*1 support provides appeal under umentation substantial attorney’s fees on request ZBS $850,000, A which would Develop- view. loan arguing that Idaho this § I.C. $250,000, frivolously, equity in an contribution of unrea- result brought appeal ment By trying to dispute. difficult to ZBS alter- would be sonably, without foundation. to the entire attorney’s appeal on extend its secured interest fees natively requests $1,100,000, simply over- 12-120(3), Development arguing that ZBS’ Idaho § under I.C. By all-or-nothing taking its hand. played note secured promissory based on claim is Development litigation, in the Idaho posture a commer- of trust and is therefore by a deed message jeopardized what vacat- muddled its this Court is transaction. Because cial legitimate summary to be a claim to secured grant appeared ing the district court’s $850,000 DePatco, If the priority ZBS for the amount. Sehiess nor judgment, neither loan, $1,100,000 leave “it is was that would parties appeal. entire prevailing on are no district appeal company equity. necessary whether this discuss not have appears under been frustrated transaction’ court involves a ‘commercial 12-120(3) all-or-nothing position, resulting in char- appeal was § whether payment equity. unreasonably under acterization of the entire brought or defended Cometto, Idaho Caldwell v. 12-121.” hand, respondents have On the other attor- P.3d No ultimately by asserting an all- benefitted not Respondents. ney’s fees are awarded to the Had or-nothing position their own behalf. they recognized implausibility of the en- VI. Conclusion being character- payment tire to Teton View fact genuine there issue of Because was a contribution, equity as an and offered ized $1,100,000 was in- to whether entire proof payment as to how should be some contribution, capital the dis- to be tended equity pot and the loan divided between summary improperly granted trict court pot, they well have fared somewhat Therefore, judgment. the decision of the better. summary judgment is granting district court remand, parties oppor- will have an On further vacated and the case is remanded for tunity dispense all-or-nothing with their Opinion. proceedings in accordance with this present picture positions and more realistic regarding appeal was raised in this No issue They the district court. would be well attorney’s fees awarded in the and costs advised to do so. against lower court Teton View. BURDICK, Chief Justice Justices
EISMANN and concur. HORTON JONES, J., specially concurring.
J. re- opinion
I in the in all concur Court’s Although necessary to the deci-
spects.
presented
it
appeal,
the issues
subsequently The doc- amended to
4H
413 *5 De- Huskey, Appellate Public Molly fender, Boise, Lehti- Erik R. appellant. for nen, Appellate Deputy Public Defender ar- miss the information based insufficient gued. preliminary evidence offered at the hearing. Wasden, Attorney Hon. Lawrence G. Gen- I. FACTUAL AND PROCEDURAL eral, Boise, respondent. K. Kenneth Jor- for BACKGROUND argued. gensen, Attorney Deputy General legislature adopted the Idaho Criminal (“ICGEA”), Gang Enforcement Act I.C. BURDICK, Justice. §§ seq., 18-8501 et effective March appeals from the Simona Manzanares Laws, 184, 1,§ Sess. pp. ch. 582- following judgment guilty plea entered her February 85.1 On Manzanares was plea agreement. under a conditional She charged with committing two felonies under pled guilty recruiting gang a criminal (1) recruiting ICGEA: criminal gang 18-8504(l)(a) § I.C. under ex- member 18-8504(l)(a); member § violation of I.C. change charge dismissal for the of a for (2) supplying a firearm ato mem- providing to a a firearm mem- § ber in violation I.C. 18-8505. § appeal, ber under 18-8505. On Man- I.C. Provision, Under the per- “[a] 18-8504(l)(a) § argues zanares that: I.C. son commits the recruiting offense of crimi- (the Provision”) “Recruiting is unconstitu- nal ... [kjnowingly soli- tionally applied on its face overbroad and as citing, inviting, encouraging or otherwise encroaching on the First Amendment person causing actively participate in a association; (2) § to free I.C. gang.” Idaho Code 18- (the Provision”) “Firearm is unconstitutional- *6 8504(l)(a).2 (the Count I of the Information ly applied punishing for her overbroad as “Recruiting Charge”), alleged that Manza- conduct, expressive unconstitutionally vague nares, 21, 2006, September from about until applied failing on its face for to and ade- 2, 2007, February about knowingly “did soli- member,” quately “gang define and unconsti- invite, cit, encourage or otherwise cause a tutional under the Second of the Amendment person actively to in participate a criminal I, United Constitution States and Article gang, The East Side in Locas” violation of pro- Section 11 Idaho for of the Constitution Recruiting Provision. hibiting persons keeping a class or (3) arms; bearing Provision, her conviction violates the person Under Firearm “[a] post ex clauses of the United and States commits the offense of supplying firearms to facto (4) constitutions; Idaho gang the district court person a criminal if the knows an indi- failing erred in to gang dismiss the information supplies, vidual is member and sells based on the information’s gives possession failure to enumer- or any or control firearm offenses; ate all charged elements gang § to that member.” Idaho Code 18- (5) 8505(1).3 failing (the court district erred in to dis- Count II of the Information (1) Purpose provides 1. The person ICGEA’sStatement of recruiting A commits the offense of part: gang by: criminal (a) legislation Knowingly inviting, This is the result soliciting, encourag- of recommenda- by tions made Governor’s Criminal Justice ing causing or person actively otherwise to Gang activity Commission. in- has become participate gang; in a criminal or Idaho, creasingly prevalent impor- isit (b) force, threats, Knowingly using violence agencies, prosecu- tant that law enforcement any person, or intimidation directed at or tors, judges necessary have the tools to bodily injury upon any per- the infliction of provides legislation address this issue. This definitions; son, actively participate to in a criminal gang extends mem- sentences for gang. crimes; bers who certain commit criminalizes person A convicted of a violation of members; gang recruitment of criminal imprisoned section shall be a term for not to felony supplying creates new firearms to (10) years. ten exceed gang a criminal member. (3) This section shall not be construed to limit Reg. Leg., S.B. R.S. 1584 58th 2d Sess. prosecution provision under other of law. (Idaho 2006). 18-8504, § “Recruiting § 2. Idaho Code Code "Supplying entitled 3.Idaho entitled members”, provides gang”, provides in full: firearms to a criminal in full: Manzanares, The State submitted the Amended Infor- Charge”), alleged “Firearm 13, 2006, Canyon Recruiting August mation on 2007. The October on about sell, supply, give Charge to name Jackie Trini- County knowingly was amended “did person allegedly as the re- a firearm to Jackie dad Manzanares possession or control of change alleged to be a knew cruited and to the date Trinidad who (from 1, 2006, February recruiting April violation member” 2007). Charge Firearm was amend- Firearm Provision. The change the date on which Manzanares ed hear- preliminary her Manzanares waived allegedly supplied firearm to Trinidad she was bound ing, March and on (from 2006). May 1, May The State filed over to district court. 22, 2007. Manzanares Information on March August parties On submitted a charges, arguing that moved to dismiss both Proceeding Stipulation to Remand for Pre- Recruiting both the Provision violates liminary Hearing, the Amended In- because First of the United States Con- Amendment previous- formation included information not I, 10 of and Article sections 9 and stitution ly disclosed to the Defendant: that Trinidad is Constitution and unconstitution- Idaho person allegedly Manza- was recruited ally the Fire- vague. argued She also nares. district court remanded the case Amend- arm violates the Second judge preliminary magistrate to the for a United Constitution and ment of the States hearing, August held which was I, 11 of the Constitu- Article Section hearing, preliminary At Finally, argued she tion. Corporal Joey Hoadley called Caldwell Charge provide adequate notice of failed to testify. Department Corporal Police criminal. alleged conduct believed Hoadley that he has had contact testified Supplementary Manzanares filed Motion numerous occasions Dismiss, arguing statutory that the definition she to him she is admitted a mem- of “criminal member” I.C. 18- of the East Side and that ber Locos she 8502(2) unconstitutionally vague the ex- the leader the female branch of the East applies tent that it Provi- *7 Locos, the Side called Side Locas. Cor- East Provision, sion and the Firearm both statutes Hoadley poral then testified to en- overbroad, unconstitutionally both Manzanares, setting counters he had with charges provide adequate fail to notice of the associating her forth various facts with the criminal, alleged conduct believed to be and Side and Locas. East Locos East Side unconstitutionally the Firearm vague. Corporal Hoadley, According to State’s 1, July photograph
On
district
held a
a
the
court
Exhibit
which is
obtained
to
hearing to consider Manzanares’s motion
from a vehicle in which Manzanares was
August
riding with
was
gang
On
the district
a
member who
arrest-
dismiss.
