UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4676

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY JOSEPH TRACY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:10-cr-00122-LMB-1)

Argued: September 23, 2011 Decided: November 30, 2011

Before KING, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Arjun Garg, KIRKLAND & ELLIS, LLP, Washington, D.C., for 

Appellant. Gordon D. Kromberg, OFFICE OF THE UNITED STATES 

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Michael 

S. Nachmanoff, Federal Public Defender, Geremy C. Kamens, 

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Jeanine Linehan, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Anthony Tracy pled guilty to one count of conspiring to 

encourage non-citizens to enter the United States illegally,

pursuant to 8 U.S.C. § 1324(a)(1)(A)(v)(I), but reserved the 

right to appeal the district court’s denial of his motion to 

dismiss that charge. On appeal, Tracy argues that the 

indictment insufficiently alleges a violation of the statute, 

the statute is unconstitutionally vague, and the statute is

unconstitutionally overbroad. We affirm.

I.

On April 7, 2010, the Grand Jury for the Eastern District 

of Virginia, Alexandria Division, returned a two-count 

indictment in which it charged Tracy with one count of 

conspiring to encourage non-citizens to enter the United States 

illegally, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (the 

immigration charge) and one count of making a false statement on 

a passport application, in violation of 18 U.S.C. § 1542 (the 

passport charge). Upon Tracy’s motion, the district court 

dismissed the passport charge. 

The indictment, in relevant part, states the following:

THE GRAND JURY CHARGES THAT:

General Allegations

At all times material to this 

indictment:
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. . . .

4. Aliens who enter the United States 

unlawfully do so through a variety of means, 

to include entry by entering at any time and 

place other than as designated by 

immigration officers, eluding examination 

and inspection by immigration officers, 

entering by willfully false and misleading 

representation, and entry by the willful 

concealment of a material fact in a Visa 

application.

. . . .

COUNT ONE

(Conspiracy to Induce and Encourage Aliens 

to Enter the United States)

THE GRAND JURY FURTHER CHARGES THAT:

From in and around April 2009 to in and 

around February 2010, subject to the 

jurisdiction of the United States, within 

the Eastern District of Virginia and 

elsewhere, defendant ANTHONY JOSEPH TRACY 

did unlawfully and knowingly conspire with 

others, known and unknown to the grand jury, 

to encourage and induce an alien to come to, 

enter, and reside in the United States, 

knowing and in reckless disregard of the 

fact that such coming to, entry, and 

residence was and would be in violation of 

law.

Ways, Manner and Means of the Conspiracy

1. It was part of the conspiracy that 

defendant ANTHONY JOSEPH TRACY would and did 

operate a travel business in Nairobi, Kenya, 

in Africa, known as Noor Services. 

2. It was further part of the 

conspiracy that defendant ANTHONY JOSEPH 

TRACY, under the guise of his business, Noor 

Services, would fraudulently obtain travel 

documents to facilitate the travel of nonU.S. citizens (hereinafter referred to as 

“aliens”) from Kenya to Cuba, knowing that, 

in fact, the ultimate destination of said 

aliens was the United States and not Cuba.
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3. It was further part of the 

conspiracy that defendant ANTHONY JOSEPH 

TRACY would use fraudulent Kenyan passports 

and identification cards possessed by the 

aliens in the application process for 

obtaining travel visas from the Embassy of 

Cuba in Nairobi, Kenya.

4. It was further part of the 

conspiracy that defendant ANTHONY JOSEPH 

TRACY would provide each alien with proof of 

Kenyan residence, falsified bank records, a 

round trip airline ticket, and proof of 

hotel accommodations in Cuba, as required to 

obtain a travel visa from the Embassy of 

Cuba.

5. It was further part of the 

conspiracy that once each alien’s fraudulent 

documents were prepared, defendant ANTHONY 

JOSEPH TRACY met with and provided the 

documents to unindicted co-conspirators, 

known to the Grand Jury as “Consuela” and 

“Helen,” at the Embassy of Cuba in Nairobi, 

Kenya. The unindicted co-conspirators would 

fraudulently provide defendant TRACY with 

Cuban travel visas for the aliens.

6. It was further part of the 

conspiracy that defendant ANTHONY JOSEPH 

TRACY would provide each of the aliens with 

a fraudulently obtained Cuban travel visa 

for the approximate fee of $400 (in U.S. 

dollars).

7. It was further part of the 

conspiracy that defendant ANTHONY JOSEPH 

TRACY would meet with the aliens at Noor 

Services in Nairobi, Kenya, where he would 

instruct them as to how to reach the United 

States from Cuba. 

(In violation of Title 8, United States 

Code, Section 1324(a)(1)(A)(v)(I)).

