State v. Manzanares

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35703
STATE OF IDAHO, )
Boise, June 2011 Term
)
Plaintiff-Respondent, )
2012 Opinion No. 9
)
v. )
Filed: January 6, 2012
)
SIMONA LISA MANZANARES, )
Stephen W. Kenyon, Clerk
)
Defendant-Appellant. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Thomas J. Ryan, District Judge.

Judgment entered upon guilty plea to recruiting criminal gang member, affirmed.

Molly Huskey, State Appellate Public Defender, Boise, for appellant. Erik R.
Lehtinen, Deputy Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K.
Jorgensen, Deputy Attorney General argued.

__________________________________
BURDICK, Justice

Simona Manzanares appeals from the judgment entered following her guilty plea under a
conditional plea agreement. She pled guilty to recruiting a criminal gang member under I.C. §
18-8504(1)(a) in exchange for the dismissal of a charge for providing a firearm to a criminal
gang member under I.C. § 18-8505. On appeal, Manzanares argues that: (1) I.C. § 18-8504(1)(a)
(the “Recruiting Provision”) is unconstitutionally overbroad on its face and as applied for
encroaching on the First Amendment right to free association; (2) I.C. § 18-8505 (the “Firearm
Provision”) is unconstitutionally overbroad as applied for punishing her expressive conduct,
unconstitutionally vague on its face and as applied for failing to adequately define “gang
member,” and unconstitutional under the Second Amendment of the United States Constitution
and Article I, Section 11 of the Idaho Constitution for prohibiting a class of persons from
keeping or bearing arms; (3) her conviction violates the ex post facto clauses of the United States
and Idaho constitutions; (4) the district court erred in failing to dismiss the information based on

1
the information’s failure to enumerate all elements of the charged offenses; and (5) the district
court erred in failing to dismiss the information based on insufficient evidence offered at the
preliminary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
The legislature adopted the Idaho Criminal Gang Enforcement Act (“ICGEA”), I.C. §§
18-8501 et seq., effective March 24, 2006. 2006 Idaho Sess. Laws, ch. 184, § 1, pp. 582–85.1
On February 27, 2007, Manzanares was charged with committing two felonies under the
ICGEA: (1) recruiting a criminal gang member in violation of I.C. § 18-8504(1)(a); and (2)
supplying a firearm to a gang member in violation of I.C. § 18-8505.
Under the Recruiting Provision, “[a] person commits the offense of recruiting criminal
gang members by . . . [k]nowingly soliciting, inviting, encouraging or otherwise causing a person
to actively participate in a criminal gang.” Idaho Code § 18-8504(1)(a). 2 Count I of the
Information (the “Recruiting Charge”), alleged that Manzanares, from about September 21,
2006, until about February 2, 2007, “did knowingly solicit, invite, encourage or otherwise cause
a person to actively participate in a criminal gang, The East Side Locas” in violation of the
Recruiting Provision.
Under the Firearm Provision, “[a] person commits the offense of supplying firearms to a
criminal gang if the person knows an individual is a gang member and supplies, sells or gives
possession or control of any firearm to that gang member.” Idaho Code § 18-8505(1). 3 Count II

1
The ICGEA’s Statement of Purpose provides in part:
This legislation is the result of recommendations made by the Governor's Criminal Justice
Commission. Gang activity has become increasingly prevalent in Idaho, and it is important that
law enforcement agencies, prosecutors, and judges have the necessary tools to address this issue.
This legislation provides definitions; extends sentences for gang members who commit certain
crimes; criminalizes recruitment of criminal gang members; and creates a new felony for
supplying firearms to a criminal gang member.
S.B. 1336, R.S. 1584 58th Leg., 2d Reg. Sess. (Idaho 2006).
2
Idaho Code § 18-8504, entitled “Recruiting criminal gang members”, provides in full:
(1) A person commits the offense of recruiting criminal gang members by:
(a) Knowingly soliciting, inviting, encouraging or otherwise causing a person to actively
participate in a criminal gang; or
(b) Knowingly using force, threats, violence or intimidation directed at any person, or by
the infliction of bodily injury upon any person, to actively participate in a criminal gang.
(2) A person convicted of a violation of this section shall be imprisoned for a term not to exceed
ten (10) years.
(3) This section shall not be construed to limit prosecution under any other provision of law.
3
Idaho Code § 18-8505, entitled “Supplying firearms to a criminal gang”, provides in full:

2
of the Information (the “Firearm Charge”), alleged that Manzanares, on or about October 13,
2006, in Canyon County “did knowingly supply, sell, or give possession or control of a firearm
to Jackie Trinidad who the defendant knew to be a criminal gang member” in violation of the
Firearm Provision.
Manzanares waived her preliminary hearing, and on March 21, 2007, she was bound over
to the district court. The State filed the Information on March 22, 2007. Manzanares moved to
dismiss both charges, arguing that the Recruiting Provision violates both the First Amendment of
the United States Constitution and Article I, sections 9 and 10 of the Idaho Constitution and is
unconstitutionally vague. She also argued that the Firearm Provision violates the Second
Amendment of the United States Constitution and Article I, Section 11 of the Idaho Constitution.
Finally, she argued that the Recruiting Charge failed to provide adequate notice of the alleged
conduct believed to be criminal. Manzanares filed a Supplementary Motion to Dismiss, arguing
that the statutory definition of “criminal gang member” in I.C. § 18-8502(2) is unconstitutionally
vague to the extent that it applies to the Recruiting Provision and the Firearm Provision, both
statutes are unconstitutionally overbroad, both charges fail to provide adequate notice of the
alleged conduct believed to be criminal, and the Firearm Provision is unconstitutionally vague.
On July 27, 2007, the district court held a hearing to consider Manzanares’s motion to
dismiss. On August 7, 2007, the district court conditionally granted the motion to dismiss the
Recruiting Charge due to the vagueness of the charging language and gave the State seven days
to amend the Information to include the name of the person Manzanares allegedly recruited. The
district court denied Manzanares’s motion to dismiss as to all other grounds raised by
Manzanares.
The State submitted the Amended Information on August 7, 2007. The Recruiting
Charge was amended to name Jackie Trinidad as the person Manzanares allegedly recruited and
to change the date of the alleged recruiting (from April 1, 2006, to February 27, 2007). The
Firearm Charge was amended to change the date on which Manzanares allegedly supplied a
firearm to Trinidad (from May 1, 2006, to May 15, 2006).

(1) A person commits the offense of supplying firearms to a criminal gang if the person knows an
individual is a gang member and supplies, sells or gives possession or control of any firearm to
that gang member.
(2) Subsection (1) of this section shall not apply to a person who is convicted as a principal to the
offense committed by the recipient of the firearm.
(3) A person convicted of a violation of this section shall be imprisoned for a term not to exceed
ten (10) years or be fined an amount not to exceed fifty thousand dollars ($50,000), or both.

3
 On August 9, 2007, the parties submitted a Stipulation to Remand Proceeding for
Preliminary Hearing, because the Amended Information included information not previously
disclosed to the Defendant: that Trinidad was the person allegedly recruited by Manzanares. The
district court remanded the case to the magistrate judge for a preliminary hearing, which was
held on August 30, 2007
At the preliminary hearing, the State called Corporal Joey Hoadley of the Caldwell Police
Department to testify. Corporal Hoadley testified that he has had contact with Manzanares on
numerous occasions and that she admitted to him that she is a member of the East Side Locos
and that she is the leader of the female branch of the East Side Locos, called the East Side Locas.
Corporal Hoadley then testified to specific encounters he had with Manzanares, setting forth
various facts associating her with the East Side Locos and East Side Locas.
According to Corporal Hoadley, State’s Exhibit 1, which is a photograph obtained from a
vehicle in which Manzanares was riding with a gang member who was arrested, depicts Jackie
Trinidad at Manzanares’s home, wearing gang attire and holding a firearm with Manzanares
standing behind her and flashing the common gang sign for the East Side Locos or East Side
Locas. Corporal Hoadley also testified as to State’s Exhibit 2, which he says is a copy of
Manzanares’s MySpace webpage and includes pictures of Manzanares, pictures of other
members of the East Side Locos and East Side Locas and numerous other gang references.
Corporal Hoadley testified that on December 5, 2006, Manzanares voluntarily spoke with
him at the Caldwell Police Department. She admitted to being the leader of the East Side Locas.
She said that membership in the East Side Locas had dwindled from approximately twenty
members initially to less than ten members as people moved, got married, became pregnant, and
were incarcerated. She explained that to become a member of the gang one must go through an
initiation process called the “jump in”, which involves being battered by several gang members
for a specified amount of time. She said that the gang funds itself by selling illegal narcotics, by
“house shopping” (burglarizing a house), and by “car shopping” (burglarizing a car).
Finally, Corporal Hoadley testified on State’s Exhibit 3, which included an audio
recording from Manzanares’s MySpace webpage, which he identified as the voice of
Manzanares. He testified that based on his expertise on gangs, the language from the audio
recording (“For all your Surenos out there keep bangin’, homies.”) “is encouraging people to
continue in gang activity, committing crimes, committing violence.”

4
 The State also called Jackie Trinidad to testify at the preliminary hearing. Trinidad
testified that on December 31, 2005, she attended a New Year’s Eve party at Manzanares’
sister’s house. She testified that she and others were drinking alcohol at the party and that one of
her friends asked her if she wanted to get jumped in. She testified that Manzanares was at the
party and that Manzanares did not say anything about jumping her in but that Manzanares did
join others in hitting her as part of the jumping in. When asked what she does as a member of
the East Side Locas, Trinidad said: “Not really anything, like we would just hang out, go to
[Manzanares’s] house, have barbecues.”
Trinidad testified that the reason she attended the 2005-2006 New Year’s Eve party (at
which she was jumped in to the East Side Locas) was that her friend Maria wanted to go.
Trinidad testified that she hardly knew Manzanares prior to that party and had not previously
talked to Manzanares about the East Side gangs. She testified that Maria told her at the party
that someone, maybe but not specifically Manzanares, did not want people coming over who
were not “Eastsiders.”
Trinidad also testified that at a barbecue at Manzanares’s house in May 2006, she and
Manzanares went to the garage because “that’s where all the beer was”, and while in the garage,
Manzanares “showed [a gun] to me and like we decided to take pictures.” Trinidad explained
that the gun was wrapped up in a towel on a couch in the garage, Manzanares gave the gun to
her, and they both decided to take the picture, which was submitted as State’s Exhibit 1 (the
photograph about which Corporeal Hoadley testified). Trinidad testified that in the photograph,
she is holding a gun and wearing a jersey with the number 13, which she wore to show that she
was a member of the gang, and Manzanares is “throwing up Eastside.” Trinidad testified that
Manzanares knew Trinidad was a gang member on the day of the barbecue and that this was an
East Side barbecue. On cross examination, Trinidad testified that the photograph depicts the
only time she ever handled the gun, and the only reason she handled it was for the purpose of
taking the photograph.
Trinidad also testified that she knew Manzanares had a website and that she had listened
to the audio message (State’s Exhibit 3). She testified that Manzanares encouraged East Side
members to go tagging, which involves spray-painting messages and symbols related to the East
Side gangs in public places, but that “nobody really ever did anything” and “[o]nly the guys did
[go tagging].”