ed,
conditionally
depicts
the
granted
court
motion to dis-
Jackie Trinidad at Manzanares’s
home,
Charge
gang
wearing
holding
miss the
due to
attire and
a
vagueness
charging
gave
standing
language
of the
and
firearm with Manzanares
behind
days
flashing
gang sign
the State seven
to amend the Informa-
her and
the common
person
tion
the name of the
Man-
the East
Locos or East Side Locas.
to include
Side
allegedly
Corporal Hoadley also
as to
zanares
recruited. The district
testified
State’s
says
copy
motion to dismiss Exhibit which he
a
of Manza-
court denied Manzanares’s
pic-
grounds
by
MySpaee webpage
other
raised
Manza-
nares’s
and includes
as
all
Manzanares, pictures
other
nares.
tures of
mem-
(1)
supplying
by
recipient
person
A
commits the offense of
offense committed
gang
person
to a criminal
if the
firearm.
firearms
(3)A person
gang
an
a
member and
convicted of a violation of this
knows
individual is
imprisoned
supplies,
gives possession
section
for a term not to
sells or
or control
shall be
(10) years
any
(2)
gang
fined an
member.
exceed ten
or be
amount
firearm that
($50,000),
ap-
fifty
not to
dollars
Subsection
of this section shall not
exceed
thousand
ply
person
principal
a
or both.
to a
who is convicted as
gangs.
East
and East Side East Side
She
Side Locos
testified
Maria
bers
someone,
gang
party
maybe
numerous other
references.
told her at
Locas and
Manzanares,
specifically
but not
did not want
Hoadley
that on Decem-
Corporal
testified
people coming over who were not “Eastsid-
voluntarily spoke
ber
Manzanares
ers.”
Department.
Police
with him at
Caldwell
being
She admitted
the leader
East
Trinidad
a
also testified that at
barbecue
membership
She said that
Side Locas.
May
Manzanares’s house
she and
ap-
Locas
the East Side
had dwindled
garage
Manzanares went
because
twenty
initially
proximately
to less
was”,
“that’s where
the beer
all
and while in
moved,
people
got
mar-
than ten members
the garage,
gun]
Manzanares
[a
“showed
ried,
pregnant,
were
became
and
incarcerat-
pictures.”
me and like we decided to take
explained that to
a member
ed. She
become
explained
Trinidad
gun
wrapped
that the
was
go through
one
gang
must
initiation
up in a
on a
garage,
towel
couch in the
in”,
process
“jump
which involves
called
her,
gun
gave
they
by
being
battered
several
members for
both
take
picture,
decided to
'the
which was
specified
amount of time.
said that the
She
(the photo-
submitted
State’s
Exhibit 1
narcotics,
by
illegal
itself
selling
funds
graph
Corporeal Hoadley
about which
testi-
house),
shopping” (burglarizing a
“house
fied).
the photo-
Trinidad testified that in
car).
shopping” (burglarizing
“car
graph,
holding
gun
wearing
she is
Hoadley
Finally, Corporal
testified on
jersey with the number which she wore to
Exhibit which included an audio
State’s
show that she was a
the gang,
member of
MySpaee
recording from Manzanares’s
web-
“throwing up
Manzanares is
Eastside.”
page,
he identified as the voice of
Trinidad testified that Manzanares knew
He
based
Manzanares.
testified that
on his
day
Trinidad was a
member
gangs,
language
expertise on
from the
barbecue and
this was an East Side
(“For
recording
your
all
out
audio
Sureños
examination,
barbecue. On cross
Trinidad
homies.”)
bangin’,
“is
keep
encouraging
there
photograph
testified
depicts
only
that the
gang activity,
people to continue
commit-
gun,
only
time she ever
handled
crimes,
ting
committing violence.”
purpose
reason she
it was for
handled
taking
photograph.
also
The State
called Jackie Trinidad to
testify
preliminary hearing.
at the
Trinidad
Trinidad also testified that she knew Man-
testified that
December
she at-
zanares had website and
she
had
party
tended a New Year’s Eve
Manza-
(State’s
message
listened to the audio
Exhib-
nares’
house. She
that she
sister’s
testified
*8
3).
She
that
encour-
testified
Manzanares
drinking
were
party
and others
alcohol at the
aged
go tagging,
East Side members to
and that
of her friends asked her if she
one
messages
spray-painting
which
and
involves
jumped
get
wanted to
in. She testified that
symbols
gangs
to the
related
East Side
in
party
was at
and
Manzanares
the
that Man-
public
really
places,
“nobody
ever
but
say
jumping
about
anything
zanares did
anything”
“[o]nly
[go
did
did
guys
and
the
join
her in but that Manzanares did
others in
tagging].”
hitting
pai’t
jumping
of the
in. When
her
At
preliminary
the
hear-
she does as a member of the
conclusion
asked what
Locas,
ing,
magistrate
the
found that
there was
really
Trinidad
“Not
East Side
said:
out,
probable
Recruiting
cause for both the
just hang
go
anything, like we would
to
house,
Charge
Charge, explaining:
and
Firearm
[Manzanares’s]
have barbecues.”
enough
jumping
testified that
reason
at-
The
is sufficient
for the
Trinidad
she
in
language
Recruiting Charge]
party
tended
2005-2006 New Year’s Eve
of
[the
(at
to
jumped
which
was
in to the East Side
was testified
Ms. Trinidad. With
she
Locas)
regard
Charge],
[Firearm
that her
wanted to
to the
once
was
friend Maria
again,
testimony
go.
hardly
photograph,
indi-
Trinidad testified that she
knew
prior
gun. There-
party
to that
and had not
cates she ... handed her the
Manzanares
fore,
fact,
previously
after
talked to Manzanares about the
Jackie Trinidad did
be-
Recruiting
probable
to Ms.
find
cause as
both
coming
member and known
gang
Charge.
Charge
the Firearm
Manzanares,
a firearm.
and
possession of
have
however,
provides,
27, 2008,
further
The statute
moved
On June
Manzanares
gang,
a—it
to be
light
has
the United States
dismiss
of
statute,
issue
which was the
defined
decision in
Columbia v.
District of
of a crimi- Heller,
Court had. The definition
128 S.Ct.
out in Idaho Code
nal
is set
appear
L.Ed.2d 637
It does
requires
number
a whole
Subsection
motion was ever heard
decided.
this
elements,
of
first of which—all
of
July 10,
Manzanares entered
On
up until
paragraph
are met
which
plea agreement.
into a conditional
She
of a
get
point
we
further definition.
plea4
Re
agreed to enter an
Alford
3 in
code
paragraph
It refers
that same
Charge
exchange for
of
cruiting
dismissal
section,
paragraph
is the definition
Charge.
Firearm
Manzanares reserved
activity and
pattern
appeal
“the issue of the constitu
her
pattern of
requires language
qualify
as a
statute,
tionality
charge
and such
activity
could
or more
there
be two
might appear
matters
in the rec
other
offenses,
enumerated
convictions or
certain
accept
of this action.” The district court
ord
However,
1 doesn’t
charges.
Subsection
plea and dismissed the
ed Manzanares’s
say it has
And there is
to be convictions.
28, 2008,
Charge.
August
Firearm
On
fol
testimony before the Court that the defen-
sentencing
lowing two-day
hearing,
the dis
they
told the officer that
had been—
dant
imposed
ten-year
trict court
unified sen
activities,
they
engaged in certain
none
years
tence with two
fixed
proven,
but
shown convictions or
Charge.
