induce[ ]”

In support of his overbreadth claim, Defendant

argues Section 1324(a)(1)(A)(iv) covers protected

speech. CR 165 at 3-5. In fact, the statute does not

restrict speech regarding immigration or other

protected speech. Instead, it prohibits actions and

action-oriented speech that facilitate violations of the

immigration laws. That construction comports with a

common meaning of “encourage[ ],” is consistent with

other provisions of Section 1324, and avoids the

constitutional

problems

that

Defendant’s

interpretation poses.

reported

decision

applies

Section

1324(a)(1)(A)(iv) to mere efforts to persuade,

expressions of moral support, or abstract advocacy

regarding immigration, without more. Instead, in

additional to the inevitable use of words, the cases

“address[ ] acts of encouragement or inducement

closely tied to” violations of immigration law. See, e.g.,

United States v. Ndiaye, 434 F.3d 1270, 1297-98 (11th

Cir. 2006) (supplying a social security number to

which an alien is not entitled); United States v.

Oloyede, 982 F.2d 133, 135-37 (4th Cir. 1992) (per

curiam) (providing false documents for citizen

applications); see also United States v. He, 245 F.3d

954, 955-56 (7th Cir. 2001) (escorting alien into the

country). The statutory context of Section

1324(a)(1)(A)(iv) illuminates the meaning of

“encourage[].” See, e.g., Yates v. United States, 135 S.

Ct. 1074, 1081-82 (2015) (interpreting statutory

language based on “the specific context in which that

language is used, and the broader context of the

statute as a whole”) (quotation marks and citation

omitted). In particular, all other provisions of Section

1324(a)(1)(A) prohibit specific activities that promote

illegal

immigration,

including

“bring[ing],”

“transport[ing],”

“mov[ing],”

“conceal[ing],

“harbor[ing],” or “shield[ing]” aliens. Under the

principle of noscitur a sociis—a word is known by the

company it keeps— “encourage[ ],” as used in Section

1324(a)(1)(A)(iv), should likewise be interpreted to

require specific action or speech advocating specific

actions that facilitate an alien’s coming to, entering,

or residing in the United States illegally. See

generally United States v. Williams, 553 U.S. 285, 294

(2008). So understood, Section 1324(a)(1)(A) serves as

a “catch-all” provision that covers only words that

elicit actions other than “bring[ing],” “transporting,”

etc., that might facilitate illegal immigration. Indeed,

as the cases applying Section 1324(a)(1)(A)(iv) make

clear, Sections 1324(a)(1)(A)(i)-(iii) leave uncovered

10a

other conduct that Section 1324(a)(1)(A)(iv) reaches,

including providing aliens with false documents and

social security cards, and, as here, fraudulently

promising to secure legal immigration status through

citizenship.

Interpreting Section 1324(a)(1)(A)(iv) in this

manner comports with Altamirano v. Gonzales, 427

F.3d 586 (9th Cir. 2005). Altamirano interpreted 8

U.S.C. § 1182(a)(6)(E)(i), which excludes from the

United States any alien who “knowingly has

encouraged, induced, assisted, abetted, or aided any

other alien to enter or to try to enter the United States

in violation of law.” After Altamirano attempted to

cross the border in a vehicle driven by her husband

that concealed an illegal alien, the Board of

Immigration Appeals found her inadmissible. The

Ninth Court reversed, holding that the “plain

meaning” of the statute “requires an affirmative act of

help, assistance, or encouragement.” Id. at 592

(emphasis added). The Circuit further concluded that

because Altamirano did not “affirmatively act to

assist” the illegal passenger (who had been concealed

by others), “she did not engage in alien smuggling.” Id.

at 592; see id. at 592-93 (prior cases involving alien

smuggling have involved “some form of affirmative

assistance to the illegally entering alien”) (citing

cases). Altamirano also relied on “the well-established

meaning of aiding and abetting” in criminal law,

noting that “[a] defendant cannot be convicted of

aiding and abetting absent an affirmative act of

assistance in the commission of the crime.” Id. at 594.

Likewise, as used in Section 1324(a)(1)(A)(iv),

“encourage[ ]” requires an affirmative act of

encouragement that could facilitate or assist an alien

in “com[ing] to, enter[ing], or resid[ing]” in the United

11a

States “in violation of law.” 3 Standing alone, moral

support, attempts to persuade, or abstract advocacy of

illegal immigration do not suffice. So understood,

Section 1324(a)(1)(A)(iv) resembles the doctrine of

aiding and abetting under federal law, which renders

“a person … liable … if (and only if) he … takes an

affirmative act in furtherance of [the] offense.”

Rosemond v. United States, 134 S. Ct. 1240, 1245

(2014); accord Central Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 181

(1994) (18 U.S.C. § 2 applies to “those who provide

knowing aid to persons committing federal crimes”);

see also United States v. Montoy, 664 F. App’x 632, 634

(9th Cir. 2016) (unpublished) (“We have found

sufficient evidence of aiding and abetting where the

aider and abettor provided verbal encouragement of a

crime and gave advice about how to commit the

crime.”) (citing United States v. Allen, 341 F.3d 870,

889 (9th Cir. 2003)). Existing cases defining

“encourage[ ]” under Section 1324(a)(1)(A)(iv) are

largely consistent with this understanding. See, e.g.,

United States v. Lopez, 590 F.3d 1238, 1249-52 (11th

Cir. 2009) (defining “encouraging or inducing” to

include the act of “helping” aliens come to, enter, or

remain in the United States); DelRio-Mocci v.

Connolly Properties Inc., 672 F.3d 241, 248 (3d Cir.

2012) (“encourage” requires “some affirmative

assistance that makes an alien lacking lawful

immigration status more likely to enter or remain in

the United States than she otherwise might have

3 Acts that appear to facilitate such conduct are also

covered even if, as in this case, the assistance turns out to be

fraudulent. And offers of assistance – like offers to make an

illegal alien a citizenship – are acts of encouragement too,

even if the defendant never makes good.

12a

been”); United States v. Fujii, 301 F.3d 535, 540 (7th

Cir. 2002) (“To prove that Fujii ‘encouraged or

induced’ the aliens, all that the government needed to

establish was that Fujii knowingly helped or advised

the aliens.”); Oloyede, 982 F.2d at 137 (“‘encouraging’

relates to actions taken to convince the illegal alien to

come to this country or to stay in this country”);

Ndiaye, 434 F.3d at 1298 (supplying fake social

security number to illegal alien is “encouraging” alien

to reside here); He, 245 F.3d at 957 (“encourage”

defined as “to knowingly instigate, help or advise”);

United States v. Delgado-Ovalle, 2013 WL 6858499, at

*6 (D. Kan. Dec. 30, 2013) (encouragement includes

employment that is coupled with aggravating factors

consistent with knowingly assisting an immigrant in

maintaining an illegal residence).

But merely providing legal goods to illegal

immigrants on the same terms available to others

does not encourage their residence. Instead,

“encourage[ ]” requires substantial assistance (or

offers of assistance) that the defendant expects to

make an alien lacking lawful immigration status more

likely to enter or remain in the United States than she

otherwise would have been. See DelRio-Mocci, 672

F.3d at 248; see also United States v. Khanani, 502

F.3d 1281, 1289 (11th Cir. 2007) (merely employing

illegal aliens does not suffice to show knowing

encouragement); Zavala v. Wal-Mart Stores, Inc., 393

F. Supp. 2d 295, 308 (D.N.J. 2005) (same); United

States v. Henderson, 857 F. Supp. 2d 191, 208 (D.

Mass. 2012) (occasional employment coupled with

advice about immigration law practices and

consequences is “barely” sufficient); cf. United States

v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 1977)

(foreman who drove illegal aliens from one job site to

13a

another did not transport them “in furtherance of” a

violation of law).

Defendant also argues that the “induce[ ]” prong

of Section 1324(a)(1)(A)(iv) targets protected speech.

CR 165 at 3-5. As with “encourage[ ],” “induce[ ]” in

Section 1324(a)(1)(A)(iv) requires more than passive

discussion. See United States v. Rashkovski, 301 F.3d

1133, 1136-37 (9th Cir. 2002) (defendant “induced”

women to travel to the United States when he offered

to make and pay for the necessary travel

arrangements). Such inducements may be either real

or fraudulent. So understood, induce and encourage

are related but not synonymous. Threats of force, for

example, can induce an alien to remain in the United

States

but

are

not

generally

considered

“encourage[ment].”

Mens Rea

The statute explicitly requires the government to

prove that the defendant acted “knowing[ly] or

reckless[ly]” with regard to the fact that the alien’s

“coming to, entry, or residence is or will be in violation

of law.” Additionally, although the statute does not

specify that a defendant must “knowingly” encourage

or induce an alien, “knowing” action is nonetheless

required. One can perhaps encourage another

unwittingly. But under Section 1324(a)(1)(A)(iv), a

defendant must realize that his actions may

“encourage[ ] or induce[ ]” another to “come to, enter,

or reside” in the United States; otherwise, she cannot

“know[ ]” or “recklessly disregard … the fact” that

these potential consequences “[are] or will be in

violation of the law[.]” Accordingly, Section

1324(a)(1)(A)(iv)

covers

only

“knowing”

encouragement or inducement. See He, 245 F.3d at

14a

959; see also Elonis v. United States, 135 S. Ct. 2001,

2009 (2015) (“[O]ur cases have explained that a

defendant generally must ‘know the facts that make

his conduct fit the definition of the offense[.]’”)

