FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10548
Plaintiff-Appellee, D.C. No.
2:16-cr-00024-
v. MCE-1
HELAMAN HANSEN,
OPINION
Defendant-Appellant.
On Remand from the United States Supreme Court
Argued and Submitted March 5, 2024
Seattle, Washington
Filed April 3, 2024
Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Jane A. Restani,* Judge.
Opinion by Judge Gould
*
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
2 USA V. HANSEN
SUMMARY**
Criminal Law
On remand from the Supreme Court, the panel vacated
Helaman Hansen’s convictions on two counts of
encouraging or inducing an alien to come to, enter, or reside
unlawfully in the United States for private financial gain, in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and
1324(a)(1)(B)(i); and remanded to the district court for
further proceedings.
The panel held that the Supreme Court’s decision in this
case, United States v. Hansen, 599 U.S. 762 (2023), compels
the insertion of a specific intent mens rea element into the
jury instructions for charges under § 1324(a)(1)(A)(iv).
Because the jury instructions for the two counts omitted this
element, the instructions were erroneous. Given conflicting
testimony at trial, and the centrality of a mens rea
requirement to a criminal conviction, the panel concluded
that the error was not harmless.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. HANSEN 3
COUNSEL
Sonja Ralston (argued), United States Department of Justice,
Civil Division, Appellate Staff, Washington, D.C.;
Katherine T. Lydon, Assistant United States Attorney;
Camil A. Skipper, Assistant United States Attorney,
Appellate Chief; Phillip A. Talbert, Acting United States
Attorney; Eastern District of California, United States
Attorney’s Office, Sacramento, California; Lisa H. Miller,
Acting Deputy Assistant Attorney General; Kenneth A.
Polite, Jr., Assistant Attorney General; United States
Department of Justice, Washington, D.C.; for Plaintiff-
Appellee.
Carolyn M. Wiggin (argued), Assistant Federal Public
Defender; Heather E. Williams, Federal Public Defender;
Sacramento Federal Public Defender’s Office, Sacramento,
California; for Defendant-Appellant.
Cecilia D. Wang, ACLU Center for Democracy, San
Francisco, California; Vera Eidelman, American Civil
Liberties Union Foundation, Washington, D.C.; Shilpi
Agarwal, American Civil Liberties Union Foundation of
Northern California, Inc.; for Amici Curiae American Civil
Liberties Union and American Civil Liberties Union of
Northern California.
4 USA V. HANSEN
OPINION
GOULD, Circuit Judge:
Defendant-Appellant Helaman Hansen appeals his
convictions on two counts of encouraging or inducing an
alien to come to, enter, or reside unlawfully in the United
States for private financial gain, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i).1 Hansen’s case
is before us on remand from the Supreme Court. See United
States v. Hansen, 599 U.S. 762, 766, 774–78 (2023). On
remand, Hansen contends that the Supreme Court’s decision
means that the jury instruction for these counts was
erroneous. We agree. We have jurisdiction under 28 U.S.C.
§ 1291. We vacate Hansen’s convictions under Counts 17
and 18 and remand for further proceedings.2
I
Helaman Hansen ran an organization that purported to
help undocumented immigrants become United States
citizens through adult adoption. He did this through his
organization called Americans Helping Americans (AHA).
Hansen and other members of his organization filed
1
Hansen was also convicted on twelve counts of mail fraud under 18
U.S.C. § 1341 and three counts of wire fraud under 18 U.S.C. § 1343.
We affirmed his fraud convictions in a memorandum disposition, United
States v. Helaman Hansen, No. 17-10548, 2022 WL 424827, at *1 (9th
Cir. Feb. 10, 2022) (mem.). The Supreme Court’s mandate did not affect
the fraud convictions.
2
Hansen also argues that, in light of the Supreme Court opinion, the
evidence was insufficient to support these two convictions, and that this
subsection of the statute is void for vagueness or otherwise
unconstitutional as applied to him. We do not reach these issues and
express no opinion on them.