3(a)
they
though.
are enumerated in
11, 2008,
September
On
district court
result,
And,
I’m
over
going
as a
to bind
Commitment,
Judgment
entered
you
since
can all brief
statute to death.
25, 2008,
September
Manzanares filed the
magistrate
Binding
filed an
De-
The
Order
Appeal
Notice of
to this Court.
fendant Over to District Court.
4, 2007,
September
On
the State filed
II. STANDARD OF REVIEW
Second
Information.
In this final
Amended
Korsen,
As
set forth
information,
version
706, 711,
126, 131 (2003):
P.3d
Charge alleges that Manzanares recruited
party challenging
a statute on con-
April
Trinidad
from
sometime
grounds
stitutional
bears the burden
February 26,
Charge
and the Firearm
establishing
the statute
unconsti-
alleges
gave
pos-
that Manzanares
Trinidad
strong
tutional and ‘must overcome a
May
session
a firearm sometime
validity.’
presumption
Appellate
through
obligated
interpre-
courts are
to seek an
arraigned
September
Manzanares was
upholds
of a
tation
statute that
its consti-
2007. On December
tutionality.
*9
dismiss, arguing
to
filed another motion
(Citations omitted).
preliminary
the evidence
at the
hear-
offered
Hosey,
explained
As we
State v.
ing was
to
over and
insufficient
bind her
(2000):
1101, 1104
886, 11
134 Idaho
P.3d
reasserting
previous
her
motion to dismiss.
22, 2008,
January
plea agreement
in na-
On
district court held
A
is contractual
dismiss,
hearing
by
on
and
on the motion
and
ture
must be measured
contract
February 8,
interpretation
denied
law
The
of a
district court
standards.
motion,
legal
finding
meaning
that there
substantial
contract’s
and
effect are
was
upon
questions
be
magistrate
evidence
could
law to
decided
Alford,
acts
4. See North Carolina v.
refuses to admit to the commission of the
(1970).
constituting
481, 485,
v.Dopp,
124 Idaho
S.Ct.
Goodson Nez Perce Bd. article section clause of the United Comm’rs, 851, 853, 614, I, 133 P.2d Idaho 993 States Constitution and article sec- (2000) (citations omitted). 616 tion 16 of the Idaho ex Constitution. The 420 the approval of the court and the With the prevent enactment
post clauses facto attorney, prosecuting the a de- an consent of a crime punishes as ‘any which statute may plea a committed, fendant enter conditional was inno which previously act right, guilty reserving writing on done; makes more bur which cent when any judgment, to review crime, appeal from the for after punishment a densome ruling. If the defendant specified, adverse commission, deprives one or which its prevails appeal, on defendant shall be any avail with crime of defense charged plea. withdraw defendant’s allowed to according at the time when to law able committed_’ Young v. added). Collins act was comply with (Emphasis “Failure to 42, 2715, 37, blood, 110 S.Ct. 497 any rale in a waiver of issues not this results (1990) 30, (quoting 39 111 L.Ed.2d appellate for review.” properly reserved Ohio, 167, 46 Kelchner, 37, 39, v. Beazell v. 130 Idaho 936 P.2d State (1925)). 216, (1997). 217 70 L.Ed. S.Ct. 682 As Manzanares concedes post briefing, the ex issue was her (2009). facto P.3d 993 Idaho Thus, no never raised below. there was March became effective on The ICGEA addressing this ruling adverse below issue Laws, 184, 1, p. § Idaho Sess. eh. appeal. which could have been reserved for though complaint, as well as 585. Even Accordingly, con- we hold that Manzanares’s information, allege that each draft plea agreement ditional not reserve the did recruited a member on Manzanares appeal. issue for date(s) subsequent the ICGEA’s effective Next, we Man consider whether date; recruiting specific incident of post jurisdictional. zanares’s ex issue facto preliminary hear- focused on at the State waived, may personal jurisdiction be While party ing a New Year’s on Decem- concerned jurisdiction subject matter cannot waived nearly prior three months ber 2005— time, “may including at and be raised Thus, date. Manza- the ICGEA’s effective appeal.” Rog on State first time argues that her conviction violates nares ers, 140 Idaho 91 P.3d post and United ex clauses of Idaho facto constitutions, case, prop the court “In a because the States jurisdiction erly acquires personal over the pled guilty to which was based Charge she appears defendant when the defendant at party— New on conduct at the Year’s her setting complaint the initial on a or ar court prior to the enactment of ICGEA. raignment the indictment.” Id. “Ordinarily, plea guilty, if volun added). (emphasis “The infor P.3d made, tarily knowingly is conclusive as to mation, indictment, complaint alleging guilt all non- the defendant’s waives offense was committed within jurisdictional prior proceedings defects subject jurisdiction matter confers A against the defendant. added). (emphasis upon the court.” by entering a preserve such defects or issues the infor argue Manzanares does not guilty plea pursuant to I.C.R. conditional jurisdiction. to confer She ac mation fails 11(a)(2).” Hosey, Idaho at 11 P.3d Information, knowledges Complaint, (citation omitted). quotation at 1107 Amended Information and Second Amended post ex issue is Manzanares’s allege facto Information all that Manzanares re appeal only if either: properly before us on in violation I.C. cruited member (1) agreement plea her conditional reserved 18-8504(l)(a) Idaho, Canyon County, 11(a)(2); the issue under I.C.R date(s) subsequent to the enactment of jurisdictional. issue is Thus, we hold that Manzanares’s ICGEA. jurisdictional post ex issue facto plea agree Manzanares’s conditional was, therefore, by pleading guilty. waived light that she reserves her ment states constitutionality Finally, argues also appeal “the issue of statute, properly mat the ex before charge post and such other issue is facto this it involves fundamental might appear ters record of because 11(a)(2): rale, general “As we will not consid- Pursuant to I.C.R. error. action.” *11 time on arguments er made for the first basis of Manzanares’s According- conviction. alleged appeal. error constitutes ly, When we hold Manzanares has not met the error, however, ap- fundamental review showing burden of a clear error that violated Severson, 147 peal permissible.” State v. is one of her unwaived rights. constitutional Idaho 215 P.3d omitted). (2009) (citations However, “we 18-8504(1)(a) (the C. Idaho Code Re- permit a defendant to waive a consti- Provision) cruiting facially not long magnitude, tutional so as the defendant as-applied overbroad nor unconstitu- knowingly, voluntarily, does so and intelli- protect- prohibiting tional for conduct 209, 227, gently.” Perry, 150 Idaho by the ed First Amendment. 245 P.3d Manzanares makes argues the Recruiting validity no attack of the conditional facially is both applied and as un- plea agreement. the ex she waived penalizing constitutional for her First post by knowingly, voluntarily, issue facto rights Amendment association free entering agree- intelligently plea into the expression. free We hold Recruit- ment. ing facially Provision is not overbroad be- Furthermore, even if Manzanares prohibit cause it does not a substantial issue, had not this to meet waived she failed conduct, amount and we hold appellate her court persuading burden of that Manzanares has not shown that it is as alleged error violates constitution because, applied unconstitutional due to the right. al If Manzanares’s conviction under case, circumstances of this she unable to Statute was on the based part pro- demonstrate what conduct on her place took incident which at the New Year’s vides basis of her conviction. party, post then ex clauses facto United Constitution States and the Idaho pursuant i. appeal Reservation for implicated, be Constitution would since 11(a)(2). I.C.R. forming conduct the basis of her conviction place prior would have taken to the ICGEA’s While we find that Manzanares’s However, case, effective we date. do plea agreement conditional reserved the fa not conduct basis of know what formed the applied cial challenges appeal, and as for we Manzanares’s conviction. Manzanares en emphasize proper take time to means and, thus, plea tered an did admit reserving appeal pursuant issues for Alford any conduct that could form basis of 11(a)(2). I.C.R. guilty plea. her See At Part IILC.ii.a. infra agreement A plea conditional preliminary hearing, the State’s evidence explicitly should set forth the adverse rul that Manzanares recruited was Trinidad ing(s) being ap below which is reserved limited to New Year’s incident. The 11(a)(2) peal. permits Idaho Criminal Rule put State also forth evidence of an audio any appeal “speci reserve for recording posted of Manzanares’s on voice ruling” entering adverse when into a encouraging line part listeners to take fied plea agreement. (Emphasis conditional activities, add East Side Trini Locas ed). McCormack, See also State v. 117 Ida to, having dad testified to listened and testi ho P.2d mony encouraged that Manzanares (“I.C.R.ll(a)(2) clearly requires is go tagging. East Side Locas to appeal sued to be magistrate desired reserved for must judge relied on this evidence as said, specified writing.”). That where a concerning well as the evidence the New plea agreement party probable Year’s he conditional itself lacks such when found cause Therefore, specificity, appellate Idaho will being to bind her courts review despite over. ” issue, post attempt the record labeled as an “ex and de to determine what facto spite plea agreement appeal Manzanares’s claim on that she conditional reserves for See, Anderson, pled guilty e.g., appeal. based on her conduct the New State v. (1997), party, way knowing Year’s have no we 932 P.2d (“This from the appeal record what conduct serves as the will sustain an under *12 422 you’re reserving your right to 11(a)(2) guilty, the but that if we can determine nature
Rule
constitutionality
appeal
of that statute?”
the
the
appeal
right
the
and the
reserved for
of
record.”).
plea hearing,
From
at the
these statements
the
appeal
specificity from
sought
is clear that Manzanares
to reserve
However,
prac-
best
emphasize that the
we
challenge
constitutionality
right
the
to
the
of
the
explicitly
is
set forth
adverse
tice
to
pled guilty
the
to which
statute
she
being
appeal
rulings which are
reserved
—the
Recruiting
Manzanares’s
Statute.
June
plea agreement.
If the
conditional
the
asserted, amongst
2007 Motion to Dismiss
there is a
agreement
specificity,
lacks such
arguments,
Recruiting
other
that the
Statute
appellate
will be unable to
risk
the
court
overbroad,
Order,
in August
is
its
parties
the
what the
determine from
record
the
court denied Manzanares’s mo-
district
sought
for appeal.
to reserve
tion
as
the
chal-
to dismiss
to
overbreadth
agreement
plea
Manzanares’s conditional
lenge.
we
re-
find that Manzanares
right
broadly
ap-
the
purports to reserve
to
right to appeal
served the
the district court’s
(1)
constitutionality
peal:
of
of
“the issue
the
ruling
Recruiting
the
is not
Statute
charge
the
“such other
and statute”
overbroad.5
appear
might
matters that
in the record of
of “mat-
this action.” The broad reservation
challenges
ii.
to
Re-
Constitutional
might appear
ters
in the record of this
cruiting Provision.
any
explicitly
action”
not
set forth
ad-
does
argues
Recruiting
Manzanares
ruling(s),
verse
but
seeks to re-
apparently
(I.C.
18-8504(l)(a))
§
is
Provision
unconstitu-
any
ruling
for appeal
serve
adverse
from the
tionally
criminalizing
overbroad for
associa-
narrower,
prior proceedings.
the lan-
While
tion,
expressive
speech, and
in viola-
conduct
constitutionality
guage “the issue of
of
tion of
First
Amendment
the United
explicitly
fails to
charge and statute” also
I,
States Constitution and Article
sections 9
to
ruling
refer
adverse
below.
According
and 10 of the Idaho Constitution.
record,
Manzanares, by
requiring
to
Upon review of the
we are
the State to
prove
that the defendant recruited the
language
able
ascertain that the
“the issue
with the
constitutionality
charge
member
to further
gang,
the criminal activities of the
the Re-
ruling
statute” refers to the adverse
on the
generally
cruiting Provision
criminalizes too
constitutionality
Recruiting
Statute
constitutionally protected
much
to be
conduct
August
from district court’s
2007 Order.
and,
facially
applied to
particu-
valid
plea hearing,
attorney
At the
Manzanares’s
case,
lars of this
criminalizes Manzanares’s
part
plea agreement
stated: “The
exercise of
conduct.
point
suppose
I
most critical at this
is
is
my
right
fact that
client
reserves
provides
a
appeal
Supreme
the matter
Court
person
recruiting
commits
offense of
testing
plead
the statute under which she’s
“[k]nowingly
member
soli-
criminal
And,
ing
morning.”
guilty this
citing,
inviting, encouraging or otherwise
following
in the
actively
answered
affirmative to
causing
person
participate
in a
question
gang.”6
asked
court
district
at the
The ICGEA defines
plea hearing:
agreed
plead
gang”
have
“Criminal
as:
“[Y]ou
Note,
non-jurisdictional
5.
if
even Manzanares had failed
reserve
of no contest waives all
de
proceedings.”
(citing
ruling
in the
v.
district court's
on the overbreadth of
fects
State
Statute,
Milwaukee,
Inc.
Princess Cinema
96 Wis.2d
her facial overbreadth
(1980)).
challenge
jurisdictional
under the State challenge. a. Facial Preliminarily, the
bears a difficult burden.
by
gang
must
that
is a
State
establish
there
argues
that the Recruit
(1)
organization,
proving
ongoing
there is an
ing
overbroadly
criminalizes associ
(2)
with a common name
or association
ation, speech
expressive
conduct
viola
(3) consisting
sign
or
of at least three mem
tion
the First Amendment of the United
Next,
prove
that the
bers.
State must
I,
States Constitution and Article
sections 9
gang
gang”.
ais
“criminal
The ICGEA sets
10 of
the Idaho Constitution. We find
forth
that
met to
two criteria
must be
show
pro
that the
Provision does not
First,
gang.
that a
is a criminal
significant
hibit
amount
con
(4)
prove
State must
that
members of the
and, therefore,
unconstitutionally
duct
is not
(5) individually
collectively
or
commit
overbroad.
ted,
commit,
attempted to
at
solicited
least
two of the ICGEA’s enumerated offenses and
“The overbreadth doctrine (6)
that
the two enumerated offenses were
which, though
at
designed
aimed
statutes
separate
committed either
occasions
conduct,
prohibit
legitimately regulated
in
Second,
two or more
members.
prohibitions
clude within their
constitutional
(7)
prove
must
the commission of
Korsen,
ly protected freedoms.”
138 Idaho
one or more of the ICGEA’s enumerated
two-part
In
establishing
addition to
the existence of
precludes
significant
amount of that consti
gang,”
prove
“criminal
State must
tutionally protected
solicited, invited,
Id. If the an
conduct.
knowingly
the defendant
affirmative,
steps
swer to both
is in the
then
encouraged,
person
or otherwise
caused
the statute is overbroad. See id. “A statute
“actively participate
gang.”
in the criminal
is found to be
not be
overbroad
Under
Idaho’s criminal code: “The word
all,
against speech
even
‘knowingly,’ imports only
knowledge
enforced
or con
constitutionally
bring
prohibited
exist
act or
duct
could
facts
omis-
narrowly
It
provisions
sion within the
of this code.
a more
drawn statute.” Id. at
case,
provision.
opinion
and this
does not address
constitutionally protected con-
amount of that
“Only if the statute
at 134.
69 P.3d
amount of con- duct.
upon a substantial
intrudes
may it be
conduct
stitutionally protected
attention to a line
Manzanares draws our
(emphasis
for overbreadth.”
struck down
in which
United States
of eases
omitted).
added) (quotation
statute will
“[A]
*14
placed
statutes which
cer-
Court considered
merely
for
not be invalidated
overbreadth
penalties
tain
or
on members
restrictions
imagine
to
some uncon-
possible
because it is
Party: Scales
the Communist
v. United
Rather, there must
applications.
stitutional
203,
1469,
States,
U.S.
81 S.Ct.
6 L.Ed.2d
367
danger that the statute itself
be a realistic
States,
(1961); Noto v.
367 U.S.
782
United
recognized
significantly compromise
will
290,
1517,
(1961);
L.Ed.2d
S.Ct.
6
836
81
parties
protections of
not
First Amendment
500,
State,
Aptheker
Secretary
U.S.
v.
378
(quotation
and cita-
before the Court.”
1659,
(1964);
12
992
84 S.Ct.
L.Ed.2d
omitted).
tion
11,
Elfbrandt,
U.S.
S.Ct.
Based
384
86
1238.
First Amendment of the
cases,
that
argues
line of
Constitution,
guarantees
which
United States
organization can be criminalized
joining an
right
expression, peaceable as
the
to free
only
proof
requires
if the statute
the
govern
sembly
seeking
with our
redi’ess
the
intent
further
specific
defendant had
to
ment, applies
through the
to the states
Four
organization’s
enterprise.
the
We
criminal
Russell,
v.
teenth Amendment. Elfbrandt
do
these
to set forth such a
not read
cases
11, 18,
1238, 1241-42,
U.S.
86 S.Ct.
16
384
rule.
blanket
(1966).
321,
L.Ed.2d
While not ex
Elfbrandt,
Supreme
In
the
Court relied on
Amendment,
in the
the
plicitly stated
First
Noto,
Scales,
Aptheker
to invalidate a
guarantees
First Amendment
individuals
subjecting
state
teachers
criminal
law
to
James,
right
Healy
to free association.
408
punishment
being
for
members of the Com-
169, 181,
U.S.
92 S.Ct.
33 L.Ed.2d
Party
organization
or
advo-
munist
other
(1972).
right
279
“The
for
to associate
gov-
cating
overthrow of the
for
violent
however,
not,
expressive purposes is
abso
ernment, stating:
lingering
“Any
doubt
Jaycees,
lute.”
v. U.S.
Roberts
knowing membership,
proscription of mere
623, 104
3244, 3252,
S.Ct.
82 L.Ed.2d
intent,’
‘specific
any showing of
without
protect
“The freedom of association
would
afoul of the Constitution was set
run
by the
ed
First Amendment does
extend
”
by
Aptheker
at
....
rest
our decision
purpose
others
joining
at
U.S.
we turn to the second
over-
join
organization but do
Those who
analysis
breadth
and ask whether the Re
significant
purposes and who do
cruiting
precludes a
not share its unlawful
qualifies
ganization
in its
participate
unlawful activities
a criminal
under
threat,
ICGEA,
surely pose
necessarily
either as citizens or
no
does not
amount to
as this
public employees.
soliciting,
Laws such
inviting, encouraging,
or otherwise
scope
those
person
“actively
which are not restricted
causing
participate
‘specific
join
who
with the
intent’ to further
gang”
a criminal
under the
Provi-
effect,
impose, in
illegal action
a conclusive
example,
knowingly
sion. For
if a defendant
presumption that
member shares
person
merely
invites
attend a lawful
organization.
unlawful
aims of
political rally
religious
organized
event
and hosted
Id. at
86 S.Ct.
16 L.Ed.2d
be a
gang,
knows to
the defendant
generally
This line of cases
sets forth
knowingly
person
has not
invited a
to active-
if it
con-
statute is overbroad
criminalizes
*15
ly participate
gang’s
in the criminal
commis-
membership
merely joining,
duct like
in or
sion
of the
of
offenses enumerated in the
(even
participation
organization
if that
in an
and, thus,
ICGEA
has not recruited that
organization
activity)
in
engages
criminal
person as
pursuant
a
member
to I.C.
distinguishing people
without
who do not
8504(l)(a). However,
§
where a defen-
IS—
goals
organization’s
share
the
unlawful
the
of
knowingly
dant
person
invites a
to somehow
purposes
participate
and do not
in its unlaw-
promote, further or assist in the commission
ful
And these cases
activities.
set forth
of the ICGEA’s
by any
enumerated offenses
requirement
specific
a
of
intent
to further
gang,
member of the criminal
then the defen-
activity
organization
the
of the
suffi-
criminal
person
actively
dant has invited a
partici-
to
ciently
in
narrows the statutes at
those
issue
pate
gang.
in the criminal
However,
eases.
those cases do
foreclose
ways
possibility
the
that there are other
in
heavily
The State relies
on Holder v. Hu-
might
narrowly
which a statute
be drafted
Project,
manitarian Law
in which the Unit-
challenge.
an
enough to
overbreadth
survive
Supreme
recently upheld
ed States
Court
though
Recruiting
even
the
Provision
2339B(a)(l),
§
U.S.C.
which makes it a crime
specific
require-
does not
a
contain
intent
“knowingly provid[e]
support
material
or
ment,
language
we must still look to the
of
to a foreign
organiza-
resources
terrorist
Recruiting
wheth-
Provision
determine
-,
-,
tion.” -U.S.
130 S.Ct.
precludes
pro-
er it
substantial
of
amount
(2010) (alteration
177 L.Ed.2d
tected conduct.
original).
The
support
term “material
or
resources”
defined
as:
statute
In focusing
specific
the lack of a
requirement,
simply
Manzanares
overlooks
any property,
tangible
intangible,
or
or
Recruiting
require
service,
what the
Provision does
currency
including
or monetary
prove:
the State to
knew
securities,
the defendant
instruments or financial
finan-
services,
of the
existence of the criminal
and that
lodging,
training,
expert
cial
solicited, invited,
knowingly
assistance,
safehouses,
or
advice
false
encouraged
person
identification,
or
otherwise caused a
documentation or
communi-
actively
participate
facilities,
either
criminal
equipment,
weapons,
cations
le-
gang’s
(1
of one of
ICGEA’s
substances,
commission
personnel
explosives,
thal
in making
enumerated offenses or
the com-
or more individuals who
be or in-
oneself),
mission
of one of those crimes one
transportation, except
clude
and
primary
gang.
activities
criminal
religious
medicine or
materials.
knowledge
While
is different
rea than
mens
2339B(a)(l).
§
Secretary
18 U.S.C.
intent,
Recruiting
find that
we
authority,
State has
in consultation with
sufficiently
im-
Provision is
narrow to avoid
Secretary
Treasury
and
the Attor-
plicating
amount of
substantial
General,
ney
designate
entity
“foreign
an
conduct.
organization” pursuant
terrorist
to statute
Merely
inviting, encouraging,
upon finding
soliciting,
organization
foreign,
or
that the
activity
terrorism,
causing
person
engages
member
otherwise
to be a
terrorist
organization
thereby
security
of an
or to associate or interact
threatens the
of United
security
organization,
with that
even where
or- States nationals or the national
—
Holder,
Recruiting
sweeps indis-
Provision
See
the United States.
types
-,
criminately
ticular facts of a defendant’s case and is D. In of our the two re- maining what often difficult to ascertain those facts raised issues Manzanares are the benefit a trial.” without need not be addressed. agree, 192 P.3d at We and we remaining ap- Manzanares’s two issues when, particularly find that this is trae as is peal are whether the district court erred in (1) here: the case the information does not failing to dismiss the information on the bas- (2) defendant; refer to conduct (1) es information failed enumer- provides preliminary hearing little factual ate charged all elements the offense specificity and sets forth more than one (2) presented insufficient evidence was course of conduct which could serve as the preliminary hearing. Both of these charge; basis for the where the claims, explains her brief- plea. defendant enters an Alford ing, contingent upon reading this Court *17 First, the information does not set forth Recruiting into the Provision an element of by the conduct which Manzanares specific intent on the defendant’s behalf to allegedly merely pro- recruited Trinidad —it the gang’s illegal further activities. “on or
vides Manzanares about the 1st not We have read such an into element the day day 26th April, of of Febru- Recruiting Ill.C.ii.b), (supra Provision Part 2007, in ary, County Canyon, the of of State accordingly, we need not reach these Idaho, solicit, invite, knowingly did encour- issues. age person, or otherwise cause a Jackie Trin- idad, actively participate to in a criminal IV. CONCLUSION gang, The East Side Locas.” uphold
Second, pursu- We Manzanares’s conviction while presented the evidence agreement. ant her plea to conditional preliminary the on Idaho hearing light sheds some (ICGEA’s 18-8504(l)(a) § Recruiting Code charging the basis for State’s Provision) Provision, is Recruiting unconstitutionally not over- prelimi- under the the broad, statute, nary hearing provides because specificity little factual the as drafted the legislature, infringe on upon a number of the elements that the State does not a substan- had to prove would have to convict her under tial amount of conduct the First 18-8504(l)(a). already explained I.C. As Amendment. Manzanares failed to show III.B, supra Part Recruiting while Manzanares claims that the Provision was unconstitu- appeal guilty on pled applied she based on her tional as to her.
alleged jumping participation in Trinidad into party, the East Side Locas at the New Year’s EISMANN, J. Justices JONES and W. put the forth con- State additional evidence JONES concur. cerning Manzanares’s website and her re- HORTON, J., specially concurring part quests go for members of East Side Locas to dissenting in part. tagging knowledge well East as her of the activity. Locas’ criminal Side join in I the result reached in Parts III.A Third, by entering plea, opinion, although Manza- of the and III.D Court’s for Alford majority. join not admit conduct her nares did different reasons than I inappropriate it is ad- opinion to Parts III.B and determination that Court’s challenges Charge. to the Firearm Part III. dress her respectfully I dissent from
IILC.i. opinion. C.ii of the Court’s Constitutionality
II. Part Ill.C.ii —The Provision Reviewability of I. III.A —The Part respectfully I from the con- Challenges dissent Court’s Fire- Manzanares’ Recruiting Provision Charge clusion that the is arm facially overbroad. we join I in the decision that Court’s challenges to Manzanares’ not reach A. Structure of ICGEA Charge. so Firearm I do because issues I first with consideration of the start appeal relating to the Firearm advanced description operation Court’s of appeal. The Charge preserved were not for I ICGEA. do so because I believe that the agreement plea which identifies the written description, although resulting Court’s in a preserved appeal for states: issue or issues necessity which avoids the construction appeal “The Defendant reserves the unconstitutional, declaring the statute Court the issue of the language the act found within the statute, constitutionality charge inconsistent with the evident might appear and such other matters Legislature. view, my action.” In record singular charge” use of the “the is inconsis- discussing After appeal definitions, tent statutory reservation to “such and three might in the appear other matters that rec- concludes: ord,” creating ambiguity as the scope Thus, putting pieces together, these after preserved appeal. which were matters proves the existence of a criminal ..., prove the State must majority correctly *18 questions of fact. I believe that Manzanares’ gang’s one the nal commission of of attorney’s explanation of the at the term time (b) ICGEA’s enumerated or in offenses entry ambigui of of the plea the her resolves making gang’s “pri- it one the criminal of ty. part plea agree He stated: “The mary to one or activities” commit more of ment I suppose that is most critical at this the enumerated crimes. ICGEA’s point my the fact is that client reserves the added). (Emphasis description This the of appeal to the matter to the Recruiting requiring Provision as that the testing the statute under she’s “actively par- someone” to defendant “caused pleading guilty morning.” this it is (1) ticipate” by committing either one of the plea clear to me that Manzanares’ conditional (2) by or ICGEA’s enumerated offenses only preserve guilty of served to her consti “making gang’s ‘pri- it one of the criminal challenge Recruiting the tutional to Provi mary activities’ to commit one or more” of Although question sion. I the wisdom of a offenses critical to the hold- those is Court’s plea guilty conditional of that does not take Indeed, ing concluding in this case. when possibility into account the of success on Recruiting passes that the Provision constitu- (with appeal consequent probability the aof muster, Court states: tional the may my I appeal), second not substitute view the a focusing specific of what have been desirable the In lack of parties’ express requirement, simply agreement. Given that clearly explanation counsel’s reflected the un overlooks what the derstanding require prove: per Manzanares would be does to charge to the existence challenge mitted to which she knew of defendant of pleaded gang guilty, I concur with the Court’s criminal and that defendant solicited, invited, encouraged in knowingly assist the commission of the ICGEA’s by any person actively a enumerated offenses member of caused or otherwise gang, criminal then gang’s the defendant has the criminal participate in either person actively a participate invited in enu- one ICGEA’s commission of of gang. the criminal making com- or in merated offenses one one those crimes mission majority, Unlike the I am of unable to discern of of gang. primary activities criminal phrase “actively partici- the link between the knowledge a different mens rea While activity pate” statutory criminal intent, we Re- specific find that the than scheme. cruiting sufficiently Provision is narrow 18-8504(1)7 provides, § in per- Idaho Code implicating avoid a substantial amount part, person tinent commits the “[a] protected conduct. of recruiting gang offense criminal Merely inviting, encouraging soliciting, (a) by: Knowingly soliciting, inviting, encour- person a be a causing or otherwise aging causing person otherwise a to ac- organization of an or to associate member tively participate gang.” Signif- in a criminal organization, even or interact with that icantly, require statute does organization qualifies crim- where as a accused cause another become a “criminal ICGEA, nec- gang under the does not inal gang phrase member.” This has a essarily soliciting, inviting, en- statutory definition,8 amount to specifying that order causing couraging person member,” or otherwise a “criminal one must “actively gang” participate a criminal engage pattern “a of criminal activi- Provision_How- ty” meeting in addition to certain other crite- under ever, “pattern knowingly gang activity” invites ria. A where 18-8502(3)9 promote, § person to somehow further or defined I.C. as “the com- ía) to, dissent, 18-6501, Robbery, quotations provided in 7. In all citations as section Code; from, Idaho (b) Arson, ICGEArefer to statutes in effect provided in plea guilty. as sections 18-801 act of Manzanares’ time Code; 18-804, through Idaho year. 2011 Sess. was amended earlier this Idaho (c) Burglary, provided in sections 18- ch. 538-40. Laws 1401, 18-1403, Idaho Code; 18-8502(2). Code Idaho defines "criminal (d) provided, manslaughter, Murder or gang member” as: respectively, in and 18- sections 18-4001 any person engages pattern ... who Code; Idaho gang activity and who meets two (e) Any provisions chapter violation following or more of the criteria: Code, posses- title that involves (a) gang membership; Admits to deliver, distribution, de- sion intent to member; (b) Is identified as a livery manufacturing pro- of a substance (c) frequents particular Resides in or therein; hibited dress, adopts style *19 gang's its area and of its (f) Any weapon of a unlawful use that is a tattoos, signs, its use of hand or and associ- felony pursuant chapter title Idaho members; gang with known ates (d) Code; in Has been more than once arrested (g) battery, provided chap- Assault in and as company gang of for of- identified members Code; title ter Idaho gang that are fenses consistent usual solicitation, (h) provided in Criminal as sec- activity; Code; 18-2001, tion Idaho (e) gang physi- by Is identified as a member crime, (i) Computer provided as in section photographs cal evidence such as or other Code; 18-2202, Idaho documentation; or Theft, (j) provided in 18-2401 as sections (f) stopped company Has been in the of Code; 18-2403, and (k) Idaho (4) gang more known members four or Evidence falsified or concealed wit- times. bribed, provided or in nesses intimidated as 18-2606, through Idaho sections 18-2601 18-8502(3) § Idaho Code states: Code; (/) Forgery counterfeiting, provided gang activity” of criminal means the as "Pattern commission, through attempted commission or in sections 18-3601 solicita- (2) following through Idaho two or more of the of- sections 18-3605 tion of Code; fenses, provided that the offenses are commit- (2) (m) Gambling, provided separate in 18- occasions or two or as section ted on Code; gang members: more pattern in a mission, ly engage engaged in or have of or solicitation attempted commission (4) (2) activity, having as of its [twenty-one specified gang criminal one two more of of or offenses, primary of one or provided that the of- activities the commission predicate] predicate more separate occasions offenses. fenses are committed on (2) gang or or more members.” two Presumably, the fourth clause is intended Thus, being a a “criminal prerequisite distinguish a non- criminal solicitation, attempted member” per- or criminal associations of three more commission, of two or more of or commission have a common name or common sons that 18-8502(3) (“predi- § in I.C. the crimes listed case, If identifying sign. this were offenses”). cate organization (e.g., Rotary), any service reli- (in- gious organization, public institution my majority evidently The shares view identify cluding those whose members Provision does not re- senators, representatives, themselves as (the quire the accused