United States v. Evelyn Sineneng-Smith

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10614
Plaintiff-Appellee,
D.C. No.
v. CR 10-414 RMW

EVELYN SINENENG-SMITH,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted April 18, 2017
San Francisco, California
Reargued and Resubmitted February 15, 2018
Pasadena, California

Filed December 4, 2018

Before: A. Wallace Tashima, Marsha S. Berzon,
and Andrew D. Hurwitz,* Circuit Judges.

Opinion by Judge Tashima

*
Judge Reinhardt, who was originally a member of this panel, died
after this case was reargued and resubmitted for decision. Judge Hurwitz
was randomly drawn to replace him. Judge Hurwitz has read the briefs,
reviewed the record, and watched video recordings of the oral arguments.
2 UNITED STATES V. SINENENG-SMITH

SUMMARY**

Criminal Law

The panel reversed the district court’s judgment with
respect to the defendant’s convictions on two counts of
encouraging and inducing an alien to remain in the United
States for the purposes of financial gain, in violation of
8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i); vacated
the defendant’s sentence; and remanded for resentencing.

The panel held that subsection (iv) – which permits a
felony prosecution of any person who “encourages or
induces” an alien to come to, enter, or reside in the United
States if the encourager knew, or recklessly disregarded the
fact that such coming to, entry, or residence is or will be in
violation of law – is unconstitutionally overbroad in violation
of the First Amendment because it criminalizes a substantial
amount of protected expression in relation to its narrow band
of legitimately prohibited conduct and unprotected
expression.

In a concurrently filed memorandum disposition, the
panel affirmed the judgment with respect to the defendant’s
convictions on two counts of mail fraud in violation of
18 U.S.C. § 1341.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. SINENENG-SMITH 3

COUNSEL

Daniel F. Cook (argued), Bodega Bay, California, for
Defendant-Appellant.

Susan B. Gray (argued), Assistant United States Attorney;
J. Douglas Wilson, Chief, Appellate Section; United States
Attorney’s Office, San Francisco, California; Elizabeth D.
Collery (argued), Attorney, Criminal Division; John P.
Cronan, Principal Deputy Assistant Attorney General;
Kenneth A. Blanco, Acting Assistant Attorney General;
United States Department of Justice, Washington, D.C.; for
Plaintiff-Appellee.

Mark C. Fleming (argued) and Megan E. Barriger, Wilmer
Cutler Pickering Hale & Dorr LLP, Boston, Massachusetts;
Beth C. Neitzel, Wilmer Cutler Pickering Hale & Dorr LLP,
Washington, D.C.; for Amici Curiae Immigrant Defense
Project, and National Immigration Project of the National
Lawyers Guild.

Annie Hudson-Price (argued) and Mark Rosenbaum, Public
Counsel, Los Angeles, California, for Amicus Curiae Public
Counsel.

Stephen R. Sady (argued), Chief Deputy Federal Public
Defender; Lisa Ma, Research and Writing Attorney, Portland,
Oregon; Carmen A. Smarandoiu, Assistant Federal Public
Defender, San Francisco, California; for Amicus Curiae
Federal Defender Organizations of the Ninth Circuit.
4 UNITED STATES V. SINENENG-SMITH

Lee Rowland (argued), Cecillia D. Wang, Anand
Balakrishnan, ACLU Foundation, New York, New York;
Christine Patricia Sun, American Civil Liberties Union
Foundation of Northern California, Inc.; for Amici Curiae
American Civil Liberties Union, and American Civil
Liberties Union of Northern California.

Eugene Volokh, Scott & Cyan Banister First Amendment
Clinic, UCLA School of Law, Los Angeles, California, as
Amicus Curiae.

Elliott Schulder, Tina M. Thomas, Nicole Y. Roberts,
Covington & Burling LLP, Washington, D.C.; Robin
Wechkin, Sidley Austin LLP, Seattle, Washington; for
Amicus Curiae National Association of Criminal Defense
Lawyers.

Dennis J. Herrera, City Attorney; Christine Van Aken, Chief
of Appellate Litigation; Yvonne T. Mere, Chief of Complex
and Affirmative Litigation; Molly M. Lee and Matthew S.
Lee, Deputy City Attorneys; Office of the City Attorney, San
Francisco, California; for Amicus Curiae City and County of
San Francisco.

Stephen W. Manning, Innovation Law Lab, Portland, Oregon;
Kari Hong, Boston College Law School, Newton,
Massachusetts; for Amici Curiae Oregon Interfaith
Movement for Immigrant Justice, Causa Immigrant Rights
Coalition of Oregon, Catholic Charities of Oregon, and
Immigration Counseling Services of Oregon.
 UNITED STATES V. SINENENG-SMITH 5

Emily T. Kuwahara, Crowell & Moring LLP, Los Angeles,
California; Harry P. Cohen and Gary A. Stahl, Crowell &
Moring LLP, New York, New York; Noor Taj, Crowell &
Moring LLP, Washington, D.C.; Niyati Shah, John C. Yang,
Asian Americans Advancing Justice | AAJC, Washington,
D.C.; for Amicus Curiae Asian Americans Advancing
Justice | AAJC.

OPINION

TASHIMA, Circuit Judge:

INTRODUCTION

Defendant-Appellant Evelyn Sineneng-Smith was
convicted on two counts of encouraging and inducing an alien
to remain in the United States for the purposes of financial
gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) &
§ 1324(a)(1)(B)(i).1 Section 1324(a)(1)(A)(iv) (“Subsection
(iv)”) permits a felony prosecution of any person who
“encourages or induces an alien to come to, enter, or reside in
the United States” if the encourager knew, or recklessly
disregarded “the fact that such coming to, entry, or residence
is or will be in violation of law.” We must decide whether
Subsection (iv) abridges constitutionally-protected speech.
To answer this question, we must decide what “encourages or
induces” means.

1
Sineneng-Smith was also convicted of two counts of mail fraud in
violation of 18 U.S.C. § 1341. We affirm those convictions in a separate,
concurrently filed memorandum disposition.
6 UNITED STATES V. SINENENG-SMITH

The parties have widely divergent views about how to
interpret the statute. Sineneng-Smith and several amici
contend that encourage and induce carry their plain meaning
and, therefore, restrict vast swaths of protected expression in
violation of the First Amendment. The government counters
that the statute, in context, only prohibits conduct and a
narrow band of unprotected speech.

We do not think that any reasonable reading of the statute
can exclude speech. To conclude otherwise, we would have
to say that “encourage” does not mean encourage, and that a
person cannot “induce” another with words. At the very
least, it is clear that the statute potentially criminalizes the
simple words – spoken to a son, a wife, a parent, a friend, a
neighbor, a coworker, a student, a client – “I encourage you
to stay here.”

The statute thus criminalizes a substantial amount of
constitutionally-protected expression. The burden on First
Amendment rights is intolerable when compared to the
statute’s legitimate sweep. Therefore, we hold that
Subsection (iv) is unconstitutionally overbroad in violation of
the First Amendment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

Sineneng-Smith operated an immigration consulting firm
in San Jose, California. Her clients were mostly natives of
the Philippines, unlawfully employed in the home health care
industry in the United States, who sought authorization to
work and adjustment of status to obtain legal permanent
residence (green cards). Sineneng-Smith assisted clients with
 UNITED STATES V. SINENENG-SMITH 7

applying for a “Labor Certification,” and then for a green
card. She signed retainer agreements with her clients that
specified the purpose of the retention as “assisting [the client]
to obtain permanent residence through Labor Certification.”
The problem was that the Labor Certification process expired
on April 30, 2001; aliens who arrived in the United States
after December 21, 2000, were not eligible to receive
permanent residence through the program. See Esquivel-
Garcia v. Holder, 593 F.3d 1025, 1029 n.1 (9th Cir. 2010).
Sineneng-Smith knew that the program had expired. She
nonetheless continued to sign retainer agreements with her
clients and tell them that they could obtain green cards via
Labor Certifications. And she also continued to sign new
retainer agreements purportedly to assist additional clients
in obtaining Labor Certification. At least two of Sineneng-
Smith’s clients testified that they would have left the country
if Sineneng-Smith had told them that they were not eligible
for permanent residence. Sineneng-Smith’s words and acts
which allegedly violated the statute were alleged to have
occurred from 2001 to 2008.