5
 At the conclusion of the preliminary hearing, the magistrate found that there was
probable cause for both the Recruiting Charge and the Firearm Charge, explaining:
The jumping in is sufficient enough for the language of [the Recruiting Charge]
that was testified to by Ms. Trinidad. With regard to the [Firearm Charge], once
again, the photograph, the testimony indicates she . . . handed her the gun.
Therefore, Jackie Trinidad did in fact, after becoming a gang member and known
to Ms. Manzanares, have possession of a firearm.
The statute further provides, however, that a—it has to be a criminal gang,
as defined by the statute, which was the issue the Court had. The definition of a
criminal gang is set out in Idaho Code 18-8502, Subsection 1, and requires a
whole number of elements, the first of which—all of which in the paragraph are
met up until we get to the point of a further definition. It refers to paragraph 3 in
that same code section, and paragraph 3 is the definition of pattern of criminal
gang activity and requires language to qualify as a pattern of gang activity there
could be two or more convictions or offenses, certain enumerated charges.
However, Subsection 1 doesn’t say it has to be convictions. And there is
testimony before the Court that the defendant told the officer that they had been—
they engaged in certain activities, none of which are shown convictions or proven,
but they are enumerated in 3(a) though.
And, as a result, I’m going to bind over since you can all brief this statute
to death.
The magistrate filed an Order Binding Defendant Over to District Court.
On September 4, 2007, the State filed the Second Amended Information. In this final
version of the information, the Recruiting Charge alleges that Manzanares recruited Trinidad
sometime from April 1, 2006, to February 26, 2007, and the Firearm Charge alleges that
Manzanares gave Trinidad possession of a firearm sometime from May 1 through 15, 2006.
Manzanares was arraigned on September 7, 2007. On December 17, 2007, Manzanares
filed another motion to dismiss, arguing that the evidence offered at the preliminary hearing was
insufficient to bind her over and reasserting her previous motion to dismiss. On January 22,
2008, the district court held a hearing on the motion to dismiss, and on February 8, 2008, the
district court denied the motion, finding that there was substantial evidence upon which the
magistrate could find probable cause as to both the Recruiting Charge and the Firearm Charge.
On June 27, 2008, Manzanares moved to dismiss in light of the United States Supreme
Court decision in District of Columbia v. Heller, 554 U.S. 570 (2008). It does not appear that
this motion was ever heard or decided.

6
 On July 10, 2008, Manzanares entered into a conditional plea agreement. She agreed to
enter an Alford plea 4 to the Recruiting Charge in exchange for dismissal of the Firearm Charge.
Manzanares reserved her right to appeal “the issue of the constitutionality of the charge and
statute, and such other matters that might appear in the record of this action.” The district court
accepted Manzanares’s plea and dismissed the Firearm Charge. On August 28, 2008, following
a two-day sentencing hearing, the district court imposed a ten-year unified sentence with two
years fixed for the Recruiting Charge.
On September 11, 2008, the district court entered the Judgment and Commitment, and on
September 25, 2008, Manzanares filed the Notice of Appeal to this Court.
II. STANDARD OF REVIEW
As set forth in State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003):
The party challenging a statute on constitutional grounds bears the burden of
establishing that the statute is unconstitutional and ‘must overcome a strong
presumption of validity.’ Appellate courts are obligated to seek an interpretation
of a statute that upholds its constitutionality.
(Citations omitted).
As we explained in State v. Hosey, 134 Idaho 883, 886, 11 P.3d 1101, 1104 (2000):
A plea agreement is contractual in nature and must be measured by
contract law standards. The interpretation of a contract's meaning and legal effect
are questions of law to be decided by the Court if the terms of the contract are
clear and unambiguous. The meaning of an unambiguous contract must be
determined from the plain meaning of the contract's own words. Where a contract
is determined to be ambiguous, interpretation of the contract is a question of fact
that focuses on the intent of the parties. Whether the facts establish a violation of
the contract is a question of law over which this Court exercises free review.
(Citations omitted).
III. ANALYSIS
A. All issues Manzanares raises concerning the Firearm Charge are moot, because the
Firearm Charge was dismissed.
Manzanares pled guilty to the Recruiting Charge in exchange for the dismissal of the
Firearm Charge. The second issue Manzanares raises on appeal challenges the constitutionality
of the Firearm Provision, and the fourth and fifth issues she raises on appeal, which challenge the
information and the sufficiency of the evidence at the preliminary hearing, contain sub-issues

4
See North Carolina v. Alford, 400 U.S. 25 (1970). Pursuant to an Alford plea, the defendant pleads guilty but
refuses to admit to the commission of the acts constituting the crime. State v. Dopp, 124 Idaho 481, 485, n.1, 861
P.2d 51, 55, n.1 (1993).

7
specifically concerning the Firearm Charge. The State argues that these issues are moot, because
the Firearm Charge was dismissed pursuant to the plea agreement. Manzanares argues that the
claims are not moot, because if this Court holds in favor of Manzanares on one of the issues
related to the Recruiting Charge, I.C.R. 11(a)(2) affords Manzanares the right to withdraw her
guilty plea, in which case the State would be able to re-file the Firearm Charge.
Under the mootness doctrine:
This Court may dismiss an appeal when it appears that the case involves
only a moot question. A case becomes moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome. A case
is moot if it presents no justiciable controversy and a judicial determination will
have no practical effect upon the outcome.
Goodson v. Nez Perce Cnty. Bd. of Cnty. Comm’rs, 133 Idaho 851, 853, 993 P.2d 614, 616
(2000) (citations omitted).
Manzanares is correct that if we were to rule in her favor on the Recruiting Charge, she
would be permitted to withdraw her guilty plea pursuant to I.C.R. 11(a)(2), and the State would
be able to re-file the Firearm Charge. Under such circumstances, if we were to address the
constitutionality of the Firearm Provision on this appeal, our ruling could affect the State’s
decision to re-file the Firearm Charge and could affect any resulting case. However, ruling on
the Firearm Charge issues has no practical effect on this appeal and would be an impermissible
advisory opinion. See State v. Barclay, 149 Idaho 6, 9, 232 P.3d 327, 330 (2010) (“In effect, the
State is asking this Court to issue an advisory opinion in order to avoid the issue in future cases;
an exercise this Court will not undertake.”). Thus, we hold that all issues raised by Manzanares
which concern the Firearm Charge were rendered moot when the Firearm Charge was dismissed.
Manzanares also argues that she specifically reserved the right to appeal these issues in
the conditional plea agreement. However, parties cannot agree to confer jurisdiction on a court.
State v. Urrabazo, 150 Idaho 158, 163, 244 P.3d 1244, 1249 (2010) (“subject matter jurisdiction
can never be waived or consented to”). Thus, even if the conditional plea agreement purports to
reserve these issues for appeal, we are nevertheless without jurisdiction to consider these issues.
B. We cannot reach Manzanares’s ex post facto argument, because there was no adverse
ruling on this issue below which could be reserved for appeal pursuant to I.C.R. 11(a)
and because this issue is non-jurisdictional and does not involve fundamental error.
The third issue Manzanares raises on appeal is whether the Recruiting Charge is an ex
post facto violation. We explained in Wheeler v. Idaho Department of Health and Welfare:

8
 Ex post facto laws are prohibited by article I, section 9, clause 3 of the
United States Constitution and by article I, section 16 of the Idaho Constitution.
The ex post facto clauses prevent the enactment of ‘any statute which punishes as
a crime an act previously committed, which was innocent when done; which
makes more burdensome the punishment for a crime, after its commission, or
which deprives one charged with crime of any defense available according to law
at the time when the act was committed . . . .’ Collins v. Youngblood, 497 U.S.
37, 42, 110 S.Ct. 2715, 2716-17 111 L.Ed.2d 30, 39 (1990) (quoting Beazell v.
Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216, 217 (1925)).
147 Idaho 257, 262, 207 P.3d 988, 993 (2009).
The ICGEA became effective on March 24, 2006. 2006 Idaho Sess. Laws, ch. 184, § 1,
p. 585. Even though the complaint, as well as each draft of the information, allege that
Manzanares recruited a gang member on a date(s) subsequent to the ICGEA’s effective date; the
specific incident of recruiting which the State focused on at the preliminary hearing concerned a
New Year’s party on December 31, 2005—nearly three months prior to the ICGEA’s effective
date. Thus, Manzanares argues that her conviction violates the ex post facto clauses of the Idaho
and United States constitutions, because the Recruiting Charge to which she pled guilty was
based on her conduct at the New Year’s party—prior to the enactment of the ICGEA.
“Ordinarily, a plea of guilty, if voluntarily and knowingly made, is conclusive as to the
defendant’s guilt and waives all non-jurisdictional defects in prior proceedings against the
defendant. A defendant may preserve such defects or issues by entering a conditional guilty plea
pursuant to I.C.R. 11(a)(2).” Hosey, 134 Idaho at 889, 11 P.3d at 1107 (citation and quotation
omitted). Thus, Manzanares’s ex post facto issue is properly before us on appeal only if either:
(1) her conditional plea agreement reserved the issue under I.C.R 11(a)(2); or (2) the issue is
jurisdictional.
Manzanares’s conditional plea agreement states that she reserves her right to appeal “the
issue of the constitutionality of the charge and statute, and such other matters that might appear
in the record of this action.” Pursuant to I.C.R. 11(a)(2):
With the approval of the court and the consent of the prosecuting attorney,
a defendant may enter a conditional plea of guilty reserving in writing the right,
on appeal from the judgment, to review any specified adverse ruling. If the
defendant prevails on appeal, the defendant shall be allowed to withdraw
defendant's plea.
(Emphasis added). “Failure to comply with this rule results in a waiver of any issues not
properly reserved for appellate review.” State v. Kelchner, 130 Idaho 37, 39, 936 P.2d 680, 682