(quoting Staples v. United States, 511 U.S. 600, 608 &

n.3 (1994)).

Requirement of “[A]n Alien”

Section 1324(a)(1)(A)(iv) is limited in another

respect as well. The statute addresses one who

“encourages or induces an alien.” (emphasis supplied).

Use of the term “an alien,” rather than “any alien,”

suggests that a defendant’s acts must be directed to a

particular alien or aliens. Accordingly, Section

1324(a)(1)(A)(iv) does not prohibit acts of

encouragement directed to the general public. Cf.

Ninth Circuit Model Criminal Jury Instruction 9.4

(“Second, the defendant encouraged or induced [name

of alien] to [come to] [enter] [reside in] the United

States in violation of law”); State v. Melchert-Dinkel,

844 N.W.2d 13, 23 (Minn. 2014) (statute that prohibits

assisting, advising, or encouraging “another in taking

the other’s own life” refers to an individual, rather

than a larger audience).

The Meaning of “In Violation

of Law”

Consistent with common usage, the term “in

violation of law” refers to violations of both civil and

criminal laws, including the civil enforcement

provisions of the U.S. immigration laws. See, e.g.,

Melendres v. Arpaio, 784 F.3d 1254, 1258 (9th Cir.

2015) (referring to “violations of federal civil

immigration laws”), cert. denied, 136 S. Ct. 799 (2016);

see also United States v. Tracy, 456 F. App’x 267, 271

15a

(4th Cir. 2011) (“When viewed in context, the statute

cannot reasonably be read as referring to anything but

violations of United States immigration law.”).

Accordingly, while aliens who lack authorization may

not commit a crime by residing in the United States,

Arizona v. United States, 567 U.S. 387, 407 (2012),

their residence is still “in violation of law.” See

generally National Council of LaRaza v. Department

of Justice, 411 F.3d 350, 353 n.1 (2d Cir. 2005) (“Civil

violations of immigration law include those violations

– such as overstaying one’s visa or entering the United

States without proper documentation – that result in

administrative proceedings”).

Purpose

Commercial

Advantage

Private

Financial Gain

Finally, Defendant’s conviction required proof

that he acted for “commercial advantage” or “private

financial gain.” 8 U.S.C. 1324(a)(1)(B)(i). Thus, the

statutes of conviction exclude any “encourage[ment]”

done “out of any feelings of charity or affection.”

United States v. Kim, 193 F.3d 567, 577 (2d Cir. 1999).

8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i)

Do Not Criminalize Protected

Speech and Are Not Overbroad

Under the First Amendment

As set forth above, the Supreme Court has

“vigorously enforced the requirement that a statute’s

overbreadth be substantial, not only in an absolute

sense, but also relative to the statute’s plainly

legitimate sweep.” Williams, 553 U.S. at 292-93. Here,

Section 1324(a)(1)(A)(iv) and (B)(i)’s “plainly

legitimate sweep” is wide. The statutes target conduct

16a

that encourages illegal immigration for profit or

commercial advantage. They likewise cover actions

that induce an alien to violate immigration law,

including through fraud, that is undertaken for the

same motives. Examples of potentially covered

activities include (1) selling a border-crossing kit to

aliens, including a map of “safe crossing” points and

backpacks filled with equipment designed to evade

border patrol; (2) duping foreign tourists into

purchasing a fake “visa extension;” or (3) providing a

“package deal” to foreign pregnant women who wish to

give birth in the United States that includes a year of

room and board, a six-month tourist visa, and

instructions on how to overstay the visa without

detection.

As for Defendant’s claims of overbreadth, once

the encourage prong is interpreted to prohibit actionoriented speech that facilitates coming to, entering, or

residing in the United States illegally, his First

Amendment claims evaporate. To be sure, some

profit-generating activities that “encourage[ ] or

induce[ ]” illegal immigration may involve speech. But

“[t]he first amendment does not provide a defense to a

criminal charge simply because the actor uses words

to carry out his illegal purpose.” United States v.

Barnett, 667 F.2d 835, 842-43 (9th Cir. 1982). The

map used in the mail order business described above,

for example, constitutes speech but because it aims to

facilitate illegal conduct, that speech is not protected.

Cases addressing aiding and abetting liability

confirm this point. In United States v. Freeman, 761

F.2d 549, 552 (9th Cir. 1985), for example, the Ninth

Circuit held that a tax protestor who assisted in

preparing and filing false returns for others could

properly be convicted of aiding and abetting tax fraud

17a

even if his convictions “rested on spoken words alone,

[because] the false filing was so proximately tied to the

speech that no First Amendment defense was

established.” In so holding, the Circuit observed that

“the First Amendment is quite irrelevant if the intent

of the actor and the objective meaning of the words

used are so close in time and purpose to a substantive

evil as to become part of the ultimate crime itself. In

those instances, where speech becomes an integral

part of the crime, a First Amendment defense is

foreclosed even if the prosecution rests on words

alone.” Id. (citations omitted). Other cases reach the

same result. 4

Section 1342(a)(1)(A)(iv) is not precisely

equivalent to an aiding and abetting offense. Yet, any

differences do not affect the First Amendment

analysis. First, while federal aiding and abetting

4 See Barnett, 667 F.2d at 842-43 (First Amendment did

not protect defendant’s sale of printed instructions for the

manufacture angel dust); United States v. Meredith, 685 F.3d

814, 819-20 (9th Cir. 2012) (defendants who gave explicit

instructions to customers on how to file fraudulent tax returns

not immune from prosecution under First Amendment); Rice v.

Paladin Enterprises, Inc., 128 F.3d 233, 242 (4th Cir. 1997)

(“speech…that constitutes criminal aiding and abetting does

not enjoy the protection of the First Amendment”); see generally

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)

(“[I]t has never been deemed an abridgement of freedom of

speech or press to make a course of conduct illegal merely

because the conduct was in part initiated, evidenced, or carried

out by means of language, either spoken, written, or printed.”);

Williams, 553 U.S. at 298 (“Many long established criminal

proscriptions…criminalize speech…that is intended to induce

or commence illegal activities.”) (citations omitted); United

States v. Stevens, 559 U.S. 460, 468 (2010) (“speech integral to

criminal conduct” is among the traditional classes of

unprotected speech).

18a

requires a completed crime, Barnett, 667 F.2d at 84142, a Section 1342(a)(1)(A)(iv) offense is complete once

the “encourag[ing]” or “induc[ing]” has occurred.

Section 1342(a)(1)(A)(iv), therefore, resembles an

attempted aiding and abetting offense. See generally

Model Penal Code § 2.06(3)(a)(ii) (describing such an

offense). That difference is immaterial. The First

Amendment does not protect the act of mailing

written instructions to a hitman, and those

instructions do not become protected speech if they are

accidentally delivered to the wrong address. Likewise,

Congress can prohibit speech that facilitates or

induces an alien’s coming to, entering, or residing in

the United States illegally, whether or not the alien

ultimately violates immigration law.

Second, under 18 U.S.C. § 2, a defendant must aid

or abet the commission of a criminal offense, while

Section 1342(a)(1)(A)(iv) covers “encourag[ing] and

induc[ing]” both civil and criminal “violation[s] of

law.” But, once again, that distinction is irrelevant.

The legislature may decide to regulate misconduct

through civil rather than criminal penalties for many

reasons, including a concern that the wrongdoers

constitute a vulnerable population. Likewise, it may

reasonably determine that a person who encourages

or induces civil wrongdoing is himself guilty of a

criminal offense, especially when he does so for a

profit. Some states, for example, make possession of

alcohol by minors a civil violation but criminalize

“aid[ing] or assist[ing]” in furnishing alcohol to

minors. See, e.g., Me. Rev. Stat. tit. 28-a §§

2051.1(A)(1) and 2081.1(A). That reasonable choice

should not dictate whether the adult who earns a

profit by aiding and abetting the minor’s violation can

assert a First Amendment defense. Counseling a

19a

particular minor on how to obtain alcohol is not

“protected speech,” and that conclusion should not

turn on whether the minor himself has violated civil or

criminal law. Such speech is “of such slight social

value as a step to truth that any benefit that may be

derived from [it] is clearly outweighed by the social

interest in order and morality.” Chaplinsky v. New

Hampshire, 315 U.S. 568, 572 (1942).

Section 1342(a)(1)(A)(iv) does

not reach “political speech”

Defendant argues Section 1342(a)(1)(A)(iv)

“potentially infringes on one’s ability to advocate for

undocumented people to pursue staying in the United

States despite losing legal status.” CR 165 at 3. The

argument presumes that encourage must be

capaciously defined to include any generally directed

speech that inspires illegal immigrants with courage,

spirit, or hope, or spurs them on. Once that faulty

premise is rejected, it becomes clear that Section

1342(a)(1)(A)(iv) does not aim to regulate protected

speech at all, and does not facially target particular

disfavored

viewpoints.

Instead,

Section

1342(a)(1)(A)(iv) prohibits conduct that facilitates or

induces illegal immigration, and any speech that it

prohibits is not protected under the First Amendment.

See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 389

(1992) (laws against treason are directed towards

conduct even though they may be violated by telling

the enemy defense secrets).

