Courthouse Steps Decision Teleforum: United States v. Sineneng-Smith

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Today the Supreme Court released the decision in United States v. Sineneng-Smith. By a vote of 9-0, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated and the case remanded. Although every member of the Court joined Justice Ginsburg's opinion, Justice Thomas also issued a concurring opinion indicating his doubt about the validity of the overbreadth doctrine. Join us today as Brian Fish discusses the decision in this case. 


Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland


Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “Courthouse Steps Decision Teleforum, United States v. Sineneng-Smith.” My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      Today we are fortunate to have with us Brian M. Fish, who is a member of The Federalist Society's Criminal Law and Procedure Practice Group Executive Committee and the President of its Baltimore Lawyers Chapter. After our speaker gives his opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Mr. Fish, the floor is yours.


Brian M. Fish:  Thank you very much. Greetings from the bunker location here in East Baltimore. Again, my name is Brian Fish. I am the Baltimore Lawyers Chapter President and an attorney here in the city and on the Society's Criminal Law Practice Group Executive Committee.


      Today I have the pleasure of talking for a few minutes about, as we say in the business, a crimmigration case, United States v. Sineneng-Smith. I have no idea if I'm pronouncing that correctly, and hopefully I won't say that the rest of the day. This case was argued relatively recently, back on February 25th. So, about two and a half months later, we get today's decision.


      Before I get too into the heart of the case, I just want to -- off the bat, I've got to say it's easy for pundits like myself to pick on the Ninth Circuit, and this is one of those cases where, why not? It's just so darned easy. This case comes at us today, this morning, having just been released literally blocks away from where I'm sitting, from Johns Hopkins Hospital. Justice Ginsburg gives us a 9-0 decision essentially slapping down, yet again, the Ninth Circuit. And, as a pundit, you have to wonder, do these guys just sit around out there in California and say, "Hey, I've got a new idea, a grand, great, new idea on how we can get reversed. No one's ever thought of this particularly to get reversed by the Supreme Court." And the other judges on the panel say, "I love it. That's a great idea. Let's run with it."


      Because that had to be what the Ninth Circuit was thinking on this case. Otherwise, there's just no other explanation for it. And, again, this was a 9-0 decision that comes at us today, and it sort of leads up to the -- you know, this is a WTF moment. This has got to be what the judges were thinking after they heard oral arguments on this case. And they're like, "What is going on out there? Why would the Ninth Circuit possibly create a case where..." And that's what they did. They created a case.


      In both the trial court level and at the initial court of appeals hearing, counsel for the defendant—thank God I remembered to say "the defendant" and not her name—had a standard-issue argument—no muss, no harm, no foul—what we would call a run-of-the-mill case. After oral arguments but before a decision was made, the Ninth Circuit created a new case and ruled upon that newly created case, and that's what was appealed by the government to the Supreme Court. And that case is what got reversed. We still -- and it got sent back to the Ninth and presumably back to the -- well, it’ll go back to the trial court for decision on what actually took place. But that's probably for another day.


      So, again, this is a new way to get reversed. So let's get into the heart of the case. Here's the takeaway line from the syllabus, and Justice Ginsburg uses it in her decision: "...but the Ninth Circuit's radical transformation of this case goes well beyond the pale." And she says that in her analysis of "this is an abuse of discretion." So we have, right off the bat, language that every good Irishman wants to hear: "This is beyond the pale." And, when the Court uses such language, you know it's going to be a bad day for the court that this case came from, and that's what happened.


      A little bit of factual background. Those of you on the call, if you remember, I did the Courthouse Steps back in February when this case was argued, so I'll cut to the facts that we need to talk about today.


      First of all, the defendant was a lawyer who was operating an immigration consulting firm out in San Jose. Most of her clients are Filipinos here in the United States illegally. The key part of the criminal prosecution was that, between 2001 and 2008, the defendant was charging $5,900 a pop for the following: She would file what's called a Labor Certificate with the United States Department of Labor. What is supposed to happen is the Labor Department certifies that piece of paper that that alien has a job that no one else wanted and should therefore continue in the process to eventually become a Green Card holder—as they say, a lawful, permanent resident. It starts with the Labor Certificate.


