Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,342 Cases and Articles on TJV!
 
Idaho State Categories







State of Idaho v Manzanares

Case No. 35703 (ID S.Ct., Jan. 6, 2012)

Simona Manzanares appeals from the judgment entered following her guilty plea under a conditional plea agreement. She pled guilty to recruiting a criminal gang member under I.C. § 18-8504(1)(a) in exchange for the dismissal of a charge for providing a firearm to a criminal gang member under I.C. § 18-8505. On appeal, Manzanares argues that: (1) I.C. § 18-8504(1)(a) (the “Recruiting Provision”) is unconstitutionally overbroad on its face and as applied for encroaching on the First Amendment right to free association; (2) I.C. § 18-8505 (the “Firearm Provision”) is unconstitutionally overbroad as applied for punishing her expressive conduct, unconstitutionally vague on its face and as applied for failing to adequately define “gang member,” and unconstitutional under the Second Amendment of the United States Constitution and Article I, Section 11 of the Idaho Constitution for prohibiting a class of persons from keeping or bearing arms; (3) her conviction violates the ex post facto clauses of the United States and Idaho constitutions; (4) the district court erred in failing to dismiss the information based on the information’s failure to enumerate all elements of the charged offenses; and (5) the district court erred in failing to dismiss the information based on insufficient evidence offered at the preliminary hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND



The legislature adopted the Idaho Criminal Gang Enforcement Act (“ICGEA”), I.C. §§ 18-8501 et seq., effective March 24, 2006. 2006 Idaho Sess. Laws, ch. 184, § 1, pp. 582–85. On February 27, 2007, Manzanares was charged with committing two felonies under the ICGEA: (1) recruiting a criminal gang member in violation of I.C. § 18-8504(1)(a); and (2) supplying a firearm to a gang member in violation of I.C. § 18-8505.

Under the Recruiting Provision, “[a] person commits the offense of recruiting criminal gang members by . . . [k]nowingly soliciting, inviting, encouraging or otherwise causing a person to actively participate in a criminal gang.” Idaho Code § 18-8504(1)(a). Count I of the Information (the “Recruiting Charge”), alleged that Manzanares, from about September 21, 2006, until about February 2, 2007, “did knowingly solicit, invite, encourage or otherwise cause a person to actively participate in a criminal gang, The East Side Locas” in violation of the Recruiting Provision.
 

 

Judge(s): Rogers S. Burdick
Jurisdiction: Idaho Supreme Court
Related Categories: Constitutional Law
 
Supreme Court Judge(s)
Roger Burdick
Daniel Eismann
Joel Horton
Jim Jones
Warren Jones

 
Trial Court Judge(s)
Thomas Ryan

 
Appellant Lawyer(s) Appellant Law Firm(s)
Molly Huskey Office of the Idaho State Appellate Public Defender
Erik Lehtinen Office of the Idaho State Appellate Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Kenneth Jorgensen Office of the Idaho Attorney General
Lawrence Wasden Office of the Idaho Attorney General

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
conduct they seek to thwart, while avoiding unnecessary infringements upon the constitutional broad sweep of the recruiting provision. although there is a compelling governmental interest corporal hoadley then testified to specific encounters he had with manzanares, setting forth formed with the specific intent that they advance or achieve a criminal purpose. more of the icgea's enumerated crimes. the court reasoned that "the member for whom the organization is a vehicle for the advancement accept the petitioners' request that the decision of the slaughter-house cases be overturned, stating: the state asserts that because i.c. 18-8504 criminalizes recruitment rather than membership, it does not infringe http://www.rotary.org/en/aboutus/pages/ridefault.aspx. citizens or as public employees. laws such as this which are not restricted in code; discussion as the basis for a criminal charge. this legislation is the result of recommendations made by the governor's criminal justice 5 is not unconstitutionally overbroad. (2) subsection (1) of this section shall not apply to a person who is convicted as a principal to the no attack on the validity of the conditional plea agreement. thus, she waived the ex post facto members to go tagging, which involves spray-painting messages and symbols related to the east date(s) subsequent to the enactment of the icgea. thus, we hold that manzanares's ex post the information's failure to enumerate all elements of the charged offenses; and (5) the district prosecuted for their conspiracy or other violation of valid laws. but it is a an exercise this court will not undertake."). thus, we hold that all issues raised by manzanares i rely on case law from this era because it is the richest source of decisions from the united states supreme court to secure individual liberty, it must afford the formation and preservation of applications. rather, there must be a realistic danger that the statute itself will significantly express one's attitudes or philosophies by membership in a group or by affiliation with it or by if the answer to both steps is in the affirmative, then the statute is overbroad. see id. "a statute extend to an organization which exists for many purposes, including the commission of felonies. code. it does not require any knowledge of the unlawfulness of such act or omission." i.c. 18- expressive purposes is not, however, absolute." roberts v. u.s. jaycees, 468 u.s. 609, 623 in fact criminal. this conclusion does not prevent the enactment of laws that criminalize gang language "the issue of the constitutionality of the charge and statute" also fails to explicitly refer gang member under i.c. 18-8505. on appeal, manzanares argues that: (1) i.c. 18-8504(1)(a) a. all issues manzanares raises concerning the firearm charge are moot, because the sometime from april 1, 2006, to february 26, 2007, and the firearm charge alleges that (2002), the wisconsin supreme court explained: members initially to less than ten members as people moved, got married, became pregnant, and criminal conduct. brown's tie & lumber co. v. chicago title co. of idaho, 115 idaho 56, 60, applied unconstitutional for prohibiting conduct protected by the first amendment. advancement of legitimate goals and policies," yet who has no criminal purpose. the u.s. unconstitutionally vague on its face and as applied for failing to adequately define "gang waives all non-jurisdictional defects in the proceedings." id. (citing state v. princess cinema of conduct. across all types of association with criminal gangs and without regard to the quality and degree trinidad testified that she hardly knew manzanares prior to that party and had not previously reached by the majority. conduct, is unconstitutional." state v. cook, 146 idaho 261, 262, 192 p.3d 1085, 1086 (ct. app. to become a member and who supported or participated in the commission of a felony to remain of the legislature's decision to eliminate the requirement that a party recruiting16 as "the corporal hoadley testified that on december 5, 2006, manzanares voluntarily spoke with unconstitutionally overbroad for criminalizing association, speech, and expressive conduct in infringing on her right to association and expression, because the district court concluded that a plea agreement is contractual in nature and must be measured by decision to re-file the firearm charge and could affect any resulting case. however, ruling on be a member of an organization or to associate or interact with that organization, court erred in failing to dismiss the information based on insufficient evidence offered at the "primary" does not have its most common meaning of "first in importance." webster's new to the district court. the state filed the information on march 22, 2007. manzanares moved to issue by knowingly, voluntarily, and intelligently entering into the plea agreement. broadrick, 413 u.s. at 612. although laws that tend to restrict the right of individuals to place at the new year's party, then the ex post facto clauses of the united states constitution and testimony that manzanares encouraged members of the east side locas to go tagging. the membership which cannot be so proscribed. it is made irrelevant to the statute's "only if the statute intrudes upon a substantial amount of constitutionally protected conduct may 14 which concern the firearm charge were rendered moot when the firearm charge was dismissed. expression. we hold that the recruiting provision is not facially overbroad because it does not recording ("for all your surenos out there keep bangin', homies.") "is encouraging people to 11 over the defendant when the defendant appears at the initial court setting on a complaint or terrorists by one who knew either that the group committed terrorist acts or that the group was a "primary activities". i agree with the plurality's refusal to accept petitioners' primary submission. their briefs marshal exploration of members' individual identities, are also intimate associations entitled to first scope to those who join with the `specific intent' to further illegal action impose, infringes on first amendment freedoms. since the icgea sweeps broadly enough to affect enumerated offenses by any member of the criminal gang, then the defendant has transcend the bounds of the freedom of speech which the constitution protects. if the quality and degree of membership, that it runs afoul of the first amendment." id. at 262. "caused someone" to "actively participate" by either (1) committing one of the icgea's information (the "recruiting charge"), alleged that manzanares, from about september 21, based on her conduct at the new year's party--prior to the enactment of the icgea. based on the particular facts of a defendant's case and it is often difficult to ascertain what those to jackie trinidad who the defendant knew to be a criminal gang member" in violation of the v. statute does not require that the accused cause another to become a "criminal gang member." a person to actively participate in a criminal gang, the east side locas" in violation of the were not "eastsiders." protected by the first amendment: "size, purpose, policies, selectivity, congeniality, and other eradicating discrimination against its female citizens justifies the impact that application of the there may be imaginable instances in which i.c. 18-8504(1)(a) penalizes conduct protected i join in the result reached in parts iii.a and iii.d of the court's opinion, although for similarly to the plaintiffs in holder, manzanares argues that the recruiting provision is whether formal or informal, sharing a common name or common identifying sign or symbol, and our constitutional scheme. in this respect, freedom of association receives limiting construction which avoids constitutional infirmity. id. where conduct, not speech, is intent to commit a crime was again the determinative factor in scales v. united states, deputy attorney general representing the state expressed his belief that the recruiting provision to register, it shall be unlawful for any member of the organization `to engage in any finally, manzanares also argues that the ex post facto issue is properly before this court would have been a criminal act. yet prosecution under the recruiting provision would have for appeal. accordingly, we hold that manzanares's conditional plea agreement did not reserve manzanares also argues that she specifically reserved the right to appeal these issues in relating to first amendment rights of association and the power of the state and federal governments to interfere 23 california law requiring that women be admitted did not "interfere unduly with the members' organization sufficiently narrows the statutes at issue in those cases. however, those cases do organization" pursuant to statute upon finding that the organization is foreign, engages in differences, we find that holder is instructive in its general analysis of an overbreadth challenge. (citations omitted). third, by entering an alford plea, manzanares did not admit to any conduct on her part who do not participate in its unlawful activities surely pose no threat, either as indiscriminately across all types of association with communist-action groups, without regard to participate in the criminal gang." under idaho's criminal code: "the word `knowingly,' imports association developed during the cold war,14 overbreadth asks (1) whether the statute regulates constitutionally protected conduct, and (2) maintain the affiliation, and seclusion from others in critical aspects of the relationship." id. at party of conn., 479 u.s. 208, 215 (1986). facto issue is not jurisdictional and was, therefore, waived by pleading guilty. not overbroad.5 cultural traditions, transmitting shared ideals and beliefs, and investing in the development and 9 (3) this section shall not be construed to limit prosecution under any other provision of law. holder may have limited applicability: the supreme court noted that the war on terror is a the the act's definition of "criminal gang" may be intimate or expressive associations that are 8 constitution and article i, sections 9 and 10 of the idaho constitution. we find that the protected associational right . . . ," i.e., that associations formed for the sole purpose of justices eismann, j. jones and w. jones, concur. infringements to the conduct not protected by the first amendment, are substantially overbroad those who join an organization but do not share its unlawful purposes and "to prove a statute is unconstitutional `as applied,' the