IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40836

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v.

DAVID ALLEN ANDERTON, 

 Defendant - Appellant

Appeals from the United States District Court

for the Eastern District of Texas

Before JOLLY, JONES, and HAYNES, Circuit Judges

EDITH H. JONES, Circuit Judge: 

David Anderton was convicted of making a false statement in an 

immigration document in violation of 18 U.S.C. § 1546(a) (Count 1); conspiracy 

to encourage and induce an illegal alien to reside in the United States in 

violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 2); and encouraging an illegal 

alien to reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv)

(Counts 3-6). On appeal, he challenges (1) the constitutionality of 

8 U.S.C. § 1324(a)(1)(A)(iv) and his conviction thereunder; (2) whether the 

indictment should have been dismissed for failure to state an offense; (3) the 

sufficiency of the evidence to sustain a conviction for Count One; (4) the 

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2018

Lyle W. Cayce

Clerk

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constitutionality of some of the search warrants; and (5) the final order of 

forfeiture for the property on 2949 West Audie Murphy Parkway. For the 

reasons given below, we AFFIRM.

BACKGROUND

Anderton was president of A&A Landscape and Irrigation GP (“A&A”), 

a company operating around the greater Dallas, Texas area. In December 

2011, Anderton signed a Form I-129 (Petition for a Nonimmigrant Worker) for 

A&A, stating that the job would not involve overtime and the visa workers 

would be paid “the highest of the most recent prevailing wage that is or will be 

issued by the Department [of Labor].” The “prevailing wage” hourly rate at 

the time was $8.16 to $11.16 or $12.24 for overtime. Anderton signed this 

document under the penalty of perjury. 

In 2016, Anderton was charged with violating 18 U.S.C. § 1546(a) (Count 

1), 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 2), and 8 U.S.C. § 1324(a)(1)(A)(iv)

(Counts 3-6). Anderton moved to dismiss Count One for failure to state an 

offense. He also moved to dismiss Counts Two-Six, arguing that “reckless 

disregard” is a constitutionally deficient scienter. The court denied both 

motions. Anderton also moved to suppress evidence that was obtained under 

search warrants he argued were unconstitutional general warrants. The court 

denied this motion. 

At trial, three visa workers testified that they worked overtime and were 

not paid more for overtime. Two testified that Anderton withheld $1,000 of 

their pay for “visa expenses” and one stated that Anderton withheld this 

amount from other visa workers as well. They also testified that Anderton 

withheld some of their pay for rent. All were paid far less than time and a half

for their overtime and two claimed to have been paid less than minimum wage. 

They testified that they were paid for regular time by check and overtime with 

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cash. Timesheets for these three workers reflected substantial amounts of 

overtime. 

The former vice president of operations for A&A, Anthony Diesch, 

confirmed that workers were paid in part by check and in part by cash. 

Further, Anderton instructed that workers who “had papers” were to be paid 

partially by check, but other workers would be paid only in cash. According to 

Diesch’s records, one employee was paid as little as $5.50 an hour in 2008. In 

October 2008, Anderton reported to Diesch there was some “heat” regarding 

payroll and they needed to get rid of the payroll spreadsheets. Anderton also 

explained that money was withheld from visa workers’ pay to reimburse A&A 

for visa expenses. 

Diesch described Anderton’s system of writing checks to “Refugio 

Rivera,” which he would cash for currency to pay the workers. Leslie 

Ducharme, a former employee, testified that Anderton told her to create false 

invoices, which were drafted after the checks had been written and purportedly 

covered tree purchases. Anderton directed Diesch that the checks must be 

written for less than $10,000 because he believed the IRS would flag checks 

over that amount. 

Blanca Lenal, another government witness and previous A&A employee,

testified that Anderton would ask workers during job interviews whether they 

had legal documents. If they lacked legal documentation, he would tell them 

they would get paid cash at a rate less than minimum wage. According to 

Ducharme, when the Social Security Administration informed A&A that the 

names on employee W-2s did not match the social security numbers A&A had 

provided, Anderton advised his managers to take the employees off payroll, 

and “[t]hey’ll have a different I.D. at another time.” A few weeks later, such

workers would have a new social security number. 

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The government presented testimony from four A&A employees who 

admitted being in the U.S. illegally. Two of these workers stated that Anderton 

told them to go back to Mexico and get work visas. When they could not obtain 

visas, they so informed Anderton, but he employed them anyway. Finally,

social security records were admitted in evidence, demonstrating that “of 375 

names and corresponding social security numbers gleaned from A&A records, 

only 128 of the names and numbers matched and 37 of the employee names 

had no social security number.” 

