US v. Hansen, No. 17-10548 (2-10-22)(Gould w/McKeown & Restani). It isn’t everyday one gets the 9th to declare a statute unconstitutional. AFPD Carolyn Wiggins (Cal E Sacramento) and the ACLU et al did so here. The statute is 8 USC 1324(a)(1)(A)(iv), which criminalizes encouraging or inducing an alien to reside in the United States. The 9th held the statute was facially overbroad, and so vacates the two convictions.

The 9th analyzes the statute and agrees with defendant it encompasses substantial protected speech related to immigration. The 9th rejected the gov’t’s argument the statute is narrowly construed to prohibit speech integral to criminal conduct, specifically solicitation and aiding and abetting. The 9th adopted the reasoning of a prior opinion, US v. Sineneng-Smith, 910 F.3d 461,485 (9th Cir. 2018)(Sineneng-Smith I), because, while it was vacated by the Supremes on other grounds, 140 S. Ct 1575 (2020), its analysis is still persuasive. The panel here goes through the statute. It finds a plain legitimate sweep, but the statute also sweeps in substantial protected free speech related to immigration. For example, encouragement for an undocumented immigrant to reside in the United States is protected. There are other examples, such as advice in the face of natural disasters, legal advice, advising about social services, or the consequences of overstaying a visit. The expanse of legitimate speech is far greater than the narrow legitimate criminal conduct. The government’s promise to use it only legitimately is unpersuasive.

The other convictions -- the defendant conducted mail and wire fraud through a program touting adult adoption for undocumented immigrants -- were affirmed in a memo.

Congrats to AFPD Wiggins and the ACLU.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/10/17-10548.pdf

US v. Mendoza, No. 19-50092 (2-8-22)(Bea w/Berzon & Nguyen). 

A conspiracy/RICO/924c win – insufficient evidence.  The 9th vacates convictions and orders judgments of acquittal. The defendant was alleged to have been in a California gang: Canta Ranas. He admitted involvement, but said he withdrew 8 years prior. He acknowledges a meth addiction, and argued the sporadic contacts were simply to buy drugs for his own use. For example, out of 21,000 texts/calls the government had between the gang members, only 4 involved the defendant. The context was of a buyer for own use. Lacking direct evidence as to any agreement, there was also a lack of evidence presented of “prolonged and actively pursued course of drug sales” that would lead to an inference. This was true even in the light of evidence most favorable to the government. This lack holds for the conspiracy and RICO counts. It also undercuts the gun charge. An all too rare conspiracy win.

A great win for Ethan Balogh, CJA.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/08/19-50092.pdf

 US v. Schlenker, No. 20-30141 (2-1-22)(Paez w/M. Smith & Nguyen).  

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/01/20-30141.pdf

Keith Hilzendeger provided this blurb:  The defendant here pleaded guilty to second-degree murder and a § 924(c) count in 2016.  After the Ninth Circuit held that second-degree murder wasn’t a crime of violence, he sought a declaration from the court that filing a § 2255 motion to challenge the § 924(c) conviction wouldn’t be a breach of the plea agreement.  The district court dismissed the declaration for lack of jurisdiction under the Declaratory Judgments Act.  The Ninth Circuit affirmed, because the declaratory judgment action was just an end-run around the § 2255 process.  Moral of the story here – if you want to know if certain litigation will breach the plea agreement, you have to take the risk and start that litigation. 

A hard-fought battle by Alan Zarky, AFPD in Tacoma.