party challenging the conduct. rather, it simply requires that those laws be tailored to prohibit only the criminal ) 4 course of determining whether to impose a saving construction, the united states supreme court locas. corporal hoadley also testified as to state's exhibit 2, which he says is a copy of freedom of expressive association must be finely tuned to impact only the criminal intent and consequence have insisted upon the existence of a specific intent requirement in their anti-gang narrow to avoid implicating a substantial amount of protected conduct. post facto violation. we explained in wheeler v. idaho department of health and welfare: conduct or advocated doctrine that itself is not protected." naacp v. claiborne hardware co., noting the size of rotary clubs in california, the regular turnover in membership, and an as we explained in state v. hosey, 134 idaho 883, 886, 11 p.3d 1101, 1104 (2000): 7 association. id. likewise, a california statute that imposed enhanced criminal sanctions for gang. individual and the power of the state. moreover, the constitutional shelter (2) knowingly solicited, invited, encouraged, or otherwise caused someone to "actively which she was jumped in to the east side locas) was that her friend maria wanted to go. the majority evidently shares my view that the recruiting provision does not require that manzanares waived her preliminary hearing, and on march 21, 2007, she was bound over the statement in griswold v. connecticut, 381 u.s. 479, 483 (1965), that "[t]he right to freely associate is not limited common membership in an organization, even if that organization is large and non-selective, the members of that organization possess associational and expressive interests13 (a) knowingly soliciting, inviting, encouraging or otherwise causing a person to actively p. 585. even though the complaint, as well as each draft of the information, allege that unlike the majority, i am unable to discern the link between the phrase "actively participate" and upon the right to freedom of association. however, the united states supreme court has recognized "a prohibition manzanares went to the garage because "that's where all the beer was", and while in the garage, because it involves fundamental error. "as a general rule, we will not consider arguments made murder, burglary, or concealment of evidence, the party would have been a criminal gang under (i) computer crime, as provided in section 18-2202, idaho code; therefore decline to disturb the slaughter-house holding. ) crimes "committed for the benefit of, at the direction of, or in association with any criminal street as set forth in state v. korsen, 138 idaho 706, 711, 69 p.3d 126, 131 (2003): defendant knowingly solicited, invited, encouraged or otherwise caused a person "knowingly provid[e] material support or resources to a foreign terrorist organization." 130 charge was amended to name jackie trinidad as the person manzanares allegedly recruited and talked to manzanares about the east side gangs. she testified that maria told her at the party manzanares argues that the recruiting provision (i.c. 18-8504(1)(a)) is uniquely compelling government objective; the supreme court emphasized the legislative commission of one of the icgea's enumerated offenses or (b) in making it one of vehicle in which manzanares was riding with a gang member who was arrested, depicts jackie intent,' would run afoul of the constitution was set at rest by our decision in aptheker . . . ." 384 advocacy took place, the frequency of such occasions, and the position within the group of the 2008, the district court held a hearing on the motion to dismiss, and on february 8, 2008, the preliminary hearing. both of these claims, as manzanares explains in her briefing, are encouraging, or otherwise causing that person to "actively participate in a criminal gang" under the party challenging a statute on constitutional grounds bears the burden of actively participate in a criminal gang," i am unable to agree with the majority's conclusion that criminalize membership without a specific intent requirement impose punishment upon the turning to the case at hand, we do not find that the recruiting provision sweeps indiscriminately 290 (1961); aptheker v. secretary of state, 378 u.s. 500 (1964); and elfbrandt, 384 u.s. 11. engage in expressive association with domestic organizations, and the state's reliance thereon is clear to me that manzanares' conditional plea of guilty only served to preserve her constitutional two (2) or more gang members: (k) evidence falsified or concealed and witnesses intimidated or bribed, as provided in sections the statute further provides, however, that a--it has to be a criminal gang, 3059 (2010), as authority for the proposition that the privileges and immunities clause is the basis upon which the terrorism, the challenged provisions were justified and the statute was constitutional on the on june 27, 2008, manzanares moved to dismiss in light of the united states supreme probability of a second appeal), i may not substitute my view of what may have been desirable defendant prevails on appeal, the defendant shall be allowed to withdraw second, while the evidence presented at the preliminary hearing sheds some light on the the statute at issue prohibited individuals who professed membership in a communist under the first amendment, we find that the statute does not implicate a substantial amount of 3605 through 18-3616, idaho code; amount of that constitutionally protected conduct. party and that manzanares did not say anything about jumping her in but that manzanares did gang, with the specific intent to promote, further, or assist in any criminal conduct by gang the issue for appeal. activity." u.s. at 16. the supreme court noted that the statute at issue did not include a specific intent made criminal, membership must be accompanied by the specific intent to commit the group's state v. urrabazo, 150 idaho 158, 163, 244 p.3d 1244, 1249 (2010) ("subject matter jurisdiction element into the recruiting provision (supra part iii.c.ii.b), and accordingly, we need not reach manzanares's conditional plea agreement broadly purports to reserve the right to appeal: on february 27, 2007, manzanares was charged with committing two felonies under the "pattern of criminal gang activity" means the commission, attempted commission or solicitation of two (2) (citations omitted). consideration that may underlie this type of constitutional protection, we have thus, there was no adverse ruling below addressing this issue which could have been reserved lacks such specificity, there is a risk that the appellate court will be unable to determine from the avoids the necessity of declaring the statute unconstitutional, is not found within the language of entered an alford plea and, thus, did not admit to any conduct that could form the basis of her intimate groups, formed between friends for purposes of socializing in private, passing on different matter when the state, instead of prosecuting them for such offenses, 1 that the gun was wrapped up in a towel on a couch in the garage, manzanares gave the gun to specific conduct of the defendant; (2) the preliminary hearing provides little factual specificity 2 (2000), holds that interpretation of the terms of an ambiguous plea agreement involves questions the act and is inconsistent with the evident intent of the legislature. relationships must be secured against undue intrusion by the state because of the 25 reserve the right to challenge the constitutionality of the statute to which she pled guilty--the merely soliciting, inviting, encouraging, or otherwise causing a person to be a member of for the first time on appeal. when the alleged error constitutes a fundamental error, however, parsing this definition, a criminal gang is: (1) an ongoing organization, association, or group of criminal gang if the person knows an individual is a gang member and supplies, sells or gives whose members share common activities which may include criminal behavior (whether new year's party on december 31, 2005--nearly three months prior to the icgea's effective associate must be tailored narrowly to serve legitimate governmental interests, aptheker, 378 although political discourse is a common manifestation of expressive association, the expressive activity of a different reasons than the majority. i join in the court's opinion as to parts iii.b and iii.c.i. i 1. overbreadth amendment rights. 130 s.ct. at 3030-31. only a moot question. a case becomes moot when the issues presented are no creating ambiguity as to the scope of matters which were preserved for appeal. id. at 365. the court held that government may not criminalize association with a group merely concludes: citizens or as public employees. laws such as this which are not restricted in defined by statute as: on september 4, 2007, the state filed the second amended information. in this final these are only a few examples of the types of first amendment protected associations women's health ctr., 512 u.s. 753, 776 (1994). however, "[t]he right to associate does not lose of criminal offenses either by imposing a specific intent requirement in the recruiting provision only a knowledge that the facts exist which bring the act or omission within the provisions of this defendant's plea. review on appeal is permissible." state v. severson, 147 idaho 694, 71516, 215 p.3d 414, 435 presumption of validity.' appellate courts are obligated to seek an interpretation recognized that criminal gangs are entitled to some degree of freedom of association, and as a legitimately abridged upon a showing of a compelling state interest. b. first amendment considerations constitutionally protected conduct. should such imaginable instances arise, the as-applied knowing member of an organization which has as `one of its purposes' the violent a. structure of the icgea all factual references to the composition of rotary international and its objectives may be found at this motion was ever heard or decided. i start first with consideration of the court's description of the operation of the icgea. i criminalize mere membership, but instead prohibited speech in the form of the knowing to demonstrate what conduct on her part provides the basis of her conviction. held on august 30, 2007 394 (1873). but the original meaning of the clause is not as clear as they suggest - and not nearly many types of groups that may qualify as intimate or expressive associations, it is substantially membership, even if the role of that recruit was limited to "actively participating" in the gang by conduct protected by the first amendment. manzanares failed to show that the recruiting all constitutional protection merely because some members of the group may have participated in the recruiting provision requires that the recruit "`actively participate in' either (a) the criminal justice roberts and justices scalia and kennedy, discussed the slaughter-house cases, 83 u.s. 36 ( (1873), which determine the nature of the appeal and the right reserved for the appeal with specificity from the association" in two distinct senses. in one line of decisions, the court has or collectively committed, attempted to commit, or solicited at least two of the icgea's in focusing on the lack of a specific intent requirement, manzanares simply overlooks overthrow of the government, is subject to immediate discharge and criminal id. at 618-19 (citations omitted). the icgea. under the act's recruiting provision, recruitment of new members to the party the purpose of accomplishing a criminal act may their association be criminalized. filed another motion to dismiss, arguing that the evidence offered at the preliminary hearing was to actively participate in a criminal gang." idaho code 18-8504(1)(a).2 to reserve for appeal any adverse ruling from the prior proceedings. while narrower, the 36 manzanares argues that the recruiting provision is both facially and as applied manzanares. he testified that based on his expertise on gangs, the language from the audio means of preserving other individual liberties. supreme court testing the statute under which she's pleading guilty this morning." thus, it is and article i, section 11 of the idaho constitution for prohibiting a class of persons from duarte, 481 u.s. 537 (1987), and city of dallas v. stanglin, 490 u.s. 19 (1989). 278, 285 (1961); cantwell v. state of conn., 310 u.s. 296, 303 (1940). contract law standards. the interpretation of a contract's meaning and legal effect (b) arson, as provided in sections 18-801 through 18-804, idaho code; manzanares draws our attention to a line of cases in which the united states supreme organization. prosecution and conviction on such grounds amounts to guilt by association, a a criminal gang," i.e., a group with at least five members who were required to commit a felony of showing a clear error that violated one of her unwaived constitutional rights. decisions, the court has recognized a right to associate for the purpose of see north carolina v. alford, 400 u.s. 25 (1970). pursuant to an alford plea, the defendant pleads guilty but manzanares knew trinidad was a gang member on the day of the barbecue and that this was an burdick, justice recruiting statute. manzanares's june 12, 2007 motion to dismiss asserted, amongst other 30 the united states supreme court's description that the right of association "includes the right to construed it to include a requirement of specific intent. id. at 206-19. addressing the appellant's ii. standard of review associational or expressive purposes. this leads me to consider whether the statute is overbroad specific intent, we find that the recruiting provision is sufficiently narrow to avoid implicating a recruiting provision. explained that: applying these factors and noting that gender was the only meaningful restriction on full firearm provision. made it a crime to knowingly be a member of an organization which advocated violent court the issue of the constitutionality of the charge and statute, and such other matters that the statute to include a requirement that the actor possess the specific intent to further the group's the ex post facto clauses prevent the enactment of `any statute which punishes as year olds from patronizing certain dance-halls. 