United States v. Linsy Di Pietro, 11th Cir. (2010)

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
No. 09-13726
________________________
ELEVENTH CIRCUIT
AUGUST 27, 2010
JOHN LEY
CLERK
D. C. Docket No. 08-00098-CR-ORL-22-DAB

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINSY DI PIETRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 27, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
MARTIN, Circuit Judge:
Linsy Di Pietro owned and operated A-3 Services, Inc., which arranged
marriages in Florida between illegal aliens and United States citizens solely for the
purpose of helping those aliens obtain permanent legal status. After a bench trial,
Ms. Di Pietro was convicted of aiding and abetting four individuals in their
violations of 8 U.S.C. 1325(c), which imposes criminal liability on any
individual who knowingly enters into a marriage for the purpose of evading federal
immigration laws.
This case requires us to address de novo two constitutional challenges to
1325(c) in evaluating whether the district court properly denied Ms. Di Pietros
motion to dismiss her indictment.1 Specifically, Ms. Di Pietro argues that
1325(c) is so vague that it violates the Due Process Clause of the Fifth
Amendment. She also contends that the statute unconstitutionally preempts
Floridas marriage laws, which purportedly recognize the validity of marriages
entered into for any purpose. After thorough review and oral argument, we agree
with the district court that Ms. Di Pietros constitutional challenges do not pass
muster. We therefore affirm the district courts ruling and sustain her conviction
under the statute.
I.
Generally, we review a district courts denial of a motion to dismiss the indictment for
abuse of discretion. United States v. Palomino Garcia, 606 F.3d 1317, 1322 (11th Cir. 2010).
But when that motion challenges the constitutionality of a statute, we review de novo the
interpretation of the statute by the district court. United States v. Spoerke, 568 F.3d 1236, 1244
(11th Cir. 2009).
2
To satisfy due process concerns, Congress must ensure that a criminal law
not only provide[s] the kind of notice that will enable ordinary people to
understand what conduct it prohibits but also that it does not authorize or even
encourage arbitrary and discriminatory enforcement. City of Chicago v. Morales,
527 U.S. 41, 56, 119 S. Ct. 1849, 1859 (1999) (citing Kolender v. Lawson, 461
U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)). A criminal defendant who finds
herself within the indeterminate scope of a law that falls below these standards
may seek to challenge that law as unconstitutionally vague, either on its face or as
applied to her own individual facts and circumstances.
Ms. Di Pietro challenges 1325(c) as being void for vagueness. The statute
provides that [a]ny individual who knowingly enters into a marriage for the
purpose of evading any provision of the immigration laws shall be [subject to
imprisonment, a fine, or both]. 8 U.S.C. 1325(c). Ms. Di Pietro concedes that
1325(c) clearly proscribes the conduct in which she engaged and thus the statute
is not unconstitutional as applied to her. She only challenges the law on its face,
attacking the very validity of the statute itself.
In making this challenge, Ms. Di Pietro urges us to evaluate her claim using
a more stringent vagueness standard than usual because she says that 1325(c)
implicates the right to marry, a form of association she says is protected by the
First Amendment. Although the Supreme Court has indeed applied a more
exacting vagueness review when constitutional rights are implicated,2 this case
does not require us to grapple with the alleged impact of 1325(c) on the First
Amendment or to determine the contours of a heightened vagueness standard
applicable to criminal statutes implicating First Amendment liberties. Rather, Ms.
Di Pietros challenge may be resolved by a straightforward application of a wellestablished rule of constitutional law.
That rule provides that a party to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it
might also be taken as applying to other persons or other situations in which its
application might be unconstitutional. United States v. Raines, 362 U.S. 17, 22,
80 S. Ct. 519, 523 (1960). The rule developed from the recognition that
constitutional rights are personal in nature; that prudential concerns counsel for
limiting the scope of constitutional adjudications; and that Article III of the
To bring a facial vagueness challenge, the Supreme Court has required that the party
establish that no set of circumstances exists under which the [criminal statute] would be valid.
United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987). But when the statute
infringes on constitutionally protected rights, such as the right to free speech or of association,
the Supreme Court has said that a more stringent vagueness standard should apply. Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 119394
(1982). In Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1330 (11th Cir. 2001), we noted
that the Supreme Court in City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849 (1999),
applied such a standard when it upheld a facial vagueness challenge to a law that (1) had no
mens rea requirement; (2) infringed on constitutionally protected rights; and (3) had text
permeated by vagueness.
4
Constitution limits the jurisdiction of federal courts to actual cases and