9
(1997). As Manzanares concedes in her briefing, the ex post facto issue was never raised below.
Thus, there was no adverse ruling below addressing this issue which could have been reserved
for appeal. Accordingly, we hold that Manzanares’s conditional plea agreement did not reserve
the issue for appeal.
Next, we consider whether Manzanares’s ex post facto issue is jurisdictional. While
personal jurisdiction may be waived, subject matter jurisdiction cannot be waived and “may be
raised at any time, including for the first time on appeal.” State v. Rogers, 140 Idaho 223, 227,
91 P.3d 1127, 1131 (2004). “In a criminal case, the court properly acquires personal jurisdiction
over the defendant when the defendant appears at the initial court setting on a complaint or
arraignment on the indictment.” Id. at 228, 91 P.3d 1132 (emphasis added). “The information,
indictment, or complaint alleging an offense was committed within the State of Idaho confers
subject matter jurisdiction upon the court.” Id. (emphasis added). Manzanares does not argue
that the information fails to confer jurisdiction. She acknowledges that the Complaint,
Information, Amended Information and Second Amended Information all allege that Manzanares
recruited a gang member in violation of I.C. § 18-8504(1)(a) in Canyon County, Idaho, on a
date(s) subsequent to the enactment of the ICGEA. Thus, we hold that Manzanares’s ex post
facto issue is not jurisdictional and was, therefore, waived by pleading guilty.
Finally, Manzanares also argues that the ex post facto issue is properly before this Court
because it involves fundamental error. “As a general rule, we will not consider arguments made
for the first time on appeal. When the alleged error constitutes a fundamental error, however,
review on appeal is permissible.” State v. Severson, 147 Idaho 694, 715–16, 215 P.3d 414, 435–
36 (2009) (citations omitted). However, “we permit a defendant to waive a right of
constitutional magnitude, so long as the defendant does so knowingly, voluntarily, and
intelligently.” State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Manzanares makes
no attack on the validity of the conditional plea agreement. Thus, she waived the ex post facto
issue by knowingly, voluntarily, and intelligently entering into the plea agreement.
Furthermore, even if Manzanares had not waived this issue, she failed to meet her burden
of persuading the appellate court that the alleged error violates a constitutional right. If
Manzanares’s conviction under the Recruiting Statute was based on the incident which took
place at the New Year’s party, then the ex post facto clauses of the United States Constitution
and the Idaho Constitution would be implicated, since the conduct forming the basis of her

10
conviction would have taken place prior to the ICGEA’s effective date. However, in this case,
we do not know what conduct formed the basis of Manzanares’s conviction. Manzanares
entered an Alford plea and, thus, did not admit to any conduct that could form the basis of her
guilty plea. See infra Part III.C.ii.a. At the preliminary hearing, the State’s evidence that
Manzanares recruited Trinidad was not limited to the New Year’s incident. The State also put
forth evidence of an audio recording of Manzanares’s voice posted online encouraging listeners
to take part in the East Side Locas gang activities, which Trinidad testified to having listened to,
and testimony that Manzanares encouraged members of the East Side Locas to go tagging. The
magistrate judge relied on this evidence as well as the evidence concerning the New Year’s party
when he found probable cause to bind her over. Therefore, despite being labeled as an “ex post
facto” issue, and despite Manzanares’s claim on appeal that she pled guilty based on her conduct
at the New Year’s party, we have no way of knowing from the record what conduct serves as the
basis of Manzanares’s conviction. Accordingly, we hold that Manzanares has not met the burden
of showing a clear error that violated one of her unwaived constitutional rights.
C. Idaho Code § 18-8504(1)(a) (the Recruiting Provision) is not facially overbroad nor as-
applied unconstitutional for prohibiting conduct protected by the First Amendment.
Manzanares argues that the Recruiting Provision is both facially and as applied
unconstitutional for penalizing her First Amendment rights to free association and free
expression. We hold that the Recruiting Provision is not facially overbroad because it does not
prohibit a substantial amount of protected conduct, and we hold that Manzanares has not shown
that it is as applied unconstitutional because, due to the circumstances of this case, she is unable
to demonstrate what conduct on her part provides the basis of her conviction.
i. Reservation for appeal pursuant to I.C.R. 11(a)(2).
While we find that Manzanares’s conditional plea agreement reserved the facial and as
applied challenges for appeal, we take the time to emphasize the proper means of reserving
issues for appeal pursuant to I.C.R. 11(a)(2).
A conditional plea agreement should explicitly set forth the adverse ruling(s) below
which is being reserved for appeal. Idaho Criminal Rule 11(a)(2) permits a defendant to reserve
for appeal any “specified adverse ruling” when entering into a conditional plea agreement.
(Emphasis added). See also State v. McCormack, 117 Idaho 1009, 1010, 793 P.2d 682, 683
(1990) (“I.C.R. 11(a)(2) clearly requires that any issued desired to be reserved for appeal must be
specified in writing.”). That said, where a conditional plea agreement itself lacks such

11
specificity, Idaho appellate courts will review the record in an attempt to determine what the
conditional plea agreement reserves for appeal. See, e.g., State v. Anderson, 129 Idaho 763, 764,
932 P.2d 886, 887 (1997), (“This Court will sustain an appeal under Rule 11(a)(2) if we can
determine the nature of the appeal and the right reserved for the appeal with specificity from the
record.”). However, we emphasize that the best practice is to explicitly set forth the adverse
rulings which are being reserved for appeal in the conditional plea agreement. If the agreement
lacks such specificity, there is a risk that the appellate court will be unable to determine from the
record what the parties sought to reserve for appeal.
Manzanares’s conditional plea agreement broadly purports to reserve the right to appeal:
(1) “the issue of the constitutionality of the charge and statute” and (2) “such other matters that
might appear in the record of this action.” The broad reservation of “matters that might appear in
the record of this action” does not explicitly set forth any adverse ruling(s), but apparently seeks
to reserve for appeal any adverse ruling from the prior proceedings. While narrower, the
language “the issue of the constitutionality of the charge and statute” also fails to explicitly refer
to any adverse ruling below.
Upon review of the record, we are able to ascertain that the language “the issue of the
constitutionality of the charge and statute” refers to the adverse ruling on the constitutionality of
the Recruiting Statute from district court’s August 7, 2007 Order. At the plea hearing,
Manzanares’s attorney stated: “The part of the plea agreement that I suppose is most critical at
this point is the fact that my client reserves the right to appeal the matter to the Supreme Court
testing the statute under which she’s pleading guilty this morning.” And, Manzanares answered
in the affirmative to the following question asked by the district court at the plea hearing: “[Y]ou
have agreed to plead guilty, but that you’re reserving your right to appeal the constitutionality of
that statute?” From these statements at the plea hearing, it is clear that Manzanares sought to
reserve the right to challenge the constitutionality of the statute to which she pled guilty—the
Recruiting Statute. Manzanares’s June 12, 2007 Motion to Dismiss asserted, amongst other
arguments, that the Recruiting Statute is overbroad, and in its August 7, 2007 Order, the district
court denied Manzanares’s motion to dismiss as to the overbreadth challenge. Thus, we find that

12
Manzanares reserved the right to appeal the district court’s ruling that the Recruiting Statute is
not overbroad. 5
ii. Constitutional challenges to the Recruiting Provision.
Manzanares argues that the Recruiting Provision (I.C. § 18-8504(1)(a)) is
unconstitutionally overbroad for criminalizing association, speech, and expressive conduct in
violation of the First Amendment of the United States Constitution and Article I, sections 9 and
10 of the Idaho Constitution. According to Manzanares, by not requiring the State to prove that
the defendant recruited the gang member with the specific intent to further the criminal activities
of the gang, the Recruiting Provision generally criminalizes too much constitutionally protected
conduct to be facially valid and, as applied to the particulars of this case, criminalizes
Manzanares’s exercise of protected conduct.
The Recruiting Provision provides that a person commits the offense of recruiting a
criminal gang member by “[k]nowingly soliciting, inviting, encouraging or otherwise causing a
person to actively participate in a criminal gang.” 6 The ICGEA defines “Criminal gang” as:
an ongoing organization, association, or group of three (3) or more persons,
whether formal or informal, that has a common name or common identifying sign
or symbol, whose members individually or collectively engage in or have engaged
in a pattern of criminal gang activity, having as one (1) of its primary activities
the commission of one (1) or more of the criminal acts enumerated in subsection
(3) of this section.
Idaho Code § 18-8502(1). “Pattern of criminal gang activity” is defined in the ICGEA as “the
commission, attempted commission, or solicitation of two (2) or more [enumerated offenses],
provided that the offenses are committed on separate occasions or by two (2) or more gang
members”. Idaho Code § 18-8502(3).

5
Note, even if Manzanares had failed to reserve the district court’s ruling on the overbreadth of the Recruiting
Statute, her facial overbreadth challenge is a jurisdictional issue which can be raised on appeal. However, her as
applied challenge is not jurisdictional and would be waived. In State v. Trochinski, 644 N.W.2d 891, 904, n.15
(2002), the Wisconsin Supreme Court explained:
Trochinski has waived his right to challenge Wis. Stat. § 948.11(2) as applied, because of his plea.
State v. Molitor, 210 Wis.2d 415, 419, 565 N.W.2d 248 (Ct.App.1997). “A plea of no contest
waives all non-jurisdictional defects in the proceedings.” Id. (citing State v. Princess Cinema of
Milwaukee, Inc. 96 Wis.2d 646, 651, 292 N.W.2d 807 (1980)). In contrast, a facial challenge to
the constitutionality of a statute is a matter of subject matter jurisdiction and cannot be waived.
Molitor, 210 Wis.2d 415 at 419, 565 N.W.2d 248; State ex rel. Skinkis v. Treffert, 90 Wis.2d 528,
538-539, 280 N.W.2d 316 (Ct.App.1979).
6
Idaho Code § 18-8504(1)(b) provides an alternative way of committing the crime of recruiting a criminal gang
member. Part (b) is not at issue in this case, and this opinion does not address that provision.

13
 Putting the pieces of the ICGEA together, in order to convict a defendant under the
Recruiting Provision, the State bears a difficult burden. Preliminarily, the State must establish
that there is a gang by proving (1) there is an ongoing organization, group or association (2) with
a common name or sign (3) consisting of at least three members. Next, the State must prove that
the gang is a “criminal gang”. The ICGEA sets forth two criteria that must be met to show that a
gang is a criminal gang. First, the State must prove that (4) members of the gang (5) individually
or collectively committed, attempted to commit, or solicited at least two of the ICGEA’s
enumerated offenses and that (6) the two enumerated offenses were committed either on separate
occasions or by two or more gang members. Second, the State must prove that (7) the
commission of one or more of the ICGEA’s enumerated criminal offenses is one of the gang’s
“primary activities”.
In addition to establishing the existence of a “criminal gang,” the State must prove that
the defendant knowingly solicited, invited, encouraged, or otherwise caused a person to “actively
participate in the criminal gang.” Under Idaho’s criminal code: “The word ‘knowingly,’ imports
only a knowledge that the facts exist which bring the act or omission within the provisions of this
code. It does not require any knowledge of the unlawfulness of such act or omission.” I.C. § 18-
101(5). Since “criminal gang” is a defined term under the ICGEA (I.C. § 18-8502(1)), in order
to “actively participate in a criminal gang,” a person must actively participate in those activities
that bring the organization into the ICGEA’s definition of “criminal gang.” Thus, putting these
pieces together, after the State proves the existence of a criminal gang (as set forth in the
preceding paragraph), the State must prove that the defendant (1) knew of the criminal gang and
(2) knowingly solicited, invited, encouraged, or otherwise caused someone to “actively
participate in” either (a) the criminal gang’s commission of one of the ICGEA’s enumerated
offenses or (b) in making it one of the criminal gang’s “primary activities” to commit one or
more of the ICGEA’s enumerated crimes.
a. Facial challenge.
Manzanares argues that the Recruiting Provision overbroadly criminalizes association,
speech and expressive conduct in violation of the First Amendment of the United States
Constitution and Article I, sections 9 and 10 of the Idaho Constitution. We find that the
Recruiting Provision does not prohibit a significant amount of protected conduct and, therefore,
is not unconstitutionally overbroad.