B. Procedural History

On July 14, 2010, a grand jury returned a ten-count
superseding indictment charging Sineneng-Smith with, as
relevant to this appeal, three counts of violating 8 U.S.C.
§ 1324(a)(1)(A)(iv) & § 1324(a)(1)(B)(i) – encouraging or
inducing an alien to reside in the country, knowing and in
reckless disregard of the fact that such residence is in
violation of the law.

Before trial, Sineneng-Smith moved to dismiss the
immigration counts of the superseding indictment. Sineneng-
Smith argued that: (1) her conduct was not within the scope
8 UNITED STATES V. SINENENG-SMITH

of Subsection (iv); (2) Subsection (iv) is impermissibly vague
under the Fifth Amendment; and (3) Subsection (iv) violates
the First Amendment because it is a content-based restriction
on her speech. The district court denied the motion to
dismiss, but did not explicitly address the First Amendment
argument.

After a twelve-day trial, the jury found Sineneng-Smith
guilty on all three counts of violating Subsection (iv) and
§ 1324(a)(1)(B)(i), and all three counts of mail fraud.
Sineneng-Smith then moved for a judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29(c),
renewing the arguments from her motion to dismiss and
contending that the evidence elicited at trial did not support
the verdicts. The district court concluded that sufficient
evidence supported the convictions for two of the three
§ 1324 counts and two of the three mail fraud counts.2

Sineneng-Smith timely appealed, again arguing that the
charges against her should have been dismissed for the
reasons asserted in her motion to dismiss, and that the
evidence did not support the convictions. We first held oral
argument on April 18, 2017, and submitted the case for
decision. Subsequent to submission, however, we determined
that our decision would be significantly aided by further
briefing. On September 18, 2017, we filed an order inviting
interested amici to file briefs on the following issues:

2
The court sentenced Sineneng-Smith to 18 months on each of the
remaining counts, to be served concurrently; three years of supervised
release on the § 1324 and mail fraud counts, and one year of supervised
release on the filing of false tax returns count, all to run concurrently. She
was also ordered to pay $43,550 in restitution, a $15,000 fine, and a $600
special assessment.
 UNITED STATES V. SINENENG-SMITH 9

1. Whether the statute of conviction is overbroad or
likely overbroad under the First Amendment, and if
so, whether any permissible limiting construction
would cure the First Amendment problem?

2. Whether the statute of conviction is void for
vagueness or likely void for vagueness, either under
the First Amendment or the Fifth Amendment, and if
so, whether any permissible limiting construction
would cure the constitutional vagueness problem?

3. Whether the statute of conviction contains an implicit
mens rea element which the Court should enunciate.
If so: (a) what should that mens rea element be; and
(b) would such a mens rea element cure any serious
constitutional problems the Court might determine
existed?

We received nine amicus briefs,3 as well as supplemental
briefs from both Sineneng-Smith and the government. On
February 15, 2018, we again held oral argument and
resubmitted the case for decision.

STANDARD OF REVIEW

The government urges us to review Sineneng-Smith’s
First Amendment overbreadth claim for plain error, arguing
that she waived the issue by not raising it until we requested
supplemental briefing.

Although Sineneng-Smith never specifically argued
overbreadth before our request for supplemental briefing, she

3
We thank all amici for their helpful briefs and oral advocacy.
10 UNITED STATES V. SINENENG-SMITH

has consistently maintained that a conviction under the statute
would violate the First Amendment. Sineneng-Smith’s
motion to dismiss argued that “[t]he crime alleged here is
rooted in speech content – performing immigration
consultancy work on behalf of aliens and their employers by
petitioning the government on their behalf – not in conduct
lacking any First Amendment protection.” Likewise, her
opening brief on appeal reasserted a First Amendment
challenge: “Such communication is ‘pure’ speech entitled to
the highest level of protection.”

“Once a federal claim is properly presented, a party can
make any argument in support of that claim; parties are not
limited to the precise arguments they made below.” Yee v.
City of Escondido, 503 U.S. 519, 534 (1992). Because
Sineneng-Smith has asserted a First Amendment claim
throughout the litigation, her overbreadth challenge “is – at
most – a new argument to support what has been a consistent
claim.” Citizens United v. FEC, 558 U.S. 310, 331 (2010)
(internal quotation marks omitted). We thus conclude that
she preserved her overbreadth argument, and review it de
novo.

ANALYSIS

The First Amendment dictates that “Congress shall make
no law . . . abridging the freedom of speech.” “[A] law
imposing criminal penalties on protected speech is a stark
example of speech suppression.” Ashcroft v. Free Speech
Coal., 535 U.S. 234, 244 (2002).

Of course, like most constitutional principles, the right to
free speech “is not absolute.” Ashcroft v. Am. Civil Liberties
Union, 535 U.S. 564, 573 (2002). For example, laws or
 UNITED STATES V. SINENENG-SMITH 11

policies that target conduct but only incidentally burden
speech may be valid. See, e.g., Virginia v. Hicks, 539 U.S.
113, 122–23 (2003). Further, traditional narrow carve-outs
to the First Amendment, “long familiar to the bar,” allow
Congress to restrict certain types of speech “including
obscenity, defamation, fraud, incitement, and speech integral
to criminal conduct.” United States v. Stevens, 559 U.S. 460,
468 (2010) (internal quotation marks and citations omitted).

Sineneng-Smith and several amici argue that the statute
explicitly criminalizes speech through its use of the term
“encourages or induces,” and that the speech restriction is
content-based and viewpoint-discriminatory, because it
criminalizes only speech in support of aliens coming to or
remaining in the country. Alternatively, Sineneng-Smith
asserts that even if the statute targets some conduct, it
sweeps in too much protected speech and is therefore
unconstitutionally overbroad. The government counters that
Subsection (iv) should be read as referring only to conduct
and, to the extent it affects speech, restricts only unprotected
speech.

We address those competing constructions below,
beginning with the topic of overbreadth.4

4
We follow the Supreme Court’s lead in assessing the statute’s
overbreadth before engaging in the strict scrutiny analysis that would
follow if we concluded that Subsection (iv) was a content-based restriction
on speech. See Stevens, 559 U.S. at 474 (recognizing that the statute at
issue explicitly regulated expression based on content, but analyzing the
statute for overbreadth rather than for whether it survived strict scrutiny).
12 UNITED STATES V. SINENENG-SMITH

I. First Amendment Overbreadth

Because of the “sensitive nature of protected expression,”
New York v. Ferber, 458 U.S. 747, 768 (1982), “[t]he
Constitution gives significant protection from overbroad laws
that chill speech within the First Amendment’s vast and
privileged sphere,” Free Speech Coal., 535 U.S. at 244. To
implement this protection, the general rules governing facial
attacks on statutes are relaxed under the First Amendment.
Typically, to succeed on a facial attack, a challenger would
need “to establish that no set of circumstances exists under
which [the statute] would be valid, or that the statute lacks
any plainly legitimate sweep.” Stevens, 559 U.S. at 472
(internal quotation marks and citations omitted).

However, “[i]n the First Amendment context . . . a law
may be invalidated as overbroad if ‘a substantial number of
its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” Id. at 473 (quoting
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449, n. 6 (2008)). This exception to the typical
rule is based on the idea that speakers may be chilled from
expressing themselves if overbroad criminal laws are on the
books. See Farber, 458 U.S. at 768–69 (citing Vill. of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634
(1980)). To combat that chilling effect, even a person whose
activity is clearly not protected may challenge a law as
overbroad under the First Amendment. See id.

To determine whether Subsection (iv) is overbroad, we
must first construe the statute. Next, we must ask whether
Subsection (iv), as construed, restricts speech and, if so,
whether that speech is protected. Finally, we must weigh the
 UNITED STATES V. SINENENG-SMITH 13

amount of protected speech that the statute restricts against
the statute’s legitimate sweep.

Recognizing that striking down a statute as overbroad is
“strong medicine,” and the justification for facially striking
down a statute “attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from
‘pure speech’ toward conduct,” we conclude that the chilling
effect of Subsection (iv) is both real and substantial.
Broadrick v. Oklahoma, 413 U.S. 601, 615–16 (1973). The
only reasonable construction of Subsection (iv) restricts a
substantial amount of protected speech in relation to the
narrow band of conduct and unprotected expression that the
statute legitimately prohibits. Therefore, we hold that
Subsection (iv) is facially invalid.

A. Construing the Statute

“The first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers.” United States v. Williams, 553 U.S. 285, 293 (2008).
Subsection (iv) reads: “Any person who . . . encourages or
induces an alien to come to, enter, or reside in the United
States, knowing or in reckless disregard of the fact that such
coming to, entry, or residence is or will be in violation of law
. . . shall be punished as provided in subparagraph (B).”5

5
The government argues that the “statute of conviction is not
8 U.S.C. § 1324(a)(1)(A)(iv), standing alone. Rather, the indictment
charged and the jury found that Sineneng-Smith acted ‘for the purpose of
commercial advantage or private financial gain’ under 8 U.S.C.
§ 1324(a)(1)(B)(i) . . . . Accordingly, the ‘statute[s] of conviction’ are
8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i).” Subsection (B)(i) is a
commercial enhancement of Subsection (A)(iv). For the purposes of our
14 UNITED STATES V. SINENENG-SMITH

Construing the statute also requires us to look beyond the
plain text of Subsection (iv). See Stevens, 559 U.S. at 474.
Thus, to interpret Subsection (iv), we analyze: the mens rea
required for conviction; what “encourages or induces” means;
whether “an alien” limits the scope of the statute; and whether
“in violation of law” refers to both criminal and civil laws.

The government contends that a defendant runs afoul of
Subsection (iv) only when she (1) knowingly undertakes,
(2) a non-de-minimis, (3) act that, (4) could assist, (5) a
specific alien (6) in violating, (7) civil or criminal
immigration laws.

While we endeavor to “construe[] [a statute] to avoid
serious constitutional doubts,” we can only do so if the statute
is “readily susceptible to such a construction.” Stevens, 559
U.S. at 481 (internal quotation marks and citations omitted).
“We will not rewrite a law to conform it to constitutional
requirements, for doing so would constitute a serious invasion
of the legislative domain, and sharply diminish Congress’
incentive to draft a narrowly tailored law in the first place.”
Id. (internal quotation marks and citations omitted).

The government’s interpretation of Subsection (iv)
rewrites the statute. For the following reasons, we hold that
to violate Subsection (iv), a defendant must knowingly
encourage or induce a particular alien – or group of aliens –

overbreadth analysis, the commercial enhancement is irrelevant.
Subsection (A)(iv) is the predicate criminal act; without the encouraging
or inducing, Sineneng-Smith could not have been convicted. And, as the
meaning of § 1324(a)(1)(A)(iv) does not vary depending upon whether the
financial gain enhancement also applies, the chilling effect of the
“encourage or induce” statute extends to anyone who engages in behavior
covered by it, whether for financial gain or not.
 UNITED STATES V. SINENENG-SMITH 15

to come to, enter, or reside in the country in reckless
disregard of whether doing so would constitute a violation of
the criminal or civil immigration laws on the part of the alien.
As properly construed, “encourage or induce” can mean
speech, or conduct, or both, and there is no substantiality or
causation requirement.

1. Mens Rea

We first address what mens rea is required to sustain a
conviction under Subsection (iv). As an initial matter, the
most natural reading of Subsection (iv) requires us to break
it into two prongs for the purposes of determining the
requisite mens rea: first, the “encourage or induce” prong;
and, second, the violation of law prong. Subsection (iv) is
silent about the mens rea required for the encourage prong,
but explicitly provides that a defendant must “know[] or
reckless[ly] disregard” the fact that an alien’s “coming to,
entry, or residence is or will be in violation of law.” 8 U.S.C.
§ 1324(a)(1)(A)(iv).

a. Mens Rea for “encourage or induce” Prong

In United States v. Yoshida, the defendant was indicted
for “knowingly encouraging and inducing” three aliens to
enter the United States. 303 F.3d 1145, 1149 (9th Cir. 2002).
On appeal, Yoshida argued that “there [was] insufficient
evidence that she . . . knowingly encouraged or induced in
some way [the aliens’] presence in the United States.” Id. at
1149–50. In affirming the conviction, we concluded that “[a]
number of events revealed at trial creates a series of
inescapable inferences leading to the rational conclusion that
Yoshida knowingly ‘encouraged and induced’ [the aliens] to
enter the United States.” Id. at 1150. We repeatedly
16 UNITED STATES V. SINENENG-SMITH

emphasized the knowledge requirement. See id. (“The
government also offered circumstantial evidence that Yoshida
knowingly encouraged [the aliens] to enter the United
States”); id. at 1151 (“a reasonable jury could easily conclude
that Yoshida knowingly led the aliens to the flight”).
Therefore, we think it clear that Subsection (iv) has a
knowledge mens rea for the encourage prong.

b. Mens Rea for the Violation of Law Prong

Despite the fact that Subsection (iv) explicitly states that
a defendant must “know[] or reckless[ly] disregard” the fact
that an alien’s “coming to, entry, or residence is or will be in
violation of law,” the government argues that we have
increased that mens rea requirement to an “intent” to violate
the immigration laws. We disagree, but recognize that our
prior cases provide some support for the government’s
position.

The government’s argument is based on United States v.
Nguyen, 73 F.3d 887 (9th Cir. 1995), in which we reviewed
a conviction under subsection (i) of § 1324(a)(1)(A).
Subsection (i) criminalizes “bring[ing]” an alien “to the
United States . . . at a place other than a designated port of
entry” when the defendant “know[s] that [such] person is an
alien.” 8 U.S.C. § 1324(a)(1)(A)(i). “Read literally, then, the
statute criminalizes bringing, purposefully or otherwise, any
alien, illegal or otherwise, into the country other than at a
designated port of entry.” Nguyen, 73 F.3d at 890. In the
absence of an explicit mens rea standard, we considered the
legislative history of the statute and concluded that Congress
did not intend to “dispense with a mens rea requirement for
the felony offense.” Id. at 893. “Accordingly, we [held] that
to convict a person of violating [§] 1324(a)(1)(A), the
 UNITED STATES V. SINENENG-SMITH 17

government must show that the defendant acted with criminal
intent.”6 Id.

Subsequent cases adding a mens rea element to the other
subsections of § 1324(a)(1)(A) adopted Nguyen’s criminal
intent language. See United States v. Barajas-Montiel,
185 F.3d 947, 951–53 (9th Cir. 1999). Central to the
government’s argument, in Yoshida we stated, “[w]e have
held that ‘to convict a person of violating section
1324(a)(1)(A), the government must show that the defendant
acted with criminal intent, i.e., the intent to violate United
States immigration laws.’” Yoshida, 303 F.3d at 1149
(quoting Barajas-Montiel, 185 F.3d at 951).

However, the passing reference to “criminal intent” in
Yoshida did not increase the mens rea of the violation of law
prong to intent. We affirmed Yoshida’s conviction because
“the jury had ample evidence before it to conclude, beyond a
reasonable doubt, that Yoshida encouraged the aliens to enter
the United States, with knowledge or in reckless disregard of
the fact that the aliens’ entry was in violation of law.” Id. at
1151 (emphasis added). Not only does Yoshida foreclose the
government’s argument that we have increased the mens rea
level of Subsection (iv), it confirms that we have not read out
of the statute the “reckless disregard” standard that appears
explicitly in it.

6
“Criminal intent” is an amorphous term that can signify different
levels of culpability. For example, Black’s Law Dictionary defines the
term as “mens rea,” or “[a]n intent to commit an actus reus without any
justification, excuse, or other defense.” Intent, Black’s Law Dictionary,
930–31 (10th ed. 2014). However, Black’s also recognizes that
sometimes “criminal intent” means “an intent to violate the law, —
implying a knowledge of the law violated.” Id. (citations omitted).
18 UNITED STATES V. SINENENG-SMITH

2. “Encourages or Induces”

a. Our Construction of “encourage or induce”

Next, we turn to the meaning of “encourage or induce.”
As always, we begin with the language of the statute to
determine whether it has “a plain and unambiguous meaning
with regard to the particular dispute in the case.” Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). A
critical dispute in this case is whether, and to what extent, the
words “encourage and induce” criminalize protected speech.

We have previously recognized that “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) (quoting
United States v. He, 245 F.3d 954, 960 (7th Cir. 2001)
(quoting Merriam Webster’s Collegiate Dictionary 381 (10th
ed. 1996))). This definition is well-accepted. See, e.g.,
Encourage, Oxford English Dictionary Online (3d ed. 2018)
(“to inspire with courage, animate, inspirit . . . . [t]o incite,
induce, instigate”). Similarly, induce means “[t]o lead (a
person), by persuasion or some influence or motive that acts
upon the will . . . to lead on, move, influence, prevail upon
(any one) to do something.” Induce, Oxford English
Dictionary Online (3d ed. 2018).

In isolation, “encourage or induce” can encompass both
speech and conduct. It is indisputable that one can encourage
or induce with words, or deeds, or both. The dictionary
definitions do not, however, necessarily resolve the dispute in
this case. We must also examine the context in which the
words are used to determine whether we can avoid First
 UNITED STATES V. SINENENG-SMITH 19

Amendment concerns. See Williams, 553 U.S. at 294–95.
We look to the principle of noscitur a sociis to determine
whether the language surrounding “encourage or induce”
provides those words with a more precise definition. Id. at
294.

In Williams, the Supreme Court analyzed whether
18 U.S.C. § 2252A(a)(3)(B)’s prohibition on “advertis[ing],
promot[ing], present[ing], distribut[ing], or solicit[ing]”
purported child pornography was overbroad. Id. at 293–94.
In construing the statute, the Court narrowed the meanings of
“promotes” and “presents” in light of their neighboring verbs.
Id. at 294. The Court reasoned that “advertises,”
“distributes,” and “solicits” all had an obvious transactional
connotation: “Advertising, distributing, and soliciting are
steps taken in the course of an actual or proposed transfer of
a product.” Id. “Promotes” and “presents,” on the other
hand, are not obviously transactional. In context, however,
the Supreme Court read them as having a transactional
meaning as well. Id. at 294–95. Thus, the Court interpreted
“promotes” to mean “recommending purported child
pornography to another person for his acquisition,” and
“presents” to “mean[] showing or offering the child
pornography to another person with a view to his
acquisition.” Id. at 295.

By contrast, Subsection (iv) does not have a string of five
verbs – it is limited to only two: “encourages or induces.”
Here, the proximity of encourage and induce to one another
does not aid our analysis. As discussed above, both
encourage and induce can be applied to speech, conduct, or
both. Therefore, unlike the string of verbs in Williams,
neither of these verbs has clear non-speech meanings that
would inform and limit the other’s meaning. In other words,
20 UNITED STATES V. SINENENG-SMITH

when read together, they do not provide a more precise
definition or one that excludes speech. Nor are the words
necessarily transactional like those in Williams. Thus, the
application of noscitur a sociis to the two operative verbs
here, does not narrow our search; our conclusion that
Subsection (iv) could cover speech, as well as conduct,
remains.

Beyond their immediate neighbors in Subsection (iv),
encourage and induce also “keep company” with the verbs in
the other subsections of § 1324(a)(1)(A). The neighboring
subsections prohibit: (i) “bring[ing]” an alien to the United
States “at a place other than a designated port of entry;”
(ii) “transport[ing] or mov[ing]” an alien in furtherance of a
violation of the immigration laws; and (iii) “conceal[ing],
harbor[ing], or shield[ing] from detection” an alien in the
country in violation of the immigration laws. 8 U.S.C.
§ 1324(a)(1)(A)(i), (ii), & (iii). Bringing, transporting,
moving, concealing, harboring, and shielding all clearly refer
to some type of action.

The government contends, in light of these other verbs in
the other subsections, that “encourage or induce” “should
likewise be interpreted to require specific actions that
facilitate an alien’s coming to, entering, or residing in the
United States illegally. So understood, § 1324(a)(1)(A)[(iv)]
serves as a ‘catch-all’ provision that covers actions other than
‘bringing,’ ‘transporting,’ etc., that might facilitate illegal
immigration.” (Citation omitted.) Conversely, Amicus
American Civil Liberties Union contends that subsections
(i)–(iii) criminalize so much conduct that the only thing left
to criminalize in Subsection (iv) is pure speech.
 UNITED STATES V. SINENENG-SMITH 21

The government’s proposed interpretation of “encourage
or induce” in the context of §1324(a)(1)(A) is strained.
While we agree that the statute is intended to restrict the
facilitation of illegal immigration and that subsections (i)–(iii)
prohibit specific actions, it does not follow that Subsection
(iv) covers only actions. Instead, the structure of the section
lends itself to the more obvious conclusion that the verbs in
the subsections must mean different things because they form
the basis of separate charges. See Thum, 749 F.3d at
1146–47.

In § 1324, “Congress created several discrete immigration
offenses including,” among others, the crimes outlined in
subsections (a)(1)(A)(i)–(iv). United States v. Lopez,
484 F.3d 1186, 1190–91, 1193–94 (9th Cir. 2007) (en banc);
see Thum, 749 F.3d at 1146. We have held that construing
§ 1324(a)(1)(A) “so that effect is given to all its provisions,
so that no part will be inoperative or superfluous, void or
insignificant,” requires Subsection (iv) to be read as
excluding the conduct criminalized in the remaining
subsections. Thum, 749 F.3d at 1147 (quoting Corley v.
United States, 556 U.S. 303, 314 (2009)). If encouraging or
inducing cannot mean bringing, transporting, moving,
concealing, harboring, or shielding, what is left?

The government offers a few limited examples of other
actions that could potentially be covered under Subsection
(iv), but not reached by subsections (i)–(iii). These examples
include: (1) providing aliens with false documents; (2) selling
a border-crossing kit to aliens, including a map of “safe
crossing” points and backpacks filled with equipment
designed to evade border patrol; (3) duping foreign tourists
into purchasing a fake “visa extension;” or (4) providing a
“package deal” to foreign pregnant women who wish to give
22 UNITED STATES V. SINENENG-SMITH

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. But we doubt Congress
intended to limit Subsection (iv) to actions such as these, as
the provision does not appear necessary to prosecute any of
these actions. Subsection (i), (iii), and (v)(II), which,
respectively, restrict bringing, shielding from detection, and
aiding and abetting the commission of any of these acts,
cover the examples raised by the government. Additionally,
8 U.S.C. § 1324c and 18 U.S.C. § 1546 provide broad
criminal prohibitions against document fraud in violation of
the immigration laws. These few, unpersuasive examples
therefore do not convince us that “encourage” and “induce”
can be read so as not to encompass speech, even though their
plain meaning dictates otherwise.