controversies. New York v. Ferber, 458 U.S. 747, 76768 & n.20, 102 S. Ct.
3348, 3360 & n.20 (1982). The rule thus protects not only against unnecessary
pronouncement on constitutional issues but also against premature
interpretations of statutes in areas where their constitutional application might be
cloudy. Raines, 362 U.S. at 21, 80 S. Ct. at 522. It also precludes a party from
litigating the personal constitutional rights of others and avoids an undesirable
foray by federal courts into every conceivable situation which might possibly
arise in the application of complex and comprehensive legislation. Id. (quoting
Barrows v. Jackson, 346 U.S. 249, 256, 73 S. Ct. 1031, 1035 (1953)).
Furthermore, it ensures that federal courts make informed judgments by limiting
their decisions to actual, not hypothetical, cases that carry with them facts and data
on which a well-reasoned decision may be based. See Ferber, 458 U.S. at 768, 102
S. Ct. at 3360; see also Raines, 362 U.S. at 22, 80 S. Ct. at 523.
In articulating this general rule in the context of void-for-vagueness
challenges under the Due Process Clause, the Supreme Court has stated that [a]
plaintiff who engages in some conduct that is clearly proscribed cannot complain
of the vagueness of the law as applied to the conduct of others. Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct. 1186,
1191 (1982). Recently, the Court clarified that the rule makes no exception for
vagueness challenges that implicate the First Amendment. See Holder v.
Humanitarian Law Project, __ U.S. __, 130 S. Ct. 2705, 271819 (2010). This
clarification addressed a tendency of courts to analyze such vagueness challenges
together with First Amendment overbreadth challenges,3 which are exempted from
the rule. Unlike void-for-vagueness challenges, overbreadth challenges fall into
one of the few exceptions to the rule that confines an individual to addressing her
own harm, and its exemption is justified by a weighty countervailing polic[y]:
that is, persons whose expression is constitutionally protected may well refrain
from exercising their rights for fear of criminal sanctions by a statute susceptible of
application to protected expression. Ferber, 458 U.S. at 768, 102 S. Ct. at
336061 (quoting Gooding v. Wilson, 405 U.S. 518, 521, 92 S. Ct. 1103, 1105
(1972)). For this reason, a party to whom the law may be constitutionally applied
may assert an overbreadth challenge to a law on the ground that it violates the First
Amendment rights of others. See, e.g., Humanitarian Law Project, __ U.S. at __,
130 S. Ct. at 2719; United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 1593
(2010) (Alito, J, dissenting); United States v. Williams, 553 U.S. 285, 304, 128 S.
The two tend to be analyzed together because a laws vagueness is relevant to an

