                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4676


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY JOSEPH TRACY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:10-cr-00122-LMB-1)


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


Before KING, SHEDD, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Arjun Garg, KIRKLAND & ELLIS, LLP, Washington, D.C., for
Appellant.   Gordon D. Kromberg, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Michael
S. Nachmanoff, Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.          Neil H.
MacBride, United States Attorney, Jeanine Linehan, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Anthony Tracy pled guilty to one count of conspiring to

encourage    non-citizens         to    enter      the   United    States       illegally,

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

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

dismiss     that       charge.         On    appeal,     Tracy     argues       that     the

indictment insufficiently alleges a violation of the statute,

the   statute      is   unconstitutionally           vague,   and      the     statute    is

unconstitutionally overbroad.                We affirm.



                                              I.

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

of    Virginia,         Alexandria          Division,     returned        a     two-count

indictment       in     which     it    charged      Tracy    with       one    count     of

conspiring to encourage non-citizens to enter the United States

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

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

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

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

dismissed the passport charge.

      The indictment, in relevant part, states the following:

                 THE GRAND JURY CHARGES THAT:
            General Allegations
                 At   all   times    material                     to     this
            indictment:


                                              2
     . . . .

      4.   Aliens who enter the United States
unlawfully do so through a variety of means,
to include entry by entering at any time and
place    other    than   as   designated   by
immigration officers, eluding examination
and   inspection   by  immigration  officers,
entering by willfully false and misleading
representation, and entry by the willful
concealment of a material fact in a Visa
application.

     . . . .

                     COUNT ONE
  (Conspiracy to Induce and Encourage Aliens
           to Enter the United States)
      THE GRAND JURY FURTHER CHARGES THAT:
      From in and around April 2009 to in and
around    February     2010,   subject    to the
jurisdiction of the United States, within
the    Eastern    District    of    Virginia and
elsewhere, defendant ANTHONY JOSEPH TRACY
did unlawfully and knowingly conspire with
others, known and unknown to the grand jury,
to encourage and induce an alien to come to,
enter, and reside in the United States,
knowing and in reckless disregard of the
fact    that   such   coming    to,   entry, and
residence was and would be in violation of
law.
   Ways, Manner and Means of the Conspiracy
      1. It was part of the conspiracy that
defendant ANTHONY JOSEPH TRACY would and did
operate a travel business in Nairobi, Kenya,
in Africa, known as Noor Services.
      2.    It   was    further   part    of the
conspiracy that defendant ANTHONY JOSEPH
TRACY, under the guise of his business, Noor
Services, would fraudulently obtain travel
documents to facilitate the travel of non-
U.S. citizens (hereinafter referred to as
“aliens”) from Kenya to Cuba, knowing that,
in fact, the ultimate destination of said
aliens was the United States and not Cuba.


                       3
                3.  It   was    further   part   of  the
          conspiracy that defendant ANTHONY JOSEPH
          TRACY would use fraudulent Kenyan passports
          and identification cards possessed by the
          aliens   in   the   application   process  for
          obtaining travel visas from the Embassy of
          Cuba in Nairobi, Kenya.
                4.  It   was    further   part   of  the
          conspiracy that defendant ANTHONY JOSEPH
          TRACY would provide each alien with proof of
          Kenyan residence, falsified bank records, a
          round trip airline ticket, and proof of
          hotel accommodations in Cuba, as required to
          obtain a travel visa from the Embassy of
          Cuba.
                5.  It   was    further   part   of  the
          conspiracy that once each alien’s fraudulent
          documents were prepared, defendant ANTHONY
          JOSEPH TRACY met with and provided the
          documents   to    unindicted  co-conspirators,
          known to the Grand Jury as “Consuela” and
          “Helen,” at the Embassy of Cuba in Nairobi,
          Kenya. The unindicted co-conspirators would
          fraudulently provide defendant TRACY with
          Cuban travel visas for the aliens.
                6.  It   was    further   part   of  the
          conspiracy that defendant ANTHONY JOSEPH
          TRACY would provide each of the aliens with
          a fraudulently obtained Cuban travel visa
          for the approximate fee of $400 (in U.S.
          dollars).
                7.  It   was    further   part   of  the
          conspiracy that defendant ANTHONY JOSEPH
          TRACY would meet with the aliens at Noor
          Services in Nairobi, Kenya, where he would
          instruct them as to how to reach the United
          States from Cuba.
          (In violation of Title 8, United States
          Code, Section 1324(a)(1)(A)(v)(I)).

     Tracy subsequently moved the district court to dismiss the

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

district court, the motion to dismiss the immigration charge was

premature.   It determined that the crime of conspiracy is broad

                                4
enough    to    include      the   type    of        activity      that    the     government

alleged,       assuming      the    government             could    prove        that     Tracy

knowingly and intentionally combined with at least one other

person    to   assist     others     in    their         efforts    to    enter     into     the

United States illegally.

     Thereafter, Tracy pled guilty to the immigration charge,

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

that charge.         Tracy exercised that right by filing this timely

appeal.



                                               II.

     Tracy      first     contends        that       the     indictment       was       legally

insufficient.        We review a challenge to the sufficiency                           of the

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

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

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

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

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

plead an acquittal or conviction to bar a future prosecution for

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

(4th Cir. 2011).

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

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

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

                                               5
disregard of the fact that such coming to, entry, or residence

is or will be in violation of law . . . shall be punished as

provided      in    subparagraph       (B)    [of    the       statute].”      8    U.S.C.

§ 1324(a)(l)(A)(iv)-(v).

       Tracy maintains that the indictment fails to allege that he

encouraged         non-citizens      to   travel      directly       into    the    United

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

is invalid because the statute makes it unlawful to encourage or

induce non-citizens to travel directly into the United States

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

induce non-citizens to travel indirectly into the United States

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

       As alleged in the indictment, Tracy fraudulently obtained

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

with    the     knowledge     that    their      ultimate       destination        was   the

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

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

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

United    States      from    Cuba.    Hence,       the    indictment       alleged      with

specificity that Tracy conspired to encourage aliens to come to

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

allegations are more than enough to meet the requirements of the

statute.



                                             6
      Nevertheless,              Tracy       suggests              that,      because        the       phrase

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

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

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

direct encouragement and inducement.                                Thus, according to Tracy,

encouraging travel to third countries on the way to the United

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

are unpersuaded.

      Although Congress omitted the phrase “either directly or

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

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

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

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

interpretation, our starting point for discerning congressional

intent     is    the       language         of    the    statute             itself.        Congress       is

presumed to have used words according to their ordinary meaning

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

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

(citations omitted).

      The plain and unambiguous language of the statute reveals

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

clearly        indicate       that          the    statute              is     to    apply        only     to

encouragement          and       inducement              to        enter       the     United          States

illegally       by     a    direct          route.            In    the       absence       of     a    clear

                                                     7
indication, we will not impose such a limitation.                           Thus, we hold

that § 1324 makes it illegal to encourage or induce a non-

citizen    to   enter      the    United       States      unlawfully,       directly       or

indirectly.

      Furthermore, the absence of the words “either directly or

indirectly”      in    the    statute     makes       no   discernible        difference.

Contrary    to        Tracy’s      arguments          otherwise,          whether     Tracy

encouraged aliens to come to the United States illegally by a

direct    route,      or   toward       the    United      States    illegally        by    an

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

that Tracy knowingly conspired to help non-citizens enter this

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

violation of the statute, as charged in the indictment.

      According       to     Tracy,      the       indictment       was     also    legally

insufficient because it failed to specify which law aliens would

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

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

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

government counters that this argument is waived.                                  Assuming,

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

it is meritless.

      When viewed in context, the statute cannot reasonably be

read as referring to anything but violations of United States

immigration law.             Furthermore, the indictment sets forth the

                                               8
allegations       against          Tracy      in       detail.            Accordingly,          it    is

unreasonable to think that he was unaware of the charges against

him.    Any argument to the contrary is unconvincing.

       There     is    no     question         that         the    indictment          alleges       the

essential elements of a conspiracy to induce and encourage non-

citizens to enter the United States illegally and fairly informs

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

tracks     the     language         of     the     statute          almost          verbatim.          In

addition,        the   indictment          then         sets       forth       specific       factual

allegations       detailing         the       ways,         manners,       and       means    of     the

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

that    Tracy     cannot      be    prosecuted              in    the    future      for     the     same

offense.

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

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

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

evidence,       not    the    sufficiency              of    the        indictment.          What     is

sufficient for a grand jury to indict might well be insufficient

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

to say whether the evidence would have been sufficient for a

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

indictment was sufficient to give Tracy adequate notice of the

charges     against          which       to      defend           and     to     prevent        future

prosecution for the same offense.

                                                   9
                                         III.

     Tracy’s        second          argument           is     that         §      1324         is

unconstitutionally vague as applied.                         We review the district

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

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

     “Due    process     requires       that       a     criminal       statute        provide

adequate notice to a person of ordinary intelligence that his

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

criminally responsible for conduct which he could not reasonably

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

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

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

that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

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

357 (1983).

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

vague    because    he   did    not    have       fair      notice    that      his    conduct

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

what Tracy sets forth in his vagueness argument we have already

considered and rejected in our discussion of the sufficiency of

the indictment.



                                             10
     Tracy     states,   in   effect,       that   a    person   of     ordinary

intelligence would not understand that providing false travel

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

to the United States would constitute encouraging a non-citizen

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

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

for assisting non-citizens to come indirectly toward the United

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

States.

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

result was that they would enter the United States unlawfully.

To   further   assist    them,   he    provided        them   with    fraudulent

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

intelligence would understand that assisting those non-citizens

indirectly to enter the United States, knowing that they would

be entering the country illegally, encompasses encouraging or

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



                                      IV.

     Third, Tracy asserts a facial overbreadth challenge.                     We

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

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

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

statute is facially invalid if it prohibits a substantial amount

                                      11
of protected speech.           The doctrine seeks to strike a balance

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

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

criminal conduct must be weighed against the danger of chilling

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

appropriate balance, we have vigorously enforced the requirement

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

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

legitimate sweep.”       Id.

       Tracy declares that speech that encourages illegal aliens

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

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

. . . that constitutes criminal aiding and abetting does not

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

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

       In his overbreadth challenge, Tracy again raises his direct

versus     indirect    argument,    declaring    that      merely   encouraging

unlawful travel to another country should not be covered by the

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

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

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

either directly or indirectly, “knowing or in reckless disregard

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

be in violation of law.”         § 1324(a)(l)(A)(iv).

                                       12
     Although there may be some instances in which we might find

that the statute chills protected speech, we are unconvinced

that the statute prohibits a substantial amount of such speech.

Consequently,    because    “a   law    should   not   be   invalidated   for

overbreadth     unless     it    reaches    a    substantial     number   of

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

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



                                       V.

     For the foregoing reasons, the judgment of the district

court is in all respects

                                                                  AFFIRMED.




                                       13