USA V. HANSEN 5
participants’ adoption petitions, sometimes using false
information. Hansen told participants that people had
become citizens through the AHA program. Hansen later
admitted to federal agents that this representation was false,
and that no one had obtained citizenship through the AHA
program.
Relevant to our opinion, two participants in AHA
overstayed their ten-year multi-entry visas to the United
States. Epeli Vosa was a citizen of Fiji and Great Britain.
Vosa said that he had a “valid visa” and asked Hansen
whether Vosa should leave and re-enter the country in order
to participate in the adult adoption program. Hansen assured
Vosa not to worry about the visa and said that Vosa would
get citizenship by completing the program. At trial, Hansen
testified that he told Vosa that it was Vosa’s choice whether
to remain in the country, without giving a recommendation.
Vosa was adopted in June 2014. Vosa’s visa expired, for the
purpose of that visit, in July 2014. Vosa remained in the
United States. Mana Nailati was also a citizen of Fiji.
Hansen told Nailati that participating in the program would
keep Nailati “safe” from immigration authorities. Hansen
testified at trial that he told Nailati that it was Nailati’s choice
whether to remain in the country, without giving a
recommendation. Nailati was adopted in November 2014.
Nailati’s visa, for the purpose of that visit, expired in
February 2015. Nailati remained in the United States.
At trial, Hansen proposed a jury instruction for his
unlawful immigration charges under Counts 17 and 18,
stating that the Government needed to prove 8 U.S.C.
§ 1324(a)(1)(A)(iv) by showing, in pertinent part, that the
defendant “substantially encouraged or induced [name of
alien] to reside in the United States in violation of law” and
“intended that [name of alien]’s residence in the United
6 USA V. HANSEN
States would be in violation of the law.” By contrast, the
Government proposed instructing the jury that the defendant
“encouraged or induced [Vosa and Nailati] to reside in the
United States in violation of law” and “knew or acted in
reckless disregard of the fact that [Vosa’s and Nailati’s]
residence in the United States would be in violation of the
law.” The district court adopted the Government’s
instruction, which was also the Ninth Circuit’s pattern jury
instruction for this sub-clause. As a result, the jury
instructions at trial for Counts 17 and 18 did not include an
element requiring a specific intent mens rea.
The jury convicted Hansen on all counts, including
Counts 17 and 18. Hansen moved for a judgment of
acquittal, including by arguing that 8 U.S.C.
§ 1324(a)(1)(A)(iv) was unconstitutionally overbroad under
the First Amendment; unconstitutional as applied; and void
for vagueness. The district court denied a judgment of
acquittal and sentenced Hansen in December 2017. Hansen
was sentenced to 240 months for each of the mail and wire
fraud counts and 120 months for each of the unlawful
immigration counts, all to run concurrently.
Hansen timely appealed and argued in part that the
district court’s denial of his motion to dismiss Counts 17 and
18 was improper, because of the constitutional deficiencies
in the underlying statute. We vacated Hansen’s convictions
on Counts 17 and 18 and remanded in part, holding that 8
U.S.C. § 1324(a)(1)(A)(iv) was unconstitutionally
overbroad under the First Amendment. See United States v.
Hansen, 25 F.4th 1103, 1105 (9th Cir. 2022).3
3
Because we resolved Hansen’s appeal on his overbreadth challenge, we
did not reach his other constitutional claims that Subclause (iv) is
USA V. HANSEN 7
The Supreme Court granted the Government’s petition
for a writ of certiorari, United States v. Hansen, 143 S. Ct.
555 (2022), and reversed and remanded, holding that:
“Properly interpreted, this provision forbids only the
intentional solicitation or facilitation of certain unlawful
acts.” Hansen, 599 U.S. at 766.
II
Whether jury instructions misstate the elements of a
crime is a question of law reviewed de novo. United States
v. Rivero, 889 F.3d 618, 620 (9th Cir. 2018).
Clause (iv) of Section 1324(a)(1)(A) states that “[a]ny
person who . . . encourages or induces an alien to come to,
enter, or reside in the United States, knowing or in reckless
disregard of the fact that such coming to, entry, or residence
is or will be in violation of law . . . shall be punished as
provided in subparagraph (B).” 8 U.S.C.