cause another commissioners, etc.), judges, or other “recruit”) mem- to become criminal membership association with an identifiable Rather, majority ber. describes the Re- gang” could be characterized as a “criminal cruiting requiring as re- if a member or members of associa- (1) “actively participate” in cruit either: “individually collectively engage tion or predicate gang’s criminal of a commission engaged pattern or of have criminal offense; (2) making a predi- or commission of gang activity.” gang’s “pri- cate offense one However, mary statutory activities.” importance of fourth clause cannot gang” provide definition of “criminal does gainsaid. implications I think such narrow construction the Re- perhaps its absence are best demonstrated 18-8502(1) cruiting § by way example. Rotary Provision. Idaho Code anof International gang” organization comprised defines a “criminal as: is an of 1.2 million 34,000 in more members than clubs world- association, ongoing organization, ... an “Rotarians,” Identifying wide. as themselves (3) persons, group or of three or more service, they “provide humanitarian encour- informal, or whether formal has a vocations, age high ethical standards all sign name or identifying common common goodwill help peace build in the symbol, individually or whose members or In the fourth world.”10 absence collectively engage engaged in a or have clause, single if a two Rotarían committed pattern gang activity, having (assault acts of assault on (1) different occasions primary one of its activities the com- a predicate offense under I.C. 18- (1) mission of one or more of the criminal Rotary 8502(3)(g)), prop- International would (3) acts enumerated in this subsection erly gang” be characterized as a “criminal section. and, by operation Provi- Parsing definition, criminal gang is: sion, felony by soliciting one would commit a (1) association, ongoing organization, or “actively participate” another to the work persons, of three or whether more Rotary International. (2) informal, formal that has common my identifying sign symbol, language name or common I turn attention (3) clause, i.e., individually “having or collective- of the whose fourth one *20 Terrorism, (n) (t) Kidnapping, provided provided as in 18- as in section 18- sections Code; ¡8-4503, Code; through Idaho Idaho (o) 18-5001, provided Mayhem, as in section (u) Money illegal laundering and invest- Code; Idaho ment, 18-8201, provided Idaho as in section Prostitution, (p) provided as in sections 18- Code. Code; through Idaho 5601 (q) 18— 18-6101, provided Rape, as in sections composition 10. All factual references to the of Code; 18-6110, 18-6108 and Rotary objectives may International and its be (r) Racketeering, provided as in section 18- http://www.rotary.org/EN/ABOUTUS/ found at Code; 7804, Idaho Pages/ridefault.aspx. harassment, (s) provided in Malicious as
section Idaho Code. activities, pie many primary commission of one of which are primary its activities the non-criminal, acts gang just or more of the criminal enumerated is a criminal if one of 18-8502(3) pos- § The indefinite ].” in [I.C. primary those activities is the commission of evidently to the pronoun “its” refers sessive predicate statutory offenses. Under the def- fourth association. Two difficulties this inition, then, may “actively participate” one to me. present clause themselves gang in in “primary a criminal a activ- —even ity” gang sharing of a common I this: difficulty first confront is The —without considered, objective criminal in- of it without criminal regardless the noun whether “association,” Provision, “organization,” “group,” or Recruiting be tent. Since the I.C. relationship 18-8504(1), the noun identifies a between requires merely know- one individuals, “primary while activities” relates ingly person actively participate cause “a joint or individual actions of one more I gang,” agree in a criminal am unable to relationship. sharing that common members majority’s with the conclusion that Re- significant concept of This is because the cruiting “ requires Provision recruit abstract; relationship com- is whereas the (a) ‘actively participate in’ either crimi- mission, attempted commission or solicitation gang’s nal commission of one of the ICGEA’s differently, an of criminal acts is not. Stated (b) making enumerated in it offenses one Rather, mem- association does not act.11 criminal gang’s “primary activities” act, association whether individual- bers of an commit one or more of ICGEA’s enumer- ly concert. definition or in The of criminal I not ated crimes.” am alone in this view. require gang notable it does is because argument, response At in hypotheti- oral to a person sharing relationship that each question, cal Deputy Attorney General objective engaging also share common of representing expressed the State his belief in, of, encouraging predicate commission properly that the Provision could offenses. interpreted prohibiting recruiting be Equally significantly, the ICGEA does not of interior decorator into member- require that the commission of one or more ship, even if of the role that recruit was activity predicate primary offenses be the to “actively participating” limited in the Rather, merely the association. the Act re- by designing a more attractive clubhouse only quires such conduct be one might where the socialize. Used primary of the association’s activities. Further, sweeping State’s view sense, in “primary” this does not have its scope well- impor- meaning most common of “first in grounded legislative history. Dictionary tance.” Webster’s New World upon (2d ed.1976). language Based found in the Rather, common college it has acts, “chief; secondary two it is evident that the ICGEA was meaning principal; main derived, large primary part, California’s [a concern].” Thus under ICGEA, engages an association that in multi- Street Terrorism Enforcement and Preven- fully way, great opinion, 11. As will be discussed in this there is no difference be- more charge being the United States Court has addressed tween a member by imposing requirement engages this issue in criminal conduct possess being defendant intent to advance large conspiracy, a member of a organization: aims of the many participants of whose are unknown or before the court. Whatever difficulties problems attributing criminal be- might thought ascribing inhere in entity havior to an abstract specified rather than to course criminal conduct to an abstract en- individuals, though perhaps difficult cured, particu- tity certainly so theoretically, practical as a matter resolve far concerned, by requirement lar problems proof. into Whether themselves proof organization that he knew that successfully particu- it been shown that a has advocacy, engages in criminal and that was advocacy group engages lar in forbidden purpose that criminal ad- depend [sic] his vocacy. organiza- *21 must tion, on the nature of the further of advocacy the occasions on which such occasions, States, 203, 18, place, frequency v. United 367 U.S. 226 n. took the of such Scales 18, 782, 1469, position per- the 1485 n. 6 L.Ed.2d 800 n. and the within of the 81 S.Ct. omitted, (1961) (citation added). engaging advocacy. emphasis sons in the Understood 18 432 Idaho, (STEP). Chicago Co. recruiting provi- Lumber Co. v. Title
tion
STEP’S
Act
of
(1988)
60,
423,
56,
764
427
sion states:
115
P.2d
(a)
(significant
legislature
statutory
that
omitted
or recruits
Any person who solicits
jurisdictions).
actively
language
participate in a criminal
used in other
another to
(f) of
gang, as
in subdivision
street
defined
my
I
First
turn
attention
186.22,
intent
Section
with the
implications presented by the
Amendment
participate in
person solicited or recruited
requirement
of
that a defendant
absence
activity,
pattern
of criminal street
that a recruit will
possess
specific intent
(e)
in
of Section
as defined
subdivision
in
engage
criminal conduct.
186.22,
person
or with
intent
further, or
promote,
solicited or recruited
B. First Amendment Considerations
any
by
conduct members
assist in
felonious
Supreme
The
States
Court has re
United
pun-
gang, shall be
of the ei’iminal street
of
peatedly stated that “freedom association
prison
in the
by imprisonment
ished
state
guaranteed
the First Amend
is itself
months,
years.
three
or two or
16
State,
Aptheker
Sec’y
ment....”
v.
378
of
added).
(emphasis
Cal.Penal Code
186.26
500, 507,
1659, 1664, 12
S.Ct.
L.Ed.2d
U.S.
84
reflects,
emphasized language
STEP
As
(citations
omitted);
992, 998
see also
expressly provides
person
guilty of
that a
James,
169, 181,
Healy v.
408
92
U.S.
S.Ct.
if he or
recruiting
2338, 2346,
266,
(1972);
33 L.Ed.2d
279
Elf
that the
she did so with the
Russell,
11, 17,
brandt v.
384 U.S.
86 S.Ct.
pattern
in a
of
“participate
recruit would
1241,
321,
(1966);
1238,
L.Ed.2d
16
325
Gib
activity”
criminal street
or
Comm.,
Legis. Investigation
Fla.
son v.
372
further,
“promote,
assist
recruit would
or
889, 892,
539, 543,
S.Ct.
9
U.S.