Tracy subsequently moved the district court to dismiss the 

immigration charge, but it declined to do so. According to the 

district court, the motion to dismiss the immigration charge was 

premature. It determined that the crime of conspiracy is broad
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enough to include the type of activity that the government 

alleged, assuming the government could prove that Tracy 

knowingly and intentionally combined with at least one other 

person to assist others in their efforts to enter into the 

United States illegally.

Thereafter, Tracy pled guilty to the immigration charge, 

but reserved the right to appeal the denial of the dismissal of 

that charge. Tracy exercised that right by filing this timely 

appeal.

II.

Tracy first contends that the indictment was legally 

insufficient. We review a challenge to the sufficiency of the 

indictment de novo. United States v. Brandon, 298 F.3d 307, 310 

(4th Cir. 2002). We will find an indictment to be legally 

sufficient “(1) if it alleges the essential elements of the 

offense, that is, it fairly informs the accused of what he is to 

defend; and (2) if the allegations will enable the accused to 

plead an acquittal or conviction to bar a future prosecution for 

the same offense.” United States v. Rendelman, 641 F.3d 36, 44 

(4th Cir. 2011). 

Section 1324(a) states that anyone who participates in any 

conspiracy to “encourage[] or induce[] an alien to come to, 

enter, or reside in the United States, knowing or in reckless 
6

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) [of the statute].” 8 U.S.C. 

§ 1324(a)(l)(A)(iv)-(v). 

Tracy maintains that the indictment fails to allege that he

encouraged non-citizens to travel directly into the United 

States illegally. As such, according to Tracy, the indictment 

is invalid because the statute makes it unlawful to encourage or 

induce non-citizens to travel directly into the United States

illegally, but it does not make it unlawful to encourage or 

induce non-citizens to travel indirectly into the United States

illegally. We cannot yield to the force of this reasoning. 

As alleged in the indictment, Tracy fraudulently obtained 

travel documents to help non-citizens travel from Kenya to Cuba, 

with the knowledge that their ultimate destination was the 

United States, not Cuba. Moreover, according to the indictment, 

as a part of the conspiracy, Tracy would meet with the aliens in 

Kenya, where he would give them instructions on how to reach the 

United States from Cuba. Hence, the indictment alleged with 

specificity that Tracy conspired to encourage aliens to come to 

the United States illegally, albeit by way of Cuba. These 

allegations are more than enough to meet the requirements of the 

statute.
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Nevertheless, Tracy suggests that, because the phrase 

“either directly or indirectly” modified the words “encourage or 

induce” in an earlier version of the statute, Congress meant for 

the present version, which omits this phrase, to encompass only 

direct encouragement and inducement. Thus, according to Tracy, 

encouraging travel to third countries on the way to the United 

States does not fall within the scope of prohibited conduct. We 

are unpersuaded. 

Although Congress omitted the phrase “either directly or 

indirectly” from the statute, we are unconvinced that, in doing 

so, it meant for us to interpret the statute to limit the 

statute’s ambit only to direct illegal entry into the United 

States. “When we are faced with a question of statutory 

interpretation, our starting point for discerning congressional 

intent is the language of the statute itself. Congress is 

presumed to have used words according to their ordinary meaning 

unless a different use is clearly indicated.” Matala v. 

Consolidation Coal Co. 647 F.2d 427, 429 (4th Cir. 1981)

(citations omitted). 

The plain and unambiguous language of the statute reveals 

that it applies to a wide range of conduct. Congress did not 

clearly indicate that the statute is to apply only to 

encouragement and inducement to enter the United States

illegally by a direct route. In the absence of a clear 
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indication, we will not impose such a limitation. Thus, we hold 

that § 1324 makes it illegal to encourage or induce a noncitizen to enter the United States unlawfully, directly or 

indirectly.

Furthermore, the absence of the words “either directly or 

indirectly” in the statute makes no discernible difference. 

Contrary to Tracy’s arguments otherwise, whether Tracy 

encouraged aliens to come to the United States illegally by a 

direct route, or toward the United States illegally by an 

indirect route, is of no moment. Here, the indictment alleged 

that Tracy knowingly conspired to help non-citizens enter this 

country illegally by way of an indirect route. That would be a 

violation of the statute, as charged in the indictment.

According to Tracy, the indictment was also legally 

insufficient because it failed to specify which law aliens would 

have violated in coming into the United States. A violation of 

the statute requires that the non-citizen be coming to the 

United States “in violation of law.” § 1324 (a)(1)(A)(iv). The 

government counters that this argument is waived. Assuming, 

without deciding, that the argument is not waived, we find that 

it is meritless.

When viewed in context, the statute cannot reasonably be 

read as referring to anything but violations of United States 

immigration law. Furthermore, the indictment sets forth the 
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allegations against Tracy in detail. Accordingly, it is 

unreasonable to think that he was unaware of the charges against 

him. Any argument to the contrary is unconvincing. 