§ 1324(a)(1)(A)(iv). Clause (iv) does not provide “any
express intent requirement.” Hansen, 599 U.S. at 778.
However, transplanting the terms “encourages” and
“induces” from the “old soil” of the common law brings
along “the traditional intent associated with solicitation and
facilitation.” Id. at 778–79 (internal quotation marks
omitted) (citation omitted). “Both [terms], as traditionally
understood, require that the defendant specifically intend
that a particular act be carried out.” Id. at 778. Section
1324(a)(1)(A)(iv) “requires that the defendant encourage or
induce an unlawful act,” id. at 780 (emphasis added), “and
that the defendant ‘know[]’ or ‘reckless[ly] disregard’ the
unconstitutional as applied to Hansen or void for vagueness. See
Hansen, 25 F.4th at 1106.
8 USA V. HANSEN
fact that the act encouraged ‘is or will be in violation of
law,’” id. (second alteration in original).
The Supreme Court’s Hansen decision compels the
insertion of a specific intent mens rea element into the jury
instructions for charges under 8 U.S.C. § 1324(a)(1)(A)(iv).
The jury instructions at Hansen’s trial only required the
Government to prove Counts 17 and 18 by showing that
Hansen “encouraged or induced [Vosa and Nailati] to reside
in the United States in violation of law” and “knew or acted
in reckless disregard of the fact that [Vosa’a and Nailati’s]
residence of the United States would be in violation of the
law.” The instructions did not require the Government to
prove that Hansen intentionally encouraged or induced Vosa
or Nailati to overstay their visas. Hansen, 599 U.S. at 780.
The traditional common-law meaning of solicitation and
facilitation requires a Section 1324(a)(1)(A)(iv) defendant to
“specifically intend that a particular act be carried out.” Id.
at 778; see also Rosemond v. United States, 572 U.S. 65, 70–
71 (2014). At Hansen’s oral arguments before the Supreme
Court, Justice Kavanaugh asked whether the Government
agrees that “the intent requirement that’s traditionally
associated with aiding and abetting and solicitation should
be part of the statute,” and the Government responded, “We
do.” Oral Argument at 6:04–6:15, United States v. Hansen,
599 U.S. 762 (2023) (No. 22-179)
https://www.oyez.org/cases/2022/22-179; see also Hansen,
599 U.S. at 809–10, n.9 (Jackson, J., dissenting). Our
circuit’s pattern jury instruction, now revised following the
Supreme Court’s decision in Hansen, states: “For purposes
of this statute, the term ‘encourage or induce’ means the
intentional encouragement of an unlawful act or the
provision of assistance to a wrongdoer with the intent to
further the commission of an offense.” Manual of Model
USA V. HANSEN 9
Criminal Jury Instructions for the District Courts of the
Ninth Circuit § 7.4 (2022 ed., updated Aug. 2023).
Specific intent is a required element of Section
1324(a)(1)(A)(iv). The jury instructions for Hansen’s
Counts 17 and 18 omitted this required element, so the
instructions provided at Hansen’s jury trial were erroneous.
No party disputes this on remand.
III
When a jury instruction omits an element of an offense,
we review for harmless error. Neder v. United States, 527
U.S. 1, 8–10 (1999). “The Government’s burden in proving
harmless error is a high one” when the district court omits
one of the elements of the crime charged. United States v.
Montoya-Gaxiola, 796 F.3d 1118, 1124 (9th Cir. 2015). If
the related evidence is “neither overwhelming nor
uncontested,” the error is not harmless. Id. at 1125.
Conflicting testimony at trial here suggests that the record is
contested as to whether Hansen intended to encourage or
induce the two relevant victims to overstay their visas.
Given this, and the centrality of a mens rea requirement to a
criminal conviction, it is not clear beyond a reasonable doubt
that a properly instructed jury would have convicted Hansen
on Counts 17 and 18. Such an error is not harmless.
IV
We VACATE Hansen’s convictions under 8 U.S.C.
§§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i) with regard to
Counts 17 and 18 and REMAND for further proceedings
consistent with this opinion.