Still waiting for the Ninth Circuit changes to go official. Here's a preview of one of them.
Instruction 9.4 addresses Encouraging illegal entry, codified at
8 U.S.C. § 1324(a)(1)(A)(iv). In 2018 a Ninth Circuit panel held that the statute was unconstitutionally overbroad. The government appealed this decision to the United States Supreme Court, which accepted cert. The Ninth Circuit accordingly withdrew the Model Instruction while the case was pending before the Supreme Court.
Early last year, in United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020), the Supreme Court vacated and remanded the Ninth Circuit decision without addressing the merits. At trial and on its initial appeal the defendant had made a number of First Amendment arguments, but did not argue overbreadth. Rather than address the claims raised by the defendant, the Ninth Circuit panel had appointed three amici and invited them to brief and argue other issues framed by the panel, including overbreadth. This, according to the Supreme Court, "departed so drastically from the principle of party presentation as to constitute an abuse of discretion." The case was remanded "for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel." The panel was specifically instructed to review the case "shorn of the overbreadth inquiry."
In December the Ninth Circuit panel, on remand, rejected the defendant's actual arguments and affirmed the conviction. The revised
Model Instruction now simply sets out the elements in the statutory language without any reference to overbreadth which, I assume, remains an issue if properly raised in future cases.