      But note the years I've said: 2001 to 2008. One of the magical dates in immigration law is April 30, 2001. That's when the program ended. You had to have had your certificate filed by that date. To this day, they are still adjudicating—both through United States Citizenship and Immigration Services, the Department of Labor, and the immigration court system—they're still adjudicating cases that started on or before April 30, 2001.


      But what this woman was doing was she was generating these cases and taking the money from her clients after the cutoff date. So, in other words, there was absolutely no possible way for this alien to adjust their status based on an approved Labor Certificate if the case was filed after April 30, 2001. To the tune of -- this woman made $3.3 million in fees generated by doing something that could not have possibly generated for her client relief from removal—in other words, the Green Card.


      That was the factual foundation for a multicount case which went to a 12-day trial. The defendant was convicted of multiple counts, had made a motion for judgment of acquittal, actually got two of the counts dismissed, and, after trial, was therefore guilty of four counts: two immigration statute cases under §1324 and a couple of lawyer-fraud kind of crimes.


      That case was appealed. Again, oral arguments were held. And, after oral arguments, the Ninth Circuit then decided on their own to ask three different defendant-rights kinds of organizations for amicus briefs, and they asked three separate questions of these organizations: Was the statute, §1324, overbroad? Was it vague? And did the statute require a mens rea element that was not in this particular case?


      The defendant did not make this argument. And, in a sense, this particular argument that the court of appeals generated on their own was contra to what the defendant was arguing both at the trial court and at the oral arguments before the Court. But again, the Ninth Circuit made up a new case and asked organizations not involved in the case for their opinion.


      That's essentially what Justice Ginsburg was talking about when she said that was a complete and utter abuse of discretion. And the language and the idea is that the court—a court, any court—is supposed to adjudicate the case presented to them and not simply create a new case to be argued. But, again, that's what the Ninth Circuit said, and that's what they did, and that's what they ruled upon. So that's the case that we have before us today.


      And there was much discussion of the statue itself during the whole process from the district court through the court of appeals and through oral arguments. Was §1324 overly broad? And this will -- and I'll talk about Justice Thomas's concurring opinion in a minute or two. But the heart of the matter is—and this is Justice Thomas's idea and his reason for concurring—that the Court's idea of whether a statute is overly broad is, in and of itself, unconstitutional.


      What Thomas is essentially saying is, when a statute is analyzed by a court, they should be looking at are a particular defendant's First Amendment rights being violated, and not thinking, well, someone in the future could be "cooled," as they say, from making certain First Amendment speech pronouncements because they might be prosecuted for a violation—in this case of §1324. That, in Thomas's opinion, is an unconstitutional application of jurisprudence by a court on a particular statute. We should be looking directly at one particular defendant, and did their speech -- was their speech protected by the First Amendment? Yes or no. And that's the reason for his rather lengthy concurring opinion. He essentially starts by saying, "I agree with everything Justice Ginsburg said on the fact that the Ninth Circuit created a new case, and we can send it back for that reason, but here's something else I want to talk about."


      And, during oral arguments, we had a lot of discussion about grandmothers. And that was the moniker that several justices are using when they are deciding -- trying to figure out is §1324 overly broad. And they're asking, but if a United States citizen grandmother wanted their undocumented grandson to be able to stay in the United States, would an application of §1324 on the grandmother -- would it apply? Would it chill the grandmother's speech by telling her grandson, "No, you should stay."