83
L.Ed.2d
by
felonious conduct
members”
929,
(1963). The
933-34
Fourteenth Amend
Legislature
gang.
the Idaho
enacted
When
prohibits
abridging
ment
the states from
ICGEA,
modify
its
the re-
decision
guaranteed by
freedoms
the First Amendm
cruiting provision found
the California
Cramp
ent.12
v. Bd.
Public Instruction
to eliminate the
statute reflected the intent
of
Fla.,
Orange Cnty.,
368 U.S.
82
requirement
possess
that the defendant
of
275, 279-80,
285,
(1961);
partici-
7 L.Ed.2d
291
specific intent that the recruit would
S.Ct.
303,
Conn.,
pate
Tie &
v.
U.S.
in criminal conduct. Brown’s
Cantwell State
310
Supreme
interpreta-
consis-
We see
12. The United States
Court has
no need
reconsider
tently
applica-
decades,
many
question
held that the First Amendment is
tion here. For
through
ble to
the Due
Clause
the states
Process
rights
by
protected
the Fourteenth Amend-
See, e.g.,
De
the Fourteenth Amendment.
against
infringement
ment
state
has
ana-
been
Jonge
Oregon,
57
v. State
lyzed under the Due Process Clause of that
255, 259-60,
(1937).
S.Ct.
81 L.Ed.
283-84
Privileges
Amendment and not under the
or
correctly
Justice Eismann
cites Justice Thom
Immunities Clause. We therefore decline to
Chicago,
City
as’ concurrence McDonald
holding.
Slaughter-House
disturb the
-
Ill.,
-,
-,
— n
U.S.
130 S.Ct.
-,
177
U.S. at
S.Ct.
(2010),
authority for
177 L.Ed.2d
L.Ed.2d at 907-08.
Privileges
proposition
and Immuni
joined
plurality
was
Justice
Stevens
upon which
ties Clause is the basis
guaranteed
the freedoms
his dissent:
Rights
the Bill of
agree
plurality’s
accept
I
with the
refusal to
However, majority
from state action.
petitioners’ primary submission. Their briefs
expressly declined
United States
impressive
marshal
amount of
historical
join
subject.
opinion
in Justice Thomas'
on this
argument
evidence for their
the Court
Alito,joined by
Justice
Chief Justice Roberts
interpreted
Privileges
Immunities
Kennedy,
the
36,
Justices Scalia and
Slaughter-House
discussed
narrowly
Slaughter-House
Clause
in the
too
Cases,
16 Wall.
Cases,
But
16 Wall.
L.Ed.
(1873),
which held
Privi
L.Ed. 394
that the
original meaning
Clause
is not
leges
protects only those
or Immunities Clause
suggest
nearly
they
clear as
as clear
rights “which owe
existence
the Federal
their
—and
character,
dislodge
years
government,
tion,
need to be
its
its Constitu
as would
National
precedent.
its laws.” Id. at 79. The McDonald
plurality
accept
at-,
re
refused
the Petitioners’
S.Ct. at
433
1213,
900, 903,
L.Ed.
“the
of
degree
60 S.Ct.
84
nature and
pro-
constitutional
(1940).
tection afforded
of
may
freedom association
vary depending on the extent to which one or
This,
course,
question:
begs
of
What
aspect
the other
constitutionally
pro-
does “freedom of
mean? De
association”
liberty
tected
given
is at stake
case.”
Supreme
spite the
de
United States
Court’s
618,
3249-50,
Id. at
lacking these
women
requiring
law
that
Id. In de-
that a California
protection.
afforded constitutional
unduly
“interfere
is entitled
did not
association
be admitted
termining whether an
associa-
private
identified the
freedom of
then
the members’
the Court
protection,
1947,
547,
S.Ct. at
95
to a determina-
Id. at
107
relevant
tion.”
following factors as
by
relationship
protected
considering the claim
485. When
L.Ed.2d at
tion whether
“size, purpose, poli-
rights
violated the members’
Amendment:
statute
the First
association,
char-
cies,
and other
selectivity, congeniality,
the Court conclud-
expressive
may be
Rotary
case
particular
infringement
“slight
acteristics that in
ed that the
Notably, the Court stated
by
expressive
association”
pertinent.”
right of
members’
implicit in
long
justified by
understood
state’s “com-
that “we have
was
the statute
protected
engage
eliminating
in activities
right in
discrimination
pelling
interest
right
corresponding
549,
at
First Amendment
Id. at
107 S.Ct.
against
women.”
pursuit
of wide
1948,
to associate with others
variety
political,
an ordi
Stanglin, the Court addressed
In
cational,
Id. at
and cultural ends.”
religious,
14
precluded those other than
nance that
3252,
474.
622,
L.Ed.2d at
at
82
104 S.Ct.
certain dance-
year
patronizing
olds
noting that
these factors
Applying
20-21,
their broad
result
if
rights
speech
of free
Broadrick,
innocent associations.”
peaceable assembly
pre-
to be
social, legal,
rights
to the
power
economic benefit’ of our
ment
of association and the
of the
citizens.”).
expressive
Because
value of
governments
state
federal
to interfere with
association,
government infringements
even
expressive
Further,
relationships.
those
I believe that the
merely
finely
chill
association must be
contemporary
posed by
fear of the societal threat
Scales,
objectives.
tuned to achieve their
thereto,
gangs,
legislative response
and the
mir-
U.S. at
From a more
groups are formed
may
It
be that some
the ICGEA definition reaches
pur-
wholly
engage
and maintained for
political activists whose
applied
groups,
activity
pursue
pose,
their
and that as
those
in order
pose
ICGEA
no threat to the individu-
objectives,
envi-
would
political
such
extremist
rights
permits
al
the Constitution.
ute
conviction even where one re-
However,
ICGEA, by
inclusion of the
join
its
cruits another to
a gang to advance or
activities,”
phrase
primary
“one
its
is not
perfectly legal objectives.
achieve
restricted
to such associations.
doctrine
This leads to the consideration of whether
appli-
of overbreadth looks to all conceivable
subject
saving
statute is
to a
construc-
cations of a statute to determine whether the
tion.
In
determining
the course of
whether
infringes
statute is
because it
invalid
First
impose
construction,
saving
the United
Amendment freedoms. Since
ICGEA
States
Court has declined to re-
broadly
sweeps
enough
many types
to affect
point
write a
changing
statute
its
may
groups
qualify
intimate or
clear purpose. Aptheker,
associations,
expressive
substantially
it
(“It
S.Ct. at
rorism at-, at S.Ct.
order.” Id. light In of the “sensitive at
L.Ed.2d 381. security of national weighty interests affairs,” the afforded sub- foreign Court political branches’
stantial deference
severity
dangers
assessment of
justified the statute was constitutional Respondent. at-, challenged. grounds 2730-31, 177 at 386-87. S.Ct. at L.Ed.2d No. 38269-2010. holding of unique Idaho, facts and narrow Court of Boise, distinguish it Project January Law Humanitarian 2012 Term. inapplicable to cases from and make Jan. rights which statutes affect assoeiational engage expressive association of those who organizations, State’s domestic misplaced. I do
reliance thereon is therefore compelling believe that there is a state sweep justifies the
interest that broad Although Provision. there is
compelling governmental interest national legitimate
security, its advance prevention of compelling state interest *29 by imposing specif- either
criminal offenses requirement Pro-
ic intent prosecuto- byor the use of traditional
vision conspiracy
rial tools of and solicitation. reasons, respectfully foregoing I
For opin- from Part IILC.ii of the Court’s
dissent
ion.
III. Part III.D —Issues not addressed opinion. majority not to join
I Court’s decision address claims the information
Manzanares’ necessary
failed to all elements of contain I sufficiency of the evidence.
offense
do so because I believe that facially and can-
Provision is unconstitutional would saved construction requirement. There-
impose specific notes State v. (1) knew of the criminal 886, 11 1101, 1104 Hosey, 134 Idaho P.3d invited, solicited, knowingly encour- (2000), interpretation holds that terms aged, or caused someone “ac- otherwise ambiguous agreement plea of an involves (a) the tively participate in” either crimi-