The jury convicted Anderton on all counts. After the criminal trial, the 

jury convened to hear a forfeiture motion and found that the company’s

property at 2949 West Audie Murphy Parkway was used to facilitate all six 

counts of the offenses. Over Anderton’s repeated objections, the district court

granted the final order of forfeiture covering this property. 

Anderton moved unsuccessfully for acquittal and for a new trial. The 

court sentenced him to five years’ probation, a $60,000 fine ($10,000 per count), 

and restitution exceeding $19,000. 

Anderton timely appealed.

STANDARDS OF REVIEW

This court reviews preserved challenges to the sufficiency of an 

indictment de novo. United States v. Grant, 850 F.3d 209, 214 (5th Cir. 2017). 

If a defendant fails to preserve an issue in the district court, this court will 

review the objection for plain error. United States v. Fairley, 880 F.3d 198, 206 

(5th Cir. 2018). Plain error “requires that there was (1) error, (2) that is plain, 

and (3) that affects substantial rights.” Id. (citation omitted). Courts “should 

correct a forfeited plain error that affects substantial rights if the error 

seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906 (2018) 

(citations and quotation marks omitted). 

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If a defendant preserves a sufficiency of the evidence claim, it is reviewed 

de novo but “with substantial deference to the jury verdict.” United States v. 

Suarez, 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). This court affirms 

convictions “if a reasonable trier of fact could conclude . . . the elements of the 

offense were established beyond a reasonable doubt.” Id. (citation omitted). 

“Factual findings in a ruling on a motion to suppress are reviewed for 

clear error” and questions of law are reviewed de novo. United States v. Moore, 

805 F.3d 590, 593 (5th Cir. 2015). Furthermore, the “evidence is viewed in the 

light most favorable to the prevailing party.” Id. 

DISCUSSION

I. Counts Two-Six

(a)Challenges to Section 1324(a)(1)(A)(iv), (v) 

Pursuant to 8 U.S.C. § 1324(a)(1)(A)(iv), it is illegal to “encourage[] or 

induce[] an alien to come to, enter, or reside in the United States, knowing or 

in reckless disregard of the fact that such . . . residence is or will be in violation 

of law.” Subsection (v) criminalizes conspiracy to that end. Anderton argues 

that this statute is unconstitutionally vague as applied to him for several 

reasons. He contends that the terms “encourage” and “induce” are so broad as 

to have no discernible parameters and may include many activities, such as 

engaging in charitable or educational relationships with illegal aliens, that are 

not inherently illegal. He asserts that making such conduct a felony offense 

under a mens rea of reckless disregard of other persons’ illegal presence

exacerbates the vagueness, particularly because various statutes and 

regulations strictly limit an employer’s ability to question the immigration 

status of new or existing hires. Finally, he likens his situation to cases in which 

other provisions of Section 1324 have been construed to require the defendant’s 

active concealment of illegal aliens’ status. See, e.g., United States v. Varkonyi, 

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645 F.2d 453, 459 (5th Cir. 1981) (illegal harboring does not include “mere 

employment”); DelRio Mocci v. Connolly Props. Inc., 672 F.3d 241, 247 (3d Cir. 

2012) (“knowingly renting an apartment to an alien lacking lawful 

immigration status” does not constitute illegal harboring). We discuss each of 

these propositions in turn.

As to vagueness, Justice Scalia summed up, “[o]ur cases establish that 

the Government violates this guarantee [of the Due Process clause] by taking 

away someone’s life, liberty, or property under a criminal law so vague that it 

fails to give ordinary people fair notice of the conduct it punishes, or so 

standardless that it invites arbitrary enforcement.” Johnson v. United States, 

135 S. Ct. 2551, 2556 (2015) (citing Kolender v. Lawson, 461 U.S. 352, 357-58, 

103 S. Ct. 1855, 1858 (1983)). This court is concerned that the instant statutes 

of conviction, Sections 1324 (a)(1)(A)(iv) and (v), are extremely broad and the 

consequences of a felony conviction are harsh. Whether these terms are 

unconstitutionally vague is another matter. Courts must indulge a 

presumption of constitutionality and carefully examine a statute before finding 

it unconstitutional. Skilling v. United States, 561 U.S. 358, 405-06, 

130 S. Ct. 2896, 2929-30 (2010). 

Anderton acknowledges, moreover, that he did not assert the vagueness 

of “encourage” and “induce” in the district court. Consequently, our appellate 

review is confined to “plain error,” the standards of which are noted above. In 

the absence of relevant circuit precedent, Anderton relies on general principles 

and cites no similar case law concerning the vagueness doctrine to demonstrate 

error that was or is “plain.” The lack of legal authority “is often dispositive in 

the plain-error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 

2015). In fact, our sister circuit has affirmed convictions under these statutes 

where the defendants were employers of multiple illegal aliens. United States

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v. Khanani, 502 F.3d 1281 (11th Cir. 2007). Given this background, it would 

be difficult to find plain error.