      So, therefore, it picks up what exactly does §1324 prohibit? And §1324, again -- Title 8 of the United States Code, Section 1324, is a prohibition on -- hold on, let me get to the right language. I apologize. All right. Here we go. What §1324 prohibits is the inducement, essentially, by one individual of another to stay in -- either come to, enter, or stay in the United States knowingly in violation of the law. So, in other words, if you, here in the United States, are telling someone, asking someone, to come into the United States or giving them reason or cause to stay in the United States knowing that their presence here in the United States is against the law, then you have violated §1324. And the grandmother analogy comes into play with, look, would grandma really be in violation of §1324 because she's inducing—the language of the statute—her grandson to stay in the United States when he is, in fact, here illegally.


      Section 1324 goes on for -- there was much discussion at oral arguments whether this was a sentence enhancement idea or whether it was a new crime essentially, but the Court, in its opinion, sort of discounted that entire argument. But, for our purposes, we need to know that it is a sentence enhancement. In other words, it dulls the potential jail sentence and fine if you are doing the enticing of the alien for financial gain. Which, obviously, is what the defendant in this case was doing—again, to the tune of $3.3 million. She was enticing people to stay in violation of a law knowing that they would continue to be in violation of the law because there was no way that they could adjust their status through a program which had ended. But, if you're going to be a fraudster, I guess do it to the tune of $3.3 million.


      So Justice Ginsburg, in her decision, stressed again that this was an abuse of discretion. In rather harsh language in the body of her opinion, again she uses the "beyond the pale" moniker, calls out the Ninth Circuit panel for adjudicating a case not before them and takes them to task for doing it. Justice Thomas, in his concurring opinion, again, as I said a moment ago, agreed with the majority that says that the overbreadth doc -- but goes on to say that the Court's doctrine of a statutory interpretation being overly broad, he has constitutional issues with that. And he starts his concurring opinion with an analysis that the overbreadth doctrine really doesn't come into play until 1940 with a case out of Alabama. So, therefore, he finds that the overbreadth doctrine is not based on any constitutionally valid statutory interpretation methods and discounts the whole process, the whole notion, that a statute can be overly broad.


      His argument essentially is the following: In any of these kinds of cases where the notion that a statute is overly broad, the Court should look at whether a particular defendant's conduct was protected by the First Amendment. If it's not, then whether the statute as it's written sweeps in other activities such as freedom of the press, etc. In the particular cases that Justice Thomas cites in his opinion, what he wants to look at is not whether a generalized First Amendment cooling is implicated, if you will, by a particular statute but, again, focus on each individual defendant. He really takes to task the Court in general for its overbreadth doctrine because what he's saying is the Court is applying its idea that in the future someone's actions or statements might be chilled by thinking, "Oh God. If I say this, will someone prosecute me?" He discounts that entire line of cases and entire theory and wants us to focus back on an individual. If they make a statement, was that statement protected by the First Amendment?


      And here, in this particular case, Thomas would argue that no, this defendant's statement of, essentially, "Give me money and I will help you get a Green Card" and her pronouncement, through advertisement and then to individual clients that she can help them get a Green Card is not protected by the First Amendment because, first of all, she couldn't. It was a fraud scheme. She could not in any way whatsoever after April 30, 2001, through this program, help anybody get a Green Card because the program was over.


      So that's how he would want us to look at these kinds of cases. And, while he would agree with the majority in their opinion that the Ninth Circuit basically created a new case and decided that case, he wants us to go beyond that and actually wipe out the entire line of overbreadth cases and, again, just look at individual defendants and what they did and what they said.


      So this case is going back, as I said, going back to the Ninth Circuit. They've already had arguments on the defendant's initial theory of the case and why her conviction should be thrown out. Presumably—who knows, but presumably—at this point, the Ninth Circuit will now affirm the conviction, and that's the end of the case. But it remains to be seen what exactly happens.


      With that, what do we have?


Greg Walsh:  Let's go to audience questions.