Section 1324(a)(1)(A)(iv) is directed at conduct

that is almost always accompanied by speech; not

speech alone. The statute does not punish any person

because he is conveying a particular message. Where

a general prohibition “does not target conduct on the

20a

basis of its expressive content, acts are not shielded

from regulation merely because they express a

[particular] idea or philosophy.” Id. at 389-90. Thus,

even assuming that actions that violate Section

1324(a)(1)(A)(iv) convey a coherent message, Section

1324(a)(1)(A)(iv) may nonetheless proscribe them

because it was not enacted to stifle any particular

point of view. See also id. at 390 (regulations that

selectively proscribe unprotected speech are valid “so

long as the nature of the content discrimination is

such that there is no realistic possibility that official

suppression of ideas is afoot.”). In sum, properly

construed,

Section

1324(a)(1)(A)(iv)

not

substantially overbroad. See, e.g., Milavetz, Gallop &

Milavetz, P.A. v. United States, 559 U.S. 229, 248

(2010) (narrow construction that avoids First

Amendment issues is “not merely a plausible

interpretation but the more natural one”). The Court

should deny Defendant’s motion to dismiss.

Section 1342(a)(1)(A)(iv) Is Not Vague

as Applied to Defendant, Nor Can He

Argue it is Vague as Applied to Others

The “[v]agueness doctrine is an outgrowth not of

the First Amendment, but of the Due Process Clause

of the Fifth Amendment. A conviction fails to comport

with due process if the statute under which it is

obtained fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages

seriously discriminatory enforcement.” Williams, 553

U.S. at 304. When a law burdens First Amendment

rights, “a more stringent vagueness test should apply”

“[b]ut perfect clarity and precise guidance have never

been required even of regulations that restrict

21a

expressive activity.” Id. at 304 (citations and

quotations omitted); Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).

Defendant claims Section 1324(a)(1)(A)(iv) is

vague as applied to his conduct. The argument fails

because a person who: (i) knowingly charges

immigrants money to pursue a non-existent remedy;

(ii) pays those immigrants stipends to work for him

(essentially discounts from the fraud proceeds) to

assure their continued participation in his program

and to lull them; (iii) repeatedly urges them not to

return home in compliance with their visa conditions;

and (iv) does so for private financial gain, can be

expected to know he thereby “encourages” or “induces”

them to remain in the United States “in violation of

law.” See, e.g., Tracy, 456 F. App’x at 272 (“a person

of ordinary intelligence would understand that

assisting [ ] non-citizens indirectly to enter the United

States” is proscribed).

Defendant

cannot

argue

that

Section

1324(a)(1)(A)(iv) is vague as applied to others. “A

plaintiff who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the

law as applied to the conduct of others.” Hoffman

Estates, 455 U.S. at 495. “That rule makes no

exception for conduct in the form of speech. Thus,

even to the extent a heightened vagueness standard

applies, a plaintiff whose speech is clearly proscribed

cannot raise a successful vagueness claim under the

Due Process Clause of the Fifth Amendment for lack

of notice. And he certainly cannot do so based on the

speech of others.” Humanitarian Law Project, 561

U.S. at 20 (citation omitted). Even if Defendant could

properly assert a general vagueness argument based

on an improperly broad interpretation of the terms

22a

“encourage[ ]” and “induce[ ]”, which he cannot, the

proper remedy is to narrow the definitions of those

terms, not to invalidate the statute. See Skilling v.

United States, 561 U.S. 358, 403 (2010) (Supreme

Court case law “requires us, if we can, to construe, not

condemn, Congress’ enactments.”); see, e.g., United

States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010)

(this Court has “cabined the dictionary definition of

‘associate’ in three ways to avoid its potentially vague

outer boundaries”). A judicial decision clarifying the

proper meanings of “encourage[ ]” and “induce[ ]”

suffices to provide public notice regarding the scope of

the statute and thereby obviates any vagueness

concerns. See United States v. Lanier, 520 U.S. 259,

266 (1997) (“clarity at the requisite level may be

supplied by judicial gloss on an otherwise uncertain

statute”) (citations omitted). The Court should deny

Defendant’s motion to dismiss.

III.

CONCLUSION

For the foregoing reasons, the government

respectfully requests that the Court deny Defendant’s

Motion to Dismiss Counts 17 and 18 of the

superseding indictment.

Dated: November 30, 2017

PHILLIP A. TALBERT

United States Attorney

/s/ André M. Espinosa

ANDRÉ M. ESPINOSA

KATHERINE T. LYDON

Assistant U.S. Attorneys

23a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

CALIFORNIA

No. 2:16-CR-00024-MCE

UNITED STATES OF AMERICA,

Plaintiff,

HELAMAN HANSEN,

Defendant.

VERDICT FORM

We, the jury, unanimously find the Defendant,

HELAMAN HANSEN, as follows:

AS TO COUNT 1:

GUILTY

NOT GUILTY

________

of Count 1, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the Delayed

Registration of Birth of

Vasiti Nailati Morrill

mailed on or about July

7, 2014.

24a

AS TO COUNT 2:

GUILTY

NOT GUILTY

________

of Count 2, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the Delayed

Registration of Birth of

Epeli Q. Vosa mailed on

or about July 10, 2014.

AS TO COUNT 3:

GUILTY

NOT GUILTY

________

of Count 3, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the Delayed

Registration of Birth of

Maraia Endo mailed on

or about September 2,

2014.

AS TO COUNT 4:

GUILTY

NOT GUILTY

________

of Count 4, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the AHA Migration

Program Application of

Henrietta Ane

Matakitoga mailed on

or about September 3,

2014.

25a

AS TO COUNT 5:

GUILTY

NOT GUILTY

________

of Count 5, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the Delayed

Registration of Birth of

Mana E. Nailati mailed

on or about December

19, 2014.

AS TO COUNT 6:

GUILTY

NOT GUILTY

________

of Count 6, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the Delayed

Registration of Birth of

Gabriela Gonzalez

mailed on or about

April 22, 2015.

AS TO COUNT 7:

GUILTY

NOT GUILTY

________

of Count 7, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the I-TIN of Amete Bai

Eberly mailed on or

about May 19, 2015.

26a

AS TO COUNT 8:

GUILTY

NOT GUILTY

________

of Count 8, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341, regarding

the I-TIN of Vasiti

Nailati Morrill mailed

on or about June 22,

2015.

AS TO COUNT 9:

GUILTY

NOT GUILTY

________

of Count 9, Mail Fraud,

in violation of Title 18,

United States Code,

Section 1341,

regarding the Delayed

Registration of Birth of

Vikram Coutinho

mailed on or about

July 7, 2015.

AS TO COUNT 11:

GUILTY

NOT GUILTY

________

27a

of Count 11, Mail

Fraud, in violation of

Title 18, United States

Code, Section 1341,

regarding the I-TIN of

Kinsimere Ranadi

Morrill mailed on or

about July 21, 2015.

AS TO COUNT 12:

GUILTY

NOT GUILTY

________

of Count 12, Mail

Fraud, in violation of

Title 18, United States

Code, Section 1341,

regarding the I-TIN of

Emerson Rivas Sevier

mailed on or about

December 3, 2015.

AS TO COUNT 13:

GUILTY

NOT GUILTY

________

of Count 13, Mail

Fraud, in violation of

Title 18, United States

Code, Section 1341,

regarding the Delayed

Registration of Birth of

Sam Tukana Dias

mailed on or about

August 4, 2016.

AS TO COUNT 14:

GUILTY

NOT GUILTY

28a

of Count 14, Mail

Fraud, in violation of

Title 18, United States

Code, Section 1343,

regarding an electronic

transfer, via Fedwire,

of approximately

$1,100 from a Bank of

America account on

behalf of Pamela

________

Vunlileva, to a Chase

Bank account

controlled by

Americans Helping

America, on or about

June 3, 2013.

________

AS TO COUNT 15:

GUILTY

NOT GUILTY

________

of Count 15, Mail

Fraud, in violation of

Title 18, United States

Code, Section 1343,

regarding an email

from Henriettea

Matakitoga Avoi

delivering proof of

payment for her

Migration Program

membership, sent from

Washington to Native

Hawaiians Pacific

Islanders, in

Sacramento,

California, on or about

September 3, 2014.

AS TO COUNT 16:

GUILTY

NOT GUILTY

29a

of Count 16, Mail

Fraud, in violation of

Title 18, United States

Code, Section 1343,

regarding an electronic

transfer, via Fedwire,

________

of approximately

$3,500 from a Bank of

America account on

behalf of Sachin

Salian, to a Chase

Bank account

controlled by

Americans Helping

America, on or about

June 4, 2015.

________

AS TO COUNT 17:

GUILTY

NOT GUILTY

________

YES

of Count 17,

Encouraging and

Inducing Illegal

Immigration, in

violation of Title 8,

United States Code,

Section

1324(a)(1)(A)(iv),

regarding Epeli Q.

Vosa, between on or

about January 19,

2014 and July 18,

2014.

If you found the

defendant guilty of

Count 17, do you find

beyond a reasonable

doubt that the offense

was done for the

purpose of private

30a

________

financial gain?

AS TO COUNT 18:

GUILTY

NOT GUILTY

________

YES

________

Dated:

_______

of Count 18,

Encouraging and

Inducing Illegal

Immigration, in

violation of Title 8,

United States Code,

Section

1324(a)(1)(A)(iv),

regarding Mana E.

Nailati, between on or

about August 10, 2014

and February 9, 2015.