490 u.s. at 20-21. the court held that "the and imposed guilt by association. in de jonge v. oregon, state law criminalized the act of 12 the united state supreme court confirmed that the specific intent to commit a group's "the overbreadth doctrine is aimed at statutes which, though designed to prohibit itself guaranteed in the first amendment . . . . " aptheker v. sec'y of state, 378 u.s. 500, 507 challenge is available to protect the defendant's constitutional rights. therefore, we hold that the sanctions or denying rights and privileges solely because of a citizen's association with an 16 (the "recruiting provision") is unconstitutionally overbroad on its face and as applied for provision") is unconstitutionally overbroad as applied for punishing her expressive conduct, i. part iii.a the reviewability of manzanares' challenges to the firearm charge applied challenge is not jurisdictional and would be waived. in state v. trochinski, 644 n.w.2d 891, 904, n.15 facially overbroad. (1964) (citations omitted); see also healy v. james, 408 u.s. 169, 181 (1972); elfbrandt v. protected by the constitution. however, the icgea, by its inclusion of the phrase "one of its (u) money laundering and illegal investment, as provided in section 18-8201, idaho code. or whether the statute advances a compelling state interest. unconstitutionally vague. she also argued that the firearm provision violates the second id. at 265-66. robel and the cases that precede it make clear that legislative curtailments of the might appear in the record of this action." in my view, the use of the singular "the charge" is stephen w. kenyon, clerk to any adverse ruling below. prove to convict her under i.c. 18-8504(1)(a). as already explained supra at part iii.b, while that the recruiting provision was applied to her in a manner that infringed upon her first trinidad testified that the reason she attended the 2005-2006 new year's eve party (at proof that he knew that the organization engages in criminal advocacy, and that it was his icgea: (1) recruiting a criminal gang member in violation of i.c. 18-8504(1)(a); and (2) participate in a criminal gang, the east side locas." for the foregoing reasons, i respectfully dissent from part iii.c.ii of the court's opinion. california, 403 u.s. 15 (1971)). political activists whose members engage in criminal activity in order to pursue their political violation of the first amendment of the united states constitution and article i, sections 9 and finally, she argued that the recruiting charge failed to provide adequate notice of the alleged much of the united states supreme court's jurisprudence exploring the freedom of though the organizations at issue are involved in criminal activity. thus, we turn to the second construed the statute to include a specific intent requirement, the court held that the scope of the inconsistent with the reservation to appeal "such other matters that might appear in the record," state prison for 16 months, or two or three years. this phrase has a specific statutory definition,8 of members into an organization, implicates the first amendment right to free association, even political, social, economic, educational, religious, and cultural ends." id. at 622. unpopular organization." healy v. james, 408 u.s. 169, 185-86 (1972). manzanares's conditional plea agreement states that she reserves her right to appeal "the this, of course, begs the question: what does "freedom of association" mean? despite other criteria. a "pattern of criminal gang activity" is defined by i.c. 18-8502(3)9 (step). step's recruiting provision states: vague to the extent that it applies to the recruiting provision and the firearm provision, both 34 (2) a person convicted of a violation of this section shall be imprisoned for a term not to exceed (3) of this section. 367 u.s. 203 (1961). in that case, the united states supreme court upheld a federal statute that were not preserved for appeal. the written plea agreement which identifies the issue or issues felony to commit criminal gang activity by "knowingly or intentionally actively participat[ing] in facial challenge to the statute under the first amendment, the court affirmed that guilt is the lawful goals of, an organization that happens to be a criminal gang under the icgea. while provision was unconstitutional as applied to her. recording from manzanares's myspace webpage, which he identified as the voice of definition of "criminal gang" does not provide for such a narrow construction of the recruiting violent overthrow of the federal government. communist groups were popularly perceived as 32 in focusing on the lack of a specific intent requirement, manzanares photograph about which corporeal hoadley testified). trinidad testified that in the photograph, expressly provides that a person is guilty of recruiting criminal gang members if he or she did so is determined to be ambiguous, interpretation of the contract is a question of fact identifying themselves as "rotarians," they "provide humanitarian service, encourage high manzanares reserved her right to appeal "the issue of the constitutionality of the charge and 37 these characteristics, in addition to the characteristics that cause it to fall within the i.c. 18- numerous occasions and that she admitted to him that she is a member of the east side locos icgea and, thus, has not recruited that person as a gang member pursuant to i.c. 18- describing the first category of cases, the court continued: keeping or bearing arms; (3) her conviction violates the ex post facto clauses of the united states b. as applied challenge. i believe that the icgea is unconstitutionally overbroad because some groups that meet the legislature adopted the idaho criminal gang enforcement act ("icgea"), i.c. 7 clear legislative intent.. thus, i do not believe that it can be so saved. recruiting provision to determine whether it precludes a substantial amount of protected in elfbrandt v. russell, 384 u.s. 11 (1966), the supreme court specifically noted the a defendant may enter a conditional plea of guilty reserving in writing the right, supporting the political goals of the group. . . . what [the statute] prohibits is the act of giving constitution guarantees freedom of association of this kind as an indispensable we do not know what conduct formed the basis of manzanares's conviction. manzanares offense committed by the recipient of the firearm. seizes upon mere participation in a peaceable assembly and a lawful public statute that required a civic organization to make full membership available to women. 468 u.s. in holder, the plaintiffs argued that the statute violated their freedom of association under the conduct to be facially valid and, as applied to the particulars of this case, criminalizes activity of these dance-hall patrons - coming together to engage in recreational dancing - is not the majority correctly notes that state v. hosey, 134 idaho 883, 886, 11 p.3d 1101, 1104 the importance of the fourth clause cannot be gainsaid. i think that the implications of provided that the offenses are committed on separate occasions or by two (2) or more gang with a statute that prohibited individuals, gang member or not, from loitering in public areas if entitled to first amendment protections. looking back to the cold war era, for example, if the never incite imminent violence or crime, the simple fact that a person organized a meeting situation which i believe is presented by the icgea: organizations and associations may have commission of one or more predicate offenses. persons engaging in the advocacy. understood in this way, there is no great difference between a 18-8504(1)(a) in exchange for the dismissal of a charge for providing a firearm to a criminal the united states constitution and article i, sections 9 and 10 of the idaho constitution and is can never be waived or consented to"). thus, even if the conditional plea agreement purports to by a construction that would impose a specific intent requirement. therefore, i join in the result broadrick v. okla., 413 u.s. 601, 613 (1973). if possible, a challenged statute should be given a enter an alford plea4 federally-designated terrorist group. the statute at issue in humanitarian law project did not standing behind her and flashing the common gang sign for the east side locos or east side and nonmembers in a public place. further, the ohio court's interpretation of choate is a ohio, 269 u.s. 167, 169-70, 46 s.ct. 68, 70 l.ed. 216, 217 (1925)). not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional 10 by one who does not subscribe to the organization's unlawful ends. the unique facts and narrow holding of humanitarian law project distinguish it from recruiting provision is not facially overbroad. idaho code 18-8502(3) states: held that the privileges or immunities clause protects only those rights "which owe their existence to the federal specifically concerning the firearm charge. the state argues that these issues are moot, because c. idaho code 18-8504(1)(a) (the recruiting provision) is not facially overbroad nor as- properly reserved for appellate review." state v. kelchner, 130 idaho 37, 39, 936 p.2d 680, 682 (1) "the issue of the constitutionality of the charge and statute" and (2) "such other matters that problems of proof. whether it has been successfully shown that a particular group engages in noteworthy that despite the large size and largely impersonal nature of the association, the court because of the value of expressive association, even government infringements that merely chill expressive encouraging commission of, predicate offenses. he may disagree with those unlawful aims. these issues. was a member of the gang, and manzanares is "throwing up eastside." trinidad testified that of a statute that upholds its constitutionality. ) with the specific intent that the recruit would "participate in a pattern of criminal street gang the record of this action" does not explicitly set forth any adverse ruling(s), but apparently seeks member who is "foolish, deluded, or perhaps merely optimistic," or who joins the group "for the this legislation provides definitions; extends sentences for gang members who commit certain involving violent and criminal contingents. state and federal laws were enacted which sought to which deprives one charged with crime of any defense available according to law communications equipment, facilities, weapons, lethal substances, explosives, in the affirmative to the following question asked by the district court at the plea hearing: "[y]ou trochinski has waived his right to challenge wis. stat. 948.11(2) as applied, because of his plea. invited a person to actively participate in the criminal gang. manzanares recruited trinidad was not limited to the new year's incident. the state also put possession or control of any firearm to that gang member." idaho code 18-8505(1).3 department to testify. corporal hoadley testified that he has had contact with manzanares on lingering doubt that proscription of mere knowing membership, without any showing of `specific to interpret the ninth circuit's holding otherwise would fly in the face of the cold war era issues for appeal pursuant to i.c.r. 11(a)(2). step of the overbreadth analysis and ask whether the recruiting provision precludes a significant question, stating: that person to "actively participate in a criminal gang" under the recruiting personal and that "[m]embership, without more, in an organization engaged in illegal advocacy" the commission of one (1) or more of the criminal acts enumerated in subsection the icgea became effective on march 24, 2006. 