Caller 1:  Yeah, hi. First off, why would the court recruit this amicus counsel? I mean, if the court had an interest in the issue, it could have obviously asked counsel to do it rather than amicus. And, as we all know, even if counsel's presentation of the issue is not perfect, judges all the time are not confined to the cases and authorities presented to them. In fact, I, myself, had a case in the Ninth Circuit where -- it was a very favorable decision, but the court added some cases in its opinion that I had not cited. They're never limited. So, so long as they present the issue to the parties so they have fair notice of it, then they conclude and decide the case on any basis they like. So that's sort of a tactical question.


      And I guess the other question I had is why -- or was it an issue that, after Judge Reinhardt died, I believe, they brought on another judge who had not participated in oral argument—sort of retroactively—who could join in then. That's not sort of a common practice.


Brian M. Fish:  Thank you for the call, and thanks for listening in, sir.


      A couple of things with your first question. Why would they ask for amicus briefs? Well, the counsel for the defendant, both at trial and on the appeal, had a different theory of the case such that they were not in any way whatsoever arguing that the statute was overly broad or unconstitutional or something along those lines. They were simply arguing in a more generic, First Amendment kind of context that her speech was protected—much like what Thomas was alluding to in the concurring opinion today—and, therefore, her constitutional rights under the First Amendment trumped the statute, not that the statute itself was overly broad. And, as Justice Ginsburg noted in her opinion, that, legally speaking, was opposed to what the court in the Ninth Circuit panel was asking for in turn in the three questions that they asked the amicus.


      So my answer to you is I don't think that, after argument, the counsel for the defendant could have made those arguments because he would be arguing against what he had been arguing since day one when the indictment came down. He then, for obvious reasons, changed his mind after the court made a written ruling asking for the amicus briefs and sort of telegraphing where they were going to go with this case. He then, on rehearing, argued exactly what the amicus briefs were stating. But that was not his position leading up to that moment. So I think, practically speaking, the court—and obviously this is what they wanted to do and they got the result they wanted—they couldn't ask the defendant's attorney because he would be arguing against the position he's had since day one.


      As to -- and Justice Ginsburg, in her opinion today, kept pointing out that the defendant had competent counsel throughout. And the reason she did that is -- she actually had an addendum to her opinion this morning of two pages which was a list of all of the cases over the last five years where the Supreme Court asked amicus briefs in similar situations. It was a short list, and her point was twofold: (a) when courts do this, it's generally for a pro se defendant—or litigant, I guess I should say—who doesn't know what he or she is doing, essentially, and the Court should ask amicus parties for filings to essentially help the guy out. Here, Justice Ginsburg continued to say that they had competent counsel. He was doing a good job. He's losing, but the law’s against him. And, therefore, there was no need to ask for amicus briefs to essentially change the entire tone of the case.


      As to Justice Reinhardt passing away at a particular stage of the proceedings, if my memory serves from the three-judge panel opinion, the new judge came in, familiarized himself with the case and got in at the stage where they were asking for the amicus briefs. So he sort of took over the third speak at the panel chair at that particular stage. So I think -- and that happens frequently if a judge passes before a decision is made. A new one is appointed, and if they can say, "Look, I've familiarized myself with the proceedings. I can articulate my opinion," they'll just let it go from there. And that's what happened here. And, unfortunately, for the Ninth Circuit court's purposes, it didn't help them out at all.


Greg Walsh:  Thank you. We'll now go to our next caller from area code 2-0-2.


Ilya Shapiro:  Hi, Brian. This is Ilya Shapiro from Cato. I look forward to -- this is a good opportunity to ask you a question for once. Looking forward to coming down to Baltimore for my annual event in July.


      But, look, I have never seen a case disposed of this way, at least at the Supreme Court. Is the only difference from what the Court itself does—that two-page addendum or what have you—that the Ninth Circuit invited amici to do it because it would have been, as you just described, kind of against the strategy of counsel to do it themselves? And, if that's the case, how is that different than what the Supreme Court does fairly regularly—not calling for supplemental briefing, but in reframing the question presented or finding after argument they can't decide the issues presented without also deciding broader issues? Typically, those kinds of arguments are, of course, preserved by the parties below it. Is that the only difference? I'm trying to tease out -- is there some kind of -- does the Supreme Court have more leeway than lower courts do because they're infallible because they're final, that sort of thing? But this is just a -- I don't know yet what I think about this disposition. I filed in support of Sineneng-Smith, but I'm, at the same time, always happy to have the Ninth Circuit slapped down.


