please be seated we welcome you to here to the court today we have a pretty interesting very interesting docket we also have our traffic rules which we urge you to follow when the yellow light comes on at your podium you have two minutes left when the red light signals we ask you to complete your argument as soon as possible unless you're answering questions from the court we have read the briefs and record excerpts we may not be we will not be fully acquainted with the record so we appreciate citations to the record when those are appropriate we'll call the first case of the morning number seventeen four zero eight three six united states  thank you your honor please the core of all i'm going to present as we happen are brief three critical issues which we think and have submitted to the court impact the validity of these convictions the first is an issue of national significance if it's presently under consideration also in the ninth circuit and that yes the constitutionality of the residual was about eight u s c thirteen twenty four a won a four and that  the question of whether the language used in the residual cause is insufficiently perseid to permit that constitutional enforcement it's our position that the residual clause by using the language of it and a very low c enter standard for what is a serious and terms of the possible punishment that can be and imposed that it is so day that it leaves the determination to juries judges and prosecutors and law enforcement agents and that any one of these bodies by their own decisions and enforcement decisions can define that which the law for a bit well i'm going to cordons with i'm sorry your honor well excuse me if you could your brief said that this was the supplemental briefing it been requested in the ninth circuit and i didn't pursue that to see whether they issued a decision but my other quick my more pertinent question is i thought you couldn't bring a vagueness challenge when a particular conviction falls which clearly within the scope of the statute your honor that was the position of  that case your honor that for a substantial period of time if you were making a void for vagueness argument other than in a first amendment context you had to demonstrate that it applied that it was unconstitutional as applied to you it is now permissible sense johnson and i believe we discussed that at some length in our reply barry it is now but that has been done away with so to speak and that obstacle no longer exists a void for vagueness challenge may be fully urged  other than in the for some for a first amendment context although i will say and we also say this in our briefing that inducing an encouraging can only  impact first amendment concerns because the nature of the language is what happens and we we also supplement it with a very recent decision a deficient and void for vagueness and i commend to the court just because it's such a thorough treatment by judge gorse of the of the historical background of the void for vagueness ruling he emphasizes as well as does justice kagan who writes for four members of the majority they both everything's just fine if everyone's pursuing their own constitutional duties but when you start pursuing the other branch of constitutional duties as well you you create some serious problems aspect of the void for vagueness doctrine so it is to follow one you're leaving a discretion to other authorities including juries who may have a predilection that they are then permitted to pursue and they are permitted to enforce their own prejudices and prejudice and immigration matters was acknowledged by the court below  something we'll be concerned about let me be a little more specific about this case then you preserved error on the alleged vagueness of the state of mind reckless disregard you apparently did not preserve error on interpreting the terms induce or encourage so we're on a plane error review as to the latter is yes wrecked yes your honor yeah well that's too bad i would have thought in encourage in this context was much more susceptible of a challenge than reckless disregard which is reckless disregard is common throughout the criminal law so how can it be  simply compounds the vagueness that we're dealing with out and it's very important to remember that this is in this particular statute your honor i think the problems that the void for vagueness problems that are attendant are even are even worse than them the johnson case in the dimaggio case for this reason not only do they not tell you what the conduct text is your honor they also supplied in the indictment here the four bit the conduct the forstmann folks the agents and the prosecutors have decided should be against the law and you have separately with them the statutory scheme this this statutory scheme deals with employment separately so they filled in the blanks with something that is other section thirteen twenty four that address employment well i know so and will be be more specific about why those sections preclude applying this one to an employment context i think that if it isn't necessary to consider about the issue because it leaves to the discretion of the executive authority and the judiciary how to fill in the blanks with the conduct battle alone is sufficient to avoid for bag this document but here what they've done is in deciding to make employment they have a subject matter that the congress had sort of dressed in that very statutory scheme in a different way and certainly with severe anywhere near as severe honor but to address the court's question about flying error and this is a repetition from our brief and i certainly don't think this is the only rap only reference if you go to the not merely eroni us but is a legal and void and cannot be an illegal cause of punishment so i respectfully your honor i certainly take the court's point  i don't think it gets much plainer than that if i may just briefly say one thing about the general search claim that we founding this case presents some opportunity for the court to in a very simple straightforward way address a general search because it was a general sir let me tell you this we we hear a lot of medicare fraud cases and although the party so necessarily raise it it seems almost customary in those fraud cases the one the government is investigating it goes  with the sensually a search warrant like the one that your client faced so yeah so maybe it's great general searches are becoming increasingly commonplace well that's because the nature of these  regulatory offenses has to do with the conduct of a business that has a lot of you know tentacles that are that are violating the law that's true but nonetheless there must be limits imposed on want to i do want to say because it is an important issue that we're dealing with a false statement conviction and a piece of petition and it's our position that you cannot convict a person preemptively for something he has not done actually even if he's done that before the court's decision and shot on which the government relied on the lower court relied is not an exception because that was one come temporist contemporaneous and said on fairly and squarely if you and it's a false statement case this case the government failed to do so because the government gave the jury eight unique distinct legal descriptions of the property and left it to the jury to determine which of those legal descriptions was twenty nine forty nine west audie murphy parkway  what the the forfeiture statute at issue here defines property as the instruments that created the property itself which would include a legal description and address would be akin to the clear title and marketable title to the government and without having sufficient evidence in the record that it's really confusing here about what we are talking practically speaking oh yes your honor in the confusion can be seen in the testimony of the parcels descriptions rather were different property called the tree form they were located miles away the government literally told the jury that these same legal descriptions were two separate and distinct local pieces of property in two separate  and so what we've got is an issue where the government put on proof that the underlying conduct did occur at some specific locations but the government failed to actually identify the legal description which the court cannot go back and remedy this issue now at the district court level while forfeiture is a part of a defendant senates in this particular instance the defendant had a right to a jury determination of the issue and because the jury verdict is what we're with conspiring to encourage him to do state individuals to reside in the united states while knowing and reckless disregard of the fact that it was illegal for them to do so and on four separate substantive counts of the same encouraging inducing activity and specifically the charges of encouraging inducing importantly were less free for the purpose of commercial advantage and private personal let me ask you a question why didn't you charge harboring it is particular case  honor i think that there would be some evidence to support a harboring charge for instance the evidence showing that both legally present workers as an abuse of workers were workers who were not documented were in fact provided housing on the real commercial property to belong to right landscaping right that would support potentially harboring type of charge in this particular case also the evidence shows that there was significant evidence about the aliens well i asked my clerk to look up how many prosecutions there had been under this provision but she didn't find many or at least not many are reported there is an eleventh circuit united states nonny but in that case the court charged both harboring and the induce encouraging and the court deals with it in about two paragraphs so it wasn't really a challenge but transforming inducing encouraging to reside into hiring people that you know are it employing people you know are illegal seems to me a linguistic stretch your response would note if this was and i think this is part of mr ended his argument is that this is simply one that is all this was was his company it landscaping and its owner who have asked control and complete control and knowledge oversaw operations was simply employing people who undocumented in this country and if that were all it's worth i think that would that would share the concern of the court has been raised but in this particular case the the facts went far beyond this and in fact they showed that the  prosecutorial discretion between the facts of this case and an employer let's say a mag donalds that under some french eyes he knowingly hire illegal aliens but pays them substandard housing to workers on land that was owned by landscaping but you're not answering my question whether or not with respect to interpret ing inducing and encouraging what is a difference beyond between what this fellow did and what my hypothetical sanctuary mcdonalds would do because they wouldn't have to provide housing if they weren't underpaying and exploiting the is not such as the facts of this case that there was a literal sanction were provided to you on darker workers but but if it is correct that vagueness has to do with the overall extent of the law and the and the amount of discretion conferred on the prosecutor would you not have to agree that the sanctuary employer is violating the law this statute inducing or encouraging just as much as sander to and although you may have exploited features there are i believe that he also urged him to do these workers by from the outset interviewing in spanish he spoke spanish he told them you can stay and i will pay you cash if you have no documents whatsoever well the sanctuary mcdonald's says where the sanctuary mcdonalds are you know i don't mean saying anything that anyone will take in the wrong spirit about mcdonald's but the  sanctuary small employers or small employers all over the place i mean you only need to drive around houston to infer that they are probably a lot of small employers who are looking askance not paying attention to saying you were prosecuting this off ends because this is an extreme example of and it's not the most extreme but it's an extreme example about disregard of the federal law but anybody under by that agent and where is that in the statute or that's comports with two things one is the common meaning of the words you know that's a narrowing construction as far as i'm concerned they are respectful i believe that the cases problem because what you're saying i mean i'm looking at the konami case and there's no limitation about in order to evade the u s immigration laws or anything like that in konami of the court just  provided the elements of thirteen twenty four a one a four as they are written and i agree with you and that's my whole point even though it is playing air encouraging and do say very  in your area in response to two issues one is is as it indicated the i believe that the common usage of the terms encouraging induce can be used but in this case the government's position is these terms  essentially someone who is taking action to assist someone in a violation of the immigration laws and secondly they had a part from the common dictionary usage of these terms that we believe is well understood that the statutory context of these terms is also important as record knows within section thirteen twenty four part a prior to this particular courage and inducing subsection there are three other sections that relate to unlawful conduct and those all relate to action terms and those include bringing a sword but i just see if i can get a clear answer on this what is the limiting principle between if i were to walk in be a brand new assistant us attorney as what's the difference what would be that limiting principle or that to limit to the lineage in principle you would give me and your are you referring to thirteen twenty four as a the next statutory section which is really the employment so i am talking about the one  hiring somebody you know ok that's a misdemeanor and what right and so it's a very different prosecution what facts would you tell me i should be looking for to go from that hiring line to the inducing one you're right i would focus on in that particular case the which is not here before the court bit of the i think the we would encourage you if this statute or the activity showed simple employment no other words at the employer had on their roster or their list of employees numbers of undocumented workers then that would be the key situation they didn't provide housing they didn't pay people in cash for overtime they didn't have a complicated system the squeezing cash out of the business to pay their workers and so forth those are all factors that move this case from the government's position at of the super bowl or gas and the housing i'm still having a little trouble knowing like what you're saying i guess if all you did is employ then we're just on hiring if you do something more that helps him or her stay here work every day your honor would have to view that in context in that you'd again think the context of this case is mr anderson clearly knew that he was employing large numbers of persons who were not documented workers that from the outset that he was interviewing them frequently in person telling them get documents if you don't have documents i'll still hire you providing them with housing paying them in cash essentially off the books saving  leave it to well i kind of feel like this guy's a lot worse than these sanctuary you know restaurant or whatever we've been positive this guy just seems whores ok how would the person know what th take him to the office and then he does his job and i drop back and it's no extra gas for me no extra trouble at all but it's certainly helping him get there is that enough they are this particular case the charge was encouraging or reducing the up on judge changes perceptive analogy in this canonic case which is from two thousand and seven the statement of fact is very minimal and it just says that this fellow was a forty percent owner of some what looks like some kind of clothing lower scale clothing stores or quickie mart search something and he employed a bunch of unauthorized aliens to gain a competitive advantage and one of the one fellow testified it was his perception that he had met these people in his religious responsibilities as a little leader in his religious community and they came to him so he was  in clear disregard of their visa status but he is the only facts that support the conviction according to the eleventh circuit are that he was employing the illegal aliens and they charge both harboring and inducing encouraging so i mean to me that ix that it is an example where the government didn't use these limiting or extreme factors that you that you contend exist here that those terms just as summary there are commonly used terms is as be used in the dictionary i believe that there was no objection to that particular part of the court's charge of where they were defined the court did define the terms states the following the government never established quote establish a nexus between and those are bracket the unique legal description of this partial property and bracket and the office when this the rule only requires that the government establish the requisite nexus in this case there is a misstatement of the burden of proof because the only thing the government is required to prove for the purpose of the forfeiture trial which is what happened in this case is that there was a facilitation of the office that occurred related to this real property as uncontested that that evidence was sufficient you know that mr anderson admitted as much in the record below and so really the only question was that goes to the jury is did this piece of property office and agent testify that he had located the office at that address twenty nine forty nine west audie murphy parkway mr deviation the record identified photograph as the a in a office at the record of page fifteen twenty two bill your owner's the question was asked why i was on harboring charge i think there's a reason harboring what was not charged and it's because they could not prove concealment which is as he was doing it all out in the open but there isn't one of the difficulties of this record and the government's prove concerning which we did not bear the burden of proof is that there are no times identified for when things occur and it is a fair reading of this record that this evolved from a small business to a much larger and more successful business and that originally workers long before the allegations of this conspiracy were paid  cash then they were pay and both cash and check their regular hours were paid by check and the over time was paid in cash there's no question were placed in some kind of substandard housing respectfully your honor is ridiculous if you look at the defense exhibits in this i don't know that that's relevant only i mean that's relevant to them i'm if we were prevail if we prevail on the void for vagueness argument obviously that would obviously that is if we prevail but that would not preclude  i don't have stashed limitations figures in this but it would not preclude the government from pursuing the employment theory that you're that you're espousing here the hiring you mean  well you're the one who gets the rights to charge this guy with the hiring it's a misdemeanor so that's fine but it's still a crime so what i'm saying is you are not contending that the paper of the conviction on cost to show ground well i think if we are correct about the general search there has to be a remained to determine the impact and that's not what this court wants to do clearly evidence from the search for the trial so that has to occur when i don't yes i don't think you salvage this felony conviction and the employment context nor should you because basically the whole point as an ad h subjective basis on which the conduct that has been supplied here thank you your honor  thank your honor your honor section eight fifty thirty eight fifty six and seven says that the purpose of the forfeiture is to create clear and marketable title in the government the cases that have addressed this issue you have said the definition of property for this statute is the legal descriptions or deeds or or paperwork that transfers or gives rise to the existence of the property right the government agrees that they must prove what the actual legal description is because they attempted to do it at trial you cannot perfect a forfeiture simply by identifying a piece of property by an address that is simply unworkable because the property cannot be transferred with clear and marketable title or in even a realistic practical way to the government and so to finish by going back to judge chains original question is there really any confusion here and the confusion of besides the fact that witnesses said that these legal descriptions were for two completely different pieces of property stems from this if the government doesn't have to affirmative y prove it amount of time i finish this one so that the government doesn't start sam thank you affirmatively prove what the actual legal description is they simply can bring into court all the legal descriptions of all the property owned by a defendant or in a subdivision or in a city or in a county and say it's in there somewhere here's the address and that's just not sufficient