2006 idaho sess. laws, ch. 184, 1, or symbol, whose members individually or collectively engage in or have engaged the constitutionality of a statute is a matter of subject matter jurisdiction and cannot be waived. u.s. at 508 (1964); baggett v. bullitt, 377 u.s. 360, 372 n.10 (1964), overbreadth claims "have firearm charge. the second issue manzanares raises on appeal challenges the constitutionality public institution (including those whose members identify themselves as senators, contingent upon this court reading into the recruiting provision an element of specific intent on manzanares' plea of guilty. the act was amended earlier this year. 2011 idaho sess. laws ch. 188, 538-40. makes more burdensome the punishment for a crime, after its commission, or organization from obtaining or maintaining employment in any defense facility, and imposed so as to save it against constitutional attack, it must not and will not carry this to the point of organization's unlawful purposes and do not participate in its unlawful activities. and these idaho code 18-8504(1)7 of violent overthrow, the court looked to the structure and legislative history of the statute and criminal purpose transforms an otherwise lawful association protected from government 620. conversely, an association lacking these attributes is not likely to be afforded constitutional to the firearm charge. international. states supreme court recently upheld 18 u.s.c. 2339b(a)(1), which makes it a crime to in holder, the supreme court relied on its decision in united states v. robel, which advice or assistance, safehouses, false documentation or identification, occasions (assault is a predicate offense under i.c. 18-8502(3)(g)), rotary international would supreme court expressly declined to join in justice thomas' opinion on this subject. justice alito, joined by chief understood in the context of the statute there at issue. morales, 427 u.s. at 53. morales dealt the state relies heavily on holder v. humanitarian law project, in which the united i am not alone in this view. at oral argument, in response to a hypothetical question, the allegedly recruited trinidad--it merely provides that manzanares "on or about the 1st day of of fact. i believe that manzanares' attorney's explanation of the term at the time of the entry of considered an overbreadth challenge to section 5(a)(1)(d) of the subversive activities control pieces together, after the state proves the existence of a criminal gang (as set forth in the with those relationships. further, i believe that the contemporary fear of the societal threat posed by gangs, and the statute's legitimate scope. id. at 615. "overbreadth is not substantial if, despite the fact that occasions or by two or more gang members. second, the state must prove that (7) the 91 p.3d 1127, 1131 (2004). "in a criminal case, the court properly acquires personal jurisdiction to `political' assemblies, but includes those that `pertain to the social, legal, and economic benefit' of our citizens."). that the statutory definition of "criminal gang member" in i.c. 18-8502(2) is unconstitutionally terrorist activity or terrorism, and thereby threatens the security of united states nationals or the preserved, is not as to the auspices under which the meeting is held but as to its protected by the first amendment. state v. bennett, 782 n.e.2d 101 (ohio ct. app. 2002). manzanares's myspace webpage and includes pictures of manzanares, pictures of other what the recruiting provision does require the state to prove: that the defendant knew of the specified in writing."). that said, where a conditional plea agreement itself lacks such whereas the commission, attempted commission or solicitation of criminal acts is not. stated criminal conduct be only one of the association's primary activities. used in this sense, perverting the purpose of a statute . . . ' or judicially rewriting it." (quoting scales, 367 u.s. at this court may dismiss an appeal when it appears that the case involves testing the statute under which she's pleading guilty this morning." and, manzanares answered overbroad in violation of her first amendment right to free association by criminalizing her organization comprised of 1.2 million members in more than 34,000 clubs worldwide. independently to define one's identity that is central to any concept of liberty. conditional plea agreement. she pled guilty to recruiting a criminal gang member under i.c. of the gang, the recruiting provision generally criminalizes too much constitutionally protected (f) any unlawful use of a weapon that is a felony pursuant to chapter 33, title 18, idaho code; initiation process called the "jump in", which involves being battered by several gang members principal; main [a primary concern]." id. thus under the icgea, an association that engages in failing to dismiss the information on the bases that (1) the information failed to enumerate all of protection. id. in determining whether an association is entitled to protection, the court then finally, corporal hoadley testified on state's exhibit 3, which included an audio jaycees, 468 u.s. 609 (1984), board of directors of rotary international v. rotary club of this point is the fact that my client reserves the right to appeal the matter to the supreme court government's interest in combating terrorism [a]s an urgent objective of the highest order." id. the east side locas, trinidad said: "not really anything, like we would just hang out, go to requirement that the defendant possess the specific intent that the recruit would participate in offense of recruiting criminal gang members by: (a) knowingly soliciting, inviting, encouraging i respectfully dissent from the court's conclusion that the recruiting provision is not horton, j., specially concurring in part and dissenting in part. infringements upon all associations with the communist party, but rather only those associations the lesson that i draw from these three cases is that first amendment protections will groups', it precludes one's prosecution for mere membership in, or association with, such an manzanares's conviction under the recruiting statute was based on the incident which took that may be based upon the foregoing analysis, i believe that the statute is facially overbroad in light 27 manzanares. 2006, until about february 2, 2007, "did knowingly solicit, invite, encourage or otherwise cause idaho code 18-8504, entitled "recruiting criminal gang members", provides in full: 28 enumerated crimes. when he found probable cause to bind her over. therefore, despite being labeled as an "ex post that as applied to those groups, the icgea would pose no threat to the individual rights for appeal any "specified adverse ruling" when entering into a conditional plea agreement. at 2724. in light of the "sensitive and weighty interests of national security and foreign affairs," firearm charge was dismissed. (a) any person who solicits or recruits another to actively participate in a criminal cases set forth that a requirement of specific intent to further the criminal activity of the under the recruiting provision, "[a] person commits the offense of recruiting criminal s.b. 1336, r.s. 1584 58th leg., 2d reg. sess. (idaho 2006). whole number of elements, the first of which--all of which in the paragraph are the defendant's behalf to further the criminal gang's illegal activities. we have not read such an 31 engaged in a pattern of criminal gang activity, (4) having as one of its primary activities the sister's house. she testified that she and others were drinking alcohol at the party and that one of manzanares "showed [a gun] to me and like we decided to take pictures." trinidad explained participate in a criminal gang; or id. at 17. personal jurisdiction may be waived, subject matter jurisdiction cannot be waived and "may be she engaged in that violates the recruiting provision. thus, we cannot ascertain how the supplying a firearm to a gang member in violation of i.c. 18-8505. to "actively participate in a criminal gang," a person must actively participate in those activities . . . any person who engages in a pattern of criminal gang activity and who meets two (2) or more of the whether formal or informal, that has a common name or common identifying sign i join in the court's decision not to address manzanares' claims that the information on july 27, 2007, the district court held a hearing to consider manzanares's motion to jurisdictions). street gang, as defined in subdivision (f) of section 186.22, with the intent that the first, we find that the recruiting provision, as a law which criminalizes the recruitment even where that organization qualifies as a criminal gang under the icgea, does hon. lawrence g. wasden, attorney general, boise, for respondent. kenneth k. the firearm charge issues has no practical effect on this appeal and would be an impermissible (1984). "the freedom of association protected by the first amendment does not extend to as will be discussed more fully in this opinion, the united states supreme court has addressed this issue by 10 right of association does not include "social contact between gang members and others" must be version of the information, the recruiting charge alleges that manzanares recruited trinidad simona lisa manzanares, member," one must engage in "a pattern of criminal gang activity" in addition to meeting certain either: (1) the criminal gang's commission of a predicate offense; or (2) making commission of a in addition to establishing the existence of a "criminal gang," the state must prove that patronage of a commercial establishment. in the event that there is a relationship founded upon otherwise caused a person to actively participate in either the criminal gang's commission of one ) this assessment is inadequate. the united states supreme court's statement in morales that the secretary of the treasury and the attorney general, to designate an entity a "foreign terrorist world dictionary 1129 (2d college ed. 1976). rather, it has the secondary meaning of "chief; would be permitted to withdraw her guilty plea pursuant to i.c.r. 11(a)(2), and the state would 13 in a pattern of criminal gang activity, having as one (1) of its primary activities membership in the u.s. jaycees , the court concluded that "minnesota's compelling interest in again, the photograph, the testimony indicates she . . . handed her the gun. 18-2601 through 18-2606, idaho code; provision. idaho code 18-8502(1) defines a "criminal gang" as: ) signs, or its tattoos, and associates with known gang members; recruiting provision, i.c. 18-8504(1), merely requires that one knowingly cause "a person to east side barbecue. on cross examination, trinidad testified that the photograph depicts the purpose of [sic] further that criminal advocacy. other lawful means," griswold v. conn., 381 u.s. 479, 483 (1965) (citation omitted), the answer right to freedom of association. manzanares failed to show that the recruiting provision is unconstitutional as applied to their emotional enrichment from close ties with others. protecting these role of such relationships in safeguarding the individual freedom that is central to the question, if the rights of free speech and peaceable assembly are to be arraignment on the indictment." id. at 228, 91 p.3d 1132 (emphasis added). "the information, 458 u.s. 886, 908 (1982). into the east side locas without any evidence that she did so with the specific intent to further 4 organization, that he may be unaware of the organization's unlawful aims, or that conduct which the legislative body has the power to proscribe within the bounds of the united manzanares argues that the recruiting provision overbroadly criminalizes association, (e) any violation of the provisions of chapter 27, title 37, idaho code, that involves possession the elements of the offense charged and (2) insufficient evidence was presented at the therefore, jackie trinidad did in fact, after becoming a gang member and known in the record of this action." pursuant to i.c.r. 11(a)(2): the plurality was joined by justice stevens in his dissent: russell, 384 u.s. 11, 17 (1966); gibson v. fla. legis. investigation comm., 372 u.s. 539, 543 some constitutionally protected conduct is proscribed, the statute covers a wide range of conduct amendment because it is neither an intimate nor expressive association. other jurisdictions have the state also called jackie trinidad to testify at the preliminary hearing. trinidad idaho code 18-8504(1)(b) provides an alternative way of committing the crime of recruiting a criminal gang at the conclusion of the preliminary hearing, the magistrate found that there was at the time when the act was committed . . . .' collins v. youngblood, 497 u.s. commission. gang activity has become increasingly prevalent in idaho, and it is important that activity" or that the recruit would "promote, further, or assist in any felonious conduct by 14 ii. part iii.c.ii the constitutionality of the recruiting provision member. part (b) is not at issue in this case, and this opinion does not address that provision. that it is as applied unconstitutional because, due to the circumstances of this case, she is unable requirement that one's membership exist with the specific intent to accomplish the group's goal met up until we get to the point of a further definition. it refers to paragraph 3 in petition for the redress of grievances, and the exercise of religion. the a two-day sentencing hearing, the district court imposed a ten-year unified sentence with two information and the sufficiency of the evidence at the preliminary hearing, contain sub-issues provides little factual specificity on a number of the elements that the state would have had to of legitimate aims and policies does not fall within the ban of the statute . . . . such a person may that was testified to by ms. trinidad. with regard to the [firearm charge], once criminal gang's "primary activities" to commit one or more of the icgea's enumerated crimes." absence of the fourth clause, if a single rotarian committed two acts of assault on different based upon common language found in the two acts, it is evident that the icgea was we see no need to reconsider that interpretation here. for many decades, the question of the rights omitted). thus, manzanares's ex post facto issue is properly before us on appeal only if either: is not entirely clear. the united states supreme court did provide instruction in roberts v. u.s. probable cause for both the recruiting charge and the firearm charge, explaining: to the recruiting charge in exchange for dismissal of the firearm charge. the united states supreme court has repeatedly stated that "freedom of association is (q) rape, as provided in sections 18-6101, 18-6108 and 18-6110, idaho code; the problems in attributing criminal behavior to an abstract entity rather than to specified record."). however, we emphasize that the best practice is to explicitly set forth the adverse do so because i believe that the court's description, although resulting in a construction which could constitutionally be prohibited by a more narrowly drawn statute." id. at 714, 69 p.3d 134. all conceivable applications of a statute to determine whether the statute is invalid because it at the new year's party, we have no way of knowing from the record what conduct serves as the d. in light of our decision, the two remaining issues raised by manzanares need not be criminal conduct. id. at 508. the court recognized that individuals may join a gang for non- conviction. in cook, the court of appeals noted that "an as-applied constitutional challenge is of the information (the "firearm charge"), alleged that manzanares, on or about october 13, insufficient to bind her over and reasserting her previous motion to dismiss. on january 22, state is asking this court to issue an advisory opinion in order to avoid the issue in future cases; terrorist organizations. id. at 2730. the court dismissed this argument, explaining: "the statute recruiting charge due to the vagueness of the charging language and gave the state seven days trinidad into the east side locas at the new year's party, the state put forth additional evidence district court remanded the case to the magistrate judge for a preliminary hearing, which was april, 2006, to the 26th day of february, 2007, in the county of canyon, state of idaho, did law enforcement agencies, prosecutors, and judges have the necessary tools to address this issue. 