overbreadth analysis in determining whether the law chills a substantial amount of protected
expression. See Hoffman Estates, 455 U.S. at 494 n.6, 102 S. Ct. at 1191 n.6.
6
Ct. 1830, 1845 (2008); Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
48283, 109 S. Ct. 3028, 3036 (1989); Ohralik v. Ohio State Bar Assn, 436 U.S.
447, 462 n.20, 98 S. Ct. 1912, 1922 n.20 (1978). Such departures from the rule are
rare, however, and accordingly, overbreadth challenges have been described as
strong medicine that should be used as a last resort and only then when the
statute implicates a substantial amount of protected expression. Ferber, 458 U.S.
at 769, 102 S. Ct. 3361 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 615,
93 S. Ct. 2908, 291617 (1973)).
Ms. Di Pietros challenge to 1325(c) falls squarely within the rule
prohibiting a facial vagueness challenge by one to whom a statute may be
constitutionally applied. See Humanitarian Law Project, __ U.S. at __, 130 S. Ct.
at 271819. In bringing the appeal, Ms. Di Pietro sought to have us declare
1325(c) unconstitutionally vague for either (or both) of two independent
grounds: first, she claims the statute fails to provide adequate notice of what
conduct it prohibits, and second, that it is susceptible to arbitrary and
discriminatory enforcement. See Morales, 527 U.S. at 56, 119 S. Ct. at 1859. At
oral argument, Ms. Di Pietro concededand we agreethat she is barred from
bringing a facial challenge based on lack of notice. As for her arbitrary and
discriminatory enforcement challenge, Ms. Di Pietro has not pointed us to any
weighty countervailing policiessuch as the one associated with the

overbreadth doctrinethat would caution us against applying the rule, as we did in
Joel v. City of Orlando, 232 F.3d 1353, 135960 (11th Cir. 2000), to those types of
vagueness challenges. We therefore hold that because Ms. Di Pietro does not
dispute that 1325(c) clearly covers her own conduct, she may not challenge the
statute on vagueness grounds based on its application to others.
II.
Ms. Di Pietro also seeks to invalidate 1325(c) on the ground that it
unconstitutionally preempts Floridas marriage laws. By criminalizing marriages
entered into for the purpose of evading federal immigration laws, Ms. Di Pietro
claims that 1325(c) conflicts with Floridas marriage laws, which presumably
permit those marriages as marriages of convenience. See generally Chaachou v.
Chaachou, 73 So. 2d 830, 838 (Fla. 1954). According to Ms. Di Pietro, the
conflict should be resolved in favor of Florida because the regulation of marriage
traditionally falls within the province of the states, not the federal government, and
because Congress can exercise its plenary authority over immigration matters in
less restrictive ways than by criminalizing valid state marriages.
Ms. Di Pietros preemption argument is a novel one. In making it, she says
that [s]tate family . . . law must do major damage to clear and substantial
federal interests before the Supremacy Clause will demand that state law be
overridden. Hisquierdo v. Hisquierdo, 439 U.S. 572, 582, 99 S. Ct. 802, 808
(1979) (quoting United States v. Yazell, 382 U.S. 341, 352, 86 S. Ct. 500, 507
(1966)). But the problem with Ms. Di Pietros argument is that she does not ask us
to override state law. Rather, she turns the Supremacy Clause on its head, urging
that we enjoin the application of 1325(c) in deference to Floridas marriage laws.
The Supremacy Clause, however, does not apply in this way. See U.S. Const. art.
VI ([T]he Laws of the United States . . . shall be the supreme Law of the Land . . .
.). To the extent that any conflict exists between 1325(c) and Floridas marriage
laws,4 it could only serve to invalidate the latter. This, of course, does Ms.
Di Pietro no good, where her conviction arises under federal, not state, law.
For these reasons, the district court did not abuse its discretion in denying
Ms. Di Pietros motion to dismiss the indictment.
AFFIRMED.
Even assuming that state law could trump federal law, we do not see a conflict between
1325(c) and Floridas marriage laws. Although marriage is an element of the crime under
1325(c), the statute does not invalidate or criminalize that marriage. Rather, the law only
criminalizes the purpose for which that marriage will be used and therefore stands in no different
position than other criminal laws that involve the use of legal means for illicit purposes. See
Lutwak v. United States, 344 U.S. 604, 610613, 73 S. Ct. 481, 48587 (1953).
9

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

D. C. Docket No. 08-00098-CR-ORL-22-DAB

Constitution limits the jurisdiction of federal courts to actual cases and

The two tend to be analyzed together because a laws vagueness is relevant to an

weighty countervailing policiessuch as the one associated with the

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