In sum, the structure of the statute, and the other verbs in
the separate subsections, do not convince us to stray from the
plain meaning of encourage and induce – that they can mean
speech, or conduct, or both. Although the “encourage or
induce” prong in Subsection (iv) may capture some conduct,
there is no way to get around the fact that the terms also
plainly refer to First Amendment-protected expression. In
fact, in Williams, one of the seminal overbreadth cases,
Justice Scalia used the statement, “I encourage you to obtain
child pornography” as an example of protected speech.
553 U.S. at 300. We see no reason why “I encourage you to
overstay your visa” would be any different. And interpreting
“encourage or induce” to exclude such a statement would
require us to conclude that “encourage” does not mean
encourage. The subsection is not susceptible to that
construction. Subsection (iv), therefore, criminalizes
encouraging statements like Justice Scalia’s example and
other similar expression.
 UNITED STATES V. SINENENG-SMITH 23

b. Other Courts’ Construction of “encourage or
induce”

Only one other Circuit has considered a First
Amendment overbreadth challenge to Subsection (iv), and
that was in an unpublished disposition. In United States v.
Tracy, the defendant “pled guilty to one count of conspiring
to encourage non-citizens to enter the United States illegally
. . . but reserved the right to appeal the district court’s denial
of his motion to dismiss that charge.” 456 F. App’x 267, 268
(4th Cir. 2011) (per curiam). The Fourth Circuit rejected the
defendant’s argument “that speech that encourages illegal
aliens to come to the United States is protected by the First
Amendment in certain instances.” Id. at 272. Instead, the
court stated “that speech that constitutes criminal aiding and
abetting does not enjoy the protection of the First
Amendment,” and concluded that the statute did not prohibit
a substantial amount of protected speech. Id. (alteration and
citations omitted). We will address the extent to which
Subsection (iv) can be read to prohibit only aiding and
abetting in more detail below, but it is clear that Tracy
recognized that the subsection reaches some speech. Id.
(“[T]here may be some instances in which we might find that
the statute chills protected speech.”).

Although not addressing Subsection (iv) from a First
Amendment perspective, other courts have interpreted what
“encourage or induce” means in the subsection. Somewhat
recently, we touched upon the issue in Thum. Amici put quite
a bit of stock in our use of a “broad” definition of
“encourage” in Thum, but we agree with the government that
Thum is inconclusive about whether “encourage” (or
“induce”) includes speech.
24 UNITED STATES V. SINENENG-SMITH

In Thum, we considered whether the defendant
encouraged or induced an alien to reside in the United States
when the defendant escorted an alien from a fast food
restaurant near the San Ysidro Port of Entry – on the U.S.
side of the border – to a nearby vehicle headed north.
749 F.3d at 1144–45. In interpreting “encourage,” we relied
on the general dictionary definition. Id. at 1147. We also
recognized that we “ha[d] previously equated ‘encouraged’
with ‘helped.’” Id. (citing Yoshida, 303 F.3d at 1150). But
the main question in that case was whether the defendant had
done enough to encourage the alien to reside in the U.S.
Thum, 749 F.3d at 1147. On that point, we agreed with the
defendant that escorting an alien to a van bound for Northern
California was at most “aid[ing] in the attempted
transportation of the alien, which would be covered under
8 U.S.C. § 1324(a)(1)(A)(ii),” and did not “convince the
illegal alien to stay in this country . . . or . . . facilitate the
alien’s ability to live in this country indefinitely.” Id. at 1148
(internal quotation marks and citations omitted). Thum thus
stands for the proposition that “[e]ncouraging an illegal alien
to reside in the United States must mean something more than
merely transporting such an alien within this country.” Id. at
1149.7 We did not address whether the statute reached
speech.

Many other courts have concluded that encourage can
mean “to help.” See United States v. Lopez, 590 F.3d 1238,
1249–52 (11th Cir. 2009) (upholding a supplemental jury

7
Likewise, Yoshida does not aid our analysis. Yoshida, examining
whether there was sufficient evidence to sustain the defendant’s
conviction under Subsection (iv), held only that escorting aliens through
an airport to a United States-bound flight constituted encouragement.
Yoshida, 303 F.3d at 1150–51.
 UNITED STATES V. SINENENG-SMITH 25

instruction which, in part, defined “encourage” as “to help”);
United States v. Fujii, 301 F.3d 535, 540 (7th Cir. 2002); He,
245 F.3d at 957–58; United States v. Oloyede, 982 F.2d 133,
135–37 (4th Cir. 1993) (per curiam). However, as mentioned
above, none of these cases considered a First Amendment
challenge to Subsection (iv), nor do they foreclose the
conclusion that “encourage or induce” can mean speech. To
“help” is not a helpful limitation in terms of excluding
expression, because speech can help someone decide to enter
or to reside in the United States.

Additionally, the government cites out-of-circuit cases for
the argument that encouraging or inducing “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.” For
example, in DelRio-Mocci v. Connolly Props. Inc., the Third
Circuit

read subsection (iv) as prohibiting a person
from engaging in an affirmative act that
substantially encourages or induces an alien
lacking lawful immigration status to come to,
enter, or reside in the United States where the
undocumented person otherwise might not
have done so. Thus, subsection (iv) has the
distinct character of foreclosing the type of
substantial assistance that will spur a person
to commit a violation of immigration law
where they otherwise might not have.

672 F.3d 241, 249 (3d Cir. 2012) (emphasis added). The
court reasoned that if it interpreted “encourage or induce” too
26 UNITED STATES V. SINENENG-SMITH

broadly it would “render subsections (i)–(iii)] redundant or
superfluous.” Id. The court thus read the following elements
into what constituted encouragement under Subsection (iv):
it must be (1) an affirmative act that (2) substantially
encourages (3) an alien lacking lawful immigration status to
(4) come to, enter, or reside in the United States where (5) the
undocumented person otherwise might not have done so. Id.
At least one other court has adopted the Third Circuit’s
interpretation. See United States v. Henderson, 857 F. Supp.
2d 191, 204–08 (D. Mass. 2012).

There is a lot to unpack in this interpretation of the
statute, but at bottom, DelRio-Mocci added an act
requirement, a substantiality requirement, and a causation
requirement to the text of Subsection (iv). The Third Circuit
adopted the substantiality requirement from its “harboring”
decisions under § 1324(a)(1)(A)(iii), which hold that a
defendant can only be convicted where his “conduct tend[s]
to substantially facilitate an alien’s remaining in the United
States illegally and to prevent government authorities from
detecting the alien’s unlawful presence.” Id. at 246–48
(quoting United States v. Ozcelik, 527 F.3d 88, 97 (3d Cir.
2008) (internal quotation marks omitted)). The Ninth Circuit,
however, does not have such a precedent and we do not think
the statute is reasonably susceptible to this interpretation in
the absence of statutory text to that effect. See Valle del Sol
Inc. v. Whiting, 732 F.3d 1006, 1017 n.9 (9th Cir. 2013)
(recognizing that the Ninth Circuit broadly defines harboring
“to mean ‘afford shelter to’”) (quoting United States v. Acosta
de Evans, 531 F.2d 428, 430 (9th Cir. 1976)). We therefore
reject the government’s proposed interpretation that
“encourage or induce” must mean an act that provides
substantial assistance (or non-de-minimis help) to an alien for
entering or remaining in the country.
 UNITED STATES V. SINENENG-SMITH 27

We also disagree with the Third Circuit that a causation
requirement can be read into the statute. On its face “the
plain language of the statute makes clear that the relevant
inquiry is the conduct of the defendant,” and not the alien.
See United States v. Dhingra, 371 F.3d 557, 561 (9th Cir.
2004) (rejecting vagueness and overbreadth challenges to
18 U.S.C. § 2422(b), which prohibits “knowingly
persuad[ing], induc[ing], entic[ing], or coerc[ing] any
individual who has not attained the age of 18 years, to engage
in prostitution or any sexual activity for which any person can
be charged with a criminal offense”).

One district court’s struggle to interpret Subsection (iv)
illustrates our concerns. In Henderson, defendant was
convicted pursuant to Subsection (iv) because she had
“employed a person she came to learn was an illegal alien to
clean her home from time to time and, when asked, advised
the cleaning lady generally about immigration law practices
and consequences.” 857 F. Supp. 2d at 193. Considering a
post-verdict motion for judgment of acquittal, the district
court reviewed the “Developing Appellate Case Law” to
determine the scope of Subsection (iv), and adopted the Third
Circuit’s test from DelRio-Mocci. Id. at 204, 208.

In arguing against the motion, the government took “the
position that giving illegal aliens advice to remain in the
United States while their status is disputed constitutes
felonious conduct under § 1324(a)(1)(A)(iv) because it
constitutes encouragement or inducement under the statute.”8
Doubling down, “the government contended that an
immigration lawyer would be prosecutable for the federal

8
The defendant in Henderson does not appear to have made an
explicit First Amendment argument.
28 UNITED STATES V. SINENENG-SMITH

felony created by § 1324(a)(1)(A)(iv) if he advised an illegal
alien client to remain in the country because, if the alien were
to leave, the alien could not return to seek adjustment of
status.” Id. at 203.

The district court expressed discomfort with the
government’s position and incredulity that the government
would continue to pursue the felony prosecution. See id. at
193–94, 211–14. However, applying the DelRio-Mocci test,
the district court concluded that “a jury could find that
[defendant’s] employment together with her [immigration]
advice could have caused [the alien], or a person in her
position, to reside here when she otherwise might not have.”
Id. at 208. The court denied the motion for acquittal, but
granted defendant’s motion for a new trial in order to give
new jury instructions. Id. at 210, 214.

Despite Henderson, the government now argues that “[n]o
reported decision applies Subsection (iv) to efforts to
persuade, expressions of moral support, or abstract advocacy
regarding immigration.” Even if this were correct, it misses
the point. “[T]he First Amendment protects against the
Government; it does not leave us at the mercy of noblesse
oblige. We would not uphold an unconstitutional statute
merely because the Government promised to use it
responsibly.” Stevens, 559 U.S at 480. Thus, the absence of
convictions based purely on protectable expression is not
evidence that the statute does not criminalize speech. Just
because the government has not (yet) sought many
prosecutions based on speech, it does not follow that the
government cannot or will not use an overbroad law to obtain
such convictions. Further, the lack of convictions says
nothing about whether Subsection (iv) chills speech. Indeed,
Henderson exemplifies why we cannot take the government’s
 UNITED STATES V. SINENENG-SMITH 29

word for how it will enforce a broadly written statute, and
suggests that any would-be speaker who has thought twice
about expressing her views on immigration was not being
paranoid.

3. “An alien”

The government contends that Subsection (iv) is limited
to encouraging “a particular alien or aliens,” rather than “the
general public.” For the purposes of this appeal, and to avoid
serious constitutional concerns, we think the government’s
proposed interpretation is reasonable, but not ultimately
dispositive to our overbreadth analysis. And while it is easy
to foresee arguments about what constitutes a group of
particular aliens versus the “general public,” we accept that
Subsection (iv) requires a defendant to direct his or her
encouragement or inducement toward some known audience
of undocumented individuals.

4. “In Violation of Law”

Recognizing the breadth of the statute, the government
admits that “in violation of law” refers not only to criminal
law, but also to civil violations of the immigration laws. We
agree. Amicus Professor Eugene Volokh argues that we could
narrow the scope of the statute by reading “violation of law”
to mean only violations of the criminal law. But, because
simple residence in the United States without legal status is
not a crime, and the statute reaches inducing or encouraging
an alien to “reside” in the United States, the subsection is not
susceptible to this limiting construction. 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
30 UNITED STATES V. SINENENG-SMITH

United States.”). The proposed limiting construction would
render “reside” superfluous.

5. Construction of the Statute

To recap, we interpret Subsection (iv) as follows: to
violate the subsection, a defendant must knowingly encourage
or induce a particular alien – or group of aliens – to come to,
enter, or reside in the country, knowing or in reckless
disregard of whether doing so would constitute a violation of
the criminal or civil immigration laws. As construed,
“encourage or induce” can mean speech, or conduct, or both,
and there is no substantiality or causation requirement.

Ultimately, the government asks us to rewrite the statute.
Under no reasonable reading are the words “encourage” and
“induce” limited to conduct. We think the statute is only
susceptible to a construction that affects speech. As an
illustration – under the government’s reading of the statute,
it would argue that a mother telling an undocumented adult
child “If you leave the United States, I will be very lonely. I
encourage you to stay and reside in the country” would not
subject the mother to prosecution. But, in this example, the
mother is merely repeating the words of the statute in an
attempt to get her child to stay. We think any reasonable
person reading the subsection would assume that the mother’s
statement makes her vulnerable to prosecution, that the words
of the statute have their plain meaning, and that a person can
encourage or induce another by verbally, explicitly
encouraging or inducing her.
 UNITED STATES V. SINENENG-SMITH 31

B. Subsection (iv) Restricts Protected Speech

The conclusion that Subsection (iv) reaches speech does
not end our inquiry. We must now examine: (1) whether the
statute reaches protected speech and, if so, (2) whether the
statute restricts a substantial amount of such speech in
relation to the statute’s legitimate sweep. See, e.g., Hicks,
539 U.S. at 118–19.

Not all speech is protected under the First Amendment.
Congress is allowed to restrict certain types of speech,
including obscenity, defamation, fraud, incitement, and
speech integral to criminal conduct. See Stevens, 559 U.S. at
468. The most relevant exception to the First Amendment for
this case is speech integral to criminal conduct, but
incitement also deserves mention.

The government asserts that even if we interpret
Subsection (iv) to reach speech, it does not constrain
protected speech because the speech is integral to assisting
others in violating the immigration laws. In the government’s
reading, Subsection (iv) is analogous to an aiding and
abetting statute. But, to repeat, continuing to reside in the
U.S. is not a criminal offense; therefore, assisting one to
continue to reside here cannot be aiding and abetting a crime.
One amicus, supporting the constitutionality of the statute,
reads it as a solicitation restriction.9

9
Amicus Professor Eugene Volokh proposes construing the statute to
restrict a defendant from “directly, specifically, and purposefully
encouraging” criminal violations of the immigration laws. We do not
think that the statute is reasonably susceptible to this interpretation. First,
we decline to read a specificity or directness requirement into the statute
because the plain meanings of encourage and induce do not include such
principles. Second, Congress clearly knows how to write a solicitation
32 UNITED STATES V. SINENENG-SMITH

1. Incitement

Under the incitement exception to the First Amendment,
the government may not “proscribe advocacy of the use of
force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.” Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969). “Abstract advocacy,” even
of a crime, on the other hand, is protected speech. See
Williams, 553 U.S. at 298–99. As we have construed
Subsection (iv), it does not require that an alien imminently
violate the immigration law. Nor does Subsection (iv) require
that any encouragement or inducement make it “likely” that
an alien will violate the immigration law. Plainly, the
incitement doctrine is a poor fit for this particular statute,
especially considering that other incitement cases typically
involve incitements to violence, riot, or breach of the peace.
See, e.g., Brandenburg, 395 U.S. at 447–48; see also Hess v.
Indiana, 414 U.S. 105, 109 (1973); United States v. Poocha,
259 F.3d 1077, 1080-81 (9th Cir. 2001); id. at 1084–85
(Tashima, J., concurring in part and dissenting in part)
(agreeing that speech must be likely to incite violence to be
proscribed). If Subsection (iv) reaches any speech that is
exempted from the First Amendment as incitement, it is an
extremely narrow band of speech and does not significantly
reduce the scope of the statute.

statute as evidenced by 18 U.S.C. § 373(a): “Whoever . . . solicits,
commands, induces, or otherwise endeavors to persuade such other person
to engage in” a violent felony is subject to prosecution. If Congress
wanted Subsection (iv) to restrict only solicitation, it could have done so.
Finally, as discussed above, we cannot limit “in violation of law” to
criminal laws and, like Professor Volokh, we are not aware of any
precedent for treating speech soliciting merely civil violations as a crime.
 UNITED STATES V. SINENENG-SMITH 33

2. Speech Integral to Criminal Conduct

The government’s primary argument is that any covered
speech is “integral” to a violation of the immigration law.
“[S]peech or writing used as an integral part of conduct in
violation of a valid criminal statute” does not enjoy First
Amendment protection. Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 498 (1949); id. at 498–502 (picketing for
“the sole immediate purpose” of compelling a company to
stop selling to nonunion peddlers was not protected speech
because it was part of “a single and integrated course of
conduct” in violation of criminal restraint of trade laws). For
this reason, speech that aids and abets criminal activity does
not necessarily benefit from First Amendment protection.
United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985).

In Freeman, we reviewed “convict[ions] on fourteen
counts of aiding and abetting and counseling violations of the
tax laws, an offense under 26 U.S.C. § 7206(2).” Id. at 551.
We held that the defendant was entitled to a jury instruction
on a First Amendment defense as to twelve of the counts
because, at least arguably, the defendant made statements
about the “unfairness of the tax laws generally.” Id. at
551–52. Conversely, the defendant was not entitled to the
First Amendment instruction on the remaining two counts
because the defendant actually assisted in the preparation of
false tax returns. Id. at 552. We reasoned that “[e]ven if the
convictions on these [two] counts rested on spoken words
alone, the false filing was so proximately tied to the speech
that no First Amendment defense was established.” Id. As
Freeman illustrates, although some speech that aids or abets
a crime is so integral to the crime itself that it is not
constitutionally protected, other speech related to criminal
activity is not so integral as to be unprotected.
34 UNITED STATES V. SINENENG-SMITH

Based on Freeman, the government contends that any
speech that Subsection (iv) reaches is integral to a violation
of the immigration laws.10 However, there are relevant
differences between an aiding and abetting statute and
Subsection (iv). For one, as explained above, the statute is
not limited only to speech that substantially assists an alien in
violating the immigration laws. Freeman exposes the
relevant distinction. The statute in Freeman prohibited
“[w]illfully aid[ing] or assist[ing] in, or procur[ing],
counsel[ing], or advis[ing] the preparation or presentation” of
false tax returns. 26 U.S.C. § 7206(2). On the twelve counts
for which the court reversed Freeman’s convictions, the court
focused on the fact that Freeman may have generally
advocated the filing of false returns. Id. at 551–52. On the
other hand, for the two convictions that the court affirmed, it
emphasized that Freeman “not only counseled but also
assisted in the filing of false returns.” Id. at 552 (emphasis
added). The assistance on the two affirmed counts, even if
only words, was more directly related to the completed crime.
Id. Thus, Freeman’s conclusion is that only some speech that
the statute restricted was so related to the predicate crime that
it was considered “integral.”11 Likewise, here, the statute

10
The government cites Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, 413 U.S. 376 (1973), but the holding
in that case relies on the since-weakened distinction between commercial
and non-commercial speech. See Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980). More fundamentally,
the defendant in Pittsburgh Press violated an ordinance that made it
unlawful “to aid” in employment discrimination. 413 U.S. at 389.
“Encourage” and “induce” are broader than “aid,” and sweep in protected
speech.
11
Freeman was an as-applied First Amendment challenge to the false
tax returns statute. We note that the string of verbs in the statute involved
 UNITED STATES V. SINENENG-SMITH 35

criminalizes speech beyond that which is integral to
violations of the immigration laws.

Second, as the government recognizes, aiding and
abetting convictions require the government to prove certain
elements that are not present in Subsection (iv):

In this circuit, the elements necessary for an
aiding and abetting conviction are: (1) that
the accused had the specific intent to facilitate
the commission of a crime by another, (2) that
the accused had the requisite intent of the
underlying substantive offense, (3) that the
accused assisted or participated in the
commission of the underlying substantive
offense, and (4) that someone committed the
underlying substantive offense.

Thum, 749 F.3d at 1148–49 (quoting United States v. Shorty,
741 F.3d 961, 969–70 (9th Cir. 2013)). The first obvious
difference is that aiding and abetting requires the commission
of a crime by another, but Subsection (iv) applies to both
criminal and civil violations of the immigration laws. The
government asserts that the civil/criminal distinction should
not matter in the First Amendment context, but points to no
case where a defendant was convicted for aiding and abetting
a civil offense. We are not aware of any case that upholds a
statute restricting such speech. Therefore, even if certain
speech would constitute aiding and abetting when directed
toward the commission of a crime, it would be
constitutionally protected when aimed at inducing a civil

in Freeman is more similar to the one at issue in Williams than the
operative verbs in Subsection (iv). See pp. 19–21, supra.
36 UNITED STATES V. SINENENG-SMITH

violation of law. And because unauthorized presence in the
country is a civil violation rather than a crime, Subsection (iv)
reaches beyond speech integral to a crime.

Next, aiding and abetting requires that the accused
“assisted or participated” in the commission of the offense.
For the reasons described above, we cannot construe
Subsection (iv) as applying only to assistance for or
participation in a violation of the immigration law; it is
enough to encourage.

Further, aiding and abetting requires that a principal
actually commit the underlying offense. See id. at 1149.
There is no such requirement in Subsection (iv). The
government argues that this should not matter for the First
Amendment analysis because, citing the Model Penal Code
§ 2.06(3)(a)(ii), Subsection (iv) resembles an attempted
aiding and abetting statute. The government’s argument fails,
however, because “[t]here is no general federal ‘attempt’
statute. [A] defendant . . . can only be found guilty of an
attempt to commit a federal offense if the statute defining the
offense also expressly proscribes an attempt.” United States
v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983). Subsection
(iv) does not restrict attempt, unlike the other subsections of
the statute.

Most fundamentally, Subsection (iv) looks nothing like an
aiding and abetting statute. Just two lines below Subsection
(iv)’s text, Congress required that anyone who “aids or abets
the commission of any of the preceding acts” shall be
punished as a principal. 8 U.S.C. § 1324(a)(1)(A)(v)(II).
Further, Congress authored a general aiding and abetting
statute, 18 U.S.C. § 2, which states that “[w]hoever commits
an offense against the United States or aids, abets, counsels,
 UNITED STATES V. SINENENG-SMITH 37

commands, induces or procures its commission, is punishable
as a principal.” Clearly, if Congress wanted Subsection (iv)
to be an aiding and abetting statute, it would have included
the words aiding and abetting. The statute instead manifests
Congress’ intent to restrict a broader range of activity, and
that activity stretches beyond unprotected speech.