If you found the

defendant guilty of

Count 18, do you find

beyond a reasonable

doubt that the offense

was done for the

purpose of private

financial gain?

JURY FOREPERSON

31a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRIC OF

CALIFORNIA

Case No. 2:16-CR-00024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

HELAMAN HANSEN,

Defendant.

Sacramento, California

May 9, 2017

9:00 a.m.

JURY TRIAL – DAY 11

Before

The Honorable Morrison C. England, Jr.

United States District Judge

APPEARANCES:

For the Government:

UNITED STATES ATTORNEY

501 I Street, Suite 10-100

Sacramento, California 95814

BY: ANDRE M. ESPINOSA

KATHERINE T. LYDON

Assistant U.S. Attorneys

32a

For the Defendant:

FEDERAL DEFENDER

801 I Street, Third Floor

Sacramento, California 95814

BY: TIMOTHY ZINDEL

SEAN RIORDAN

Assistant Federal Defender

Court Reporter:

DIANE J. SHEPARD, CSR 6331, RPR

Official Court Reporter

501 I Street, Rm 4-200

Sacramento, California 95814

(916) 554-7460

Proceedings reported by mechanical stenography,

transcript produced by computer-aided

transcription.

***

[1919]

THE COURT cont.: It is no defense to fraud

that the defendant honestly holds a certain opinion

or belief but also intentionally makes false or

fraudulent representations or promises to others.

Evidence has been admitted that the defendant

may have suffered from diminished capacity at the

time the crime charged was committed. You may

consider evidence of the defendant's diminished

capacity in deciding whether the Government has

proved beyond a reasonable doubt that the defendant

acted with the intent to commit the charged crimes.

The defendant is charged in Count 17 and 18 of

the superseding indictment with encouraging illegal

33a

entry by an alien in violation of Section

1324(a)(1)(A)(iv) of Title 8 of the United States Code.

In order for the defendant to be found guilty of

that charge the Government must prove each of the

following elements beyond a reasonable doubt.

First, with respect to Counts 17 and 18,

respectively, Epeli Q. Vosa and Mana E. Nailati was

each an alien.

Second, the defendant encouraged or induced

Epeli Q. Vosa and Mana E. Nailati to reside in the

United States in violation of law.

Third, that the defendant knew or acted in

reckless disregard of the fact that Epeli Q. Vosa and

Mana E. Nailati residence of the United States would

be in violation of the law.

An alien is a person who is not a natural-born or

[1920] naturalized citizen of the United States. An

alien enters the United States in violation of law if not

duly admitted by an immigration officer.

When you begin your deliberations, elect one

member of your jury as your foreperson, who will

preside over your deliberations and speak for you here

in court. You will then discuss the case with your

fellow jurors to reach agreement if you can do so.

Your verdict, whether guilty or not guilty, must

be unanimous. Each of you must decide the case for

yourself but you should do so only after you have

considered all the evidence, discussed it fully with the

other jurors, and listened to the views of your fellow

jurors. Do not be afraid to change your opinion if the

discussion persuades you that you should. But do not

come to a decision simply because other jurors think

it is right.

34a

It is important that you attempt to reach

unanimous verdict, of course, but only if each of you

can do so after having made your own conscientious

decision. Do not change an honest belief about the

weight and effect of the evidence simply to reach a

verdict.

Because you must base your verdict only on the

evidence received in this case and on these

instructions, I remind you that you must not be

exposed to any other information about the case or the

issues it involves.

***

35a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRIC OF

CALIFORNIA

Case No. 2:16-CR-00024

UNITED STATES OF AMERICA,

Plaintiff,

vs.

HELAMAN HANSEN,

Defendant.

Sacramento, California

May 8, 2017

9:00 a.m.

JURY TRIAL – DAY 10

Before

The Honorable Morrison C. England, Jr.

United States District Judge

APPEARANCES:

For the Government:

UNITED STATES ATTORNEY

501 I Street, Suite 10-100

Sacramento, California 95814

BY: ANDRE M. ESPINOSA

KATHERINE T. LYDON

Assistant U.S. Attorneys

36a

For the Defendant:

FEDERAL DEFENDER

801 I Street, Third Floor

Sacramento, California 95814

BY: TIMOTHY ZINDEL

SEAN RIORDAN

Assistant Federal Defenders

Court Reporter:

DIANE J. SHEPARD, CSR 6331, RPR

Official Court Reporter

501 I Street, Rm 4-200

Sacramento, California 95814

(916) 554-7460

Proceedings reported by mechanical stenography,

transcript produced by computer-aided

transcription.

***

[1812]

THE COURT: I do not believe that the evidence

that's been presented comes even close to this. The

jury is going to look at the evidence as presented and

make a decision as to whether or not Dr. Hansen did

this. There is nothing reckless, indifferent about what

he did. He's not going to — he didn't [1813] stick his

head in the sand. He was very, very actively

participating in it to the extent of making personal

appearances, to having videos, having them posted on

YouTube. It just doesn't make sense.

MS. LYDON: It's true, Your Honor. We absolute

agree that he actively participated. But this goes to

the knowledge of the false statements' falsity. And he

was recklessly indifferent as to whether or not the

37a

statements he was making were true.

He said he didn't need to talk to immigration

lawyers. He doesn't have a law degree, but he doesn't

need to. He knows. No one else does.

He was recklessly indifferent as to whether the

statements were true. That's what it goes to that.

That knowledge.

THE COURT: I understand. But I still stand by

my original ruling.

The next is 6.9, diminished capacity. There is no

objection to that.

Then the next one is alien, encouraging illegal

entry. That's 9.4. And there were two instructions

provided. It appears that the Government's proposed

instruction is the --well, it is the pattern instruction.

It's the law. So I'll let you put on the record as to why

you believe there should be a modification to 9.4.

MR. RIORDAN:

Yes, Your Honor. The

modifications we [1814] are proposing are minor but

still significant in terms of the jury's ability to

determine properly whether the statute was violated.

The first modification in terms of adding the term

“substantially,” that's based in out-of-circuit case law.

But it's a principle of substantiality that is consistent

with the plain import of the statute.

Because it seems implausible that Congress

would have criminalized conduct that doesn't

substantially encourage or induce somebody as

opposed to some de minimis encouragement or

inducement of somebody to violate the law.

And the case, primarily, that we're relying on is

a Third Circuit case. DelRio-Mocci versus Connolly

38a

Properties, 672 F.3d 241.

The second change is the one that incorporates

an intentionality requirement into what the

defendant was doing in terms of the non-citizens'

residence.

So our proposed language would require that the

defendant have intended that the non-citizens'

residence in the United States would be in violation of

the law.

And that comes out of Yoshida, which found that

the Government is required to prove an intent to

violate the immigration laws in order to make out a

successful prosecution under 1324(a).

And then the “acting for the purposes of his own

private [1815] financial gain,” which would be -- that's

a proposed fourth paragraph, I think that the verdict

forms, which break out a separate finding beyond a

reasonable doubt for private financial gain, would

make that unnecessary.

THE COURT:

“unnecessary”?

Did you say, “necessary” or

MR. RIORDAN:

Honor.

Sorry.

Unnecessary, Your

Because under the Government's proposed

verdict forms, the jury has to make a separate

determination as to that sentencing enhancement.

THE COURT: Yes.

MR. ESPINOSA: Your Honor, on the proposed

modifications to this Instruction 9.4, the Government

opposes strongly the additions and modifications

primarily because they modify the elemental language

in the standard instructions to require, first, a

39a

heightened evidentiary requirement; that is, in the

proposed modification in the second element, the

defense would ask the jury to find substantial

encouragement rather than encouragement, which is

the language of the statute and the language of the

Ninth Circuit model instruction.

With respect to the third element and the

proposed modification therein, the modification

proposes to change completely the mens rea from

“knew or acted in reckless disregard” to “intended.”

That is a dramatic reinterpretation of the statute

that not only changes the terms of the statute but

changes the level of [1816] proof necessary. So for

those reasons, the Government opposes those

modifications.

THE COURT: I agree with the Government's

position that adding the word "substantially" and then

“intent” is not what the law does require.

And the pattern instruction states what the law

is very clearly, and so it's not necessary. So that

requested modified instruction of 9.4 is denied.

And then we simply go on to the seven series of

7.1, duty to deliberate; 7.2, consideration of evidence,

conduct of the jury; 7.3, the use of notes; 7.4, jury

consideration of punishment; and 7.5 is the verdict

form information; and 7.6, communication with the

court.

All right. We will get these going as soon as we

can and get these out to you.

Did you meet with respect to the verdict form,

that one issue?

MR. ESPINOSA:

We did, Your Honor, and I

40a

think we reached a resolution.

THE COURT: Do you have a modified verdict

form?

MR. ESPINOSA: I was going to reproduce a

typed version, and I can re-file it tonight as the joint

verdict form, or I can re-file it as the third version.

MR. ZINDEL: Maybe if Mr. Espinosa wants to

make the changes on the one that he has, email it to

me, and I'll ok it, [1817] and he can file it as a joint.

***

41a

APPENDIX E

HEATHER E. WILLIAMS, #122664

Federal Defender

TIMOTHY ZINDEL, #158377

SEAN RIORDAN, #255752

Assistant Federal Defenders

801 I Street, 3rd Floor

Sacramento, CA 95814

Telephone: (916) 498-5700

Attorneys for Defendant

HELAMAN HANSEN

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

Case No. 2:16-CR-0024 MCE

UNITED STATES OF AMERICA,

Plaintiff,

HELAMAN HANSEN,

Defendant.