17 equally significantly, the icgea does not require that the commission of one or more predicate facts are without the benefit of a trial." 146 idaho at 263, 192 p.3d at 1087. we agree, and we associations entitled the first amendment right to freedom of association. first amendment by criminalizing the mere fact of their associating with two designated foreign purpose; not as to the relations of the speakers, but whether their utterances challenged the prohibition on four types of material support: training; expert advice or criminal purpose. thus, neither morales nor choate preclude the conclusion that groups which unconstitutional for penalizing her first amendment rights to free association and free emphasis on making the affairs of the clubs open to the public, the court concluded that a ii. constitutional challenges to the recruiting provision. the commission of one (1) or more of the criminal acts enumerated in subsection provision of material support. id. at 2718. the court upheld the statute even though it did not constitutionality of the statute must demonstrate that the statute, as applied to the defendant's achieve perfectly legal objectives. (d) has been arrested more than once in the company of identified gang members for offenses that ) whether formal or informal, that has a common name or common identifying sign from a more contemporary perspective, the icgea definition reaches a group of court denied manzanares's motion to dismiss as to the overbreadth challenge. thus, we find that `substantial.'" state v. poe, 139 idaho 885, 893, 88 p.3d 704, 712 (2004) (citing cohen v. the advancement of legitimate goals and policies does not fall within the gang statute's ban him at the caldwell police department. she admitted to being the leader of the east side locas. differently, an association does not act.11 furthermore, even if manzanares had not waived this issue, she failed to meet her burden right to free association. healy v. james, 408 u.s. 169, 181 (1972). "the right to associate for individuals, though perhaps difficult theoretically, as a practical matter resolve themselves into not foreclose the possibility that there are other ways in which a statute might be drafted (t) terrorism, as provided in section 18-8103, idaho code; jorgensen, deputy attorney general argued. idaho code 18-8505, entitled "supplying firearms to a criminal gang", provides in full: related to the recruiting charge, i.c.r. 11(a)(2) affords manzanares the right to withdraw her simona manzanares appeals from the judgment entered following her guilty plea under a person solicited or recruited promote, further, or assist in any felonious conduct unprotected social association in stanglin, the conduct not entitled to first amendment one who subscribes to this arizona oath and who is, or thereafter becomes, a noted that certain kinds of personal bonds have played a critical role in the culture the first difficulty that i confront is this: regardless of the noun considered, whether it be forth evidence of an audio recording of manzanares's voice posted online encouraging listeners one of the primary activities of the criminal gang. while knowledge is a different and sets forth more than one course of conduct which could serve as the basis for the charge; and following criteria: the recruiting statute from district court's august 7, 2007 order. at the plea hearing, further or assist in the commission of the icgea's enumerated offenses by any member of the specifying that in order to be a "criminal gang commission, attempted commission, or solicitation of two (2) or more [enumerated offenses], statutes are unconstitutionally overbroad, both charges fail to provide adequate notice of the 18-8502(3) ("predicate offenses"). most critical at this point is the fact that my client reserves the right to appeal the matter to the or more of the following offenses, provided that the offenses are committed on separate occasions or by states constitution. as the supreme court observed in a case arising from the social unrest of narrowly enough to survive an overbreadth challenge. thus, even though the recruiting city of chicago v. morales, 427 u.s. 41, 53, for the proposition that gang members' social raised at any time, including for the first time on appeal." state v. rogers, 140 idaho 223, 227, state of idaho, other aspect of the constitutionally protected liberty is at stake in a given case." id. at 618. the conditional plea agreement. however, parties cannot agree to confer jurisdiction on a court. 3 not necessarily amount to soliciting, inviting, encouraging or otherwise causing the statute permits conviction even where one recruits another to join a gang to advance or where the united states supreme court believed that "rights of association were ensnared in iii. part iii.d issues not addressed in the majority opinion. 211)). given the legislature's decision to eliminate the requirement of specific intent, any include a requirement that the defendant possess the specific intent to further the illegal conduct (2000) (citations omitted). at 612. there, , the court defined two lines of precedent: 6 teenagers who congregate each night at this particular dance hall are not members of any nevertheless focused upon the state's "compelling interest" in upholding a restriction upon the private association and their freedom of expressive association." id. at 544-45. and united states constitutions, because the recruiting charge to which she pled guilty was 3 this line of cases generally sets forth that a statute is overbroad if it criminalizes conduct preserved for appeal states: "the defendant reserves the right to appeal to the idaho supreme indiscriminately trapping membership which can be constitutionally punished and protections in morales was the act of loitering amongst and socializing with both gang members thus, i turn my attention to the language of the fourth clause, i.e., "having as one (1) of to amend the information to include the name of the person manzanares allegedly recruited. the docket no. 35703 gang is a criminal gang. first, the state must prove that (4) members of the gang (5) individually that each person sharing the relationship also share a common objective of engaging in, or rather, the court stated simply that "the practice of associating with compatriots in crime is not a an impressive amount of historical evidence for their argument that the court interpreted the under the mootness doctrine: gang members by . . . [k]nowingly soliciting, inviting, encouraging or otherwise causing a person knowingly solicit, invite, encourage or otherwise cause a person, jackie trinidad, to actively ) jurisdictional. dismiss both charges, arguing that the recruiting provision violates both the first amendment of guilty, i concur with the court's determination that it is inappropriate to address her challenges preliminary hearing, because the amended information included information not previously held the statute unconstitutionally infringed upon the freedoms of speech and assembly, longer live or the parties lack a legally cognizable interest in the outcome. a case (quotation and citation omitted). 2012 opinion no. 9 members" did not violate freedom of association because it included a specific intent freedoms." korsen, 138 idaho at 713, 69 p.3d at 133. the two-part test for unconstitutional defendant. a defendant may preserve such defects or issues by entering a conditional guilty plea a common name or sign (3) consisting of at least three members. next, the state must prove that and because this issue is non-jurisdictional and does not involve fundamental error. crimes; criminalizes recruitment of criminal gang members; and creates a new felony for since the first amendment exists to shield minority dissident groups from suppression, and thus invalid. further, as the courts in both scales and helton acknowledged, statutes that to the audio message (state's exhibit 3). she testified that manzanares encouraged east side substantial amount of protected conduct. have agreed to plead guilty, but that you're reserving your right to appeal the constitutionality of 2. compelling state interest state v. molitor, 210 wis.2d 415, 419, 565 n.w.2d 248 (ct.app.1997). "a plea of no contest 11 preliminary hearing. find that this is particularly true when, as is the case here: (1) the information does not refer to amendment protections. recruiting provision was applied to manzanares. accordingly, we hold that she failed to show code 18-8504(1)(a) (icgea's recruiting provision) is not unconstitutionally overbroad, refuses to admit to the commission of the acts constituting the crime. state v. dopp, 124 idaho 481, 485, n.1, 861 designing a more attractive clubhouse where the gang members might socialize. further, the transportation, except medicine or religious materials. charge of being a member in a group which engages in criminal conduct and being a member of a but they are enumerated in 3(a) though. the members' rights of expressive association, the court concluded that the "slight infringement the icgea, i.e., an ongoing organization, association, or group of three or more persons, amendment protections. since a group that does not have an expressive purpose may possess association in the context of a statute that required a civic organization to admit females into defendant-appellant. ) a. facial challenge. members" of the gang. when the idaho legislature enacted the icgea, its decision to modify court decision in district of columbia v. heller, 554 u.s. 570 (2008). it does not appear that of the firearm provision, and the fourth and fifth issues she raises on appeal, which challenge the that gang member. [he] statute casts its net across a broad range of associational activities, manzanares's remaining two issues on appeal are whether the district court erred in intimate family relationships to co-workers employed by a large corporation, observing that the the early 1970s, it "has consistently disapproved governmental action imposing criminal attend a lawful political rally or religious event organized and hosted by a group that the cramp v. bd. of public instruction of orange cnty., fla., 368 u.s. goodson v. nez perce cnty. bd. of cnty. comm'rs, 133 idaho 851, 853, 993 p.2d 614, 616 guilty plea. see infra part iii.c.ii.a. at the preliminary hearing, the state's evidence that as clear as it would need to be to dislodge 137 years of precedent. "considering separately the effect of the challenged state action on individuals' freedom of protection afforded freedom of association may vary depending on the extent to which one or the or otherwise causing a person to actively participate in a criminal gang." significantly, the manzanares gave trinidad possession of a firearm sometime from may 1 through 15, 2006. taking the photograph. dismiss. on august 7, 2007, the district court conditionally granted the motion to dismiss the the state argues that a criminal gang is not a type of association protected by the first derived, in large part, from california's street terrorism enforcement and prevention act united states constitution and by article i, section 16 of the idaho constitution. facto" issue, and despite manzanares's claim on appeal that she pled guilty based on her conduct primary activities," is not restricted to such associations. the doctrine of overbreadth looks to the recruiting provision. for example, if a defendant knowingly invites a person to merely speech and expressive conduct in violation of the first amendment of the united states 12 from unjustified interference by the state. without precisely identifying every (g) assault and battery, as provided in chapter 9, title 18, idaho code; activity; and the statute at issue applied only to foreign terrorist organizations. despite these primary activities of constitutionally protected speech and expressive conduct, such that offenses or (b) in making it one of the criminal gang's "primary activities" to commit one or manzanares is correct that if we were to rule in her favor on the recruiting charge, she engaging in those activities protected by the first amendment - speech, assembly, idaho 919, 925, 231 p.3d 1016, 1022 (2010) (quoting state v. korsen, 138 idaho 706, 714, 69 member," and unconstitutional under the second amendment of the united states constitution noted that it also implicated the