United States v. Anthony Tracy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4676

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ANTHONY JOSEPH TRACY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10-cr-00122-LMB-1)

Argued: September 23, 2011 Decided: November 30, 2011

Before KING, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Arjun Garg, KIRKLAND & ELLIS, LLP, Washington, D.C., for
Appellant. Gordon D. Kromberg, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Michael
S. Nachmanoff, Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Jeanine Linehan, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Anthony Tracy pled guilty to one count of conspiring to

encourage non-citizens to enter the United States illegally,

pursuant to 8 U.S.C. § 1324(a)(1)(A)(v)(I), but reserved the

right to appeal the district court’s denial of his motion to

dismiss that charge. On appeal, Tracy argues that the

indictment insufficiently alleges a violation of the statute,

the statute is unconstitutionally vague, and the statute is

unconstitutionally overbroad. We affirm.

On April 7, 2010, the Grand Jury for the Eastern District

of Virginia, Alexandria Division, returned a two-count

indictment in which it charged Tracy with one count of

conspiring to encourage non-citizens to enter the United States

illegally, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (the

immigration charge) and one count of making a false statement on

a passport application, in violation of 18 U.S.C. § 1542 (the

passport charge). Upon Tracy’s motion, the district court

dismissed the passport charge.

The indictment, in relevant part, states the following:

THE GRAND JURY CHARGES THAT:
General Allegations
At all times material to this
indictment:

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. . . .

4. Aliens who enter the United States
unlawfully do so through a variety of means,
to include entry by entering at any time and
place other than as designated by
immigration officers, eluding examination
and inspection by immigration officers,
entering by willfully false and misleading
representation, and entry by the willful
concealment of a material fact in a Visa
application.

. . . .

COUNT ONE
(Conspiracy to Induce and Encourage Aliens
to Enter the United States)
THE GRAND JURY FURTHER CHARGES THAT:
From in and around April 2009 to in and
around February 2010, subject to the
jurisdiction of the United States, within
the Eastern District of Virginia and
elsewhere, defendant ANTHONY JOSEPH TRACY
did unlawfully and knowingly conspire with
others, known and unknown to the grand jury,
to encourage and induce an alien to come to,
enter, and reside in the United States,
knowing and in reckless disregard of the
fact that such coming to, entry, and
residence was and would be in violation of
law.
Ways, Manner and Means of the Conspiracy
1. It was part of the conspiracy that
defendant ANTHONY JOSEPH TRACY would and did
operate a travel business in Nairobi, Kenya,
in Africa, known as Noor Services.
2. It was further part of the
conspiracy that defendant ANTHONY JOSEPH
TRACY, under the guise of his business, Noor
Services, would fraudulently obtain travel
documents to facilitate the travel of non-
U.S. citizens (hereinafter referred to as
“aliens”) from Kenya to Cuba, knowing that,
in fact, the ultimate destination of said
aliens was the United States and not Cuba.

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3. It was further part of the
conspiracy that defendant ANTHONY JOSEPH
TRACY would use fraudulent Kenyan passports
and identification cards possessed by the
aliens in the application process for
obtaining travel visas from the Embassy of
Cuba in Nairobi, Kenya.
4. It was further part of the
conspiracy that defendant ANTHONY JOSEPH
TRACY would provide each alien with proof of
Kenyan residence, falsified bank records, a
round trip airline ticket, and proof of
hotel accommodations in Cuba, as required to
obtain a travel visa from the Embassy of
Cuba.
5. It was further part of the
conspiracy that once each alien’s fraudulent
documents were prepared, defendant ANTHONY
JOSEPH TRACY met with and provided the
documents to unindicted co-conspirators,
known to the Grand Jury as “Consuela” and
“Helen,” at the Embassy of Cuba in Nairobi,
Kenya. The unindicted co-conspirators would
fraudulently provide defendant TRACY with
Cuban travel visas for the aliens.
6. It was further part of the
conspiracy that defendant ANTHONY JOSEPH
TRACY would provide each of the aliens with
a fraudulently obtained Cuban travel visa
for the approximate fee of $400 (in U.S.
dollars).
7. It was further part of the
conspiracy that defendant ANTHONY JOSEPH
TRACY would meet with the aliens at Noor
Services in Nairobi, Kenya, where he would
instruct them as to how to reach the United
States from Cuba.
(In violation of Title 8, United States
Code, Section 1324(a)(1)(A)(v)(I)).

Tracy subsequently moved the district court to dismiss the

immigration charge, but it declined to do so. According to the

district court, the motion to dismiss the immigration charge was

premature. It determined that the crime of conspiracy is broad

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enough to include the type of activity that the government

alleged, assuming the government could prove that Tracy

knowingly and intentionally combined with at least one other

person to assist others in their efforts to enter into the

United States illegally.

Thereafter, Tracy pled guilty to the immigration charge,

but reserved the right to appeal the denial of the dismissal of

that charge. Tracy exercised that right by filing this timely

appeal.

II.

Tracy first contends that the indictment was legally

insufficient. We review a challenge to the sufficiency of the

indictment de novo. United States v. Brandon, 298 F.3d 307, 310

(4th Cir. 2002). We will find an indictment to be legally

sufficient “(1) if it alleges the essential elements of the

offense, that is, it fairly informs the accused of what he is to

defend; and (2) if the allegations will enable the accused to

plead an acquittal or conviction to bar a future prosecution for

the same offense.” United States v. Rendelman, 641 F.3d 36, 44

(4th Cir. 2011).

Section 1324(a) states that anyone who participates in any

conspiracy to “encourage[] or induce[] an alien to come to,

enter, or reside in the United States, knowing or in reckless

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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) [of the statute].” 8 U.S.C.

§ 1324(a)(l)(A)(iv)-(v).

Tracy maintains that the indictment fails to allege that he

encouraged non-citizens to travel directly into the United

States illegally. As such, according to Tracy, the indictment

is invalid because the statute makes it unlawful to encourage or

induce non-citizens to travel directly into the United States

illegally, but it does not make it unlawful to encourage or

induce non-citizens to travel indirectly into the United States

illegally. We cannot yield to the force of this reasoning.

As alleged in the indictment, Tracy fraudulently obtained

travel documents to help non-citizens travel from Kenya to Cuba,

with the knowledge that their ultimate destination was the

United States, not Cuba. Moreover, according to the indictment,

as a part of the conspiracy, Tracy would meet with the aliens in

Kenya, where he would give them instructions on how to reach the

United States from Cuba. Hence, the indictment alleged with

specificity that Tracy conspired to encourage aliens to come to

the United States illegally, albeit by way of Cuba. These

allegations are more than enough to meet the requirements of the

statute.

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Nevertheless, Tracy suggests that, because the phrase

“either directly or indirectly” modified the words “encourage or

induce” in an earlier version of the statute, Congress meant for

the present version, which omits this phrase, to encompass only

direct encouragement and inducement. Thus, according to Tracy,

encouraging travel to third countries on the way to the United

States does not fall within the scope of prohibited conduct. We

are unpersuaded.

Although Congress omitted the phrase “either directly or

indirectly” from the statute, we are unconvinced that, in doing

so, it meant for us to interpret the statute to limit the

statute’s ambit only to direct illegal entry into the United

States. “When we are faced with a question of statutory

interpretation, our starting point for discerning congressional

intent is the language of the statute itself. Congress is

presumed to have used words according to their ordinary meaning

unless a different use is clearly indicated.” Matala v.

Consolidation Coal Co. 647 F.2d 427, 429 (4th Cir. 1981)

(citations omitted).

The plain and unambiguous language of the statute reveals

that it applies to a wide range of conduct. Congress did not

clearly indicate that the statute is to apply only to

encouragement and inducement to enter the United States

illegally by a direct route. In the absence of a clear

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indication, we will not impose such a limitation. Thus, we hold

that § 1324 makes it illegal to encourage or induce a non-

citizen to enter the United States unlawfully, directly or

indirectly.

Furthermore, the absence of the words “either directly or

indirectly” in the statute makes no discernible difference.

Contrary to Tracy’s arguments otherwise, whether Tracy

encouraged aliens to come to the United States illegally by a

direct route, or toward the United States illegally by an

indirect route, is of no moment. Here, the indictment alleged

that Tracy knowingly conspired to help non-citizens enter this

country illegally by way of an indirect route. That would be a

violation of the statute, as charged in the indictment.

According to Tracy, the indictment was also legally

insufficient because it failed to specify which law aliens would

have violated in coming into the United States. A violation of

the statute requires that the non-citizen be coming to the

United States “in violation of law.” § 1324 (a)(1)(A)(iv). The

government counters that this argument is waived. Assuming,

without deciding, that the argument is not waived, we find that

it is meritless.

When viewed in context, the statute cannot reasonably be

read as referring to anything but violations of United States

immigration law. Furthermore, the indictment sets forth the

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allegations against Tracy in detail. Accordingly, it is

unreasonable to think that he was unaware of the charges against

him. Any argument to the contrary is unconvincing.

There is no question that the indictment alleges the

essential elements of a conspiracy to induce and encourage non-

citizens to enter the United States illegally and fairly informs

Tracy as to what he is to defend. In fact, the indictment

tracks the language of the statute almost verbatim. In

addition, the indictment then sets forth specific factual

allegations detailing the ways, manners, and means of the

conspiracy. Thus, we are persuaded that the indictment was such

that Tracy cannot be prosecuted in the future for the same

offense.

As the district court observed, Tracy’s motion to dismiss

the immigration charge was premature. Much of what he argued in

the district court and on appeal goes to the sufficiency of the

evidence, not the sufficiency of the indictment. What is

sufficient for a grand jury to indict might well be insufficient

for a petit jury to convict. Therefore, although we are unable

to say whether the evidence would have been sufficient for a

petit jury to convict Tracy, we are able to say that the

indictment was sufficient to give Tracy adequate notice of the

charges against which to defend and to prevent future

prosecution for the same offense.

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III.

Tracy’s second argument is that § 1324 is

unconstitutionally vague as applied. We review the district

court’s legal conclusions on this claim de novo. United States

v. McManus, 23 F.3d 878, 882 (4th Cir. 1994).

“Due process requires that a criminal statute provide

adequate notice to a person of ordinary intelligence that his

contemplated conduct is illegal, for ‘no man shall be held

criminally responsible for conduct which he could not reasonably

understand to be proscribed.’” Buckley v. Valeo, 424 U.S. 1, 77

(1976) (quoting United States v. Harriss, 347 U.S. 612, 617

(1954)). Accordingly, “the void-for-vagueness doctrine requires

that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,

357 (1983).

Tracy avers that § 1324(a)(1)(A)(iv) is unconstitutionally

vague because he did not have fair notice that his conduct

violated the statute. We need not linger long here. Much of

what Tracy sets forth in his vagueness argument we have already

considered and rejected in our discussion of the sufficiency of

the indictment.

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Tracy states, in effect, that a person of ordinary

intelligence would not understand that providing false travel

documents from Cuba or instructions as to how to come from Cuba

to the United States would constitute encouraging a non-citizen

to come to the United States illegally. Moreover, according to

Tracy, there is no precedent for allowing Tracy to be charged

for assisting non-citizens to come indirectly toward the United

States, as opposed to helping them come directly to the United

States.

Tracy helped non-citizens in travel, knowing that the end

result was that they would enter the United States unlawfully.

To further assist them, he provided them with fraudulent

documents for their travel. We think that a person of ordinary

intelligence would understand that assisting those non-citizens

indirectly to enter the United States, knowing that they would

be entering the country illegally, encompasses encouraging or

inducing them to do so under § 1324. As such, this claim fails.

IV.

Third, Tracy asserts a facial overbreadth challenge. We

review the district court’s legal conclusions as to this issue

de novo. McManus, 23 F.3d at 882.

“According to . . . First Amendment overbreadth doctrine, a

statute is facially invalid if it prohibits a substantial amount

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of protected speech. The doctrine seeks to strike a balance

between competing social costs.” United States v. Williams, 553

U.S. 285, 292 (2008). The government’s interest in prohibiting

criminal conduct must be weighed against the danger of chilling

constitutionally protected speech. Id. “[T]o maintain an

appropriate balance, we have 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.” Id.

Tracy declares that speech that encourages illegal aliens

to come to the United States is protected by the First Amendment

in certain instances. We have long held, however, “that speech

. . . that constitutes criminal aiding and abetting does not

enjoy the protection of the First Amendment.” Rice v. Paladin

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

In his overbreadth challenge, Tracy again raises his direct

versus indirect argument, declaring that merely encouraging

unlawful travel to another country should not be covered by the

statute. But, the statute does not make it illegal to encourage

unlawful travel to another country. What it makes illegal is to

encourage or to induce a non-citizen to come into this country,

either directly or indirectly, “knowing or in reckless disregard

of the fact that such coming to, entry, or residence is or will

be in violation of law.” § 1324(a)(l)(A)(iv).

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Although there may be some instances in which we might find

that the statute chills protected speech, we are unconvinced

that the statute prohibits a substantial amount of such speech.

Consequently, because “a law should not be invalidated for

overbreadth unless it reaches a substantial number of

impermissible applications,” New York v. Ferber, 458 U.S. 747,

771 (1982), we hold that the statute is not invalid.

For the foregoing reasons, the judgment of the district

court is in all respects

AFFIRMED.