There is no question that the indictment alleges the 

essential elements of a conspiracy to induce and encourage noncitizens to enter the United States illegally and fairly informs 

Tracy as to what he is to defend. In fact, the indictment 

tracks the language of the statute almost verbatim. In 

addition, the indictment then sets forth specific factual 

allegations detailing the ways, manners, and means of the 

conspiracy. Thus, we are persuaded that the indictment was such 

that Tracy cannot be prosecuted in the future for the same 

offense. 

As the district court observed, Tracy’s motion to dismiss 

the immigration charge was premature. Much of what he argued in 

the district court and on appeal goes to the sufficiency of the 

evidence, not the sufficiency of the indictment. What is 

sufficient for a grand jury to indict might well be insufficient 

for a petit jury to convict. Therefore, although we are unable 

to say whether the evidence would have been sufficient for a 

petit jury to convict Tracy, we are able to say that the 

indictment was sufficient to give Tracy adequate notice of the 

charges against which to defend and to prevent future 

prosecution for the same offense. 
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III.

Tracy’s second argument is that § 1324 is

unconstitutionally vague as applied. We review the district 

court’s legal conclusions on this claim de novo. United States 

v. McManus, 23 F.3d 878, 882 (4th Cir. 1994). 

“Due process requires that a criminal statute provide 

adequate notice to a person of ordinary intelligence that his 

contemplated conduct is illegal, for ‘no man shall be held 

criminally responsible for conduct which he could not reasonably 

understand to be proscribed.’” Buckley v. Valeo, 424 U.S. 1, 77 

(1976) (quoting United States v. Harriss, 347 U.S. 612, 617 

(1954)). Accordingly, “the void-for-vagueness doctrine requires 

that a penal statute define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary and 

discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 

357 (1983).

Tracy avers that § 1324(a)(1)(A)(iv) is unconstitutionally 

vague because he did not have fair notice that his conduct 

violated the statute. We need not linger long here. Much of 

what Tracy sets forth in his vagueness argument we have already 

considered and rejected in our discussion of the sufficiency of 

the indictment.
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Tracy states, in effect, that a person of ordinary 

intelligence would not understand that providing false travel 

documents from Cuba or instructions as to how to come from Cuba 

to the United States would constitute encouraging a non-citizen 

to come to the United States illegally. Moreover, according to 

Tracy, there is no precedent for allowing Tracy to be charged 

for assisting non-citizens to come indirectly toward the United 

States, as opposed to helping them come directly to the United 

States. 

Tracy helped non-citizens in travel, knowing that the end 

result was that they would enter the United States unlawfully.

To further assist them, he provided them with fraudulent 

documents for their travel. We think that a person of ordinary 

intelligence would understand that assisting those non-citizens

indirectly to enter the United States, knowing that they would 

be entering the country illegally, encompasses encouraging or 

inducing them to do so under § 1324. As such, this claim fails.

IV.

Third, Tracy asserts a facial overbreadth challenge. We 

review the district court’s legal conclusions as to this issue 

de novo. McManus, 23 F.3d at 882.

“According to . . . First Amendment overbreadth doctrine, a 

statute is facially invalid if it prohibits a substantial amount 
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of protected speech. The doctrine seeks to strike a balance 

between competing social costs.” United States v. Williams, 553 

U.S. 285, 292 (2008). The government’s interest in prohibiting 

criminal conduct must be weighed against the danger of chilling 

constitutionally protected speech. Id. “[T]o maintain an 

appropriate balance, we have vigorously enforced the requirement 

that a statute’s overbreadth be substantial, not only in an 

absolute sense, but also relative to the statute’s plainly 

legitimate sweep.” Id. 

Tracy declares that speech that encourages illegal aliens

to come to the United States is protected by the First Amendment

in certain instances. We have long held, however, “that speech

. . . that constitutes criminal aiding and abetting does not 

enjoy the protection of the First Amendment.” Rice v. Paladin

Enters., Inc., 128 F.3d 233, 242 (4th Cir. 1997). 

In his overbreadth challenge, Tracy again raises his direct 

versus indirect argument, declaring that merely encouraging 

unlawful travel to another country should not be covered by the 

statute. But, the statute does not make it illegal to encourage

unlawful travel to another country. What it makes illegal is to 

encourage or to induce a non-citizen to come into this country, 

either directly or indirectly, “knowing or in reckless disregard 

of the fact that such coming to, entry, or residence is or will 

be in violation of law.” § 1324(a)(l)(A)(iv). 
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Although there may be some instances in which we might find 

that the statute chills protected speech, we are unconvinced 

that the statute prohibits a substantial amount of such speech. 

Consequently, because “a law should not be invalidated for 

overbreadth unless it reaches a substantial number of 

impermissible applications,” New York v. Ferber, 458 U.S. 747, 

771 (1982), we hold that the statute is not invalid. 

V.

For the foregoing reasons, the judgment of the district 

court is in all respects

AFFIRMED.