DEFENDANT’S PROPOSED JURY

INSTRUCTIONS

Trial Date: April 17, 2017

Helaman Hansen requests that the Court include

in its charge to the jury the instructions referenced or

set forth below.

42a

First, Mr. Hansen asks the Court to give the

following Ninth Circuit Model Jury Instructions at the

start of trial. (The requested instructions do not

appear among the standard instructions attached to

the Court’s Pretrial Order (doc. 64-1).) Copies are

attached in pdf and will be sent to the Court in Word

along with copies of other jury instructions proposed

by the defense.

1. 1.1 Duty of Jury

2. 1.2 Presumption of Innocence

3. 1.3 What is Evidence

4. 1.4 What is Not Evidence

5. 1.5 Direct and Circumstantial Evidence

6. 1.6 Ruling on Objections

7. 1.7 Credibility of Witness

8. 1.8 Conduct of the Jury

9. 1.9 No Transcript Available to Jury

10. 1.10 Taking Notes

11. 1.11 Outline of Trial

Second, Mr. Hansen concurs in the Court’s

proposed end-of-case instructions (doc. 64-1) but asks

that the Court also give Ninth Circuit Model

Instruction 3.11 (copy attached).

Third, Mr. Hansen concurs in the Court’s other

proposed instructions (Ninth Cir. Model Instructions

4.1, 4.6, 4.14, 4.15, 4.16, 5.6, 5.7, 7.1, 7.2, 7.3, 7.4, 7.5,

and 7.6).

Fourth, Mr. Hansen asks the Court to instruct

the jury on the substantive law as set forth below.

43a

Fifth, Mr. Hansen reserves the right to

supplement or modify these instructions depending on

evidence and argument presented during the trial,

and to request that the jury be instructed in Mr.

Hansen’s theories of defense at close of trial, as

required by law. See United States v. PerdomoEspana, 522 F.3d 983, 986-87 (9th Cir.2008); United

States v. Hutchison, 22 F. 3d 846, 853 (9th Cir. 1993);

United States v. Lothian, 976 F.2d 1257, 1267 (9th Cir.

1992); United States v. Bear, 439 F.3d 565, 568 (9th

Cir. 2006)(when a defendant presents and relies upon

a theory of defense at trial, “the judge must instruct

the jury on that theory even where such an instruction

was not requested”).

Proposed Substantive Instructions

1. Elements of Mail Fraud.

The defendant is charged in Counts One through

Thirteen of the indictment with mail fraud in violation

of Section 1341 of Title 18 of the United States Code.

In order for the defendant to be found guilty of that

charge, the government must prove each of the

following elements beyond a reasonable doubt:

First, the defendant knowingly devised, intended

to devise, and participated in a scheme or plan to

defraud, or a scheme or plan for obtaining money or

property by means of false or fraudulent pretenses,

representations, or promises;

Second, the statements made or facts omitted as

part of the scheme were material; that is, they had a

natural tendency to influence, or were capable of

influencing, a person to part with money or property;

Third, the defendant acted with the intent to

defraud; that is, the intent to deceive or cheat; and

44a

Fourth, the defendant used, or caused to be used,

the mails to carry out or attempt to carry out an

essential part of the scheme.

In determining whether a scheme to defraud

exists, you may consider not only the defendant’s

words and statements, but also the circumstances in

which they are used as a whole.

A mailing is caused when one knows that the

mails will be used in the ordinary course of business

or when one can reasonably foresee such use. It does

not matter whether the material mailed was itself

false or deceptive so long as the mail was used as a

part of the scheme, nor does it matter whether the

scheme or plan was successful or that any money or

property was obtained.

Ninth Circuit Model 8.121 Mail Fraud (ver. approved

3/2016)

2. Elements of Wire Fraud.

The defendant is charged in Counts Fourteen

through Sixteen of the indictment with wire fraud in

violation of Section 1343 of Title 18 of the United

States Code. In order for the defendant to be found

guilty of that charge, the government must prove each

of the following elements beyond a reasonable doubt:

First, the defendant knowingly participated in,

devised, and intended to devise a scheme or plan to

defraud, or a scheme or plan for obtaining money or

property by means of false or fraudulent pretenses,

representations, or promises;

Second, the statements made or facts omitted as

part of the scheme were material; that is, they had a

natural tendency to influence, or were capable of

45a

influencing, a person to part with money or property;

Third, the defendant acted with the intent to

defraud, that is, the intent to deceive or cheat; and

Fourth, the defendant used, or caused to be used,

a wire communication to carry out or attempt to carry

out an essential part of the scheme.

In determining whether a scheme to defraud

exists, you may consider not only the defendant’s

words and statements, but also the circumstances in

which they are used as a whole.

A wiring is caused when one knows that a wire

will be used in the ordinary course of business or when

one can reasonably foresee such use.

It need not have been reasonably foreseeable to

the defendant that the wire communication would be

interstate in nature. Rather, it must have been

reasonably foreseeable to the defendant that some

wire communication would occur in furtherance of the

scheme, and an interstate wire communication must

have actually occurred in furtherance of the scheme.

Ninth Circuit Model 8.124 Mail Fraud (ver. approved

2/2014)

3. Intent to Defraud Defined

An intent to defraud is an intent to deceive or

cheat.

If a defendant does not intend to harm the victim

then he has not intended to defraud the victim. 1

You may determine whether the defendant had

1 United States v. Takhalov, 827 F.3d 1307, 1313 (11th Cir.

2016).

46a

an honest, good faith belief in the representations he

made in determining whether or not the defendant

acted with intent to defraud. 2

Good faith is a complete defense to a charge that

requires intent to defraud. A defendant is not required

to prove good faith. The Government must prove

intent to defraud beyond a reasonable doubt. An

honestly held belief or an honestly formed belief

cannot be fraudulent intent even if the opinion or

belief is mistaken. Similarly, evidence of a mistake in

judgment, an error in management, or carelessness

cannot establish fraudulent intent. 3

Ninth Circuit Model 3.16 (current ver., modified)

4 Elements of 8 U.S.C. § 1324(a)(1)(A)(iv)

The defendant is charged in Counts Seventeen

and Eighteen of the indictment with encouraging

illegal entry by an alien in violation of Section

1324(a)(1)(A)(iv) of Title 8 of the United States Code.

In order for the defendant to be found guilty of that

charge, the government must prove each of the

following elements beyond a reasonable doubt:

First, [name of alien] was an alien;

Second, the defendant substantially 4 encouraged

or induced [name of alien] to reside in the United

States in violation of law; and

2 The Commentary to Ninth Cir. Model Instruction 3.16

endorses this formulation – with minor changes – in a case

where defendant maintains he acted in good faith.

3 United States v. Takhalov, 827 F.3d 1307, 1317 (11th

Cir. 2016).

4 See Delrio-Mocci v Connolly Properties, Inc., 672 F.3d

241, 248 (3d Cir. 2012).

47a

Third, the defendant intended 5 that [name of

alien]’s residence in the United States would be in

violation of the law.

Fourth, the defendant acted for the purpose of his

own private financial gain.

An alien is a person who is not a natural-born or

naturalized citizen of the United States. An alien

enters the United States in violation of law if not duly

admitted by an Immigration Officer.

Ninth Cir. Model 9.4 (current ver., modified)

Respectfully submitted,

HEATHER E. WILLIAMS

Federal Defender

Dated: April 10, 2017

/s/ S. Riordan & T. Zindel

SEAN RIORDAN &

TIM ZINDEL

Assistant Federal

Defenders

Attorneys for HELAMAN

HANSEN

5 See United States v. Yoshida, 303 F.3d 1145, 1149 (9th

Cir.2002).

48a

APPENDIX F

PHILLIP A. TALBERT

United States Attorney

ANDRÉ M. ESPINOSA

KATHERINE T. LYDON

Assistant United States Attorneys

501 I Street, Suite 10-100

Sacramento, CA 95814

Telephone: (916) 554-2700

Attorneys for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

HELAMAN HANSEN,

Defendant.

Case No. 2:16-CR-0024-MCE

18 U.S.C. § 1341 – Mail Fraud (13 Counts); 18

U.S.C. § 1343 – Wire Fraud (3 Counts); 8 U.S.C. §

1324(a)(1)(A)(iv) & B(i) – Encouraging and Inducing

Illegal Immigration for Private Financial Gain

(2 Counts); 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. §

2461(c) - Criminal Forfeiture.

SUPERSEDING INDICTMENT

49a

COUNTS ONE THROUGH THIRTEEN: [18 U.S.C.

§ 1341 – Mail Fraud]

The Grand Jury charges:

HELAMAN HANSEN,

defendant herein, as follows:

BACKGROUND

At all times relevant to this Indictment,

1. Americans Helping America Chamber of

Commerce (“AHA”) was a purported non-profit

organization that operated out of offices in

Sacramento, in the State and Eastern District of

California. Among other things, AHA purported to

provide advice and assistance to adult illegal aliens

residing in California and elsewhere. AHA’s business

activities included the marketing, sale, and

maintenance of “memberships” to victims of its

fraudulent “Migration Program,” an elaborate adultadoption program that was based on the false promise

that adult illegal aliens residing in the United States

could achieve United States citizenship after being

legally adopted by an American citizen and

completing a list of additional tasks.