Brian M. Fish:  That's a funny position you've got. I mentioned back in February I knew you had written one of the briefs. But it is always funny. It's no fun, the pundits as they both are, to always get to slap down the Ninth. But when they deserve it, they deserve it.


      I would answer your question two ways, Ilya. First of all, you're absolutely correct. I think the Supreme Court has broader latitude because they are the final court, and they want to bring in as many of the issues as they can in the particular case so it can be fully developed. And here, because, again, this went completely opposite of what competent counsel had been arguing since day one, I think that that, in and of itself, not just, as you said, fleshed arguments out or made them broader or brought other ideas in. This was 180 degrees the other way. And I think that was more of the problem as I read Justice Ginsburg's opinion.


      And then we have the idea of look, most of the cases where this does happen, again, are pro se litigants. Here, look; she had good counsel. She was just losing. And that happens all the time. But for the Court stepping in and doing it their own way—and not only just stepping in, but stepping in and particularly asking three groups that are pro-criminal-alien-defendant kind of groups for their opinion, and not asking for a general, "Hey, does anybody want to write in on this?" but specifically asking three groups who you knew what they were going to say, it would just beg for this kind of language in today's decision.


      My second idea is -- if you were at oral arguments, as most of the times they are, they're all across the board—judges firing questions away. And my hunch is if they were going to apply a particular idea to the case. It might have been 6-3 or 5-4. Here, we got all nine justices to say, "Look, the Ninth Circuit was just flat-out wrong in what they did. So go back and try it again with the case that was presented to you, and don't make up a new case." So I think it was an easy way to dispose of a case that shouldn't have happened in the way it did.


Greg Walsh:  Brian, is there anything other than the castigation of the Ninth Circuit that you think can be taken away from this case?


Brian M. Fish:  Yeah. You don't get too many §1324—this particular subsection—questions in the enticing, inducing -- well, this kind of fact pattern, when it's applied to a §1324 statute. Generally, in criminal prosecutions, the other sections of §1324 regarding human trafficking, smuggling, harboring illegal aliens, those are the subsections of §1324 that are more generally dealt with by criminal courts. So this was a unique fact pattern.


      And what I would like to see, putting on my non-Federalist Society hat and maybe more the prosecutor-in-me hat, is, I think—and we certainly heard rumblings about this about a year ago, maybe two—should sanctuary city mayors or sanctuary state governors be prosecuted criminally for inducing illegal aliens to stay, much like the defendant in this case, against the law? So, I think, because of the way the Court dealt with this particular case, it's not going to be used -- §1324's not going to be used coming out of this case for that purpose. But it's an interesting idea. Could §1324 be used to prosecute, say, Gavin Newsom as the governor of California because he's inducing illegal aliens to stay in the United States knowingly in violation of law?


      So that's been out there sort of floating around since the last presidential election. But, to my knowledge, it hasn't been tried yet. There's certainly been that case—a judge in Massachusetts letting the illegal alien run literally out the back door. But that's a different stylized prosecution. So it remains to be seen if this §1324 can be used in sanctuary-city kind of elements.


Greg Walsh:  Interesting. Thank you. We will now go to our caller from area code 9-1-5.


David Vandenberg:  Good afternoon. This is David Vandenberg in El Paso, Texas.


Brian M. Fish:  Hello, Dave. How are you?


David Vandenberg:  I'm excellent. I love your presentation. It's fantastic.


Brian M. Fish:  Thanks.