first amendment right to freedom of association. united states v. robel, 389 u.s. the gang is a "criminal gang". the icgea sets forth two criteria that must be met to show that a while "primary activities" relates to the joint or individual actions of one more members sharing statute, and such other matters that might appear in the record of this action." the district court criminal associations of three or more persons that have a common name or common identifying national security of the united states. see holder, 130 s.ct. at 2713. in holder, the plaintiffs the united states supreme court has consistently held that the first amendment is applicable to the states or by the use of traditional prosecutorial tools of conspiracy and solicitation. a crime an act previously committed, which was innocent when done; which predicate] offenses, provided that the offenses are committed on separate occasions or by two (2) (n) kidnapping, as provided in sections 18-4501 through 18-4503, idaho code; protected by the fourteenth amendment against state infringement has been analyzed under the dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of icgea had been in effect and two or more members of the communist party had attempted addressed. based on this line of cases, manzanares argues that joining an organization can be criminalized in national security, idaho may advance its legitimate and compelling state interest in prevention for the parties' express agreement. given that counsel's explanation clearly reflected the that fit within the icgea definition of "criminal gang." given that the united states supreme law subjecting teachers to criminal punishment for being members of the communist party or constitutionality of the firearm provision on this appeal, our ruling could affect the state's 19 (3) where the defendant enters an alford plea. the dangers caused by the knowing provision of material support to foreign terrorist groups. id. constitutional magnitude, so long as the defendant does so knowingly, voluntarily, and on rotary members' right of expressive association" by the statute was justified by the state's amendment permits the government to prosecute the criminal conduct of the members of activist clear and unambiguous. the meaning of an unambiguous contract must be advisory opinion. see state v. barclay, 149 idaho 6, 9, 232 p.3d 327, 330 (2010) ("in effect, the criminal gang . . . , the state must prove that the defendant (1) knew of the arguments, that the recruiting statute is overbroad, and in its august 7, 2007 order, the district statutes. in helton v. state, 624 n.e. 2d 499, 506 (ind. ct. app. 1993), a state statute made it a would commit a felony by soliciting another to "actively participate" in the work of rotary of a requirement that a defendant possess the specific intent that a recruit will engage in criminal plaintiff-respondent, like merely joining, membership in or participation in an organization (even if that organization (1963). the fourteenth amendment prohibits the states from abridging the freedoms guaranteed p.2d 51, 55, n.1 (1993). . . . an ongoing organization, association, or group of three (3) or more persons, defendant's guilt and waives all non-jurisdictional defects in prior proceedings against the on august 9, 2007, the parties submitted a stipulation to remand proceeding for activity, as defined in subdivision (e) of section 186.22, or with the intent that the join others in hitting her as part of the jumping in. when asked what she does as a member of she is holding a gun and wearing a jersey with the number 13, which she wore to show that she conduct believed to be criminal. manzanares filed a supplementary motion to dismiss, arguing through the due process clause of the fourteenth amendment. see, e.g., de jonge v. state of oregon, 299 u.s. 37, 42, 110 s.ct. 2715, 2716-17 111 l.ed.2d 30, 39 (1990) (quoting beazell v. filed: january 6, 2012 that there is a gang by proving (1) there is an ongoing organization, group or association (2) with that bring the organization into the icgea's definition of "criminal gang." thus, putting these person solicited or recruited participate in a pattern of criminal street gang provision does not contain a specific intent requirement, we must still look to the language of the reserve these issues for appeal, we are nevertheless without jurisdiction to consider these issues. the persons assembling have committed crimes elsewhere, if they have formed or 538-539, 280 n.w.2d 316 (ct.app.1979). (1) a person commits the offense of supplying firearms to a criminal gang if the person knows an milwaukee, inc. 96 wis.2d 646, 651, 292 n.w.2d 807 (1980)). in contrast, a facial challenge to is moot if it presents no justiciable controversy and a judicial determination will respectfully dissent from part iii.c.ii of the court's opinion. upon review of the record, we are able to ascertain that the language "the issue of the manzanares argues that the recruiting provision is unconstitutional as applied to her for defendant knows to be a criminal gang, the defendant has not knowingly invited a person to v. secretary of state, 378 u.s. 500, 511 (1964)15 saving construction, including the construction advanced by the majority, would be contrary to that statute?" from these statements at the plea hearing, it is clear that manzanares sought to members' associational freedoms. employment in any defense facility.'" 389 u.s. 258, 260 (1967). in robel, the supreme court ) she said that membership in the east side locas had dwindled from approximately twenty have long understood as implicit in the right to engage in activities protected by the first our decisions have referred to constitutionally protected "freedom of (s) malicious harassment, as provided in section 18-7902, idaho code. association "individually or collectively engage in or have engaged in a pattern of criminal gang objectives, such as extremist environmental and animal rights groups. while the first provides, in pertinent part, that "[a] person commits the the infliction of bodily injury upon any person, to actively participate in a criminal gang. while we find that manzanares's conditional plea agreement reserved the facial and as government, its national character, its constitution, or its laws." id. at 79. the mcdonald plurality refused to her friends asked her if she wanted to get jumped in. she testified that manzanares was at the 24 they engaged in certain activities, none of which are shown convictions or proven, identifying sign or symbol, (3) whose members individually or collectively engage in or have to change the date of the alleged recruiting (from april 1, 2006, to february 27, 2007). the of the terrorist organization. id. at 2717. throughout the opinion, the court framed "the 515 ("it must be remembered that `[a]lthough this court will often strain to construe legislation proposition that the right of association does not extend to organizations that commit felonies. specific incident of recruiting which the state focused on at the preliminary hearing concerned a 18-8501 et seq., effective march 24, 2006. 2006 idaho sess. laws, ch. 184, 1, pp. 58285.1 in elfbrandt, the supreme court relied on scales, noto, and aptheker to invalidate a state and that she is the leader of the female branch of the east side locos, called the east side locas. organization that includes criminal factions. since he lacks the requisite specified intent to further criminal conduct." id. at 511. since the 33 members of the east side locos and east side locas and numerous other gang references. criminal gang and (2) knowingly solicited, invited, encouraged, or otherwise 353, 364 (1937). free expression, peaceable assembly and seeking redress with our government, applies to the simply overlooks what the recruiting provision does require the state to prove: criminal activity in the statutory scheme. testimony before the court that the defendant told the officer that they had been-- in the individually or in concert. the definition of criminal gang is notable because it does not require (b) knowingly using force, threats, violence or intimidation directed at any person, or by failed to contain all necessary elements of the offense and the sufficiency of the evidence. i do in stanglin, the court addressed an ordinance that precluded those other than 14 to 18 count i of the membership could be characterized as a "criminal gang" if a member or members of that id. at 3089 (citations and footnote omitted). 8502(1) definition of a criminal gang, groups commonly known as "gangs" may be intimate that focuses on the intent of the parties. whether the facts establish a violation of guilty that does not take into account the possibility of success on appeal (with the consequent molly huskey, state appellate public defender, boise, for appellant. erik r. molitor, 210 wis.2d 415 at 419, 565 n.w.2d 248; state ex rel. skinkis v. treffert, 90 wis.2d 528, presumably, the fourth clause is intended to distinguish a criminal gang from non- or more gang members." thus, a prerequisite to being a "criminal gang member" is the 36 (2009) (citations omitted). however, "we permit a defendant to waive a right of 18 u.s.c. 2339b(a)(1). the secretary of state has the authority, in consultation with the 35 conduct. indictment, or complaint alleging an offense was committed within the state of idaho confers could properly be interpreted as prohibiting the recruiting of an interior decorator into gang in effect, a conclusive presumption that the member shares the unlawful aims of record what the parties sought to reserve for appeal. iv. conclusion of the icgea's enumerated offenses or in making the commission of one of those crimes one of reasoning that because the discussion at a communist party meeting may be wholly lawful and personnel (1 or more individuals who may be or include oneself), and issue of the constitutionality of the charge and statute, and such other matters that might appear by the first amendment.12 (o) mayhem, as provided in section 18-5001, idaho code; at the preliminary hearing, the state called corporal joey hoadley of the caldwell police 1 were incarcerated. she explained that to become a member of the gang one must go through an so because i believe that the recruiting provision is facially unconstitutional and cannot be saved forbidden advocacy must depend on the nature of the organization, the occasions on which such 8 conducting criminal activity are not entitled to first amendment protections. 576 f.2d at 181. that is easily identifiable and within the [government's] power to prohibit." state v. doe, 148 thus, putting these pieces together, after the state proves the existence of a overthrow of the government. id. at 205. although the statute did not include an express when concluding that the recruiting provision passes constitutional muster, the court states: (l) forgery and counterfeiting, as provided in sections 18-3601 through 18-3603 and sections 18- [manzanares's] house, have barbecues." firearm to trinidad (from may 1, 2006, to may 15, 2006). guilty plea, in which case the state would be able to re-file the firearm charge. court has declined to limit intimate association to purely familial relationships, i believe that multiple primary activities, many of which are non-criminal, is a criminal gang if just one of have no practical effect upon the outcome. establishing that the statute is unconstitutional and `must overcome a strong when factions of the communist party advocated large conspiracy, many of whose participants are unknown or not before the court. whatever supreme court precedent has demonstrated, the first amendment would not permit government (j) theft, as provided in sections 18-2401 and 18-2403, idaho code; manzanares reserved the right to appeal the district court's ruling that the recruiting statute is alleged conduct believed to be criminal, and the firearm provision is unconstitutionally vague. the firearm charge was dismissed pursuant to the plea agreement. manzanares argues that the the state submitted the amended information on august 7, 2007. the recruiting after discussing the recruiting provision and three statutory definitions, the court freedom of private association." id. at 547. when considering the claim that the statute violated (a) robbery, as provided in section 18-6501, idaho code; challenge to the recruiting provision. although i question the wisdom of a conditional plea of legislative response during the cold war era. (3) a person convicted of a violation of this section shall be imprisoned for a term not to exceed difficulties with this fourth clause present themselves to me. organization's criminal enterprise. we do not read these cases to set forth such a blanket rule. identified the following factors as relevant to a determination whether the relationship is that is found to be overbroad may not be enforced at all, even against speech or conduct that cal. penal code 186.26 (emphasis added). as the emphasized language reflects, step that common relationship. this is significant because the concept of relationship is abstract; gang without sharing a common criminal objective and without criminal intent. since the prohibit a substantial amount of protected conduct, and we hold that manzanares has not shown 20 the court has long recognized that, because the bill of rights is designed whether the statute precludes a significant amount of that constitutionally protected conduct. id. gang activity and requires language to qualify as a pattern of gang activity there privileges or immunities clause too narrowly in the slaughter-house cases, 16 wall. 36, 21 l.ed. 258, 262-63 (1967). scales v. united states, 367 u.s. 203, 226 n. 18 (1961) (citation omitted, emphasis added). that the information fails to confer jurisdiction. she acknowledges that the complaint, ) continue in gang activity, committing crimes, committing violence." states through the fourteenth amendment. elfbrandt v. russell, 384 u.s. 11, 18 (1966). while disclosed to the defendant: that trinidad was the person allegedly recruited by manzanares. the any property, tangible or intangible, or service, including currency or monetary on appeal from the judgment, to review any specified adverse ruling. if the conviction would have taken place prior to the icgea's effective date. however, in this case, they had received a relocation request from a peace officer. id. at 47. thus, similar to the 147 idaho 257, 262, 207 p.3d 988, 993 (2009). boise, june 2011 term amendment of the united states constitution and article i, section 11 of the idaho constitution. i join in the court's decision that we may not reach manzanares' challenges to the amendment a corresponding right to associate with others in pursuit of a wide variety of actively participate in the criminal gang's commission of any of the offenses enumerated in the (r) racketeering, as provided in section 18-7804, idaho code; necessary to support judicial constructions that included a specific intent requirement. in robel, findings linking the provision of material support to foreign terrorist organizations with terrorist 13 cases decided by the united states supreme court, each of which required that, in order to be an organization or to associate or interact with that organization, even where that organization years fixed for the recruiting charge. pursuant to i.c.r. 11(a)(2)." hosey, 134 idaho at 889, 11 p.3d at 1107 (citation and quotation membership. 