2. Native Hawaiians and Pacific Islanders

(“NHPI”) was a subsidiary of AHA and a purported

nonprofit organization that operated out of offices in

Sacramento, in the State and Eastern District of

California. NHPI was involved in the marketing, sale,

and maintenance of memberships to victims of AHA’s

fraudulent Migration Program. NHPI primarily

targeted the foreign Pacific Islander Immigrant

Community.

50a

3. Community Independent Business Owners

(“CIBO”) was a subsidiary of AHA and purported to be

an import/export company focused on trade between

the United States and the South Pacific. However,

CIBO’s former CEO and other of its agents were

involved in the marketing, sale, and maintenance of

memberships to victims of AHA’s fraudulent

Migration Program.

4. Fijians Helping Fiji (“FHF”) was a

subsidiary of AHA. Agents and employees of FHF

were involved in the marketing, sale, and

maintenance of memberships to victims of AHA’s

fraudulent Migration Program. FHF purported to

maintain its offices in Fiji.

5. Defendant HELAMAN HANSEN was an

individual residing in Elk Grove, in Sacramento

County, in the State and Eastern District of

California. Defendant HELAMAN HANSEN claimed

to hold a doctorate degree in Marketing and Business

and referred to himself as “Dr. Hansen.” Defendant

HELAMAN HANSEN was also the founder of AHA

and, at various times, held various positions at AHA,

including Chief Executive Office (“CEO”), and most

recently, Chairman of the Board of Directors of AHA,

NHPI, and CIBO.

6. The United States Citizenship and

Immigration Services (“USCIS.”) was a government

agency within the United States Department of

Homeland Security that oversees lawful immigration

to the United States.

7. An “alien” was any person who was not a

citizen or a national of the United States.

8. United States immigration law imposed a

numerical quota on the number of immigrant visas

51a

that could be issued and/or the number of aliens who

could otherwise be admitted into the United States for

permanent residence status. However, aliens who

were “immediate relative[s]” of United States citizens

were exempt from these numerical limitations and

could obtain immigrant visas by petitioning for

immediate relative status. “Immediate relatives”

included “children.” The statutory definition of “child,”

for purposes of the relevant immigration law, included

“a child adopted while under the age of sixteen years

if the child has been in the legal custody of, and has

resided with, the adopting parent or parents for at

least two years.”

9. The process of adjusting the immigration

status of an adopted child by a family member

included the completion and filing with USCIS of a

Form I-130, Petition for Alien Relative (“Form I-130”).

A Form I-130 established the family relationship

between a child and relative. Filing a Form I-130 did

not allow an alien relative to work in the United

States. While a Form I-130 petition was pending, the

alien relative was required to wait outside the United

States to immigrate legally. In general, a Form I-130

could only be filed on behalf of an adopted alien child

when all of the following conditions were met: (i) the

adoption was finalized before the child’s sixteenth

birthday; (ii) the child had lived with the adoptive

parents for at least two years, either before or after

adoption; and (iii) the child had been in the adoptive

parent’s legal custody for at least two years, either

before or after adoption. The written instructions on

the face of the Form I-130 stated that it was intended

to be used only in connection with adoptions of persons

under the age of sixteen, and not those who had been

adopted as adults.

52a

10. Two additional paths existed under United

States law to adjust the immigration status of an

adopted alien child by a family member. The first

additional path related to the adoption of an orphaned

foreign national living overseas, which required the

filing with USCIS of a Form I-600 or Form I-600A.

Generally, a Form I-600 was required to have been

properly filed before the orphan’s sixteenth birthday.

The adoption could have occurred after the orphan’s

sixteenth birthday, but only if the Form I-600 was

filed before that day. A Form I-600 could also have

been filed after the orphan’s sixteenth birthday, but

before the orphan’s eighteenth birthday, but only if

the orphan was the birth sibling of another foreign

national child who had immigrated or would

immigrate based on adoption by the same adoptive

parents.

11. The second additional path under United

States law to adjust the immigration status of an

adopted child by a family member involved an

adoption under the Hague Convention, which

required the filing with USCIS of a Form I-800 or

Form I-800A. If a child was adopted through the

Hague Convention adoption program, a Form I-800

was required to have been properly filed before the

child’s sixteenth birthday. Unlike the orphan

program, there was no sibling exception in adoptions

under the Hague Convention.

II.

SCHEME TO DEFRAUD

12. Beginning in or about October 2012, and

continuing through September 2, 2016, in the State

and Eastern District of California and elsewhere,

defendant HELAMAN HANSEN knowingly devised,

intended to devise, and participated in a material

53a

scheme and artifice to defraud and to obtain money by

means of materially false and fraudulent pretenses,

representations, promises, and the concealment of

material facts.

13. The purpose of the scheme and artifice was

to obtain payment from the marketing, sale, and

maintenance of “memberships” to victims of his

fraudulent “Migration Program,” an elaborate adultadoption program that was based on the false promise

that adult illegal aliens residing in the United States

could achieve United States citizenship after being

legally adopted by an American citizen and

completing a list of additional tasks.

III. WAYS AND MEANS

In furtherance of the scheme and artifice to

defraud, defendant HELAMAN HANSEN employed,

among others, the ways and means described below.

14. To obtain money from victims in the form of

membership fees and investments, defendant

HELAMAN HANSEN and others acting at his

direction made false representations to victims and

others that AHA’s Migration Program could lead to

United States citizenship; that adult adoption was a

path to United States citizenship; that the Migration

Program was lawful; that the Migration Program had

the support or authorization of the United States

government or various legal experts and authorities;

that similar services were offered by licensed

attorneys but at greater cost; and that AHA and its

affiliates had successfully used the Migration

Program to obtain citizenship for other illegal aliens.

The defendant and others acting at his direction also

offered false justifications and explanations regarding

immigration law and AHA’s Migration Program to

54a

recruit victims and to keep victims enrolled in the

Migration Program.

15. Beginning in or about October 2012, and

continuing through September 2, 2016, defendant

HELAMAN HANSEN and others acting at his

direction

marketed,

sold,

and

maintained

memberships to victims of AHA’s fraudulent

Migration Program, an elaborate adult-adoption

program that was based on the false promise that

adult illegal aliens living in the United States could

achieve United States citizenship after being legally

adopted by an American citizen and completing a list

of additional tasks.

16. Defendant HELAMAN HANSEN and

others acting at his direction falsely represented to

victims that membership in AHA’s fraudulent

Migration Program and completion of its various

requirements would result in legal United States

citizenship for adult illegal aliens living in the United

States. Early in the scheme, the defendant and others

acting at his direction sold memberships to victims for

fees of approximately $150. Over time, as defendant

HELAMAN HANSEN and others acting at his

direction lured an increasing number of victims to the

scheme, that fee grew to $450, then $600, then $5,000,

then $7,500, and eventually as high as $10,000.

17. To induce victims to purchase memberships

in AHA's fraudulent Migration Program, defendant

HELAMAN HANSEN and others acting at his

direction falsely promised victims that they would

achieve United States citizenship within one year

after being legally adopted by an American citizen. As

the scheme progressed, the defendant and others

acting at his direction revised their false promises to

55a

victims and assured them that they would achieve

United States citizenship within two years after being

legally adopted by an American citizen.

18. Defendant HELAMAN HANSEN and

others acting at his direction marketed AHA’s

fraudulent Migration Program to victims through

AHA and its subsidiaries - NHPI, CIBO, and FHF - all

of which were engaged in substantially the same

activity. Defendant HELAMAN HANSEN and others

acting at his direction operated their scheme from

shared office spaces in Sacramento, which housed

AHA, NHPI, and CIBO. The defendant and others

acting at his direction maintained and controlled bank

accounts associated with AHA and its subsidiaries

and deposited proceeds of their fraud scheme into

those accounts and elsewhere.

19. Defendant HELAMAN HANSEN and

others acting at his direction hired recruiting agents

to work for AHA and its subsidiaries. The duty of

those recruiting agents was to find illegal aliens living

in California and elsewhere to solicit to join AHA’s

fraudulent Migration Program. Those recruiting

agents eventually received a commission of

approximately $1,500 for each victim they persuaded

to purchase a membership in AHA’s fraudulent

Migration Program. Defendant HELAMAN HANSEN

and others acting at his direction also offered those

recruiting agents the opportunity to adopt victims of

the scheme.

20. Victims of AHA’s fraudulent Migration

Program paid their membership fees in a variety of

ways. Some victims delivered cash or checks to

defendant HELAMAN HANSEN or others acting at

his direction. Other victims mailed checks to AHA or

56a

caused cash or checks to be deposited into accounts

controlled by the defendant or others acting at his

direction. Other victims completed wire transfers of

funds from their accounts to accounts controlled by

the defendant or others acting at his direction.

21. After a victim of AHA’s fraudulent

Migration Program paid the membership fee,

defendant HELAMAN HANSEN and others acting at

his direction worked with the victim to complete an

AHA membership application. In some instances,

victims would mail their completed membership

applications to AHA. Once a victim’s membership

application was processed, the defendant or others

acting at his direction worked with the victim to

complete an adoption petition seeking a court order

resulting in legal adoption of the victim by an

American citizen.

