US v. Anthony Tracy
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00122-LMB-1 Copies to all parties and the district court/agency. [998732432].. [10-4676]
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Date Filed: 11/30/2011
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
pursuant
non-citizens
to
8
to
enter
the
United
U.S.C. § 1324(a)(1)(A)(v)(I),
States
but
illegally,
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
unconstitutionally overbroad.
vague,
and
the
statute
is
We affirm.
I.
On April 7, 2010, the Grand Jury for the Eastern District
of
Virginia,
indictment
in
Alexandria
which
it
Division,
charged
returned
Tracy
with
a
one
two-count
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
dismissed the passport charge.
The indictment, in relevant part, states the following:
THE GRAND JURY CHARGES THAT:
General Allegations
At
all
times
material
indictment:
2
to
this
court
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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.
3
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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
4
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enough
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Date Filed: 11/30/2011
to
include
the
assuming
the
alleged,
type
of
Page: 5 of 13
activity
government
could
that
the
prove
government
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
insufficient.
contends
the
indictment
was
legally
We review a challenge to the sufficiency
indictment de novo.
(4th Cir. 2002).
sufficient
that
“(1)
of the
United States v. Brandon, 298 F.3d 307, 310
We will find an indictment to be legally
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
5
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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
States illegally.
to
travel
directly
into
the
United
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
United States, not Cuba.
their
ultimate
destination
was
the
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.
6
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Nevertheless,
Tracy
suggests
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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
Consolidation
Coal
use
Co.
is
clearly
indicated.”
F.2d
429
647
427,
(4th
Matala
Cir.
v.
1981)
(citations omitted).
The plain and unambiguous language of the statute reveals
that it applies to a wide range of conduct.
clearly
indicate
encouragement
illegally
by
that
and
a
the
statute
inducement
direct
to
route.
enter
In
7
is
the
to
the
Congress did not
apply
only
United
absence
of
to
States
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”
Contrary
in
to
the
statute
Tracy’s
makes
no
arguments
discernible
otherwise,
difference.
whether
Tracy
encouraged aliens to come to the United States illegally by a
direct
route,
or
toward
the
United
indirect route, is of no moment.
States
illegally
by
an
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
coming
statute
requires
that
the
non-citizen
United States “in violation of law.”
be
to
the
§ 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
8
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allegations
Date Filed: 11/30/2011
against
Tracy
in
Page: 9 of 13
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.
tracks
the
addition,
language
the
of
the
indictment
statute
then
sets
forth
specific
factual
Thus, we are persuaded that the indictment was such
be
prosecuted
in
the
and
In
conspiracy.
cannot
manners,
verbatim.
detailing
Tracy
ways,
almost
allegations
that
the
In fact, the indictment
means
future
for
of
the
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
prosecution for the same offense.
9
and
to
prevent
future
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III.
Tracy’s
second
argument
is
unconstitutionally vague as applied.
that
§
1324
is
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)
v.
(quoting
(1954)).
United
States
Harriss,
347
U.S.
612,
617
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
violated the statute.
not
have
fair
notice
that
his
We need not linger long here.
conduct
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.
10
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Tracy
states,
Date Filed: 11/30/2011
in
effect,
Page: 11 of 13
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,
documents for their travel.
he
provided
them
with
fraudulent
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.
Page: 12 of 13
The doctrine seeks to strike a balance
between competing social costs.”
U.S. 285, 292 (2008).
United States v. Williams, 553
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
absolute
statute’s
sense,
overbreadth
but
legitimate sweep.”
also
be
substantial,
relative
to
the
not
only
statute’s
in
an
plainly
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,
overbreadth
because
unless
“a
it
law
should
reaches
a
not
be
invalidated
substantial
number
for
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.
13
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