481 u.s. at 541-42. the court followed its earlier approach in roberts, the defendant knowingly solicited, invited, encouraged, or otherwise caused a person to "actively material support." id. supplying firearms to a criminal gang member. the third issue manzanares raises on appeal is whether the recruiting charge is an ex which related to the charge. she made no admissions during the plea colloquy as to any conduct because it includes criminal factions. rather, only if the members associate because they share sponsored by the communist party did not amount to illegal conduct. id. at 364-65. the court ethical standards in all vocations, and help build goodwill and peace in the world."10 history. therefore misplaced. i do not believe that there is a compelling state interest that justifies the criminal gang is set out in idaho code 18-8502, subsection 1, and requires a communist organizations, holding that the provisions lacked the content and legislative history and statutes given by the arizona supreme court, purports to exclude association appeal from the district court of the third judicial district, state of idaho, intelligently." state v. perry, 150 idaho 209, 227, 245 p.3d 961, 979 (2010). manzanares makes certain kinds of highly personal relationships a substantial measure of sanctuary however, we find that the recruiting provision does not criminalize joining, or advocating for in view of the foregoing, i would conclude that the definition of criminal gang found in `intimate human relationships' referred to in roberts." id. at 23. rather, "[t]he hundreds of imposing a requirement that the defendant possess the specific intent to advance criminal aims of the organization: 15 the court then noted the continuum of relationships existing in society, ranging from an ongoing organization, association, or group of three (3) or more persons, this leads to the consideration of whether the statute is subject to a saving construction. in the encroaching on the first amendment right to free association; (2) i.c. 18-8505 (the "firearm could be two or more convictions or offenses, certain enumerated charges. (1) her conditional plea agreement reserved the issue under i.c.r 11(a)(2); or (2) the issue is her plea resolves the ambiguity. he stated: "the part of the plea agreement that i suppose is statute's infringement did not unconstitutionally extend to lawful association. id. at 225. rather, commit one or more" of those offenses is critical to the court's holding in this case. indeed, its absence are perhaps best demonstrated by way of an example. rotary international is an to ms. manzanares, have possession of a firearm. 29 because the statute, as drafted by the legislature, does not infringe upon a substantial amount of who do not participate in its unlawful activities surely pose no threat, either as "organization," "association," or "group," the noun identifies a relationship between individuals, engages in criminal activity) without distinguishing people who do not share the goals of the district court denied the motion, finding that there was substantial evidence upon which the 21 trinidad at manzanares's home, wearing gang attire and holding a firearm with manzanares concept repeatedly rejected as unconstitutional by the united states supreme court. protected conduct." id. at 613. 6 instruments or financial securities, financial services, lodging, training, expert members". idaho code 18-8502(3). trinidad also testified that she knew manzanares had a website and that she had listened 101(5). since "criminal gang" is a defined term under the icgea (i.c. 18-8502(1)), in order (f) has been stopped in the company of known gang members four (4) or more times. to actively participate in either the criminal gang's commission of one of the 18 participate in" either (a) the criminal gang's commission of one of the icgea's enumerated icgea's enumerated offenses or in making the commission of one of those crimes and traditions of the nation by cultivating and transmitting shared ideals and the contract is a question of law over which this court exercises free review. not explicitly stated in the first amendment, the first amendment guarantees individuals the constitution protects such members from criminal punishment. however, that court did not engage in a thorough freedom of association analysis, instead citing she could be brought to trial based on the mere fact that she participated in trinidad's initiation the recruiting provision found in the california statute reflected the intent to eliminate the mere association with, or her causing of other persons association with, criminal gangs. (h) criminal solicitation, as provided in section 18-2001, idaho code; has declined to rewrite a statute to the point of changing its clear purpose. aptheker, 378 u.s. at the state places substantial emphasis on the united states supreme court's holding in various facts associating her with the east side locos and east side locas. "house shopping" (burglarizing a house), and by "car shopping" (burglarizing a car). prohibition into an unlawful association subject to regulation and criminal sanction in aptheker 63 (1967). in each case, the court struck as facially overbroad statutory provisions regulating criminal gang member by "[k]nowingly soliciting, inviting, encouraging or otherwise causing a only time she ever handled the gun, and the only reason she handled it was for the purpose of communist party: scales v. united states, 367 u.s. 203 (1961); noto v. united states, 367 u.s. a member. consistent with united states supreme court precedent, the indiana court construed any other organization advocating for the violent overthrow of the government, stating: "any in a pattern of criminal gang activity, having as one (1) of its primary activities be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal." ten (10) years or be fined an amount not to exceed fifty thousand dollars ($50,000), or both. enumerated offenses or (2) by "making it one of the criminal gang's `primary activities' to multiple objectives, some legal and others illegal. id. at 15. the court struck down the statute in due process clause of that amendment and not under the privileges or immunities clause. we with the approval of the court and the consent of the prosecuting attorney, in the supreme court of the state of idaho as well as her knowledge of the east side locas' criminal activity. iii. analysis 39 2008) (citing korsen, 138 idaho at 712, 69 p.3d at 132). "if a statute as applied to a particular may be identified as criminal gangs have associational aspects and are therefore entitled to first justice eismann correctly cites justice thomas' concurrence in mcdonald v. city of chicago, ill., 130 s.ct. 3020, id. the supreme court went on to explain: 764 p.2d 423, 427 (1988) (significant that legislature omitted statutory language used in other state's sweeping view of the scope of the recruiting provision is well-grounded in legislative requirement. people v. gardeley, 927 p.2d 713, 725 (cal. 1996). former are entitled to constitutional protection while suggesting that the latter are not. id. at 619- 22 15 legislative response thereto, mirror the perceived threat posed by the communist party and the corresponding protected by the first amendment." id. at 25. the court stated: "it is clear beyond cavil that three or more persons, whether formal or informal, (2) that has a common name or common her, and they both decided to take the picture, which was submitted as state's exhibit 1 (the contact is unprotected, and united states v. choate, 576 f.2d 165, 181 (9th cir. 1978), for the is insufficient grounds to impose a criminal penalty. id. at 224-25. yet because the court merely soliciting, inviting, encouraging or otherwise causing a person to (3) of this section. recruiting provision does not prohibit a significant amount of protected conduct and, therefore, 10 of the idaho constitution. according to manzanares, by not requiring the state to prove that a criminal gang do so with the specific intent that the recruit engage in criminal conduct. rather, gang's commission of one of the icgea's enumerated offenses or (b) in making it one of the are questions of law to be decided by the court if the terms of the contract are or symbol, whose members individually or collectively engage in or have engaged court considered statutes which placed certain penalties or restrictions on members of the (emphasis added). "failure to comply with this rule results in a waiver of any issues not 38 rather, the members of an association act, whether __________________________________ preceding paragraph), the state must prove that the defendant (1) knew of the criminal gang and specificity, idaho appellate courts will review the record in an attempt to determine what the district court denied manzanares's motion to dismiss as to all other grounds raised by the organization. under the firearm provision, "[a] person commits the offense of supplying firearms to a those primary activities is the commission of predicate offenses. under the statutory definition, only be extended to interpersonal relationships founded upon something more than common manzanares was arraigned on september 7, 2007. on december 17, 2007, manzanares (a) admits to gang membership; defendant infringes upon his or her freedom of speech protected by the first amendment, the (d) murder or manslaughter, as provided, respectively, in sections 18-4001 and 18-4006, idaho (1997). as manzanares concedes in her briefing, the ex post facto issue was never raised below. on september 11, 2008, the district court entered the judgment and commitment, and on ruling on this issue below which could be reserved for appeal pursuant to i.c.r. 11(a) 2 operation that an individual may be a passive or inactive member of a designated assisting in conducting a communist party meeting. 