22. The defendant and others acting at his

direction instructed victims to identify and recruit

individuals to adopt the victims. However, if a victim

was unable to find an individual willing to legally

adopt the victim, the defendant or others acting at his

direction would locate an individual willing to adopt

the victim. In some instances, the defendant or

another acting at his direction adopted the victim.

23. Defendant HELAMAN HANSEN and

others acting at his direction would include false

information in victim adoption petitions. For example,

if a victim of AHA’s fraudulent Migration Program

was not a resident of California or the country in

which an adoption petition was to be filed, the

defendant and others acting at his direction would

include a false address in that victim’s adoption

petition so that the petition could be considered by the

57a

court in which it was filed. On at least one occasion,

defendant HELAMAN HANSEN fired an AHA

employee who refused his instruction to include false

information in victim adoption petitions.

24. Defendant HELAMAN HANSEN and

others acting at his direction caused AHA-facilitated

adoption petitions to be filed in courts in Sacramento

County, Alameda County, Marin County, and Los

Angeles County, among others. The defendant and

others acting at his direction also attended court

proceedings for AHA-facilitated adult adoption

proceedings and instructed victims how to respond to

potential questions from the judge or others about the

purpose of the adoption or other matters. After

judicial proceedings in an AHA-facilitated adult

adoption were completed, the court delivered by mail

a copy of a final adoption order to the adoptive parent

named in the petition. Thereafter, the adoptive parent

usually mailed a copy of the final adoption order to the

victim, who provided a copy to AHA as instructed.

25. After a victim successfully completed the

adult-adoption stage of AHA’s fraudulent Migration

Program, defendant HELAMAN HANSEN and others

acting at his direction required the victim to complete

a list of additional tasks, including obtaining several

official and unofficial documents supporting the

victim’s “new identity profile.” Those documents

included, among others, an adoption order, a delayed

registration of birth certificate, an individual tax

identification number (“I-TIN”), a driver’s license, a

vehicle registration, a library card, a bank account

number, proof of health and life insurance,

identification cards from employers or educational

institutions, and membership cards to civic

organizations, big-box retail stores, and other clubs.

58a

26. Among the key documents required to

advance through AHA’s fraudulent Migration

Program were a delayed registration of birth

certificate and an I-TIN, which the rules of AHA’s

fraudulent Migration Program requires victims to

request and which were delivered to victims by mail

from the California Department of Public Health and

the Internal Revenue Service (“IRS”), respectively. In

some instances, the IRS rejected a victim’s application

for an I-TIN and, instead, delivered by mail to that

victim a temporary I-TIN.

27. Defendant HELAMAN HANSEN and

others acting at his direction relied on the appearance

of legitimacy to successfully operate their fraud

scheme and lull their victims into suppressing doubts

about AHA’s fraudulent Migration Program and

rejecting advice from skeptical friends or family.

Defendant HELAMAN HANSEN and others acting at

his direction also relied on the requirements imposed

on victims of AHA’s fraudulent Migration Program to

extend the period of time necessary for victims to

complete AHA’s fraudulent Migration Program, which

resulted in payments of additional membership fees

from victims who could not complete the program

within one year and assisted AHA in delaying

detection of the fraudulent scheme.

28. Defendant HELAMAN HANSEN and

others acting at his direction also urged victims of

AHA’s fraudulent Migration Program to “invest” in

AHA, and offered victims the opportunity to purchase

up to 10,000 “shares” of AHA “stock” for $1 per share.

The defendant and others acting at his direction

promised victims of AHA’s fraudulent Migration

Program, who became adoptees, that AHA would

convert a portion of the victims’ membership fees into

59a

AHA shares at a price of $.20 per share. The defendant

and others acting at his direction promised victims

who bought AHA stock that the purported investment

would mature and yield dividends after three years of

payments.

29. After a victim remitted payments to

defendant HELAMAN HANSEN, completed the

adult-adoption stage of AHA’s fraudulent Migration

Program, and obtained at least the key required

official and unofficial documents, defendant

HELAMAN HANSEN, in a small number of

instances, caused to be prepared and submitted to

USCIS a Form I-130 Petition for Alien Relative to

adjust the victim’s immigration status.

30. In or about June 2012, defendant

HELAMAN HANSEN caused a Form I-130 petition to

be submitted to USCIS for Victim 1. USCIS denied

that Form I-130 petition in or about October 2012 for

failure to comply with procedural requirements and

because the proposed adoptive parent was deceased.

In denying the Form I-130 petition filed on behalf of

Victim 1, USCIS also attached a document that

explained that an adult adoption could not result in

citizenship because the Form I-130 Petition for Alien

Relative process was limited to alien children adopted

before their sixteenth birthdays.

31. Although defendant HELAMAN HANSEN

had been informed by USCIS as early as October 2012

that alien children adopted after their sixteenth

birthdays could not obtain citizenship through the

Form I-130 Petition for Alien Relative process,

defendant and others acting at his direction omitted

that information from their communications with

victims. Instead, they continued to advertise AHA’s

60a

fraudulent Migration Program, solicited victims with

false promises that the program would result in

United States citizenship, and accepted payment from

victims who relied on those false promises. Moreover,

although defendant HELAMAN HANSEN knew that

AHA’s fraudulent Migration Program had never

resulted in United States citizenship for any victim of

his scheme, and could not result in United States

citizenship for them, he falsely told victims the

opposite to induce them to participate in AHA’s

fraudulent Migration Program.

32. Defendant HELAMAN HANSEN and

others acting at his direction falsely assured victims

who were skeptical of the legitimacy of AHA’s

fraudulent Migration Program that many past

members had become United States citizens as a

result of participating in the program. However, when

skeptical victims or others asked for proof, the

defendant and others acting at his direction told those

skeptical victims that privacy laws prevented AHA

from disclosing the identities of successful

participants in the program. In truth and in fact,

defendant HELAMAN HANSEN knew that no past

member of AHA’s fraudulent Migration Program had

become a United States citizen through participation

in the program.

33. During “training” sessions with recruiting

agents hired by AHA and its subsidiaries, defendant

HELAMAN HANSEN and others acting at his

direction instructed those recruiting agents to tell

potential victims that others had become United

States citizens by participating in AHA’s fraudulent

Migration Program, but that privacy laws prevented

disclosure of their identities.

61a

34. Defendant HELAMAN HANSEN and

others acting at his direction advertised the AHA’s

fraudulent Migration Program widely. In addition to

word-of-mouth

and

advertisement,

presentations to church congregations, and official

websites for AHA, and its subsidiaries, defendant

HELAMAN HANSEN also caused to be uploaded to

publicly accessible websites on the Internet, including

YouTube, the video-upload website, dozens of videos

of varying lengths marketing AHA’s fraudulent

Migration Program to potential victims. The

defendant and others acting at his direction also

advertised AHA’s fraudulent Migration Program

through social media websites like Facebook, on pages

associated with AHA and the individual identities of

the defendant and certain others acting at his

direction.

35. Videos uploaded to the several YouTube

channels controlled by defendant HELAMAN

HANSEN included a series uploaded in or about June

2015 and titled: “US Citizenship Through Adult

Adoption [parts 1 through 4].” In those videos, the

defendant discussed the AHA’s fraudulent Migration

Program. In the fourth video in that series, the

defendant stated that the “law” permitting AHA’s

fraudulent Migration Program is not an American

law. Rather, the defendant falsely stated that AHA’s

fraudulent Migration Program is permitted under a

United Nations law that provides that a person

adopted in a court of a particular country receives the

same citizenship rights as if that person was born in

that country. The defendant also falsely stated that

through AHA’s fraudulent Migration Program, AHA

customers “inherit the citizenship rights” of the

adopting parents. The defendant stated that the

62a

program can take up to two years because of

government delay, but that AHA works to accomplish

its efforts within twelve months.

36. In addition to serving as advertisement for

AHA’s fraudulent Migration Program, defendant

HELAMAN HANSEN’s false statements in videos

advertising AHA’s fraudulent Migration Program

were intended to lull potential victims into

suppressing their doubts about the legitimacy of

AHA’s fraudulent Migration Program and to lull them

to reject the advice of skeptical friends or family.

Those false statements were also intended to lull

existing but skeptical or disappointed AHA customers

into refraining from reporting their suspicions about

AHA’s fraudulent Migration Program to law

enforcement authorities.

37. To conceal their scheme and avoid detection

by their victims and others, Defendant HELAMAN

HANSEN and others acting at his direction were

evasive about the technical details and purported

legal foundation of AHA’s fraudulent Migration

Program. Defendant HELAMAN HANSEN often told

those skeptical of the legitimacy of AHA’s fraudulent

Migration Program that he had met with a retired

United States Supreme Court Justice who had written

a law permitting AHA’s fraudulent Migration

Program and who taught the defendant how to

implement that law. In other instances, the defendant

told skeptics that AHA’s fraudulent Migration

Program was authorized under a United Nations law

that superseded United States law.

38. It was further part of the scheme that

defendant HELAMAN HANSEN made efforts to

discourage victims and witnesses from assisting law

63a

enforcement agents in the investigation of AHA’s

fraudulent Migration Program.

39. Between in or about October 2012 and

September 2016, defendant HELAMAN HANSEN

and others acting at his direction induced

approximately 500 victims to join AHA’s fraudulent

Migration Program. As a result, victims of AHA’s

fraudulent Migration Program paid approximately

$1,000,000 to the defendant and others acting at his

direction to obtain legal United States citizenship

through a process that defendant HELAMAN

HANSEN knew could not result in legal United States

citizenship.

