United States v. Hernandez-Calvillo, 39 F.4th 1297

Defendants Jose Hernandez-Calvillo and Mauro Papalotzi were tried for conspiring to "encourage or induce" noncitizens to come to, enter, or reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv); the indictment arose from a payroll/financial-intermediary scheme (Torres Drywall) paying largely noncitizen crews.
Co‑defendants pleaded guilty and testified; the jury acquitted on three substantive counts but convicted the two appellees on the conspiracy count.
Appellees moved post‑trial to dismiss the indictment on First Amendment overbreadth grounds; the district court granted the motion and dismissed the indictment.
The government appealed, arguing the verbs "encourage" and "induce" should be read as criminal solicitation/facilitation (aid/abet) and thus reach only unprotected speech integral to criminal conduct.
The Tenth Circuit construed the statute, rejected limiting constructions urged by the government and the dissent, and held § 1324(a)(1)(A)(iv) is substantially overbroad because it criminalizes a substantial amount of protected speech.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Meaning of "encourage" and "induce" in §1324(a)(1)(A)(iv)	Ordinary meanings include verbal persuasion and thus reach speech; statute therefore covers expressive conduct.	Words should be read as criminal solicitation/facilitation (aid/abet), limiting the statute to unprotected speech integral to crime.	Court: ordinary meaning controls; verbs encompass speech and are not readily limited to solicitation/facilitation.
2) Whether speech covered is categorically unprotected	Appellees: statute reaches protected advocacy, legal advice, family statements, etc.	Government: any covered speech is "speech integral to criminal conduct" (unprotected).	Court: statute sweeps in speech about mere residence (often civilly unlawful) and abstract advocacy; the unprotected category does not cover all applications.
3) Whether §1324(a)(1)(A)(iv) is substantially overbroad	Appellees: covers a substantial amount of everyday protected speech and will chill expression.	Government: statute targets significant real‑world criminal activity and is redundant with other provisions only in form.	Court: unconstitutional as substantially overbroad—illegitimate applications (protected speech) substantially outweigh legitimate sweep; dismissal affirmed.

United States v. Stevens, 559 U.S. 460 (2010) (overbreadth framework and categories of unprotected speech)
United States v. Williams, 553 U.S. 285 (2008) (overbreadth test: statute must prohibit a substantial amount of protected speech)
United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018) (Ninth Circuit overbreadth analysis holding §1324(a)(1)(A)(iv) affects speech)
United States v. Hansen, 25 F.4th 1103 (9th Cir. 2022) (relying on Sineneng‑Smith in overbreadth inquiry)
Arizona v. United States, 567 U.S. 387 (2012) (residing in the U.S. generally is not a crime)
City of Houston v. Hill, 482 U.S. 451 (1987) (ordinance susceptible to regular application to protected expression supports overbreadth)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth is "strong medicine"; need substantial overbreadth relative to legitimate sweep)
United States v. Kalu, 791 F.3d 1194 (10th Cir. 2015) (example of multi‑count prosecutions where §1324 charges accompanied other crimes)