A Supreme Court term is not complete without a few slap downs of the Ninth Circuit such as this one.
The defendant in United States v. Sineneng-Smith operated an immigration consulting business in California. Between 2001 and 2008, she charged unwitting clients for help in applying to a path-to-citizenship program even though she knew the program had expired. The clients paid over $6000 each, for a total of more than $3.3 million. The defendant was convicted of violating, inter alia, 8 USC § 1324(a)(1)(A)(iv). Defense counsel argued that the statute did not cover her conduct and that, if it did, the statute violated her First Amendment rights to free speech and to petition the government.
On appeal, a panel of the Ninth Circuit appointed amici to raise additional issues framed by the panel. It then reversed the conviction on one of those issues, holding that the statute is unconstitutionally overbroad. This issue had not been raised by the defendant in either the district cout or the Court of Appeals.
On May 8, the Supreme Court unanimously reversed in an opinion by Justice Ginsburg.
The Court held that although judges are not bound “by the precise arguments of counsel, … the Ninth Circuit’s radical transformation of this case goes well beyond the pale.” Because the Circuit departed from its role as a “neutral arbiter,” the appeal was remanded “for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.”