IV. MAILINGS

40. On or about the dates set forth below, in the

Eastern District of California and elsewhere, for the

purpose of executing the aforementioned scheme and

artifice to defraud, and attempting to do so, defendant

HELAMAN HANSEN knowingly caused to be

delivered by the United States Postal Service and by

any private or commercial interstate carrier,

according to the direction thereon, the items more

specifically set forth below:

Count

Approximate

Date

From

Mail Item

July 7, 2014

Department

of Public

Health

Adoptive

Parent of

Victim 2

Delayed

Registration

of Birth

Certificate

July 10, 2014

Department

of Public

Health

Adoptive

Parent of

Victim 3

Delayed

Registration

of Birth

Certificate

September 2,

2014

Department

Adoptive

Parent of

Delayed

Registration

64a

of Public

Health

Victim 4

of Birth

Certificate

September 3,

2014

Victim 5

Native

Hawaiian

Pacific

Islanders

Membership

Program

Membership

Application

December 19,

2014

Department

of Public

Health

Adoptive

Parent of

Victim 6

Delayed

Registration

of Birth

Certificate

Aril 22, 2015

AHA

Victim 7

Delayed

Registration

of Birth

Certificate

May 19, 2015

IRS

Victim 8

I-TIN

June 22,

2015

IRS

Victim 2

I-TIN

July 7, 2015

Department

of Public

Health

Adoptive

Parent of

Victim 9

Delayed

Registration

of Birth

Certificate

July 10, 2015

IRS

Victim 10

I-TIN

July 21, 2015

IRS

Victim 11

I-TIN

December 3,

2015

IRS

Victim 12

I-TIN

August 4,

2016

Department

of Public

Health

Victim 13

Delayed

Registration

of Birth

Certificate

In violation of Title 18, United States Code,

Sections 2 and 1341.

COUNTS FOURTEEN THROUGH SIXTEEN: [18

U.S.C. § 1343 – Wire Fraud]

The Grand Jury charges:

HELAMAN HANSEN,

65a

defendant herein, as follows:

THE SCHEME TO DEFRAUD

1. Beginning in or about October 2012, and

continuing through September 2, 2016, in the State

and Eastern District of California and elsewhere,

defendant HELAMAN HANSEN knowingly devised,

intended to devise, and participated in a material

scheme and artifice to defraud and to obtain money by

means of materially false and fraudulent pretenses,

representations, promises, and the concealment of

material facts.

2. The purpose of the scheme and artifice was

to obtain payment from the marketing, sale, and

maintenance of “memberships” to victims of his

fraudulent “Migration Program,” an elaborate adultadoption program that was based on the false promise

that adult illegal aliens residing in the United States

could achieve United States citizenship after being

legally adopted by an American citizen and

completing a list of additional tasks.

II.

MANNER AND MEANS

3. The allegations in Paragraphs 1 through 11

and Paragraphs 14 through 39 of Counts One through

Thirteen are re-alleged and incorporated herein by

reference as if set forth in their entirety.

III. USE OF INTERSTATE WIRES

4. On or about the dates set forth below, in

Eastern District of California and elsewhere, for the

purpose of executing the aforementioned scheme and

artifice to defraud, and attempting to do so, defendant

HELAMAN HANSEN did knowingly transmit and

cause to be transmitted by means of wire

66a

communication in interstate and foreign commerce,

certain writings, signs, signals and sounds,

specifically:

Count

Date

Description of Wire

June 3, 2013

Electronic transfer,

via

Fedwire,

approximately $1,100

from a Bank of

America account, on

behalf of Victim 14, to

Chase

Bank

account controlled by

Americans Helping

America.

September 3, 2014

Email from Victim 5

delivering proof of

payment

for

membership

Migration Program,

sent form Bremerton,

WA,

Native

Hawaiians

Pacific

Islanders,

Sacramento, CA.

June 4, 2015

Electronic transfer,

via

Fedwire,

approximately $3,500

from a Bank of

America account, on

behalf of Victim 15, to

Chase

Bank

account controlled by

Americans Helping

67a

America.

In violation of Title 18, United States Code,

Sections 2 and 1343.

COUNT SEVENTEEN: [8 U.S.C. § 1324(a)(1)(A)(iv) &

B(i) – Encouraging and Inducing Illegal Immigration

for Private Financial Gain]

The Grand Jury charges:

HELAMAN HANSEN,

defendant herein, between on or about January 19,

2014, and July 18, 2014, in the State and Eastern

District of California, for the purpose of private

financial gain, did encourage and induce an alien, to

wit Victim 3, to reside in the United States after that

alien’s lawful visa expired, knowing and in reckless

disregard of the fact that such residence in the United

States was and would be a violation of law, in violation

of Title 8, United States Code, Sections 2 and

1324(a)(1)(A)(iv) & (B)(i).

COUNT EIGHTEEN: [8 U.S.C. § 1324(a)(1)(A)(iv) &

B(i) – Encouraging and Inducing Illegal Immigration

for Private Financial Gain]

The Grand Jury charges:

HELAMAN HANSEN,

defendant herein, between on or about August 10,

2014, and February 9, 2015, in the State and Eastern

District of California, for the purpose of private

financial gain, did encourage and induce an alien, to

wit Victim 6, to reside in the United States after that

alien’s lawful visa expired, knowing and in reckless

disregard of the fact that such residence in the United

States was and would be in violation of law, in

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violation of Title 8, United States Code, Sections 2 and

1324(a)(1)(A)(iv) & (B)(i).

FORFEITURE

ALLEGATION:

U.S.C.

§ 981(a)(1)(C) and 28 U.S.C. § 2461(c) – Criminal

Forfeiture]

1. Upon conviction of one or more of the

offenses alleged in Counts One through Sixteen of this

Superseding Indictment, defendant HELAMAN

HANSEN shall forfeit to the United States, pursuant

to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), all

property, real and personal, which constitutes or is

derived from proceeds traceable to such violations,

including but not limited to a sum of money equal to

the amount of proceeds traceable to such offenses, for

which defendant is convicted.

2. If any property subject to forfeiture, as a

result of the offenses alleged in Counts One through

Sixteen of this Superseding Indictment, for which

defendant is convicted:

cannot be located upon the exercise of

due diligence;

has been transferred or sold to, or

deposited with, a third party;

has been placed beyond the jurisdiction

of the court;

has been substantially diminished in

value; or

has been commingled with other

property which cannot be divided

without difficulty; it is the intent of the

United States, pursuant to 28 U.S.C.

§ 2461(c), incorporating 21 U.S.C.

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§ 853(p), to seek forfeiture of any other

property of said defendant, up to the

value of the property subject to

forfeiture.

A TRUE BILL.

FOREPERSON

PHILLIP A. TALBERT

United States Attorney

70a

No. _ _ _ _ _ _

IN THE UNITED STATES DISTRICT COURT

Eastern District of California

Criminal Division

THE UNITED STATES OF AMERICA

vs.

HELAMAN HANSEN

SUPERSEDING INDICTMENT

VIOLATION(S): 18 U.S.C. § 1341– Mail Fraud

(Thirteen Counts); 18 U.S.C. § 1343 – Wire Fraud

(Three Counts); 8 U.S.C. § 1324(a)(l)(A)(iv) & (B)(i)

– Encouraging and Inducing Illegal Immigration for

Private Financial Gain (Two Counts); 18 U.S.C. §

98l(a)(l)(C) and 28 U.S.C. § 2461(c) – Criminal

Forfeiture

A true bill,

/s/ Signature on file w/AUSA

_________________________

Foreman.

Filed in open court this 2 day of March, A.D. 2017

_________________________

Clerk.

Bail, $ _ _ _ _ _ _ _ _ _

_________________________

GPO 863 525

71a

United States v. HELAMAN HANSEN

Penalties for Superseding Indictment

2:16-CR-00024-MCE

Defendants

HELAMAN HANSEN

COUNTS 1–13:

ALL DEFENDANTS

VIOLATION:

18 U.S.C. § 1341 – Mail Fraud

PENALTIES:

Maximum of 20 years in prison;

or Fine of up to $250,000; or both

fine and imprisonment

Supervised release of not more

than 3

SPECIAL

ASSESSMENT:

$100 (mandatory on each count)

COUNTS 14–16: ALL DEFENDANTS

VIOLATION:

18 U.S.C. § 1343 – Wire Fraud

PENALTIES:

Maximum of 20 years in prison;

or Fine of up to $250,000; or both

fine and imprisonment

Supervised release of not more

than 3

SPECIAL

ASSESSMENT:

$100 (mandatory on each count)

COUNTS 17–18: ALL DEFENDANTS

VIOLATION:

18 U.S.C. § 1324 (a)(1)(A)(iv) &

(B)(i) – Encouraging and Inducing

Illegal Immigration for Private

Financial Gain

PENALTIES

Maximum of 10 years in prison;

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or Fine of up to $250,000; or both

fine and imprisonment

Supervised release of not more

than 3

SPECIAL

ASSESSMENT

$100 (mandatory on each count)

FORFEITURE ALLEGATION: ALL

DEFENDANTS

VIOLATION:

981(a)(1)(C) and 28 U.S.C. § 2461

– Criminal Forfeiture

PENALTIES:

As stated

document

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the

charging

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.