Looking to the statutory language, we are strongly inclined to conclude

that “encourage” and “induce” are sufficiently clear to provide fair notice to the 

public and guide law enforcement. The district court instructed the jury

succinctly that “[e]ncourage means to knowingly instigate, help or advise. 

Induce means to knowingly bring about, to effect or cause or to influence an 

act or course of conduct.” See United States v. He, 245 F.3d 954, 957 (7th Cir. 

2001). The instructions respond to Anderton’s complaint that this aspect of 

Section 1324(a)(1)(A)(iv) fails to require purposeful conduct.

The Third Circuit discussed these terms in the course of rejecting a RICO 

claim based on an apartment owner’s having rented to illegal aliens. DelRioMocci, 672 F.3d at 248-50. The court reached a narrower interpretation than 

the acts of offering mere “help” or “advice” to aliens, terms included in the 

district court’s instructions here. As the Third Circuit would have it, dictionary 

definitions provide that “encourage” and “induce” imply conduct “incit[ing] 

aliens to remain in this country unlawfully when they would otherwise not 

have done so.” Id. at 250. Anderton urges this court to adopt that 

interpretation. For two reasons, we need not do so. First, the Third Circuit 

acknowledged that cases using “help” and “advise” to expound the statutory 

provision had actually involved far more activity in support of illegal aliens’ 

entering or remaining in the U.S. Id. Second, Anderton’s conduct, in

employing illegal aliens over a period of years with persistent disregard for 

federal immigration law, plainly exerted influence on the aliens’ decisions to 

remain here illegally in the U.S. Thus, this was not a case of episodic or 

humanitarian aid, which could give rise to vagueness issues on an as-applied

basis. A facial attack on a non-First Amendment statute can prevail only if 

the statute is unconstitutional in all applications or lacks any “plainly 

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legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472, 130 S. Ct. 1577, 

1587 (2010) (citations omitted). 

As for the requirement that a defendant exhibit “reckless disregard” that 

an alien’s residence in the U.S. will be illegal, the government points out that 

recklessness is a common mens rea feature in criminal law generally and in 

several provisions of Section 1324 itself. See 8 U.S.C. §§ 1324(a)(1)(A)(ii), (iii), 

(iv), and 1324(a)(1)(C)(2). Courts are bound to “follow Congress’ intent as to 

the required level of mental culpability for any particular offense.” United 

States v. Bailey, 444 U.S. 394, 406, 100 S. Ct. 624, 632 (1980). This court has 

previously affirmed use of the reckless disregard standard in immigration 

prosecutions. See, e.g., United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th 

Cir. 2002) (discussing Section 1324(a)(1)(A)(ii) (alien transportation)); see also 

United States v. Dominguez, 661 F.3d 1051, 1063-64 (11th Cir. 2011) (citing 

Section 1324(a)(2) (smuggling aliens)); Khanani, 502 F.3d at 1286-87 

(discussing 1324(a)(1)(A)(iii) and (iv)). 

Anderton also analogizes his conduct to cases signaling that “mere 

renting” to illegal aliens or “mere employment” alone cannot establish illegal 

immigration conduct. See, e.g., Villas at Parkside Partners v. City of Farmers 

Branch, 726 F.3d 524, 529-30 (5th Cir. 2013) (en banc) (furnishing housing 

without more is not illegal “harboring” under Section 1324(a)); Varkonyi, 

645 F.2d at 459 (harboring does not include “mere employment”); DelRioMocci, 672 F.3d at 248-50 (mere apartment rentals to illegal aliens did not 

violate Section 1324(a)(1)(A)(iv)). However, as pointed out by our sister circuit, 

when the elements of Section 1324(a)(1)(A)(iv) are properly stated to the jury, 

they require “a level of knowledge and intent beyond the mere employment of 

illegal aliens.” Khanani, 502 F.3d at 1289. 

In sum, Anderton’s threshold challenges to the statute of conviction fail 

to establish reversible error.

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(b) Sufficiency of the Evidence

Counts Three to Six of the indictment alleged Anderton, “for the purpose 

of commercial advantage and private personal gain, encouraged and induced 

[four identified] illegal aliens to reside in the United States, knowing and in 

reckless disregard of the fact that such residence would be in violation of the 

law.” Anderton argues that these allegations fail to establish a violation of the 

law. The facts proven at trial contradict this contention. 

Initially, Anderton argues that he could not have caused aliens to reside 

in the United States if they were already here. This is a red herring; the 

government was not required to prove that Anderton caused illegal aliens to 

enter the United States. The statute alternatively criminalizes encouragement 

to “reside” here, and that is what was shown at trial. Anderton continues, 

however, that merely residing in the United States as an illegal alien is not a 

crime, hence, he could not have induced or encouraged residence that would be 

“in violation of the law” (citing Arizona v. United States, 567 U.S. 387, 407, 

132 S. Ct. 2492, 2505 (2012)). This, too, is wrong. This court has recognized 

that “[a]lthough ‘[a]s a general rule, it is not a crime for a removable alien to 

remain present in the United States,’ it is a civil offense.” Texas v. United 

States, 787 F.3d 733, 757 n.62 (2015) (quoting Arizona, 567 U.S. at 407, 

132 S. Ct. at 2505). Aliens who reside here without authorization are “in 

violation of law” for purposes of Sections 1324(a)(1)(A)(iv) and (v).

Anderton principally contends that the statutory framework and case

law establish that mere employment of illegal aliens is not a felony. 

Specifically, he points to 8 U.S.C. § 1324a(a)(1)(A) and (2), which are 

misdemeanor offenses that explicitly prohibit the knowing hiring or continued 

employment of aliens who are unauthorized with respect to such employment. 

The misdemeanor provisions can be distinguished from the convictions at issue 

here by the requirements of “inducing” and “encouraging” aliens to reside 

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illegally in the United States; criminalizing “knowing employment” lacks the 

concepts of instigation and influence embodied in the felony offense. In any 

event, the existence of a lesser grade of offense does not prevent the 

government from charging the more serious offense where the facts justify it.

The government recites the evidence that went well beyond Anderton’s 

“mere employment” of illegal aliens. Summarizing this evidence, the 

government showed that “Anderton knew that most of his workers [were] not 

lawfully present and that he worked with others at A&A to employ them, 

anyway; that he took advantage of their illegal status; that he rented or 

facilitated rental of living space to some of them; and that he assisted some in 

attaining public benefits.” Despite Anderton’s possible exploitation of the 

undocumented workers, the totality of his conduct persistently and knowingly 

provided inducements and encouragements to the employees to reside in the 

United States. Legally sufficient evidence supports the convictions.

II. Count One False Statement Offense

Count One charged Anderton with making a false statement in an 

immigration document in violation of 18 U.S.C. § 1546(a) because he stated in 

the December 2011 I-129 petition that he would pay visa workers $8.16 to 

$11.16 an hour for regular work and $12.24 an hour for overtime when “he 

knew” he would pay the workers substantially less. 

Anderton argues the truth or falsity of his statements depended on 

future events, that is, whether he would in fact pay his workers according to 

legal requirements. Therefore, he contends, the indictment impermissibly 

charged a crime of “pure intent.” This court rejected a similar argument in 

United States v. Shah, a false statement case under 18 U.S.C. § 1001. 44 F.3d 

285 (5th Cir. 1995). Shah held that “a promise may amount to a ‘false, 

fictitious or fraudulent’ statement if it is made without any present intention 

of performance and under circumstances such that it plainly, albeit implicitly, 

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represents the present existence of an intent [not] to perform.” Id. at 294. The 

district court did not err when it held that Count One stated an offense because 

“a person’s statement that he intends to do something when he has no present 

intention of doing it is a false statement of existing fact.” See Shah, 44 F.3d at 

293. 

Anderton also challenges the sufficiency of evidence to support this 

count, arguing that the evidence did not show his intent to underpay visa 

workers when he signed the I-129 petition. He charges that the government 

presented testimony from only three visa workers and improperly extrapolated

that A&A’s visa workers generally were underpaid. Anderton criticizes the 

government for not presenting certain kinds of evidence (for example, payroll 

tax records) or a forensic accounting analysis to prove systematic 

underpayments. In contrast, Anderton introduced a forensic accounting 

analysis purportedly refuting the government’s position. Anderton also offered 

evidence that visa workers were paid better than prevailing wage rates and 

that a year-long Department of Labor investigation concluded with no action. 

In addition to testimony from three visa workers, the government 

introduced A&A time sheet records for visa workers as well as evidence that 

he systematically underpaid non-visa workers. When the district court denied 

Anderton’s motion for acquittal, it held that the “evidence demonstrate[d] that 

Defendant had a pattern of underpaying both visa and non-visa workers before 

and during the time he filled out the Petition and had the intent to continue to 

underpay workers and charge visa fees.”

Anderton’s arguments and evidence were presented to the jury, which 

was entitled to weigh the evidence, and still convicted him. As noted above, 

this court decides only whether the evidence admitted at trial was sufficient 

for “a reasonable trier of fact [to] conclude . . . the elements of the offense were 

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established beyond a reasonable doubt.” Suarez, 879 F.3d at 630 (citation 

omitted). There was sufficient evidence to convict on this count. 

III. The Search Warrants

Anderton argues that the search warrants were not particularized and 

essentially authorized a general search in violation of the Fourth Amendment. 

He presented these arguments to the district court in a motion to suppress, 

which was denied.1 Attachment F to the warrant lists the items to be searched 

for/seized. Anderton argues that Attachment F:

. . . authorized the seizure of all business records without 

limitation and all personal records pertaining in any way to 

financial matters, and all electronic devices and electronic storage 

devices and electronic media, also without limitation, at any of the 

search warrant locales, and all electronic mail from the business 

account. 

(emphasis removed). He contends that “there were no limits upon what could 

be searched for and what could be seized.” (emphasis removed). Anderton 

argues that the good-faith exception cannot apply here because the warrant 

“fail[s] to particularize the place to be searched or the things to be seized,” and

it does not apply to general searches. United States v. Leon, 468 U.S. 897, 923, 

104 S. Ct. 3405, 3421 (1984)).

Anderton mischaracterizes the breadth of Attachment F. For example, 

Attachment F does not state that “all employee records” may be seized. 

Instead, it permits the seizure of: “[e]mployee earning and leave statements, 

employee payroll records, employee time sheets, H2-B visa employee passport 

and visa records, I-129 Nonimmigrant Worker petition records, U.S. citizen 

 

1 The court also held that Anderton did not have standing to challenge some of the 

searches, a ruling Anderton does not contest on appeal. 

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applicant rejection letters, [and] contractor invoices.”2 The descriptions of 

other types of items, although broad, are sufficiently particularized as to 

confine the discretion of the officers conducting the search. After all, “generic 

language is permissible if it particularizes the types of items to be seized.” 

United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (emphasis in 

original) (citation omitted). United States v. Leon held that “evidence obtained 

by officers in objectively reasonable good-faith reliance upon a search warrant 

is admissible.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) 

(citing Leon, 468 U.S. at 922-23, 104 S. Ct. at 3420). Attachment F was 

sufficiently particular for the good-faith exception to apply.

IV. The Order of Forfeiture

Anderton disputes the order of forfeiture based on his claim that the 

government did not meet its burden to identify precisely where the A&A office 

was located, 2949 West Audie Murphy Parkway. Specifically, Anderton argues

that the government failed to provide the correct legal description of the 

property at trial. Instead, the government offered legal descriptions of over 

300 acres, less than 10 of which were ultimately forfeited. Consequently, the

government never “established a nexus between [the unique legal description 

of this parcel of real property] and the offense.” See Fed. R. Crim. 

P. 32.2(b)(1)(A) (alteration supplied by Anderton).

This contention is meritless. A government trial exhibit accurately 

described the location of the A&A office at 2949 W. Audie Murphy Parkway, 

except that it erroneously included a half acre that had been sold to the State 

of Texas as a right-of-way. This portion of the property was dismissed from 

 

2 This is not Anderton’s only mischaracterization of Attachment F. He claims that it 

allows “all personnel and payroll records” to be seized, when it actually allows seizure of 

“[p]ersonnel and payroll/commission records for all employees that appear to be engaged in 

the business." 

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the final order of forfeiture. Anderton does not contend that he received 

inadequate notice that the government sought to forfeit this property, nor does 

he contend that it was not subject to forfeiture. His only complaint is that the 

property description presented by the government included an extra half acre 

(which was corrected in the final forfeiture order). No error is presented.

For the foregoing reasons, Anderton’s convictions and the final order of 

forfeiture are AFFIRMED.

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