14
 “The overbreadth doctrine is aimed at statutes which, though designed to prohibit
legitimately regulated conduct, include within their prohibitions constitutionally protected
freedoms.” Korsen, 138 Idaho at 713, 69 P.3d at 133. The two-part test for unconstitutional
overbreadth asks (1) whether the statute regulates constitutionally protected conduct, and (2)
whether the statute precludes a significant amount of that constitutionally protected conduct. Id.
If the answer to both steps is in the affirmative, then the statute is overbroad. See id. “A statute
that is found to be overbroad may not be enforced at all, even against speech or conduct that
could constitutionally be prohibited by a more narrowly drawn statute.” Id. at 714, 69 P.3d 134.
“Only if the statute intrudes upon a substantial amount of constitutionally protected conduct may
it be struck down for overbreadth.” Id. (emphasis added) (quotation omitted). “[A] statute will
not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional
applications. Rather, there must be a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not before the Court.” Id.
(quotation and citation omitted).
The First Amendment of the United States Constitution, which guarantees the right to
free expression, peaceable assembly and seeking redress with our government, applies to the
states through the Fourteenth Amendment. Elfbrandt v. Russell, 384 U.S. 11, 18 (1966). While
not explicitly stated in the First Amendment, the First Amendment guarantees individuals the
right to free association. Healy v. James, 408 U.S. 169, 181 (1972). “The right to associate for
expressive purposes is not, however, absolute.” Roberts v. U.S. Jaycees, 468 U.S. 609, 623
(1984). “The freedom of association protected by the First Amendment does not extend to
joining with others for the purpose of depriving third parties of their lawful rights.” Madsen v.
Women’s Health Ctr., 512 U.S. 753, 776 (1994). However, “[t]he right to associate does not lose
all constitutional protection merely because some members of the group may have participated in
conduct or advocated doctrine that itself is not protected.” NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 908 (1982).
First, we find that the Recruiting Provision, as a law which criminalizes the recruitment
of members into an organization, implicates the First Amendment right to free association, even
though the organizations at issue are involved in criminal activity. Thus, we turn to the second
step of the overbreadth analysis and ask whether the Recruiting Provision precludes a significant
amount of that constitutionally protected conduct.

15
 Manzanares draws our attention to a line of cases in which the United States Supreme
Court considered statutes which placed certain penalties or restrictions on members of the
Communist Party: Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S.
290 (1961); Aptheker v. Secretary of State, 378 U.S. 500 (1964); and Elfbrandt, 384 U.S. 11.
Based on this line of cases, Manzanares argues that joining an organization can be criminalized
only if the statute requires proof that the defendant had the specific intent to further the
organization’s criminal enterprise. We do not read these cases to set forth such a blanket rule.
In Elfbrandt, the Supreme Court relied on Scales, Noto, and Aptheker to invalidate a state
law subjecting teachers to criminal punishment for being members of the Communist Party or
any other organization advocating for the violent overthrow of the government, stating: “Any
lingering doubt that proscription of mere knowing membership, without any showing of ‘specific
intent,’ would run afoul of the Constitution was set at rest by our decision in Aptheker . . . .” 384
U.S. at 16. The Supreme Court noted that the statute at issue did not include a specific intent
requirement, and the Supreme Court stated:
One who subscribes to this Arizona oath and who is, or thereafter becomes, a
knowing member of an organization which has as ‘one of its purposes’ the violent
overthrow of the government, is subject to immediate discharge and criminal
penalties. Nothing in the oath, the statutory gloss, or the construction of the oath
and statutes given by the Arizona Supreme Court, purports to exclude association
by one who does not subscribe to the organization’s unlawful ends.
Id. The Supreme Court went on to explain:
Those who join an organization but do not share its unlawful purposes and
who do not participate in its unlawful activities surely pose no threat, either as
citizens or as public employees. Laws such as this which are not restricted in
scope to those who join with the ‘specific intent’ to further illegal action impose,
in effect, a conclusive presumption that the member shares the unlawful aims of
the organization.
Id. at 17.
This line of cases generally sets forth that a statute is overbroad if it criminalizes conduct
like merely joining, membership in or participation in an organization (even if that organization
engages in criminal activity) without distinguishing people who do not share the goals of the
organization’s unlawful purposes and do not participate in its unlawful activities. And these
cases set forth that a requirement of specific intent to further the criminal activity of the
organization sufficiently narrows the statutes at issue in those cases. However, those cases do
not foreclose the possibility that there are other ways in which a statute might be drafted

16
narrowly enough to survive an overbreadth challenge. Thus, even though the Recruiting
Provision does not contain a specific intent requirement, we must still look to the language of the
Recruiting Provision to determine whether it precludes a substantial amount of protected
conduct.
In focusing on the lack of a specific intent requirement, Manzanares simply overlooks
what the Recruiting Provision does require the State to prove: that the defendant knew of the
existence of the criminal gang and that the defendant knowingly solicited, invited, encouraged or
otherwise caused a person to actively participate in either the criminal gang’s commission of one
of the ICGEA’s enumerated offenses or in making the commission of one of those crimes one of
the primary activities of the criminal gang. While knowledge is a different mens rea than
specific intent, we find that the Recruiting Provision is sufficiently narrow to avoid implicating a
substantial amount of protected conduct.
Merely soliciting, inviting, encouraging, or otherwise causing a person to be a member of
an organization or to associate or interact with that organization, even where that organization
qualifies as a criminal gang under the ICGEA, does not necessarily amount to soliciting, inviting,
encouraging, or otherwise causing that person to “actively participate in a criminal gang” under
the Recruiting Provision. For example, if a defendant knowingly invites a person to merely
attend a lawful political rally or religious event organized and hosted by a group that the
defendant knows to be a criminal gang, the defendant has not knowingly invited a person to
actively participate in the criminal gang’s commission of any of the offenses enumerated in the
ICGEA and, thus, has not recruited that person as a gang member pursuant to I.C. § 18-
8504(1)(a). However, where a defendant knowingly invites a person to somehow promote,
further or assist in the commission of the ICGEA’s enumerated offenses by any member of the
criminal gang, then the defendant has invited a person to actively participate in the criminal
gang.
The State relies heavily on Holder v. Humanitarian Law Project, in which the United
States Supreme Court recently upheld 18 U.S.C. § 2339B(a)(1), which makes it a crime to
“knowingly provid[e] material support or resources to a foreign terrorist organization.” 130
S.Ct. 2705, 2712 (2010) (alteration in original). The term “material support or resources” is
defined by statute as:

17
 any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C. § 2339B(a)(1). The Secretary of State has the authority, in consultation with the
Secretary of the Treasury and the Attorney General, to designate an entity a “foreign terrorist
organization” pursuant to statute upon finding that the organization is foreign, engages in
terrorist activity or terrorism, and thereby threatens the security of United States nationals or the
national security of the United States. See Holder, 130 S.Ct. at 2713. In Holder, the plaintiffs
challenged the prohibition on four types of material support: training; expert advice or
assistance; service; and personnel. Id. at 2716.
Manzanares points out unique characteristics of the Holder decision, which indicate that
Holder may have limited applicability: the Supreme Court noted that the war on terror is a
uniquely compelling government objective; the Supreme Court emphasized the legislative
findings linking the provision of material support to foreign terrorist organizations with terrorist
activity; and the statute at issue applied only to foreign terrorist organizations. Despite these
differences, we find that Holder is instructive in its general analysis of an overbreadth challenge.
In Holder, the plaintiffs argued that the statute violated their freedom of association under the
First Amendment by criminalizing the mere fact of their associating with two designated foreign
terrorist organizations. Id. at 2730. The Court dismissed this argument, explaining: “The statute
does not prohibit being a member of one of the designated groups or vigorously promoting and
supporting the political goals of the group. . . . What [the statute] prohibits is the act of giving
material support.” Id.
In Holder, the Supreme Court relied on its decision in United States v. Robel, which
considered an overbreadth challenge to section 5(a)(1)(D) of the Subversive Activities Control
Act of 1950, “which provides that, when a Communist-action organization is under a final order
to register, it shall be unlawful for any member of the organization ‘to engage in any
employment in any defense facility.’” 389 U.S. 258, 260 (1967). In Robel, the Supreme Court
held that the statute was overbroad and explained: “It is precisely because th[e] statute sweeps
indiscriminately across all types of association with Communist-action groups, without regard to
the quality and degree of membership, that it runs afoul of the First Amendment.” Id. at 262.

18
Turning to the case at hand, we do not find that the Recruiting Provision sweeps indiscriminately
across all types of association with criminal gangs and without regard to the quality and degree
of membership such that it runs afoul of the First Amendment.
Similarly to the plaintiffs in Holder, Manzanares argues that the Recruiting Provision is
overbroad in violation of her First Amendment right to free association by criminalizing her
mere association with, or her causing of other persons association with, criminal gangs.
However, we find that the Recruiting Provision does not criminalize joining, or advocating for
the lawful goals of, an organization that happens to be a criminal gang under the ICGEA. While
there may be imaginable instances in which I.C. § 18-8504(1)(a) penalizes conduct protected
under the First Amendment, we find that the statute does not implicate a substantial amount of
constitutionally protected conduct. Should such imaginable instances arise, the as-applied
challenge is available to protect the defendant’s constitutional rights. Therefore, we hold that the
Recruiting Provision is not facially overbroad.
b. As applied challenge.
Manzanares argues that the Recruiting Provision is unconstitutional as applied to her for
infringing on her right to association and expression, because the district court concluded that
she could be brought to trial based on the mere fact that she participated in Trinidad’s initiation
into the East Side Locas without any evidence that she did so with the specific intent to further
the allegedly illegal activities of the gang.
“To prove a statute is unconstitutional ‘as applied,’ the party challenging the
constitutionality of the statute must demonstrate that the statute, as applied to the defendant's
conduct, is unconstitutional.” State v. Cook, 146 Idaho 261, 262, 192 P.3d 1085, 1086 (Ct. App.
2008) (citing Korsen, 138 Idaho at 712, 69 P.3d at 132). “If a statute as applied to a particular
defendant infringes upon his or her freedom of speech protected by the First Amendment, the
defendant's conviction must be reversed without any showing that such infringement was
‘substantial.’” State v. Poe, 139 Idaho 885, 893, 88 P.3d 704, 712 (2004) (citing Cohen v.
California, 403 U.S. 15 (1971)).
Manzanares failed to show that the Recruiting Provision is unconstitutional as applied to
her conduct, because she cannot point to the conduct of hers which serves as the basis of her
conviction. In Cook, the Court of Appeals noted that “an as-applied constitutional challenge is
based on the particular facts of a defendant’s case and it is often difficult to ascertain what those

19
facts are without the benefit of a trial.” 146 Idaho at 263, 192 P.3d at 1087. We agree, and we
find that this is particularly true when, as is the case here: (1) the information does not refer to
specific conduct of the defendant; (2) the preliminary hearing provides little factual specificity
and sets forth more than one course of conduct which could serve as the basis for the charge; and
(3) where the defendant enters an Alford plea.
First, the information does not set forth the specific conduct by which Manzanares
allegedly recruited Trinidad—it merely provides that Manzanares “on or about the 1st day of
April, 2006, to the 26th day of February, 2007, in the County of Canyon, State of Idaho, did
knowingly solicit, invite, encourage or otherwise cause a person, Jackie Trinidad, to actively
participate in a criminal gang, The East Side Locas.”
Second, while the evidence presented at the preliminary hearing sheds some light on the
State’s basis for charging Manzanares under the Recruiting Provision, the preliminary hearing
provides little factual specificity on a number of the elements that the State would have had to
prove to convict her under I.C. § 18-8504(1)(a). As already explained supra at Part III.B, while
Manzanares claims on appeal that she pled guilty based on her alleged participation in jumping
Trinidad into the East Side Locas at the New Year’s party, the State put forth additional evidence
concerning Manzanares’s website and her requests for members of East Side Locas to go tagging
as well as her knowledge of the East Side Locas’ criminal activity.
Third, by entering an Alford plea, Manzanares did not admit to any conduct on her part
which related to the charge. She made no admissions during the plea colloquy as to any conduct
she engaged in that violates the Recruiting Provision. Thus, we cannot ascertain how the
Recruiting Provision was applied to Manzanares. Accordingly, we hold that she failed to show
that the Recruiting Provision was applied to her in a manner that infringed upon her First
Amendment rights.
D. In light of our decision, the two remaining issues raised by Manzanares need not be
addressed.
Manzanares’s remaining two issues on appeal are whether the district court erred in
failing to dismiss the information on the bases that (1) the information failed to enumerate all of
the elements of the offense charged and (2) insufficient evidence was presented at the
preliminary hearing. Both of these claims, as Manzanares explains in her briefing, are
contingent upon this Court reading into the Recruiting Provision an element of specific intent on
the defendant’s behalf to further the criminal gang’s illegal activities. We have not read such an

20
element into the Recruiting Provision (supra Part III.C.ii.b), and accordingly, we need not reach
these issues.
IV. CONCLUSION
We uphold Manzanares’s conviction pursuant to her conditional plea agreement. Idaho
Code § 18-8504(1)(a) (ICGEA’s Recruiting Provision) is not unconstitutionally overbroad,
because the statute, as drafted by the legislature, does not infringe upon a substantial amount of
conduct protected by the First Amendment. Manzanares failed to show that the Recruiting
Provision was unconstitutional as applied to her.
Justices EISMANN, J. JONES and W. JONES, CONCUR.

HORTON, J., specially concurring in part and dissenting in part.
I join in the result reached in Parts III.A and III.D of the Court’s opinion, although for
different reasons than the majority. I join in the Court’s opinion as to Parts III.B and III.C.i. I
respectfully dissent from Part III.C.ii of the Court’s opinion.
I. Part III.A – The Reviewability of Manzanares’ Challenges to the Firearm Charge
I join in the Court’s decision that we may not reach Manzanares’ challenges to the
Firearm Charge. I do so because the issues advanced on appeal relating to the Firearm Charge
were not preserved for appeal. The written plea agreement which identifies the issue or issues
preserved for appeal states: “The Defendant reserves the right to appeal to the Idaho Supreme
Court the issue of the constitutionality of the charge and statute, and such other matters that
might appear in the record of this action.” In my view, the use of the singular “the charge” is
inconsistent with the reservation to appeal “such other matters that might appear in the record,”
creating ambiguity as to the scope of matters which were preserved for appeal.
The majority correctly notes that State v. Hosey, 134 Idaho 883, 886, 11 P.3d 1101, 1104
(2000), holds that interpretation of the terms of an ambiguous plea agreement involves questions
of fact. I believe that Manzanares’ attorney’s explanation of the term at the time of the entry of
her plea resolves the ambiguity. He stated: “The part of the plea agreement that I suppose is
most critical at this point is the fact that my client reserves the right to appeal the matter to the
Supreme Court testing the statute under which she’s pleading guilty this morning.” Thus, it is
clear to me that Manzanares’ conditional plea of guilty only served to preserve her constitutional
challenge to the Recruiting Provision. Although I question the wisdom of a conditional plea of

21
guilty that does not take into account the possibility of success on appeal (with the consequent
probability of a second appeal), I may not substitute my view of what may have been desirable
for the parties’ express agreement. Given that counsel’s explanation clearly reflected the
understanding that Manzanares would be permitted to challenge the charge to which she pleaded
guilty, I concur with the Court’s determination that it is inappropriate to address her challenges
to the Firearm Charge.
II. Part III.C.ii – The Constitutionality of the Recruiting Provision
I respectfully dissent from the Court’s conclusion that the Recruiting Provision is not
facially overbroad.
A. Structure of the ICGEA
I start first with consideration of the Court’s description of the operation of the ICGEA. I
do so because I believe that the Court’s description, although resulting in a construction which
avoids the necessity of declaring the statute unconstitutional, is not found within the language of
the act and is inconsistent with the evident intent of the Legislature.
After discussing the Recruiting Provision and three statutory definitions, the Court
concludes:
Thus, putting these pieces together, after the State proves the existence of a
criminal gang . . . , the State must prove that the defendant (1) knew of the
criminal gang and (2) knowingly solicited, invited, encouraged, or otherwise
caused someone to “actively participate in” either (a) the criminal gang’s
commission of one of the ICGEA’s enumerated offenses or (b) in making it one of
the criminal gang’s “primary activities” to commit one or more of the ICGEA’s
enumerated crimes.

(Emphasis added). This description of the Recruiting Provision as requiring that the defendant
“caused someone” to “actively participate” by either (1) committing one of the ICGEA’s
enumerated offenses or (2) by “making it one of the criminal gang’s ‘primary activities’ to
commit one or more” of those offenses is critical to the Court’s holding in this case. Indeed,
when concluding that the Recruiting Provision passes constitutional muster, the Court states:
In focusing on the lack of a specific intent requirement, Manzanares
simply overlooks what the Recruiting Provision does require the State to prove:
that the defendant knew of the existence of the criminal gang and that the
defendant knowingly solicited, invited, encouraged or otherwise caused a person
to actively participate in either the criminal gang’s commission of one of the
ICGEA’s enumerated offenses or in making the commission of one of those crimes
one of the primary activities of the criminal gang. While knowledge is a different

22
 mens rea than specific intent, we find that the Recruiting Provision is sufficiently
narrow to avoid implicating a substantial amount of protected conduct.
Merely soliciting, inviting, encouraging or otherwise causing a person to
be a member of an organization or to associate or interact with that organization,
even where that organization qualifies as a criminal gang under the ICGEA, does
not necessarily amount to soliciting, inviting, encouraging or otherwise causing
that person to “actively participate in a criminal gang” under the Recruiting
Provision. . . . However, where a defendant knowingly invites a person to
somehow promote, further or assist in the commission of the ICGEA’s
enumerated offenses by any member of the criminal gang, then the defendant has
invited a person to actively participate in the criminal gang.
Unlike the majority, I am unable to discern the link between the phrase “actively participate” and
criminal activity in the statutory scheme.
Idaho Code § 18-8504(1) 7 provides, in pertinent part, that “[a] person commits the
offense of recruiting criminal gang members by: (a) Knowingly soliciting, inviting, encouraging
or otherwise causing a person to actively participate in a criminal gang.” Significantly, the
statute does not require that the accused cause another to become a “criminal gang member.”
This phrase has a specific statutory definition, 8 specifying that in order to be a “criminal gang
member,” one must engage in “a pattern of criminal gang activity” in addition to meeting certain
other criteria. A “pattern of criminal gang activity” is defined by I.C. § 18-8502(3) 9 as “the

7
In this dissent, all citations to, and quotations from, the ICGEA refer to the statutes in effect at the time of
Manzanares’ plea of guilty. The act was amended earlier this year. 2011 Idaho Sess. Laws ch. 188, 538-40.
8
Idaho Code § 18-8502(2) defines a “criminal gang member” as:
. . . any person who engages in a pattern of criminal gang activity and who meets two (2) or more of the
following criteria:
(a) Admits to gang membership;
(b) Is identified as a gang member;
(c) Resides in or frequents a particular gang's area and adopts its style of dress, its use of hand
signs, or its tattoos, and associates with known gang members;
(d) Has been arrested more than once in the company of identified gang members for offenses that
are consistent with usual gang activity;
(e) Is identified as a gang member by physical evidence such as photographs or other
documentation; or
(f) Has been stopped in the company of known gang members four (4) or more times.
9
Idaho Code § 18-8502(3) states:
“Pattern of criminal gang activity” means the commission, attempted commission or solicitation of two (2)
or more of the following offenses, provided that the offenses are committed on separate occasions or by
two (2) or more gang members:
(a) Robbery, as provided in section 18-6501, Idaho Code;
(b) Arson, as provided in sections 18-801 through 18-804, Idaho Code;
(c) Burglary, as provided in sections 18-1401, 18-1403, 18-1405 and 18-1406, Idaho Code;
(d) Murder or manslaughter, as provided, respectively, in sections 18-4001 and 18-4006, Idaho
Code;
(e) Any violation of the provisions of chapter 27, title 37, Idaho Code, that involves possession
with intent to deliver, distribution, delivery or manufacturing of a substance prohibited therein;

23
commission, attempted commission or solicitation of two (2) or more of [twenty-one specified
predicate] offenses, provided that the offenses are committed on separate occasions or by two (2)
or more gang members.” Thus, a prerequisite to being a “criminal gang member” is the
solicitation, attempted commission, or commission of two or more of the crimes listed in I.C. §
18-8502(3) (“predicate offenses”).
The majority evidently shares my view that the Recruiting Provision does not require that
the accused cause another (the “recruit”) to become a criminal gang member. Rather, the
majority describes the Recruiting Provision as requiring that the recruit “actively participate” in
either: (1) the criminal gang’s commission of a predicate offense; or (2) making commission of a
predicate offense one of the criminal gang’s “primary activities.” However, the statutory
definition of “criminal gang” does not provide for such a narrow construction of the Recruiting
Provision. Idaho Code § 18-8502(1) defines a “criminal gang” as:
. . . an ongoing organization, association, or group of three (3) or more persons,
whether formal or informal, that has a common name or common identifying sign
or symbol, whose members individually or collectively engage in or have engaged
in a pattern of criminal gang activity, having as one (1) of its primary activities
the commission of one (1) or more of the criminal acts enumerated in subsection
(3) of this section.
Parsing this definition, a criminal gang is: (1) an ongoing organization, association, or group of
three or more persons, whether formal or informal, (2) that has a common name or common
identifying sign or symbol, (3) whose members individually or collectively engage in or have

(f) Any unlawful use of a weapon that is a felony pursuant to chapter 33, title 18, Idaho Code;
(g) Assault and battery, as provided in chapter 9, title 18, Idaho Code;
(h) Criminal solicitation, as provided in section 18-2001, Idaho Code;
(i) Computer crime, as provided in section 18-2202, Idaho Code;
(j) Theft, as provided in sections 18-2401 and 18-2403, Idaho Code;
(k) Evidence falsified or concealed and witnesses intimidated or bribed, as provided in sections
18-2601 through 18-2606, Idaho Code;
(l) Forgery and counterfeiting, as provided in sections 18-3601 through 18-3603 and sections 18-
3605 through 18-3616, Idaho Code;
(m) Gambling, as provided in section 18-3802, Idaho Code;
(n) Kidnapping, as provided in sections 18-4501 through 18-4503, Idaho Code;
(o) Mayhem, as provided in section 18-5001, Idaho Code;
(p) Prostitution, as provided in sections 18-5601 through 18-5614, Idaho Code;
(q) Rape, as provided in sections 18-6101, 18-6108 and 18-6110, Idaho Code;
(r) Racketeering, as provided in section 18-7804, Idaho Code;
(s) Malicious harassment, as provided in section 18-7902, Idaho Code.
(t) Terrorism, as provided in section 18-8103, Idaho Code;
(u) Money laundering and illegal investment, as provided in section 18-8201, Idaho Code.

24
engaged in a pattern of criminal gang activity, (4) having as one of its primary activities the
commission of one or more predicate offenses.
Presumably, the fourth clause is intended to distinguish a criminal gang from non-
criminal associations of three or more persons that have a common name or common identifying
sign. If this were not the case, any service organization (e.g., Rotary), religious organization,
public institution (including those whose members identify themselves as senators,
representatives, commissioners, judges, etc.), or any other association with an identifiable
membership could be characterized as a “criminal gang” if a member or members of that
association “individually or collectively engage in or have engaged in a pattern of criminal gang
activity.”
The importance of the fourth clause cannot be gainsaid. I think that the implications of
its absence are perhaps best demonstrated by way of an example. Rotary International is an
organization comprised of 1.2 million members in more than 34,000 clubs worldwide.
Identifying themselves as “Rotarians,” they “provide humanitarian service, encourage high
ethical standards in all vocations, and help build goodwill and peace in the world.” 10 In the
absence of the fourth clause, if a single Rotarian committed two acts of assault on different
occasions (assault is a predicate offense under I.C. § 18-8502(3)(g)), Rotary International would
properly be characterized as a “criminal gang” and, by operation of the Recruiting Provision, one
would commit a felony by soliciting another to “actively participate” in the work of Rotary
International.
Thus, I turn my attention to the language of the fourth clause, i.e., “having as one (1) of
its primary activities the commission of one (1) or more of the criminal acts enumerated in [I.C.
§ 18-8502(3)].” The indefinite possessive pronoun “its” evidently refers to the association. Two
difficulties with this fourth clause present themselves to me.
The first difficulty that I confront is this: regardless of the noun considered, whether it be
“organization,” “association,” or “group,” the noun identifies a relationship between individuals,
while “primary activities” relates to the joint or individual actions of one more members sharing
that common relationship. This is significant because the concept of relationship is abstract;
whereas the commission, attempted commission or solicitation of criminal acts is not. Stated

10
All factual references to the composition of Rotary International and its objectives may be found at
http://www.rotary.org/EN/ABOUTUS/Pages/ridefault.aspx.

25
differently, an association does not act. 11 Rather, the members of an association act, whether
individually or in concert. The definition of criminal gang is notable because it does not require
that each person sharing the relationship also share a common objective of engaging in, or
encouraging commission of, predicate offenses.
Equally significantly, the ICGEA does not require that the commission of one or more predicate
offenses be the primary activity of the association. Rather, the Act merely requires that such
criminal conduct be only one of the association’s primary activities. Used in this sense,
“primary” does not have its most common meaning of “first in importance.” WEBSTER’S NEW
WORLD DICTIONARY 1129 (2d college ed. 1976). Rather, it has the secondary meaning of “chief;
principal; main [a primary concern].” Id. Thus under the ICGEA, an association that engages in
multiple primary activities, many of which are non-criminal, is a criminal gang if just one of
those primary activities is the commission of predicate offenses. Under the statutory definition,
then, one may “actively participate” in a criminal gang – even in a “primary activity” of that
gang – without sharing a common criminal objective and without criminal intent. Since the
Recruiting Provision, I.C. § 18-8504(1), merely requires that one knowingly cause “a person to
actively participate in a criminal gang,” I am unable to agree with the majority’s conclusion that
the Recruiting Provision requires that the recruit “‘actively participate in’ either (a) the criminal
gang’s commission of one of the ICGEA’s enumerated offenses or (b) in making it one of the
criminal gang’s “primary activities” to commit one or more of the ICGEA’s enumerated crimes.”
I am not alone in this view. At oral argument, in response to a hypothetical question, the
Deputy Attorney General representing the State expressed his belief that the Recruiting Provision
could properly be interpreted as prohibiting the recruiting of an interior decorator into gang

11
As will be discussed more fully in this opinion, the United States Supreme Court has addressed this issue by
imposing a requirement that the defendant possess the specific intent to advance criminal aims of the organization:
The problems in attributing criminal behavior to an abstract entity rather than to specified
individuals, though perhaps difficult theoretically, as a practical matter resolve themselves into
problems of proof. Whether it has been successfully shown that a particular group engages in
forbidden advocacy must depend on the nature of the organization, the occasions on which such
advocacy took place, the frequency of such occasions, and the position within the group of the
persons engaging in the advocacy. Understood in this way, there is no great difference between a
charge of being a member in a group which engages in criminal conduct and being a member of a
large conspiracy, many of whose participants are unknown or not before the court. Whatever
difficulties might be thought to inhere in ascribing a course of criminal conduct to an abstract
entity are certainly cured, so far as any particular defendant is concerned, by the requirement of
proof that he knew that the organization engages in criminal advocacy, and that it was his
purpose of [sic] further that criminal advocacy.
Scales v. United States, 367 U.S. 203, 226 n. 18 (1961) (citation omitted, emphasis added).

26
membership, even if the role of that recruit was limited to “actively participating” in the gang by
designing a more attractive clubhouse where the gang members might socialize. Further, the
State’s sweeping view of the scope of the Recruiting Provision is well-grounded in legislative
history.
Based upon common language found in the two acts, it is evident that the ICGEA was
derived, in large part, from California’s Street Terrorism Enforcement and Prevention Act
(STEP). STEP’s recruiting provision states:
(a) Any person who solicits or recruits another to actively participate in a criminal
street gang, as defined in subdivision (f) of Section 186.22, with the intent that the
person solicited or recruited participate in a pattern of criminal street gang
activity, as defined in subdivision (e) of Section 186.22, or with the intent that the
person solicited or recruited promote, further, or assist in any felonious conduct
by members of the criminal street gang, shall be punished by imprisonment in the
state prison for 16 months, or two or three years.
Cal. Penal Code § 186.26 (emphasis added). As the emphasized language reflects, STEP
expressly provides that a person is guilty of recruiting criminal gang members if he or she did so
with the specific intent that the recruit would “participate in a pattern of criminal street gang
activity” or that the recruit would “promote, further, or assist in any felonious conduct by
members” of the gang. When the Idaho Legislature enacted the ICGEA, its decision to modify
the recruiting provision found in the California statute reflected the intent to eliminate the
requirement that the defendant possess the specific intent that the recruit would participate in
criminal conduct. Brown’s Tie & Lumber Co. v. Chicago Title Co. of Idaho, 115 Idaho 56, 60,
764 P.2d 423, 427 (1988) (significant that legislature omitted statutory language used in other
jurisdictions).
Thus, I turn my attention to the First Amendment implications presented by the absence
of a requirement that a defendant possess the specific intent that a recruit will engage in criminal
conduct.
B. First Amendment Considerations
The United States Supreme Court has repeatedly stated that “freedom of association is
itself guaranteed in the First Amendment . . . . ” Aptheker v. Sec’y of State, 378 U.S. 500, 507
(1964) (citations omitted); see also Healy v. James, 408 U.S. 169, 181 (1972); Elfbrandt v.
Russell, 384 U.S. 11, 17 (1966); Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 543
(1963). The Fourteenth Amendment prohibits the states from abridging the freedoms guaranteed

27
by the First Amendment. 12 Cramp v. Bd. of Public Instruction of Orange Cnty., Fla., 368 U.S.
278, 285 (1961); Cantwell v. State of Conn., 310 U.S. 296, 303 (1940).
This, of course, begs the question: What does “freedom of association” mean? Despite
the United States Supreme Court’s description that the right of association “includes the right to
express one’s attitudes or philosophies by membership in a group or by affiliation with it or by
other lawful means,” Griswold v. Conn., 381 U.S. 479, 483 (1965) (citation omitted), the answer
is not entirely clear. The United States Supreme Court did provide instruction in Roberts v. U.S.
Jaycees, 468 U.S. 609 (1984), Board of Directors of Rotary International v. Rotary Club of
Duarte, 481 U.S. 537 (1987), and City of Dallas v. Stanglin, 490 U.S. 19 (1989).
In Roberts, the Court assessed the constitutionality of a Minnesota antidiscrimination
statute that required a civic organization to make full membership available to women. 468 U.S.
at 612. There, , the Court defined two lines of precedent:
Our decisions have referred to constitutionally protected “freedom of
association” in two distinct senses. In one line of decisions, the Court has
concluded that choices to enter into and maintain certain intimate human
relationships must be secured against undue intrusion by the State because of the
role of such relationships in safeguarding the individual freedom that is central to
our constitutional scheme. In this respect, freedom of association receives
protection as a fundamental element of personal liberty. In another set of
decisions, the Court has recognized a right to associate for the purpose of

12
The United States Supreme Court has consistently held that the First Amendment is applicable to the states
through the Due Process Clause of the Fourteenth Amendment. See, e.g., De Jonge v. State of Oregon, 299 U.S.
353, 364 (1937).
Justice Eismann correctly cites Justice Thomas’ concurrence in McDonald v. City of Chicago, Ill., 130 S.Ct. 3020,
3059 (2010), as authority for the proposition that the Privileges and Immunities Clause is the basis upon which the
freedoms guaranteed by the Bill of Rights are protected from state action. However, a majority of the United States
Supreme Court expressly declined to join in Justice Thomas’ opinion on this subject. Justice Alito, joined by Chief
Justice Roberts and Justices Scalia and Kennedy, discussed the Slaughter-House Cases, 83 U.S. 36 ( (1873), which
held that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal
government, its National character, its Constitution, or its laws.” Id. at 79. The McDonald plurality refused to
accept the Petitioners’ request that the decision of the Slaughter-House Cases be overturned, stating:
We see no need to reconsider that interpretation here. For many decades, the question of the rights
protected by the Fourteenth Amendment against state infringement has been analyzed under the
Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We
therefore decline to disturb the Slaughter-House holding.
130 S.Ct. at 3030-31.
The plurality was joined by Justice Stevens in his dissent:
I agree with the plurality’s refusal to accept petitioners’ primary submission. Their briefs marshal
an impressive amount of historical evidence for their argument that the Court interpreted the
Privileges or Immunities Clause too narrowly in the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed.
394 (1873). But the original meaning of the Clause is not as clear as they suggest - and not nearly
as clear as it would need to be to dislodge 137 years of precedent.
Id. at 3089 (citations and footnote omitted).

28
 engaging in those activities protected by the First Amendment - speech, assembly,
petition for the redress of grievances, and the exercise of religion. The
Constitution guarantees freedom of association of this kind as an indispensable
means of preserving other individual liberties.
Id. at 617-18. The Court continued, observing that “the nature and degree of constitutional
protection afforded freedom of association may vary depending on the extent to which one or the
other aspect of the constitutionally protected liberty is at stake in a given case.” Id. at 618.
Describing the first category of cases, the Court continued:
The Court has long recognized that, because the Bill of Rights is designed
to secure individual liberty, it must afford the formation and preservation of
certain kinds of highly personal relationships a substantial measure of sanctuary
from unjustified interference by the State. Without precisely identifying every
consideration that may underlie this type of constitutional protection, we have
noted that certain kinds of personal bonds have played a critical role in the culture
and traditions of the Nation by cultivating and transmitting shared ideals and
beliefs; they thereby foster diversity and act as critical buffers between the
individual and the power of the State. Moreover, the constitutional shelter
afforded such relationships reflects the realization that individuals draw much of
their emotional enrichment from close ties with others. Protecting these
relationships from unwarranted state interference therefore safeguards the ability
independently to define one’s identity that is central to any concept of liberty.
Id. at 618-19 (citations omitted).
The Court then noted the continuum of relationships existing in society, ranging from
intimate family relationships to co-workers employed by a large corporation, observing that the
former are entitled to constitutional protection while suggesting that the latter are not. Id. at 619-
20. Those relationships clearly entitled to constitutional protections are those possessing the
following attributes: “relative smallness, a high degree of selectivity in decisions to begin and
maintain the affiliation, and seclusion from others in critical aspects of the relationship.” Id. at
620. Conversely, an association lacking these attributes is not likely to be afforded constitutional
protection. Id. In determining whether an association is entitled to protection, the Court then
identified the following factors as relevant to a determination whether the relationship is
protected by the First Amendment: “size, purpose, policies, selectivity, congeniality, and other
characteristics that in a particular case may be pertinent.” Id. Notably, the Court stated that “we
have long understood as implicit in the right to engage in activities protected by the First
Amendment a corresponding right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural ends.” Id. at 622.

29
 Applying these factors and noting that gender was the only meaningful restriction on full
membership in the U.S. Jaycees , the Court concluded that “Minnesota’s compelling interest in
eradicating discrimination against its female citizens justifies the impact that application of the
statute to the Jaycees may have on the male members’ associational freedoms.” Id. at 623. It is
noteworthy that despite the large size and largely impersonal nature of the association, the Court
nevertheless focused upon the state’s “compelling interest” in upholding a restriction upon the
members’ associational freedoms.
In Rotary Club of Duarte, the Supreme Court again addressed the contours of freedom of
association in the context of a statute that required a civic organization to admit females into
membership. 481 U.S. at 541-42. The Court followed its earlier approach in Roberts,
“considering separately the effect of the challenged state action on individuals’ freedom of
private association and their freedom of expressive association.” Id. at 544-45.
Noting the size of Rotary clubs in California, the regular turnover in membership, and an
emphasis on making the affairs of the clubs open to the public, the Court concluded that a
California law requiring that women be admitted did not “interfere unduly with the members’
freedom of private association.” Id. at 547. When considering the claim that the statute violated
the members’ rights of expressive association, the Court concluded that the “slight infringement
on Rotary members’ right of expressive association” by the statute was justified by the state’s
“compelling interest in eliminating discrimination against women.” Id. at 549.
In Stanglin, the Court addressed an ordinance that precluded those other than 14 to 18
year olds from patronizing certain dance-halls. 490 U.S. at 20-21. The Court held that “the
activity of these dance-hall patrons - coming together to engage in recreational dancing - is not
protected by the First Amendment.” Id. at 25. The Court stated: “It is clear beyond cavil that
dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of
‘intimate human relationships’ referred to in Roberts.” Id. at 23. Rather, “[t]he hundreds of
teenagers who congregate each night at this particular dance hall are not members of any
organized association; they are patrons of the same business establishment.” Id. at 24.
The lesson that I draw from these three cases is that First Amendment protections will
only be extended to interpersonal relationships founded upon something more than common
patronage of a commercial establishment. In the event that there is a relationship founded upon
common membership in an organization, even if that organization is large and non-selective, the

30
members of that organization possess associational and expressive interests 13 that may be
legitimately abridged upon a showing of a compelling state interest.
In view of the foregoing, I would conclude that the definition of criminal gang found in
the ICGEA, i.e., an ongoing organization, association, or group of three or more persons,
whether formal or informal, sharing a common name or common identifying sign or symbol, and
whose members share common activities which may include criminal behavior (whether
individually or collectively), implicates the First Amendment freedom of association for
associational or expressive purposes. This leads me to consider whether the statute is overbroad
or whether the statute advances a compelling state interest.
1. Overbreadth
The overbreadth doctrine is “strong medicine,” and courts employ it only as a last resort.
Broadrick v. Okla., 413 U.S. 601, 613 (1973). If possible, a challenged statute should be given a
limiting construction which avoids constitutional infirmity. Id. Where conduct, not speech, is
involved, a court may only invalidate a statute if its overbreadth is substantial in relation to the
statute’s legitimate scope. Id. at 615. “Overbreadth is not substantial if, despite the fact that
some constitutionally protected conduct is proscribed, the statute covers a wide range of conduct
that is easily identifiable and within the [government’s] power to prohibit.” State v. Doe, 148
Idaho 919, 925, 231 P.3d 1016, 1022 (2010) (quoting State v. Korsen, 138 Idaho 706, 714, 69
P.3d 126, 134 (2003)). Significantly, overbreadth attacks have also been permitted in cases
where the United States Supreme Court believed that “rights of association were ensnared in
statutes which, by their broad sweep, might result in burdening innocent associations.”
Broadrick, 413 U.S. at 612. Although laws that tend to restrict the right of individuals to
associate must be tailored narrowly to serve legitimate governmental interests, Aptheker, 378
U.S. at 508 (1964); Baggett v. Bullitt, 377 U.S. 360, 372 n.10 (1964), overbreadth claims “have
been curtailed when invoked against ordinary criminal laws that are sought to be applied to
protected conduct.” Id. at 613.

13
Although political discourse is a common manifestation of expressive association, the expressive activity of a
group entitled to First Amendment protections need not be politically oriented. Stanglin, 490 U.S. at 25 (referencing
the statement in Griswold v. Connecticut, 381 U.S. 479, 483 (1965), that “[t]he right to freely associate is not limited
to ‘political’ assemblies, but includes those that ‘pertain to the social, legal, and economic benefit’ of our citizens.”).
Because of the value of expressive association, even government infringements that merely chill expressive
association must be finely tuned to achieve their objectives. Scales, 367 U.S. at 229.

31
 Much of the United States Supreme Court’s jurisprudence exploring the freedom of
association developed during the Cold War, 14 when factions of the Communist Party advocated
violent overthrow of the federal government. Communist groups were popularly perceived as
involving violent and criminal contingents. State and federal laws were enacted which sought to
regulate the membership and conduct of these groups, and many of these statutes were
challenged on the grounds that they infringed upon the right to freedom of expressive association
and imposed guilt by association. In De Jonge v. Oregon, state law criminalized the act of
assisting in conducting a Communist Party meeting. 299 U.S. 353, 356-57 (1937). The Court
held the statute unconstitutionally infringed upon the freedoms of speech and assembly,
reasoning that because the discussion at a Communist Party meeting may be wholly lawful and
never incite imminent violence or crime, the simple fact that a person organized a meeting
sponsored by the Communist Party did not amount to illegal conduct. Id. at 364-65. The Court
explained that:
The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects. If
the persons assembling have committed crimes elsewhere, if they have formed or
are engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violation of valid laws. But it is a
different matter when the State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly and a lawful public
discussion as the basis for a criminal charge.
Id. at 365. The Court held that government may not criminalize association with a group merely
because it includes criminal factions. Rather, only if the members associate because they share
the purpose of accomplishing a criminal act may their association be criminalized.
Intent to commit a crime was again the determinative factor in Scales v. United States,
367 U.S. 203 (1961). In that case, the United States Supreme Court upheld a federal statute that
made it a crime to knowingly be a member of an organization which advocated violent
overthrow of the government. Id. at 205. Although the statute did not include an express
requirement that one’s membership exist with the specific intent to accomplish the group’s goal

14
I rely on case law from this era because it is the richest source of decisions from the United States Supreme Court
relating to First Amendment rights of association and the power of the state and federal governments to interfere
with those relationships. Further, I believe that the contemporary fear of the societal threat posed by gangs, and the
legislative response thereto, mirror the perceived threat posed by the Communist Party and the corresponding
legislative response during the Cold War era.

32
of violent overthrow, the Court looked to the structure and legislative history of the statute and
construed it to include a requirement of specific intent. Id. at 206-19. Addressing the appellant’s
facial challenge to the statute under the First Amendment, the Court affirmed that guilt is
personal and that “[m]embership, without more, in an organization engaged in illegal advocacy”
is insufficient grounds to impose a criminal penalty. Id. at 224-25. Yet because the Court
construed the statute to include a specific intent requirement, the Court held that the scope of the
statute’s infringement did not unconstitutionally extend to lawful association. Id. at 225. Rather,
the Court reasoned that “the member for whom the organization is a vehicle for the advancement
of legitimate aims and policies does not fall within the ban of the statute . . . . Such a person may
be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.”
Id. at 229-30. The Court refused to impose guilt simply due to one’s mere association with an
organization that includes criminal factions.
The United State Supreme Court confirmed that the specific intent to commit a group’s
criminal purpose transforms an otherwise lawful association protected from government
prohibition into an unlawful association subject to regulation and criminal sanction in Aptheker
v. Secretary of State, 378 U.S. 500, 511 (1964) 15 and United States v. Robel, 389 U.S. 258, 262-
63 (1967). In each case, the Court struck as facially overbroad statutory provisions regulating
Communist organizations, holding that the provisions lacked the content and legislative history
necessary to support judicial constructions that included a specific intent requirement. In Robel,
the statute at issue prohibited individuals who professed membership in a Communist
organization from obtaining or maintaining employment in any defense facility, and imposed
criminal penalties upon those who disobeyed. 389 U.S. at 260. The Court determined that,
lacking the necessary requirement of specific intent,
[he] statute casts its net across a broad range of associational activities,
indiscriminately trapping membership which can be constitutionally punished and
membership which cannot be so proscribed. It is made irrelevant to the statute’s
operation that an individual may be a passive or inactive member of a designated
organization, that he may be unaware of the organization’s unlawful aims, or that
he may disagree with those unlawful aims.

15
Although Aptheker was decided on Fifth Amendment grounds, the United States Supreme Court subsequently
noted that it also implicated the First Amendment right to freedom of association. United States v. Robel, 389 U.S.
258, 262-63 (1967).

33
Id. at 265-66. Robel and the cases that precede it make clear that legislative curtailments of the
freedom of expressive association must be finely tuned to impact only the criminal intent and
conduct which the legislative body has the power to proscribe within the bounds of the United
States Constitution. As the Supreme Court observed in a case arising from the social unrest of
the early 1970s, it “has consistently disapproved governmental action imposing criminal
sanctions or denying rights and privileges solely because of a citizen’s association with an
unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972).
The State argues that a criminal gang is not a type of association protected by the First
Amendment because it is neither an intimate nor expressive association. Other jurisdictions have
recognized that criminal gangs are entitled to some degree of freedom of association, and as a
consequence have insisted upon the existence of a specific intent requirement in their anti-gang
statutes. In Helton v. State, 624 N.E. 2d 499, 506 (Ind. Ct. App. 1993), a state statute made it a
felony to commit criminal gang activity by “knowingly or intentionally actively participat[ing] in
a criminal gang,” i.e., a group with at least five members who were required to commit a felony
to become a member and who supported or participated in the commission of a felony to remain
a member. Consistent with United States Supreme Court precedent, the Indiana court construed
the statute to include a requirement that the actor possess the specific intent to further the group’s
criminal conduct. Id. at 508. The court recognized that individuals may join a gang for non-
criminal purposes, and stated that “the member for whom the criminal gang is an instrument for
the advancement of legitimate goals and policies does not fall within the Gang Statute’s ban
since he lacks the requisite specified intent to further criminal conduct.” Id. at 511. Since the
statute included the specific intent requirement, it did not infringe upon the right to freedom of
association. Id. Likewise, a California statute that imposed enhanced criminal sanctions for
crimes “committed for the benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal conduct by gang
members” did not violate freedom of association because it included a specific intent
requirement. People v. Gardeley, 927 P.2d 713, 725 (Cal. 1996).
At least one court has concluded that a criminal gang is simply not a form of association
protected by the First Amendment. State v. Bennett, 782 N.E.2d 101 (Ohio Ct. App. 2002).
However, that court did not engage in a thorough freedom of association analysis, instead citing
City of Chicago v. Morales, 427 U.S. 41, 53, for the proposition that gang members’ social

34
contact is unprotected, and United States v. Choate, 576 F.2d 165, 181 (9th Cir. 1978), for the
proposition that the right of association does not extend to organizations that commit felonies.
This assessment is inadequate. The United States Supreme Court’s statement in Morales that the
right of association does not include “social contact between gang members and others” must be
understood in the context of the statute there at issue. Morales, 427 U.S. at 53. Morales dealt
with a statute that prohibited individuals, gang member or not, from loitering in public areas if
they had received a relocation request from a peace officer. Id. at 47. Thus, similar to the
unprotected social association in Stanglin, the conduct not entitled to First Amendment
protections in Morales was the act of loitering amongst and socializing with both gang members
and nonmembers in a public place. Further, the Ohio court’s interpretation of Choate is a
stretch, given that the Ninth Circuit there did not hold that the freedom of association does not
extend to an organization which exists for many purposes, including the commission of felonies.
Rather, the court stated simply that “the practice of associating with compatriots in crime is not a
protected associational right . . . ,” i.e., that associations formed for the sole purpose of
conducting criminal activity are not entitled to First Amendment protections. 576 F.2d at 181.
To interpret the Ninth Circuit’s holding otherwise would fly in the face of the Cold War era
cases decided by the United States Supreme Court, each of which required that, in order to be
made criminal, membership must be accompanied by the specific intent to commit the group’s
criminal purpose. Thus, neither Morales nor Choate preclude the conclusion that groups which
may be identified as criminal gangs have associational aspects and are therefore entitled to First
Amendment protections.
I believe that the ICGEA is unconstitutionally overbroad because some groups that meet
the the Act’s definition of “criminal gang” may be intimate or expressive associations that are
entitled to First Amendment protections. Looking back to the Cold War era, for example, if the
ICGEA had been in effect and two or more members of the Communist Party had attempted
murder, burglary, or concealment of evidence, the Party would have been a criminal gang under
the ICGEA. Under the Act’s Recruiting Provision, recruitment of new members to the Party
would have been a criminal act. Yet prosecution under the Recruiting Provision would have
been unconstitutional, as the members of the Communist Party collectively engaged in the
primary activities of constitutionally protected speech and expressive conduct, such that
association with the Communist Party was guarded by the United States Constitution. As U.S.

35
Supreme Court precedent has demonstrated, the First Amendment would not permit government
infringements upon all associations with the Communist Party, but rather only those associations
formed with the specific intent that they advance or achieve a criminal purpose.
From a more contemporary perspective, the ICGEA definition reaches a group of
political activists whose members engage in criminal activity in order to pursue their political
objectives, such as extremist environmental and animal rights groups. While the First
Amendment permits the government to prosecute the criminal conduct of the members of activist
groups’, it precludes one’s prosecution for mere membership in, or association with, such an
organization. Prosecution and conviction on such grounds amounts to guilt by association, a
concept repeatedly rejected as unconstitutional by the United States Supreme Court.
Since the First Amendment exists to shield minority dissident groups from suppression,
statutes that infringe upon minority groups’ expression and association, without limiting such
infringements to the conduct not protected by the First Amendment, are substantially overbroad
and thus invalid. Further, as the courts in both Scales and Helton acknowledged, statutes that
criminalize membership without a specific intent requirement impose punishment upon the
member who is “foolish, deluded, or perhaps merely optimistic,” or who joins the group “for the
advancement of legitimate goals and policies,” yet who has no criminal purpose. The U.S.
Constitution protects such members from criminal punishment.
These are only a few examples of the types of First Amendment protected associations
that fit within the ICGEA definition of “criminal gang.” Given that the United States Supreme
Court has declined to limit intimate association to purely familial relationships, I believe that
intimate groups, formed between friends for purposes of socializing in private, passing on
cultural traditions, transmitting shared ideals and beliefs, and investing in the development and
exploration of members’ individual identities, are also intimate associations entitled to First
Amendment protections. Since a group that does not have an expressive purpose may possess
these characteristics, in addition to the characteristics that cause it to fall within the I.C. § 18-
8502(1) definition of a criminal gang, groups commonly known as “gangs” may be intimate
associations entitled the First Amendment right to freedom of association.
It may be that some groups are formed and maintained for a wholly criminal purpose, and
that as applied to those groups, the ICGEA would pose no threat to the individual rights
protected by the Constitution. However, the ICGEA, by its inclusion of the phrase “one of its

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primary activities,” is not restricted to such associations. The doctrine of overbreadth looks to
all conceivable applications of a statute to determine whether the statute is invalid because it
infringes on First Amendment freedoms. Since the ICGEA sweeps broadly enough to affect
many types of groups that may qualify as intimate or expressive associations, it is substantially
overbroad relative to its legitimate aim of proscribing that conduct of “criminal gangs” which is
in fact criminal. This conclusion does not prevent the enactment of laws that criminalize gang
conduct. Rather, it simply requires that those laws be tailored to prohibit only the criminal
conduct they seek to thwart, while avoiding unnecessary infringements upon the constitutional
right to freedom of association.
In Elfbrandt v. Russell, 384 U.S. 11 (1966), the Supreme Court specifically noted the
situation which I believe is presented by the ICGEA: organizations and associations may have
multiple objectives, some legal and others illegal. Id. at 15. The Court struck down the statute in
question, stating:
Those who join an organization but do not share its unlawful purposes and
who do not participate in its unlawful activities surely pose no threat, either as
citizens or as public employees. Laws such as this which are not restricted in
scope to those who join with the ‘specific intent’ to further illegal action impose,
in effect, a conclusive presumption that the member shares the unlawful aims of
the organization.
Id. at 17.
Based upon the foregoing analysis, I believe that the statute is facially overbroad in light
of the Legislature’s decision to eliminate the requirement that a party recruiting 16 another to join
a criminal gang do so with the specific intent that the recruit engage in criminal conduct. Rather,
the statute permits conviction even where one recruits another to join a gang to advance or
achieve perfectly legal objectives.
This leads to the consideration of whether the statute is subject to a saving construction. In the
course of determining whether to impose a saving construction, the United States Supreme Court
has declined to rewrite a statute to the point of changing its clear purpose. Aptheker, 378 U.S. at
515 (“It must be remembered that ‘[a]lthough this Court will often strain to construe legislation
so as to save it against constitutional attack, it must not and will not carry this to the point of

16
The State asserts that because I.C. § 18-8504 criminalizes recruitment rather than membership, it does not infringe
upon the right to freedom of association. However, the United States Supreme Court has recognized “a prohibition
of potential association with nonmembers” as an infringement under the First Amendment. Tashjian v. Republican
Party of Conn., 479 U.S. 208, 215 (1986).

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perverting the purpose of a statute . . . ’ or judicially rewriting it.” (quoting Scales, 367 U.S. at
211)). Given the Legislature’s decision to eliminate the requirement of specific intent, any
saving construction, including the construction advanced by the majority, would be contrary to
clear legislative intent.. Thus, I do not believe that it can be so saved.
2. Compelling state interest
The State places substantial emphasis on the United States Supreme Court’s holding in
Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010), in which a constitutional challenge
was levied against a federal statute that criminalized the provision of material support to foreign
terrorists by one who knew either that the group committed terrorist acts or that the group was a
federally-designated terrorist group. The statute at issue in Humanitarian Law Project did not
criminalize mere membership, but instead prohibited speech in the form of the knowing
provision of material support. Id. at 2718. The Court upheld the statute even though it did not
include a requirement that the defendant possess the specific intent to further the illegal conduct
of the terrorist organization. Id. at 2717. Throughout the opinion, the Court framed “the
Government’s interest in combating terrorism [a]s an urgent objective of the highest order.” Id.
at 2724. In light of the “sensitive and weighty interests of national security and foreign affairs,”
the Court afforded substantial deference to the political branches’ assessment of the severity of
the dangers caused by the knowing provision of material support to foreign terrorist groups. Id.
at 2727. The Court concluded that, given the unique circumstances surrounding foreign
terrorism, the challenged provisions were justified and the statute was constitutional on the
grounds challenged. Id. at 2730-31.
The unique facts and narrow holding of Humanitarian Law Project distinguish it from
and make it inapplicable to cases in which statutes affect the associational rights of those who
engage in expressive association with domestic organizations, and the State’s reliance thereon is
therefore misplaced. I do not believe that there is a compelling state interest that justifies the
broad sweep of the Recruiting Provision. Although there is a compelling governmental interest
in national security, Idaho may advance its legitimate and compelling state interest in prevention
of criminal offenses either by imposing a specific intent requirement in the Recruiting Provision
or by the use of traditional prosecutorial tools of conspiracy and solicitation.
For the foregoing reasons, I respectfully dissent from Part III.C.ii of the Court’s opinion.
III. Part III.D – Issues not addressed in the majority opinion.

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 I join in the Court’s decision not to address Manzanares’ claims that the information
failed to contain all necessary elements of the offense and the sufficiency of the evidence. I do
so because I believe that the Recruiting Provision is facially unconstitutional and cannot be saved
by a construction that would impose a specific intent requirement. Therefore, I join in the result
reached by the majority.

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