David Vandenberg:  You bring up things which I don't normally deal with in my work. But there's one thing in this case. While you were talking, I pulled up the slip opinion. I've been reading it, and I don't really see it. I'm only a few pages in. What does the Court say about any culpability that the attorney had—or lack of culpability—for this kind of fraudulent inducement that she engaged in?


Brian M. Fish:  Well, there's no question that she knew that the Labor Certificate process that she was using for these individuals had expired on April 30, 2001. So I think that's another reason why this was sort of an easy case, if you will, to adjudicate on criminal grounds in that, look, this was done-up. There was no question whatsoever that you had to have your Labor Certificate filed by then. She's filing certificates literally four, five, six, seven years after the drop-dead date. So there was never any question of her violating the text of the law in terms of you had to have your ducks in a row, so to speak. And if you didn't, and she's still taking your money, I think it was a clear fraud scheme. So her culpability was never really an issue. Her argument was always it was a First Amendment rights kind of thing, and that was it. There never was a culpability. Not so good.


David Vandenberg:  [CROSSTALK 00:34:54] They knocked that First Amendment argument down completely?


Brian M. Fish:  Yes. As Justice Ginsburg noted, counsel tried it. Motion to dismiss—denied. Motion for acquittal—denied. And he tried it for the third time in what I'm referring to as the first argument before the Ninth Circuit. And, presumably, it was going to be denied again by the Ninth Circuit until they did what they did. So it wasn't going anywhere.


      I think, if you continue reading Justice Ginsburg's opinion, you're going to get the idea that, like I said a couple of times this afternoon, look, she had competent counsel. He might have been losing, but he was making the right arguments. He just had a bad case. And that's one of those -- that's where the cookie crumbles. I'm paraphrasing, of course, about 10 pages of opinion writing, but that's what it comes down to is look, she lost. She committed the crime. This was not a statute that was overly -- the overbroad thing was where Thomas was going to go with this. This was simply a case where the Ninth Circuit shouldn't have done what they did, and it's an easy remand.


Greg Walsh:  Caller from 7-1-3, you're on the line.


George May (sp):  Hi. George May from Houston, Texas. I just have a quick question that is kind of annoying me. When Justice Ginsburg stated in the Supreme Court's opinion that the defendant, the criminal defendant, had competent counsel throughout, how does Justice Ginsburg make that comment when there isn't an ineffective assistance of counsel claim? And what happens when the defendant says she had ineffective assistance since the Ninth Circuit found for her on a constitutional issue that her lawyer decided not to bring?


Brian M. Fish:  I think the reason why Justice Ginsburg said that a couple of times, there was competent counsel, was -- the reason why she had that addendum and some of the language in her opinion, which is, generally, we don't—as Ilya's question was—we don't ask amicus briefs to come in unless there's a pro se litigant. Not always, but generally, in these kinds of situations when there is competent counsel, we let competent counsel for both sides argue the case. And because that wasn't done here, I think that's what got the Court's dander up—we'll use that language. If there was incompetent counsel and the counsel just dropped the ball completely, this would be a different case. But he was making the right arguments.


      It's an interesting a question, I think, you're bringing up. So on a post-conviction hearing in three or four years from now, does the prosecutor simply say, "I have the Supreme Court saying that this was competent counsel. I think my brief is written. Thank you very much. I'll sit down now." Which is certainly what I would do and probably what will happen, but for some other -- something underlying their attorney-client relationship. But nothing that Justice Ginsburg at least has pointed out is something -- she never says, "This guy should have done X, Y and Z." She simply says, "He's competent counsel. He's making the right arguments. And I don't know why the Ninth did what they did, so we're sending it back."


George May:  Thank you.


Greg Walsh:  Brian, is there anything you want to say to conclude before I wrap things up?


Brian M. Fish:  Just thank you again for having me. Federalists everywhere stay safe, and we'll talk to you again.


Greg Walsh:  Perfect. Thank you so much.


      On behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at Thank you all for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at