C. Subsection (iv) Restricts A Substantial Amount of
Protected Speech in Relation to its Legitimate
Sweep

Because we conclude that Subsection (iv) reaches
protected speech, we must now analyze whether the amount
of protected speech the statute restricts is substantial in
relation to its legitimate sweep. In plain terms, are the
statute’s improper applications too numerous to allow the
statute to stand? “The concept of ‘substantial overbreadth’ is
not readily reduced to an exact definition.” Members of City
Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800
(1984). But, “[c]riminal statutes must be scrutinized with
particular care” and “those that make unlawful a substantial
amount of constitutionally protected conduct may be held
facially invalid even if they also have legitimate application.”
City of Houston v. Hill, 482 U.S. 451, 459 (1987). Although
“substantial” does not have a precise meaning in this context,
the Supreme Court has explained that a statute may be struck
down if it is “susceptible of regular application to protected
expression.” Id. at 467. In other words, “there must be a
realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of
parties not before the Court for it to be facially challenged on
overbreadth grounds.” Taxpayers for Vincent, 466 U.S. at
801.
38 UNITED STATES V. SINENENG-SMITH

It is apparent that Subsection (iv) is susceptible to regular
application to constitutionally protected speech and that there
is a realistic (and actual) danger that the statute will infringe
upon recognized First Amendment protections. Some of the
situations raised in the supplemental briefing and at oral
argument demonstrate the improper scope of this statute.
While we are aware that the Supreme Court is skeptical of
“fanciful hypotheticals” in overbreadth cases, we do not think
that the scenarios raised here are fanciful. See Williams,
553 U.S. at 301. We think that they are part of every-day
discussions in this country where citizens live side-by-side
with non-citizens. Buttressing our assessment that the
following hypotheticals are not overly speculative, the
government has already shown a willingness to apply
Subsection (iv) to potentially protected speech. See
Henderson, 857 F. Supp. 2d at 193–94, 203–04.12

We begin with an obvious example from one of the
amicus briefs: “a loving grandmother who urges her grandson

12
Additionally, the City and County of San Francisco in its amicus
brief represents that the government has repeatedly threatened its officials
with violations of 8 U.S.C. § 1324. For example, “ICE Director Thomas
Homan announced that he had asked Attorney General Sessions to
determine whether sanctuary cities like San Francisco are ‘committing a
statutory crime’ under section 1324.” Further, San Francisco relates that
“Director Homan renewed his threat in even starker terms. According to
Director Homan, ‘when a sanctuary city intentionally or knowingly shields
an illegal alien from federal law enforcement, that is a violation of
8 U.S.C. 1324.’ Director Homan announced that he was ‘putting together
a response plan’ with ‘the highest levels of the Department of Justice,’ and
ominously declared, ‘This is not over.’” True, San Francisco reports that
“[t]o the extent these threats have been tied to any specific prong of
section 1324, they have been tied to the ‘harboring’ or ‘transporting’
prongs of that statute.” Id. But not all of the threats were tied to a specific
subsection, and the government might well turn to Subsection (iv).
 UNITED STATES V. SINENENG-SMITH 39

to overstay his visa,” by telling him “I encourage you to
stay.” Nothing in Subsection (iv) would prevent the
grandmother from facing felony charges for her statement.
Again, in Williams, the Supreme Court used almost identical
language – “I encourage you to obtain child pornography” –
to describe abstract advocacy immune from government
prohibition. 553 U.S. at 300. The government has not
responded persuasively to this point; it simply argues that the
grandmother would not be subject to criminal charges
because her statement was “not accompanied by assistance or
other inducements.” However, as we have detailed above,
Subsection (iv) does not contain an act or assistance
requirement.

Further, implying a mens rea requirement into the statute,
and applying it only to speech to a particular person does not
cure the statute’s impermissible scope. Just because the
grandmother wanted her words to encourage her grandson
and said them directly to him does not render those words
less protected under the First Amendment. We think that
situations like this one, where a family member encourages
another to stay in the country, or come to the country, are
surely the most common form of encouragement or
inducement within Subsection (iv)’s ambit.

The government similarly dismisses “marches, speeches,
publications, and public debate expressing support for
immigrants,” as being subject to Subsection (iv)’s
restrictions. Again, however, the government relies on its
faulty construction of the statute to argue that such speech
does not “assist” or “incentivize” an immigrant to come to,
enter, or reside in the United States in violation of law. The
statute, however, does not criminalize assistance or
incentivizing; it makes it a felony to “encourage” or “induce.”
40 UNITED STATES V. SINENENG-SMITH

A speech addressed to a gathered crowd,13 or directed at
undocumented individuals on social media,14 in which the
speaker said something along the lines of “I encourage all you
folks out there without legal status to stay in the U.S.! We
are in the process of trying to change the immigration laws,
and the more we can show the potential hardship on people
who have been in the country a long time, the better we can
convince American citizens to fight for us and grant us a path
to legalization,” could constitute inducement or
encouragement under the statute. But, this general advocacy
could not be considered incitement because there is no
imminent breach of the peace. It would not be aiding and
abetting or solicitation because it is general and is not
advocating a crime. Instead, it is pure advocacy on a hotly-
debated issue in our society. Such “speech on public issues
occupies the highest rung of the hierarchy of First
Amendment values, and is entitled to special protection.”
Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick
v. Myers, 461 U.S. 138, 145 (1983)). Criminalizing
expression like this threatens almost anyone willing to weigh
in on the debate. Cf. Alameda Newspapers, Inc. v. City of
Oakland, 95 F.3d 1406, 1414 (9th Cir. 1996) (“Cities,
counties, and states have a long tradition of issuing
pronouncements, proclamations, and statements of principle
on a wide range of matters of public interest, including . . .
immigration.”).

13
Speaking directly to a particular group of aliens, as opposed to the
public at large, is within the scope of Subsection (iv) as we have construed
it.
14
The Supreme Court has made clear that “cyberspace . . . . and social
media in particular” is “the most important place[] . . . for the exchange of
views.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).
 UNITED STATES V. SINENENG-SMITH 41

Additionally, amici present several examples of
professionals who work with immigrants whose speech might
be chilled on account of Subsection (iv)’s breadth. The most
common example cited is an attorney who tells her client that
she should remain in the country while contesting removal –
because, for example, non-citizens within the United States
have greater due process rights than non-citizens outside the
United States, or because, as a practical matter, the
government may not physically remove her until removal
proceedings are completed. See Zadvydas v. Davis, 533 U.S.
678, 693 (2001). Under the statute’s clear scope, the
attorney’s accurate advice could subject her to a felony
charge. The government’s arguments to the contrary are
unavailing. First, undoubtedly, the attorney would know that
telling an immigrant she would have greater rights if she
remained here or that she may not be removed while in
removal proceedings would encourage the immigrant to stay.
And, we do not think construing Subsection (iv) to reach
advice from attorneys endangers statutes like 18 U.S.C.
§ 2(a), the general aiding and abetting statute. An attorney
can knowingly encourage a course of action without aiding or
abetting it. Moreover, as we have explained, remaining in the
country while undocumented, without more, is not a crime.
More fundamentally, though, the government has already
shown its intent to prosecute those citizens (attorneys or
sympathetic lay persons) who give even general immigration
advice. See Henderson, 857 F. Supp. 2d at 193.

The foregoing examples are not some parade of fanciful
horribles. Instead, they represent real and constitutionally-
protected conversations and advice that happen daily. They
demonstrate that Subsection (iv)’s impermissible applications
are real and substantial. Because Subsection (iv)’s legitimate
sweep – which only reaches conduct not criminalized in the
42 UNITED STATES V. SINENENG-SMITH

other subsections of § 1324(a)(1)(A), and unprotected speech
– is narrow, we hold that Subsection (iv) is overbroad under
the First Amendment.15

CONCLUSION

Subsection (iv) criminalizes a substantial amount of
protected expression in relation to the statute’s narrow
legitimate sweep; thus, we hold that it is unconstitutionally
overbroad in violation of the First Amendment. The
judgment of the district court is REVERSED with respect to
the “encourage or induce” counts, Counts 2 and 3 of the First
Superseding Indictment. In accordance with the
Memorandum disposition filed concurrently herewith, with
respect to the mail fraud counts, Counts 5 and 6, the judgment
of the district court is AFFIRMED.

Because two of the five counts of conviction are reversed,
the sentence must be vacated and the case remanded for
resentencing. See United States v. Carter, 2018 WL
5726694, at *8 (9th Cir. Nov. 2, 2018); United States v.Davis,
854 F.3d 601, 606 (9th Cir. 2017).

REVERSED in part, AFFIRMED in part, sentence
VACATED and REMANDED for resentencing.

15
Because we strike down Subsection (iv) as overbroad, we need not
reach the separate issue of whether the statute is void for vagueness.