299 u.s. 353, 356-57 (1937). the court lacking the necessary requirement of specific intent, recruited a gang member in violation of i.c. 18-8504(1)(a) in canyon county, idaho, on a provision. . . . however, where a defendant knowingly invites a person to the criminal gang's "primary activities" to commit one or more of the icgea's as defined by the statute, which was the issue the court had. the definition of a 9 applied challenges for appeal, we take the time to emphasize the proper means of reserving individually or collectively), implicates the first amendment freedom of association for basis of manzanares's conviction. accordingly, we hold that manzanares has not met the burden (c) burglary, as provided in sections 18-1401, 18-1403, 18-1405 and 18-1406, idaho code; statutes that infringe upon minority groups' expression and association, without limiting such and make it inapplicable to cases in which statutes affect the associational rights of those who it be struck down for overbreadth." id. (emphasis added) (quotation omitted). "[a] statute will statutes which, by their broad sweep, might result in burdening innocent associations." the organization. information, amended information and second amended information all allege that manzanares to take part in the east side locas gang activities, which trinidad testified to having listened to, lehtinen, deputy appellate public defender argued. relationships from unwarranted state interference therefore safeguards the ability firearm charge was amended to change the date on which manzanares allegedly supplied a the defendant recruited the gang member with the specific intent to further the criminal activities the primary activities of the criminal gang. while knowledge is a different mens rea than commission of one or more of the icgea's enumerated criminal offenses is one of the gang's the recruiting provision provides that a person commits the offense of recruiting a only if the statute requires proof that the defendant had the specific intent to further the ex post facto laws are prohibited by article i, section 9, clause 3 of the sign. if this were not the case, any service organization (e.g., rotary), religious organization, subject matter jurisdiction upon the court." id. (emphasis added). manzanares does not argue difficulties might be thought to inhere in ascribing a course of criminal conduct to an abstract magistrate could find probable cause as to both the recruiting charge and the firearm charge. and the idaho constitution would be implicated, since the conduct forming the basis of her caused someone to "actively participate in" either (a) the criminal gang's testified that on december 31, 2005, she attended a new year's eve party at manzanares' and united states v. robel, 389 u.s. 258, 262- magistrate judge relied on this evidence as well as the evidence concerning the new year's party b. we cannot reach manzanares's ex post facto argument, because there was no adverse grounds challenged. id. at 2730-31. somehow promote, further or assist in the commission of the icgea's (e) is identified as a gang member by physical evidence such as photographs or other at 2727. the court concluded that, given the unique circumstances surrounding foreign date. thus, manzanares argues that her conviction violates the ex post facto clauses of the idaho conditional plea agreement reserves for appeal. see, e.g., state v. anderson, 129 idaho 763, 764, the magistrate filed an order binding defendant over to district court. trinidad also testified that at a barbecue at manzanares's house in may 2006, she and stretch, given that the ninth circuit there did not hold that the freedom of association does not requirement, and the supreme court stated: the first amendment of the united states constitution, which guarantees the right to claims are not moot, because if this court holds in favor of manzanares on one of the issues the court afforded substantial deference to the political branches' assessment of the severity of recruiting provision, the state bears a difficult burden. preliminarily, the state must establish association with the communist party was guarded by the united states constitution. as u.s. at least one court has concluded that a criminal gang is simply not a form of association and idaho constitutions; (4) the district court erred in failing to dismiss the information based on [go tagging]." in this dissent, all citations to, and quotations from, the icgea refer to the statutes in effect at the time of that same code section, and paragraph 3 is the definition of pattern of criminal qualifies as a criminal gang under the icgea, does not necessarily amount to soliciting, inviting, her conduct, because she cannot point to the conduct of hers which serves as the basis of her criminal purposes, and stated that "the member for whom the criminal gang is an instrument for holder v. humanitarian law project, 130 s.ct. 2705 (2010), in which a constitutional challenge count ii rulings which are being reserved for appeal in the conditional plea agreement. if the agreement i. reservation for appeal pursuant to i.c.r. 11(a)(2). of potential association with nonmembers" as an infringement under the first amendment. tashjian v. republican (emphasis added). this description of the recruiting provision as requiring that the defendant majority describes the recruiting provision as requiring that the recruit "actively participate" in firearm charge. i do so because the issues advanced on appeal relating to the firearm charge (p) prostitution, as provided in sections 18-5601 through 18-5614, idaho code; enumerated offenses and that (6) the two enumerated offenses were committed either on separate those who join an organization but do not share its unlawful purposes and act of 1950, "which provides that, when a communist-action organization is under a final order another to join 18-8502(3)]." the indefinite possessive pronoun "its" evidently refers to the association. two offenses be the primary activity of the association. rather, the act merely requires that such it may be that some groups are formed and maintained for a wholly criminal purpose, and legitimately regulated conduct, include within their prohibitions constitutionally protected protection as a fundamental element of personal liberty. in another set of i. factual and procedural background the allegedly illegal activities of the gang. the accused cause another (the "recruit") to become a criminal gang member. rather, the manzanares's exercise of protected conduct. manzanares claims on appeal that she pled guilty based on her alleged participation in jumping the icgea defines "criminal gang" as: the overbreadth doctrine is "strong medicine," and courts employ it only as a last resort. (m) gambling, as provided in section 18-3802, idaho code; according to corporal hoadley, state's exhibit 1, which is a photograph obtained from a on july 10, 2008, manzanares entered into a conditional plea agreement. she agreed to might appear in the record of this action." the broad reservation of "matters that might appear in manzanares points out unique characteristics of the holder decision, which indicate that predicate offense one of the criminal gang's "primary activities." however, the statutory statute to the jaycees may have on the male members' associational freedoms." id. at 623. it is and, as a result, i'm going to bind over since you can all brief this statute then, one may "actively participate" in a criminal gang even in a "primary activity" of that with intent to deliver, distribution, delivery or manufacturing of a substance prohibited therein; 16 id. at 229-30. the court refused to impose guilt simply due to one's mere association with an of persuading the appellate court that the alleged error violates a constitutional right. if manzanares recruited a gang member on a date(s) subsequent to the icgea's effective date; the september 25, 2008, manzanares filed the notice of appeal to this court. next, we consider whether manzanares's ex post facto issue is jurisdictional. while idaho code 18-8502(2) defines a "criminal gang member" as: freedoms guaranteed by the bill of rights are protected from state action. however, a majority of the united states compromise recognized first amendment protections of parties not before the court." id. a conditional plea agreement should explicitly set forth the adverse ruling(s) below was levied against a federal statute that criminalized the provision of material support to foreign representatives, commissioners, judges, etc.), or any other association with an identifiable challenged on the grounds that they infringed upon the right to freedom of expressive association that someone, maybe but not specifically manzanares, did not want people coming over who its primary activities the commission of one (1) or more of the criminal acts enumerated in [i.c. been unconstitutional, as the members of the communist party collectively engaged in the (1990) ("i.c.r. 11(a)(2) clearly requires that any issued desired to be reserved for appeal must be assistance; service; and personnel. id. at 2716. group entitled to first amendment protections need not be politically oriented. stanglin, 490 u.s. at 25 (referencing "ordinarily, a plea of guilty, if voluntarily and knowingly made, is conclusive as to the 26 5 (c) resides in or frequents a particular gang's area and adopts its style of dress, its use of hand first, the information does not set forth the specific conduct by which manzanares held that the statute was overbroad and explained: "it is precisely because th[e] statute sweeps manzanares's attorney stated: "the part of the plea agreement that i suppose is most critical at statute included the specific intent requirement, it did not infringe upon the right to freedom of determined from the plain meaning of the contract's own words. where a contract p.3d 126, 134 (2003)). significantly, overbreadth attacks have also been permitted in cases afforded such relationships reflects the realization that individuals draw much of putting the pieces of the icgea together, in order to convict a defendant under the 2006, in canyon county "did knowingly supply, sell, or give possession or control of a firearm thus, i turn my attention to the first amendment implications presented by the absence judgment entered upon guilty plea to recruiting criminal gang member, affirmed. documentation; or joining with others for the purpose of depriving third parties of their lawful rights." madsen v. regulate the membership and conduct of these groups, and many of these statutes were constitutionality of the charge and statute" refers to the adverse ruling on the constitutionality of been curtailed when invoked against ordinary criminal laws that are sought to be applied to by members of the criminal street gang, shall be punished by imprisonment in the scope to those who join with the `specific intent' to further illegal action impose, characteristics that in a particular case may be pertinent." id. notably, the court stated that "we overbroad relative to its legitimate aim of proscribing that conduct of "criminal gangs" which is criminal penalties upon those who disobeyed. 389 u.s. at 260. the court determined that, organized association; they are patrons of the same business establishment." id. at 24. be able to re-file the firearm charge. under such circumstances, if we were to address the for a specified amount of time. she said that the gang funds itself by selling illegal narcotics, by ten (10) years. beliefs; they thereby foster diversity and act as critical buffers between the state's basis for charging manzanares under the recruiting provision, the preliminary hearing solicitation, attempted commission, or commission of two or more of the crimes listed in i.c. accepted manzanares's plea and dismissed the firearm charge. on august 28, 2008, following are engaged in a conspiracy against the public peace and order, they may be which is being reserved for appeal. idaho criminal rule 11(a)(2) permits a defendant to reserve mens rea than specific intent, we find that the recruiting provision is sufficiently (emphasis added). see also state v. mccormack, 117 idaho 1009, 1010, 793 p.2d 682, 683 does not prohibit being a member of one of the designated groups or vigorously promoting and the jumping in is sufficient enough for the language of [the recruiting charge] involved, a court may only invalidate a statute if its overbreadth is substantial in relation to the 20. those relationships clearly entitled to constitutional protections are those possessing the (1) a person commits the offense of recruiting criminal gang members by: statute, her facial overbreadth challenge is a jurisdictional issue which can be raised on appeal. however, her as s.ct. 2705, 2712 (2010) (alteration in original). the term "material support or resources" is idaho code 18-8502(1). "pattern of criminal gang activity" is defined in the icgea as "the to death. 932 p.2d 886, 887 (1997), ("this court will sustain an appeal under rule 11(a)(2) if we can understanding that manzanares would be permitted to challenge the charge to which she pleaded side gangs in public places, but that "nobody really ever did anything" and "[o]nly the guys did although aptheker was decided on fifth amendment grounds, the united states supreme court subsequently the icgea's statement of purpose provides in part: concluded that choices to enter into and maintain certain intimate human we uphold manzanares's conviction pursuant to her conditional plea agreement. idaho id. at 17. following attributes: "relative smallness, a high degree of selectivity in decisions to begin and in rotary club of duarte, the supreme court again addressed the contours of freedom of id. at 617-18. the court continued, observing that "the nature and degree of constitutional existence of the criminal gang and that the defendant knowingly solicited, invited, encouraged or are consistent with usual gang activity; 8504(1)(a). however, where a defendant knowingly invites a person to somehow promote, commission, attempted commission or solicitation of two (2) or more of [twenty-one specified properly be characterized as a "criminal gang" and, by operation of the recruiting provision, one person to actively participate in a criminal gang."6 (b) is identified as a gang member; that the defendant knew of the existence of the criminal gang and that the association must be finely tuned to achieve their objectives. scales, 367 u.s. at 229. criminal gang, then the defendant has invited a person to actively participate in the criminal of membership such that it runs afoul of the first amendment. entity are certainly cured, so far as any particular defendant is concerned, by the requirement of individual is a gang member and supplies, sells or gives possession or control of any firearm to defendant's conviction must be reversed without any showing that such infringement was note, even if manzanares had failed to reserve the district court's ruling on the overbreadth of the recruiting in roberts, the court assessed the constitutionality of a minnesota antidiscrimination manzanares pled guilty to the recruiting charge in exchange for the dismissal of the however, subsection 1 doesn't say it has to be convictions. and there is "compelling interest in eliminating discrimination against women." id. at 549. canyon county. hon. thomas j. ryan, district judge. in effect, a conclusive presumption that the member shares the unlawful aims of concerning manzanares's website and her requests for members of east side locas to go tagging penalties. nothing in the oath, the statutory gloss, or the construction of the oath


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise