Opinion
Case No.: 3:19-cr-01850-AJB
2021-05-05
UNITED STATES of America, Plaintiff, v. John Timothy EARNEST, Defendant.
Caroline Pineda Han, Assistant United States Attorney, John N. Parmley, Assistant United States Attorney, Peter G. Ko, Assistant United States Attorney, Shane P. Harrigan, Assistant United States Attorney, US Attorneys Office, San Diego, CA, Rosanna E. Gibson, Assistant United States Attorney, U.S. Department of Justice, Washington, DC, for Plaintiff. Ellis M. Johnston, III, San Diego, CA, for Defendant.
Caroline Pineda Han, Assistant United States Attorney, John N. Parmley, Assistant United States Attorney, Peter G. Ko, Assistant United States Attorney, Shane P. Harrigan, Assistant United States Attorney, US Attorneys Office, San Diego, CA, Rosanna E. Gibson, Assistant United States Attorney, U.S. Department of Justice, Washington, DC, for Plaintiff.
Ellis M. Johnston, III, San Diego, CA, for Defendant.
ORDER DENYING DEFENDANT JOHN TIMOTHY EARNEST'S:
(1) MOTION TO DISMISS THE INDICTMENT FOR FAILURE TO STATE FEDERAL OFFENSES;
(2) MOTION TO DISMISS THE CHURCH ARSON PREVENTION ACT COUNTS;
(3) MOTION TO DISMISS THE HATE CRIMES PREVENTION ACT COUNTS;
(4) MOTION TO DISMISS THE INDICTMENT FOR MULTIPLICITY;
(5) MOTION TO DISMISS THE 18 U.S.C. § 924(C) COUNTS; AND
(6) MOTION TO DISMISS THE INDICTMENT FOR INSUFFICIENT CERTIFICATION.
Anthony J. Battaglia, United States District Judge Presently before the Court are Defendant John Timothy Earnest's ("Earnest"): (1) motion to dismiss the Indictment for failure to state federal offenses, (Doc. No. 70-1 ); (2) motion to dismiss the Church Arson Prevention Act counts as outside congressional authority under the Commerce Clause, (Doc. No. 70-2 ); (3) motion to dismiss the Hate Crimes Prevention Act counts as outside congressional authority under the Thirteenth Amendment, (Doc. No. 70-3 ); (4) motion to dismiss the Indictment for multiplicity, (Doc. No. 70-4 ); (5) motion to dismiss the 18 U.S.C. § 924(c) counts, (Doc. No. 70-5 ); and (6) motion to dismiss the Indictment for insufficient certification, (Doc. No. 70-6 ). The Government has opposed all six motions. (Doc. No. 74.) For the reasons set forth below, the Court DENIES Earnest's six motions in their entirety.
I. BACKGROUND
On May 9, 2019, the United States filed a Complaint against Earnest charging him with 55 counts of having violated the Church Arson Prevention Act ("CAPA"), 18 U.S.C. § 247 (Counts 1-54, 109) and 54 counts of having violated the Hate Crimes Prevention Act ("HCPA"), 18 U.S.C. § 249 (Counts 55-108). (Doc. No. 1.) On May 21, 2019, the United States filed an Indictment generally reiterating the above 109 counts and adding one alleged violation of using a firearm during a crime of violence resulting in death, 18 U.S.C. § 924(c) & 924(j) (Count 110) and three alleged violations of using a firearm during a crime of violence, 18 U.S.C. § 924(c) (Counts 111-113). (Doc. No. 17.) On December 11, 2020, Earnest filed six motions to dismiss the Indictment on various grounds. (Doc. No. 70.) The Government opposed all motions on January 15, 2021. (Doc. No. 74.) Earnest replied in support of all motions to dismiss except the motion to dismiss for insufficient certification. (Doc. Nos. 77–81.) The Court held a hearing on Earnest's motions to dismiss on March 25, 2021. (Doc. No. 90.) This order follows.
II. EARNEST'S MOTION TO DISMISS THE INDICTMENT FOR FAILURE TO STATE FEDERAL OFFENSES
The Court first focuses on Earnest's motion to dismiss the Indictment for failure to state federal offenses. (Doc. No. 70-1.) Earnest moves to dismiss the Indictment under: (1) the Fifth Amendment's Due Process and Grand Jury clauses; and (2) the Sixth Amendment's notice requirement for failure to state federal offenses. (Id. )
A. The General Sufficiency of the Indictment
Earnest first attacks the general sufficiency of the Indictment as a whole, arguing that the Indictment's factual allegations omit essential elements of the offenses, and are insufficient to state the federal crimes charged. (Doc. No. 70-1 at 7.) Earnest relies on the Fifth and Sixth Amendments to contend that the Constitution requires indictment by a grand jury, due process, and sufficient notice of charges. (Id. )
The pinpoint page citations refer to the ECF-generated page numbers at the top of each filing.
As a preliminary note, the Indictment does not contain a factual background section. Instead, the Indictment sets forth a total of 113 counts of criminal liability under the CAPA, the HCPA, and 18 U.S.C. § 924 . The counts are grouped according to the statutes Earnest is charged under, in addition to the degree of bodily harm inflicted upon the victims (e.g., for the one individual killed, three individuals injured, and 50 other individuals present). As a sample of the level of detail representative of the counts in the Indictment, Count 1 in the Indictment provides:
On or about April 27, 2019, within the Southern District of California, defendant JOHN TIMOTHY EARNEST intentionally obstructed, by force, victim L.G-K. in the enjoyment of her free exercise of religious beliefs and the offense was in and affected interstate commerce. The acts of defendant JOHN TIMOTHY EARNEST resulted in the death of L.G-K. All in violation of Title 18, United States Code, Sections 247(a)(2) and 247 (d) (1).
(Doc. No. 17 at 1.)
The Government, in opposition, argues that each count in the Indictment closely tracks the cited statute with additional detail added, including the "date and place of the crime, the victim's identity, or (in some) weapon used." (Doc. No. 74 at 4.) In reply, Earnest generally argues that the Government's opposition fails to address the Fifth and Sixth Amendments. (Doc. No. 77.) The Government's position is prevailing.
The Fifth Amendment guarantees federal criminal defendants due process and further provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. amend. V . The Sixth Amendment guarantees a criminal defendant a fundamental right "to be informed of the nature and the cause of the accusation." U.S. Const. amend. VI . An indictment must be a "plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1) . "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Bailey , 444 U.S. 394, 414, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (quotation marks omitted). In cases where the indictment "tracks the words of the statute charging the offense," the indictment will be held sufficient "so long as the words unambiguously set forth all elements necessary to constitute the offense." United States v. Fitzgerald , 882 F.2d 397, 399 (9th Cir. 1989) (quotation marks omitted).
Here, the Indictment meets the constitutional demands of the Fifth and Sixth Amendments. First, it is unclear what Earnest's exact grievance is with respect to the Fifth Amendment. Earnest cites the Fifth Amendment for the requirement that capital or infamous crimes require indictment by a grand jury. However, there are no allegations that the Indictment was not returned by a grand jury. In reply, Earnest suggests the Government fails to address Stirone v. United States . See 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Earnest points to language in Stirone providing that, "[t]he very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge." Id. at 218, 80 S.Ct. 270. But Stirone addressed a situation wherein the district court permitted a defendant to be tried on charges that were not originally made in the indictment against him. See id. at 217, 80 S.Ct. 270. By contrast, here, there are no similar allegations that the Government is seeking to try Earnest for crimes not appearing in the Indictment returned by the grand jury. Therefore, the Indictment withstands the requirements imposed by the Fifth Amendment.
Second, the Indictment also satisfies the mandates of the Sixth Amendment. In the Ninth Circuit, "[t]he use of a ‘bare bones’ information—that is one employing the statutory language alone—is quite common and entirely permissible so long as the statute sets forth fully, directly and clearly all essential elements of the crime to be punished". United States v. Woodruff , 50 F.3d 673, 676 (9th Cir. 1995) (citing United States v. Crow , 824 F.2d 761, 762 (9th Cir. 1987) ). "[A]n indictment is not to be read in a technical manner, but is to be construed according to common sense with an appreciation of existing realities." See United States v. Anderson , 532 F.2d 1218, 1222 (9th Cir. 1976). The Ninth Circuit has held that the wording of an indictment that closely follows the language set forth in a statute does not violate the Sixth Amendment. See id.
Here, the wording of the charges in the Indictment mirrors the language of the corresponding statutes Earnest is charged under. For example, the CAPA provides that "[when ‘the offense is in or affects ... interstate or foreign commerce’], [w]hoever intentionally obstructs, by force[,] any person in the enjoyment of that person's free exercise of religious beliefs ... shall be punished" by up to death "if death results from acts committed in violation of this section." 18 U.S.C. § 247(a)(2) – (b). In comparison, the Indictment parrots the CAPA, and even adds a few additional facts: "[o]n or about April 27, 2019, within the Southern District of California, defendant ... intentionally obstructed, by force, victim L.G-K. in the enjoyment of her free exercise of religious beliefs and the offense was in and affected interstate commerce. The acts of defendant ... resulted in the death of L.G-K." (Doc. No. 17 at 1.) In comparing the counts in the Indictment with their corresponding statutes, the Indictment provides sufficient notice to Earnest. Generally, "an indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right against double jeopardy, and to be informed of the offense charged." See United States v. Ors, Inc. , 997 F.2d 628, 629 (9th Cir. 1993). Using "common sense with an appreciation of existing realities" relevant to this particular case, the Indictment provides notice as to the violations of the CAPA, HCPA, and 18 U.S.C. § 924 . See Anderson , 532 F.2d at 1222. In particular, the added details of the date and location of each offense, in addition to the citation to the elements in the statute, is sufficient to quell any Double Jeopardy concerns.
As such, the Court DENIES Earnest's motion to dismiss the Indictment on general sufficiency grounds.
B. The Sufficiency of Allegations of a Nexus to Interstate Commerce
Next, Earnest argues Counts 1-54 and 109 under the CAPA should be dismissed because the Government fails to allege a nexus to interstate commerce necessary to implicate Congress’ authority under the Commerce Clause. (Doc. No. 70-1 at 11.) Earnest relies on the three categories of activities that Congress may regulate under its commerce power as recognized by the seminal case, United States v. Lopez : (1) the use of the channels of interstate commerce, (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, and (3) those activities having a substantial relation to interstate commerce. (Id. ) (quoting United States v. Lopez , 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).) Under the third Lopez category of activities, Earnest maintains that the Indictment does not provide how the offense substantially affects interstate commerce. (Doc. No. 70-1 at 12.) The Government counters Earnest is reading into the CAPA a requirement of a "substantial effect on interstate commerce" where none exists. (Doc. No. 74 at 14.) Specifically, the Government points out the CAPA only requires that the offense "affects commerce." (Id. ) The Government's position is correct for at least three reasons.
First, the face of the CAPA does not require a substantial effect on interstate commerce. The Indictment's allegations that Earnest's offense was "in or affected interstate commerce" is sufficient at the motion to dismiss stage. In review of the text of the statute, the CAPA does not demand that an offense substantially affect interstate commerce. To the contrary, the CAPA only requires that the charged offense " is in or affects interstate or foreign commerce ." See 18 U.S.C. § 247(b) (emphasis added). Thus, the omission of "substantial" is of no import to the sufficiency of the Indictment. Earnest relies on United States v. Lopez , and its progeny, United States v. Morrison to assert that it is necessary that the offense in question substantially affect interstate commerce. See Lopez , 514 U.S. 549, 115 S.Ct. 1624 ; United States v. Morrison , 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). According to Earnest, the phrase "in or affects commerce" in the CAPA is inconsistent with Lopez's mandate that Congress only regulate the channels, instrumentalities, and activities with a substantial relation to interstate commerce. This analysis, however, conflates the constitutional question with the question of the sufficiency of the allegations in the Indictment. The question of whether Congress has the constitutional authority to regulate the offense in question is distinct from whether the Indictment sufficiently alleges a charge based on the CAPA as written by Congress. Thus, the issue of the constitutionality of the statute, and whether the language should have included the word "substantial" is not appropriately addressed in this portion of the Order.
Second, the Court's conclusion comports with other courts that have tackled this issue. Although the Court is not aware of any courts within the Ninth Circuit addressing the issue of whether the CAPA mandates a substantial nexus to interstate commerce, the Government's citation to United States v. Grassie is illuminating. See 237 F.3d 1199, 1202 (10th Cir. 2001). In Grassie , the Tenth Circuit addressed—in the context of the CAPA—whether it was reversible error for jury instructions to permit consideration of "any effect," rather than a "substantial effect" on interstate commerce. Answering in the negative, the Tenth Circuit held that the trial judge provided a proper instruction, and that "any effect at all on interstate commerce" was sufficient. Id. at 1208. The court explained that the CAPA was enacted against a backdrop of a national epidemic of arson and other attacks on churches and synagogues. Id. at 1209. Thus, the CAPA, passed by the House 422 to 0, and by the Senate 98–0, was intended by Congress "to exercise the fullest reach of the Federal commerce power" by eliminating previously existing jurisdictional obstacles, including a minimum dollar amount of loss, and broadening the reach of the statute. Id.
A recent case out of the Western District of Pennsylvania also held that a CAPA charge in an indictment need not allege that the conduct at issue "substantially affected interstate commerce." United States v. Bowers , 495 F.Supp.3d 362, 373 (W.D. Pa. 2020). In Bowers , the defendant contended that the superseding indictment did not allege that "he used the channels or instrumentalities of interstate commerce in any way that was essential or integral to the charged offenses or that his conduct substantially affected interstate commerce." Id. Yet, the district court disagreed with the defendant and held the indictment's language that "the offense was in and affected interstate commerce" was sufficient. Id. The court also noted it was obligated to accept the Government's allegations as true at the motion to dismiss stage of the proceedings. Id.
Third, in any event, case law has established that the phrase "in or affects commerce" as used to describe a criminal offense, "is a term of art, whose settled, specialized meaning can and must be given effect." United States v. Ballinger , 395 F.3d 1218, 1231 (11th Cir. 2005). In particular, the "in commerce" language signifies the first two Lopez categories—the regulation of the channels and of the instrumentalities of commerce. The "affecting commerce" language invokes the third Lopez category—regulation of intrastate activities that substantially affect commerce. Therefore, the words "affecting commerce," as the Supreme Court has repeatedly explained, are "words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power." Id. at 1232 (quoting Citizens Bank v. Alafabco, Inc. , 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) ). These words invoke the power to regulate activities that "substantially affect" commerce. Ballinger , 395 F.3d at 1232. Stated another way, the terms "in or affects commerce" has a specialized meaning, and may be interpreted to already contain a "substantial effect" element. Because the counts in the Indictment includes the terms "in or affects commerce," there is no issue as to the omission of "substantial."
Based on the foregoing authority, the language in the Indictment is sufficient, and the Court may accept the Government's allegations of effect on interstate commerce as true at this stage of the proceedings. See United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir. 1986). As explained above, an indictment is sufficient on its face if it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution. See Ors, Inc. , 997 F.2d at 629. Here, Counts 1-54 and 109 all allege that "the offense was in and affected interstate commerce." This language is substantially identical to the language of the charges in Bowers , where the district court held that no greater specificity or factual detail was required. See Bowers , 495 F.Supp.3d at 373. So too here is the language in the Indictment sufficient at the motion to dismiss stage. Counts 1-54 and 109 parrot the CAPA and include the necessary elements of the offenses. Thus, Earnest's argument regarding the insufficiency of a nexus to interstate commerce fails. The Indictment properly alleges that the charged offenses were "in or affected interstate commerce," which is a term of art adequately apprising Earnest of what he must be prepared to meet.
Accordingly, the Court DENIES Earnest's motion to dismiss the Indictment for failure to state an offense under the CAPA.
C. The Sufficiency of Allegations Under the HCPA
Next, Earnest argues this Court should dismiss Counts 55-108 for failure to state federal offenses under the HCPA because the Indictment lacks factual allegations specifying the persons and races at issue. (Doc. No. 70-1 at 15.) Earnest suggests it is not apparent from the four corners of the Indictment whether the Government's theory is that Earnest committed the acts charged because of his own race, because of the race of the victims, or because of the race of some third party. (Id. ) In response, the Government maintains that the specific way the crime relates to a particular race or person's identity is not an element under the HCPA. (Doc. No. 74 at 9.) The Court agrees with the Government.
The HCPA provides for imprisonment for "[w]hoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person ." 18 U.S.C. § 249(a)(1) (emphasis added). By comparison, Counts 59–108 closely track the HCPA and allege, "[o]n or about April 27, 2019, in the Southern District of California, defendant JOHN TIMOTHY EARNEST, through the use of a firearm, willfully attempted to cause bodily injury to each victim listed below, because of the actual and perceived race of any person ." (Doc. No. 17 at 5 (emphasis added).)
However, "[a]n indictment must provide the essential facts necessary to apprise a defendant of the crime charged; it need not specify the theories or evidence upon which the government will rely to prove those facts." United States v. Mancuso , 718 F.3d 780, 790 (9th Cir. 2013) (internal quotation marks omitted). In comparing the Indictment with the HCPA, the allegation that Earnest caused death and bodily injury because of the race of "any person" is sufficient. At this stage, the Government is not required to provide greater specificity as to how it intends to prosecute its case.
Other statutes containing similar language guides this Court's analysis. Indeed, the Ninth Circuit in United States v. Morlan has held in the context of a bank robbery statute that a statute's reference to "any person" does not require specificity as to which person. See 756 F.2d 1442 (9th Cir. 1985). For example, 18 U.S.C. § 2113(d) creates criminal liability for "[w]hoever ... assaults any person , or puts in jeopardy the life of any person by the use of a dangerous weapon or device...." 18 U.S.C. § 2113(d) (emphasis added). In reviewing this statute, the Ninth Circuit held that that an indictment need not allege which specific person was assaulted. See Morlan , 756 F.2d at 1442. By leaving the question of "which" teller and "which" employees were assaulted to the petit jury, the grand jury "did not permit the petit jury to convict for a different crime, but merely to convict if they found that any teller or some of the employees were assaulted." Id. at 1445.
Here, as shown by the statutory language, the elements of the HCPA only require that Earnest "willfully cause[d] bodily injury to any person" through the use of a weapon "because of the actual or perceived race, color, religion, or national origin of any person ." 18 U.S.C. § 249(a)(1) (emphasis added). Counts 59–108 mirror the statute by asserting that, "[o]n or about April 27, 2019, in the Southern District of California, defendant JOHN TIMOTHY EARNEST, through the use of a firearm, willfully attempted to cause bodily injury to each victim listed below, because of the actual and perceived race of any person ." (Doc. No. 17 at 5 (emphasis added).) On its face, the HCPA does not require more at this stage of the proceedings. Similar to Morlan , the Indictment here need not specify whose race is at issue as long as the allegations assert the offense was racially motivated. The Government is not required to divulge its theory of the case in the Indictment at this stage. Because the elements of the crimes under the HCPA are alleged in the Indictment, the Indictment withstands dismissal on this ground.
Based on the foregoing, the Court DENIES Earnest's motion to dismiss Counts 55–108 for failure to state federal offenses under the HCPA.
D. Sufficiency of Allegations Under 18 U.S.C. §§ 924(c) and 924(j)
Lastly, Earnest argues that because the counts charging the use of a firearm during a crime of violence under 18 U.S.C. §§ 924(c) and 924(j) are all predicated on invalid counts charged under the CAPA and the HCPA, they too must be dismissed. (Doc. No. 70-1 at 17.) However, because the allegations in the Indictment are adequate, it follows that the Firearm Counts are also not subject to dismissal at this stage of the proceedings.
In summation, the Court DENIES Earnest's motion to dismiss the Indictment for failure to state federal offenses in its entirety.
III. EARNEST'S MOTION TO ELECT AND DISMISS MUTIPLICITOUS COUNTS UNDER THE DOUBLE-JEOPARDY CLAUSE
Next, the Court turns to Earnest's motion to dismiss the Indictment for multiplicitous counts. (Doc. No. 70-4.) "The Double Jeopardy Clause prohibits the imposition of multiple trials, convictions and punishments for the same offense." United States v. Arlt , 252 F.3d 1032, 1035 (9th Cir. 2001) (en banc). Earnest argues the counts in the Indictment are multiplicitous in violation of the Double Jeopardy clause because the Indictment charges one count for each of the 54 individuals present at the Chabad of Poway Synagogue ("Synagogue") under the CAPA and HCPA. The Indictment charges a total of 112 counts arising out of the events at the Synagogue, which can be grouped into three broad categories:
The Indictment additionally charges one count under the CAPA for the attempt to damage and destroy the Dar-ul-Arqam Mosque in Escondido.
• 54 counts charging Earnest with the obstruction of religion in violation of the CAPA as to each individual present in the Synagogue.
• 54 counts charging Earnest with race-based hate crimes in violation of the HCPA as to each of these same individuals; and
• 4 counts charging Earnest with violations of 18 U.S.C. § 924 as to each of the four individuals who were killed or wounded by the gunfire.
Earnest contends that because the shots were fired as part of a single act, within a single event, the Government must elect no more than one count for each violation of each statute. (Doc. No. 70-4 at 3.) Parsing a single event into 112 counts violates the Double Jeopardy Clause, Earnest maintains. (Id. ) In the alternative, Earnest argues that based on Supreme Court and Ninth Circuit authority, there can only be, at most, ten counts under each statute, for the ten total shots fired in connection with the event. (Id. at 6.)
In opposition, the Government rebuts even if charges are multiplicitous, the motion is premature, and the appropriate remedy is to dismiss any multiplicitous counts after a verdict and before sentencing. (Doc. No. 74 at 29.) Second, the Government maintains that the text and structure of the statutes and their legislative history establish that Congress intended a separate unit of prosecution for each victim. (Id. at 32.) The Court addresses both points below.
A. Whether the Court Can Address the Motion
The first issue is whether the Court should defer ruling on Earnest's motion to dismiss or elect until after a verdict has been rendered. In its opposition, the Government posits that the Court may not reach the question of multiplicity until after a verdict is returned. (Doc. No. 74 at 29.) The Government relies on United States v. Zalapa for the proposition that a district court has a duty to resolve multiplicitous charges only after a jury returns a guilty verdict on the multiplicitous charges. See 509 F.3d 1060, 1060 (9th Cir. 2007). Earnest responds that the Government ignores the requirements of Federal Rule of Criminal Procedure 12 , which provides that the issue of multiplicity may be decided pretrial. (Doc. No. 80 at 2.) Earnest is correct that the Court may address his argument at the motion to dismiss stage.
First, Zalapa is distinguishable. Zalapa dealt with a challenge to the imposition of multiplicitous convictions and sentences after trial, as opposed to a pretrial challenge to the indictment in form. See Zalapa , 509 F.3d at 1063 ("Our case law distinguishing between objections to multiplicity in the indictment itself and objections to multiplicitous convictions and sentences follows explicit Supreme Court precedent."). The Zalapa court held that the defendant only challenged his multiplicitous convictions and sentences, not the form of the indictment. Id. at 1064. The defendant had voluntarily pleaded guilty to all counts and did not object to the form of the indictment to the district court. By failing to object to the multiplicitous indictment before pleading guilty, the Ninth Circuit held that any objection as to the form of the indictment was waived. Id. The defendant did not, however, waive his right to object to his sentences and convictions as multiplicitous on appeal. Id. Here, at this stage, Earnest's challenge to multiplicity is to the form of the Indictment, and not to a multiplicitous conviction or sentence. Thus, Zalapa is inapplicable.
Additionally, the Federal Rules of Criminal Procedure provide that a claim that the indictment is flawed, e.g., multiplicitous, must be raised prior to trial. See Fed. R. Crim. P. 12(b)(3)(B) . Indeed, Federal Rule of Criminal Procedure 12(b)(3)(B)(ii) specifically provides that a motion involving a defect in the indictment including charging the same offense in more than one count (multiplicity), "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits."
Here, Earnest is arguing the Indictment contains multiplicitous counts, contending that deconstructing a single event into 112 separate offenses violates the Double Jeopardy Clause. Consistent with Zalapa , whether a potential sentence is multiplicitous is a separate question, but at the motion to dismiss stage, Earnest is entitled to file, and have the Court rule, on the issue of multiplicity. Accordingly, the Court need not defer ruling on the issue. B. Whether the Charges in The Indictment Are Multiplicitous
Having found that the Court need not defer ruling on the issue of multiplicity, the Court will address whether the charges contained in the Indictment are indeed multiplicitous. Earnest argues that the 112 separate counts in the Indictment violate the Double Jeopardy Clause because he is being charged with multiple violations of the same statute based upon one discrete event (the shooting of the Synagogue). (Doc. No. 70-4 at 3.) Essentially, Earnest argues he may not be charged "more than once" under each statute (e.g., one count for violation of the CAPA, one count for violation of the HCPA, and one count under the firearm statute). (Doc. No. 70-4 at 6.)
"An indictment is not multiplicitous merely because it charges more than one violation of the same statute based on related conduct; instead, a defendant can be convicted of multiple violations of the same statute if the conduct underlying each violation involves a separate and distinct act." United States v. Technic Servs., Inc. , 314 F.3d 1031, 1046 (9th Cir. 2002), overruled on other grounds by United States v. Contreras , 593 F.3d 1135 (9th Cir. 2010). "Where ... a single act or transaction is alleged to have resulted in multiple violations of the same statutory provision, the Supreme Court has stated that the proper inquiry involves the determination of ‘[w]hat Congress has made the allowable unit of prosecution.’ " United States v. Keen , 104 F.3d 1111, 1118 (9th Cir. 1996) (alteration in original) (quoting United States v. Universal C.I.T. Credit Corp. , 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) ).
In other words, courts must determine whether Congress meant to punish each instance of a violation as a separate crime or punish once per violation of a single provision of law. The Supreme Court has also indicated that when such "choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." Id. at 221–22, 73 S.Ct. 227. Courts must therefore limit their search for what Congress has deemed the "unit of prosecution" to materials that directly inform congressional intent: "Unless we can find from the face of the Act or from its legislative history a clear indication that Congress intended to authorize multiple punishments for a single transaction, we are obliged to construe the Act against the harsher penalties that result from cumulative punishments." United States v. Clements , 471 F.2d 1253, 1254 (9th Cir. 1972).
Based on this, the Court will first address whether the CAPA allows for more than one offense per event, focusing on the text and legislative history, followed by the same analysis for the HCPA.
1. The CAPA
Counts 1–54 charge Earnest under the CAPA for the violation of the statute for each individual present in the Synagogue on April 27, 2019. Earnest urges that he should only be charged with a single count under the CAPA because the events transpired during one single occurrence. (Doc. No. 70-4 at 3.) Alternatively, Earnest argues at most, case law only supports ten counts under the CAPA for each shot fired by Earnest. (Id. at 6.)
In support of his argument, Earnest cites case law considering the "allowable units of prosecution" for other crimes. Earnest primarily rests on Ladner v. United States and United States v. Voris , 964 F.3d 864 (9th Cir. 2020). In Ladner , the Supreme Court considered the limits of charging multiple offenses for singular acts, holding that under the statutory predecessor to the modern assault statute, 18 U.S.C. § 254, a defendant who had wounded two officers with a single gunshot could be guilty of only one assault under the statute. See 358 U.S. 169, 177, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). Applying the rule of lenity, the Supreme Court stated it could not "find that Congress intended that a single act of assault affecting two officers constitutes two offenses under the statute." Id. The Supreme Court came to this conclusion by recognizing that, "an interpretation that there are as many assaults committed as there are officers affected would produce incongruous results" and could lead to disproportionate punishments because "it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act." Id. at 177, 79 S.Ct. 209.
The assault statute at issue in Ladner states, "[w]hoever shall forcibly resist, oppose, impede, intimidate, or interfere with any person while engaged in the performance of his official duties, or shall assault him on account of the performance of his official duties, shall be imprisoned not more than three years; and whoever, in the commission of any of the acts described in this section, shall use a deadly or dangerous weapon shall be imprisoned not more than ten years." See 18 U.S.C. § 254.
Similarly, in Voris , the Ninth Circuit considered whether a defendant's sentences and convictions for the five assault counts based on the four shots he fired were multiplicitous. See 964 F.3d at 869 . Relying on Ladner , the Ninth Circuit concluded that because the defendant fired four shots, only four assault convictions were constitutionally permissible, even though at least five officers came under fire from those four shots. Id. Notably, the Ninth Circuit also rejected the defendant's argument that because he fired the four shots in quick succession, he committed only one assaultive act and can be convicted of only one assault. The Voris court concluded that "as long as there were four assaultive acts and at least four potential victims, there were four assaults." Id. at 871.
In opposition, the Government points to the face of the statute, in addition to the legislative history, to support its claim that Congress contemplated a victim-centric view for CAPA counts. The relevant portion of the CAPA provides for criminal liability for whoever "intentionally obstructs, by force or threat of force, including by threat of force against religious real property, any person in the enjoyment of that person's free exercise of religious beliefs, or attempts to do so." 18 U.S.C. § 247(a)(2) (emphasis added). Specifically, the Government highlights that the use of "that person" suggests that Congress intended the "allowable unit of prosecution" be on a per-victim basis. (Doc. No. 74 at 32–33. ) In addition, the Government points to the penalties section of the statute, which specifies varying levels of severity of penalties depending on the harm inflicted (whether it be death, attempt to kill, or bodily injury).
Thus, the Court must look at the face of the CAPA, in addition to the legislative history to ascertain Congress’ intent.
a) The Text and Legislative History of the CAPA
After review of the face of the statute, the Court holds the inclusion of the words " that person " and the scale of punishment proffered in the CAPA establishes that prosecution is permissible for each instance of obstruction of religious freedom as to each victim. First, the statute allows for criminal liability for whoever "intentionally obstructs, by force or threat of force, ... any person in the enjoyment of that person's free exercise of religious beliefs, or attempts to do so." 18 U.S.C. § 247(a)(2) (emphasis added). Upon a natural reading of the statute, the Court concludes that the use of "that person" as opposed to "those persons" demonstrates Congress’ intent for singular units of prosecution.
Case law also sheds light on the reference to "that person" in criminal statutes. In United States v. Shrader , the Fourth Circuit held that the inclusion of words such as "that person" in the federal stalking statute, 18 U.S.C. § 2261A(2)(A) , "defines the defendant's crime—and therefore the unit of prosecution—in terms of his intent to strike fear in a particular individual." 675 F.3d 300, 313 (4th Cir. 2012). Additionally, because of the gradation of punishment set forth in the stalking statute, the Fourth Circuit also held that the reference to "that person" was "more than just an element of the crime—the effect on a particular victim is also how Congress has chosen to allocate punishment for the offense." Id.
Likewise, in the CAPA, Congress provides a progression of punishment depending on the gravity of harm inflicted by the defendant on the victim. The CAPA imposes permissible sentences of "any term of years or for life" or "death" if the acts committed resulted in death; "not more than 40 years" if bodily injury results and the violation is by means of fire or an explosive; and "not more than 20 years" if bodily injury resulted and the violation included the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire. See 18 U.S.C. § 247(d)(1)–(3). In all other cases, the statute provides for "a fine in accordance with this title and imprisonment for not more than one year, or both." Id. at § 247(d)(5). Thus, the gradation of punishment breaths meaning into the phrase "that person," and demonstrates that the statute contemplated a victim-centric approach to prosecution.
Second, the legislative history also strengthens the Government's argument for a per-victim unit of prosecution. In Senate Report No. 100-324, the Senate specifically explained the purpose behind enacting the CAPA, which "permits the prosecution of and imposition of Federal criminal penalties on persons who ... forcibly interfere with an individual's exercise of religious beliefs." S. Rep. No. 324, 100th Cong., 2d Sess. 1, 1 (1988). The Senate maintained that the CAPA, "requires the prosecutor to show that the defendant intentionally attempted or did obstruct another from engaging in activities pursuant to that individual's religious beliefs and that he or she knew that the person was engaging in the activities pursuant to religious beliefs." Id. at 5 (emphasis added). The legislative history therefore clearly provides Congress’ resolve to protect the freedom of religion of an individual, rather than only a collective right to the freedom of religious exercise.
Earnest's citations to Ladner and Voris does not compel a contrary conclusion. The unit of prosecution analysis ultimately revolves around a question of statutory interpretation and legislative intent for a particular crime. See Keen , 104 F.3d at 1118. The unit of prosecution for a crime is specific to the statute for the crime. Here, it is undisputed that the assault statutes at issue in Ladner and Voris are not at issue here in this case. Moreover, Ladner and Voris are distinguishable. In Ladner , the Supreme Court was concerned with the potential of incongruous results because the language of the assault statute provided that punishment may be imposed not only for assault on federal officers, but also on more minor conduct such as resisting, opposing, impeding, intimidating or interfering with such officers’ duties. See Ladner , 358 U.S. at 177, 79 S.Ct. 209 . The Supreme Court noted that "the locking of the door of a building to prevent the entry of officers intending to arrest a person" would be considered an offense but that the Supreme Court could not "find clearly from the statute ... that the Congress intended that the person locking the door might commit as many crimes as there are officers denied entry." Id. at 176, 79 S.Ct. 209. In review of the legislative history, the Supreme Court also noted that while one purpose could be to protect individual officers, it was equally plausible that the congressional aim was to prevent hindrance to the execution of official duty, and "not to protect federal officers except as incident to that aim." Id. at 175–76, 79 S.Ct. 209.
Furthermore, the Ladner Court was concerned about the incongruent punishments that could result from the assault statute. The Supreme Court reasoned that under the assault statute, "one who shoots and seriously wounds an officer would commit one offense punishable by 10 years’ imprisonment, but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years’ imprisonment, even though he does not fire the gun and no officer actually suffers injury." Id. at 177, 79 S.Ct. 209. Therefore, in the context of the assault statute, the Supreme Court focused specifically on the discrete acts constituting each assault, as opposed to the number of potential victims in order to avoid this incongruent result.
Here, the same concern regarding incongruous results is not present because the statutory scheme of the CAPA provides varying degrees of punishment based on the severity of the physical harm. Consistent with this statutory scheme, Count 1 of the Indictment pertains to the violation of the CAPA, resulting in death, Counts 2–4 relate to the violation of the statute, resulting in bodily injury, and Counts 5–54 relate to the violation of the statute, with the attempt to kill. Therefore, as provided in the CAPA, the penalties increase based on the harm to the victims in the Synagogue, which obviates the concern for incongruous results. Furthermore, it is clear from the text of the statute, and the legislative history, that Congress intended to protect victims from crimes related to their religious beliefs. At this juncture, the Court cannot say that when Earnest opened fire on the entire congregation that he did not intend to obstruct the free exercise of religion of every person present.
In any event, Voris plainly precludes Earnest's assertion that there may only be one offense. Voris demonstrates that for the purpose of the assault statute, the relevant focus is on the act constituting an assault. Earnest's position that he may only face one count for each offense is untenable under Voris , wherein the Ninth Circuit held that four assaults occurred when the defendant fired his weapon four times. See 964 F.3d at 869 . Earnest alternatively argues that under Voris , he may be liable for no more than ten counts per statute, representing the ten shots that were fired. As already explained above, it is sufficiently clear from the text and legislative history of the CAPA that Congress intended to allow the unit of prosecution to be tied to the number of victims. The Voris case is distinguishable because that case involved the assault statute for which the conduct proscribed were the acts that constituted each assault or interference of an officer. By contrast, here, the acts prohibited are not necessarily tied to an assault, but instead tied to the act of obstructing an individual's exercise of religious freedom.
Accordingly, the Court finds that the CAPA counts are not multiplicitous.
2. The HCPA
Similarly, Counts 55–108 in the Indictment charge Earnest with as many HCPA violations as individuals present at the Synagogue on April 27, 2019. Like the CAPA, a review of the text of the HCPA also shows Congress’ intent to allow prosecution on a per-victim basis. First, the face of the HCPA specifically references the term "victim" three times, supporting the Government's view. The HCPA's explicit use of the term "victim" leads to no reasonable conclusion other than that Congress contemplated that the HCPA would protect individual victims. Secondly, the HCPA's penalty provisions avoid the potential for the "incongruous" sentencing results that concerned the Ladner Court. The HCPA specifies that violations may result in imprisonment not more than ten years if the crime involves bodily injury or attempt to cause bodily injury. See 18 U.S.C. § 249(a)(1)(A) . However, "any term of years or [a] life" sentence may be imposed if the offense results in death or includes an attempt to kill. See 18 U.S.C. § 249(a)(1)(A)–(B). Like the CAPA, this progression of penalties based on degree of harm protects against disproportionate sentences.
Additionally, the legislative history establishes clear intent for protecting individual victims of hate crimes. For example, the House Report on the HCPA states, " Section 249 establishes two criminal prohibitions. In cases involving violence because of the victim's race, color, religion, or national origin, section 249(a)(1) prohibits the intentional infliction of bodily injury (or certain attempts) without regard to the victim's participation in specific enumerated activities." H.R. Rep. 111-86 at 5. The House Report also states that the HCPA defines a " ‘hate crime’ as a violent act causing death or bodily injury ‘because of the actual or perceived race, color, religion, national origin, sexual orientation, gender, gender identity or disability’ of the victim ." H.R. Rep. 111-86 at 34 (2009). No more is necessary to find Congress’ intent to allow for per-victim prosecutions.
And, for the same reasons relevant to the CAPA, Ladner is also not applicable to the instant prosecution. Because the assault statute at issue in Ladner covered non-assaultive conduct, (e.g., locking a door), the Supreme Court concluded it was plausible that the statute's purpose was more broadly outlawing the hindrance of the execution of official duties, not protecting the safety of victims. By contrast, here, all indicators point to Congress’ intent to protect individuals from the rising level of hate crimes in the nation.
Accordingly, based on the statute's text and legislative history, the Court DENIES Earnest's motion to dismiss the HCPA counts as multiplicitous.
3. Firearm Counts
Lastly, to the extent Earnest argues the four remaining firearm counts under 18 U.S.C. § 924 resulting in bodily injury and death are multiplicitous, Earnest's argument is foreclosed by Voris . Voris explicitly rejected a multiplicity challenge to four § 924 charges, because the defendant fired four shots at four potential victims. See 964 F.3d at 873 . Likewise, here, the four § 924 counts are properly charged as they were fired at four victims. Thus, these counts are not multiplicitous.
In sum, the Court DENIES Earnest's motion to dismiss or elect based on multiplicity.
IV. EARNEST'S MOTION TO DISMISS FOR INSUFFICIENT CERTIFICATION
Next, Earnest argues that the certifications authorizing the instant prosecution under the CAPA, 18 U.S.C. § 247(e) and the HCPA, § 249(b)(2) are substantively insufficient because the state of California is already pursuing parallel charges in a death-authorized prosecution for the same conduct underlying the charges in this case. (Doc. No. 70-6.) Earnest maintains the certifications are deficient because it does not explain "why the [Assistant Attorney General] believed these charges were in the public interest or necessary for substantial justice" given the duplicity of the prosecutions. (Id. at 2.)
The certification requirement under § 247(e) of the CAPA requires "certification in writing of the Attorney General or his designee that in his judgment a prosecution by the United States [under § 247 ] is in the public interest and necessary to secure substantial justice." Similarly, § 249(b) of the HCPA requires certification of a HCPA charge on any one of four grounds, including that prosecution "is in the public interest and necessary to secure substantial justice." Certification authority has been delegated to the Assistant Attorney General for the Civil Rights Division. See Attorney General Order No. 2048-96 (delegating authority for § 247); see also 28 C.F.R. § 0.50(n) (delegating authority for § 249 ); see also United States v. Three Male Juveniles , 49 F.3d 1058, 1063 (5th Cir. 1995).
Earnest contends there can be no additional public interest the federal government can pursue because the state of California is already seeking the death penalty against Earnest for the same conduct at issue in this case. Earnest points out that the Complaint, certification, and Indictment in this case occurred after the initiation of the parallel state-court prosecution, and so, there can be no additional public interested vindicated. (Doc. No. 70-6 at 2–4.) The Government notes that the state prosecution only charges four counts for the individuals killed or injured, and one count for the use of an explosive device in a synagogue. Thus, according to the Government, Earnest overlooks "the 50 other victims at the synagogue whose lives he tried to end and whose interests would not be accounted for." (Doc. No. 74 at 55.) The Court agrees that the certifications are sufficient here.
As a matter of law, the CAPA and the HCPA only require that the official "certif[y] in writing" that prosecution is appropriate, which the official here did. The statutes do not mandate that the official explain the reasons for their conclusion. Thus, to the extent Earnest is requesting the Court probe into the basis for certification, the Court declines Earnest's invitation. Several other federal courts have held that the CAPA contains no "standard for judicial reviewability of the Attorney General's certification that a prosecution is in the public interest and necessary for substantial justice. Therefore, that aspect of the certification in this case is not subject to substantive judicial review." United States v. Hari , No. 18CR015001DWFHB, 2019 WL 7838282, at *7 (D. Minn. Sept. 17, 2019), report and recommendation adopted, No. CR181501DWFHB, 2019 WL 6975425 (D. Minn. Dec. 20, 2019). Likewise, the HCPA does not provide for judicial review of the certification. The text of the statute indicates Congress intended that judicial review of the certification process should be precluded in favor of the broad discretion of federal prosecutors. See Bowers , 495 F.Supp.3d at 374–75 (declining judicial review of § 247 or § 249 ’s certification requirements). The decision to prosecute is ill-suited for judicial review because, "the strength of the case, the prosecutor's general deterrence value, the Government's enforcement priorities, and the case's relationship to the overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make." Wayte v. United States , 470 U.S. 598, 609, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Based on the foregoing, the Court DENIES Earnest's motion to dismiss for insufficient certification.
Earnest briefly suggests that § 249(b) ’s certification requirement improperly delegates Congressional authority to the Executive. However, there is "no constitutional significance in the certification requirement." United States v. Hatch , 722 F.3d 1193, 1207 (10th Cir. 2013). Earnest does not adequately explain how the certification requirement is in effect the same as Congress’ job of passing law. The requirement that the decision to prosecute meet certain thresholds is squarely within the duties of a prosecutor. See Wayte , 470 U.S. at 607, 105 S.Ct. 1524 (prosecution has "absolute discretion to decide whether to prosecute a case").
V. EARNEST'S MOTION TO DISMISS THE CHURCH ARSON PREVENTION ACT COUNTS
Next, the Court addresses Earnest's constitutional challenges, starting with his challenge to the constitutionality of the CAPA. As previously noted, Earnest is charged with 55 counts of having violated the CAPA, 18 U.S.C. § 247 , and moves to dismiss those charges. (Doc. No. 70-2.) The CAPA federally criminalizes "[d]amage to religious property" and "obstruction of persons in the free exercise of religious beliefs." 18 U.S.C. § 247 . It states, in relevant part:
(a) Whoever, in any of the circumstances referred to in subsection (b) of this section--
(1) intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so; or
(2) intentionally obstructs, by force or threat of force, including by threat of force against religious real property, any person in the enjoyment of that person's free exercise of religious beliefs, or attempts to do so; shall be punished as provided in subsection (d).
(b) The circumstances referred to in subsection (a) are that the offense is in or affects interstate or foreign commerce.
18 U.S.C. § 247(a) – (b). In his motion to dismiss, Earnest raises both a facial and an as-applied constitutional challenge to the CAPA.
A. CAPA Facial Constitutional Challenge
To begin, Earnest argues that the CAPA is facially unconstitutional because it exceeds the limits of congressional authority under the Commerce Clause and violates the Tenth Amendment. "If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States[.]" New York v. United States , 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). One of these powers is the Commerce Clause. It is set forth in Article I, Section 8 of the United States Constitution and states: "The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cls. 1 & 3. In United States v. Lopez , the Supreme Court explained that there are "three broad categories of activity that Congress may regulate under its commerce power." 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The three categories are: (1) "the use of the channels of interstate commerce," (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities," and (3) "activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Id. at 558–59, 115 S.Ct. 1624. While the Ninth Circuit has not yet addressed the constitutionality of the CAPA, every court to consider the issue has found § 247 to be a valid exercise of Congress’ authority to legislate under the Commerce Clause. See Ballinger , 395 F.3d at 1227 ; Grassie , 237 F.3d at 1208–10 ; Bowers , 495 F.Supp.3d at 371–72 ; United States v. Roof , 225 F. Supp. 3d 438, 452 (D.S.C. 2016) ; Hari , 2019 WL 7838282, at *3.
Moreover, "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). "Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison , 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Consequently, to prevail on his facial challenge to the CAPA, Earnest bears the burden of establishing that there are no circumstances under which the statute would be constitutionally valid.
1. Channels and Instrumentalities of Commerce
As an initial matter, Earnest claims that the first two Lopez categories clearly do not apply to § 247. The Court disagrees. The CAPA plainly requires that "the offense is in or affects interstate or foreign commerce." As explained above, this jurisdictional element is a term of art, which Congress has historically used to signal its intent to exercise its full authority under the Commerce Clause. See Ballinger , 395 F.3d at 1231. The phrase "in commerce" references its Lopez 1 and 2 powers to regulate the channels and instrumentalities of commerce, respectively, and the phrase "affects interstate commerce" references its Lopez 3 powers to regulate activities having a substantial relation to interstate commerce. See id. ; see also Lopez , 514 U.S. at 558–59, 115 S.Ct. 1624 . The channels of commerce are "the interstate transportation routes through which persons and goods move." Morrison , 529 U.S. at 613, 120 S.Ct. 1740 (citation omitted). They include "navigable waterways, railroads, and highways." United States v. Reynard , 473 F.3d 1008, 1022 (9th Cir. 2007) ; see also Ballinger , 395 F.3d at 1226 (additionally noting airspace, telecommunications network, and national securities markets as channels of commerce). By contrast, instrumentalities of interstate commerce are "the people and things themselves moving in commerce, including automobiles, airplanes, boats, and shipments of goods," as well as pagers and phones. Ballinger , 395 F.3d at 1226 (collecting cases).
As other courts analyzing the constitutionality of § 247 have recognized, "acts such as mailing a bomb to a church, using a cellular phone to detonate a bomb, intentionally driving a car across state lines to transport a bomb, and using a cellular phone to instruct someone in another state to detonate a bomb would implicate the channels and instrumentalities used in interstate commerce." Bowers , 495 F.Supp.3d at 372 (quoting Hari , 2019 WL 7838282, at *3 ); see Roof , 225 F. Supp. 3d at 453 ("One could of course use the channels or instrumentalities of interstate commerce to attack a house of worship—for example, by mailing a bomb to a church."). Tellingly, when provided the opportunity at the motion hearing to explain how Earnest could satisfy his burden of showing that there are no circumstances under which a § 247 offense can implicate the channels and instrumentalities of interstate commerce, Earnest appeared to concede that he could not, and chose instead to focus on his as-applied challenge to the CAPA. Consequently, the Court finds that Earnest has not met his burden to prove that there are no circumstances under which an offense under § 247 is "in commerce." See Salerno , 481 U.S. at 745, 107 S.Ct. 2095 .
In addition, the Court notes that inclusion of the jurisdictional element that "the offense is in or affects interstate or foreign commerce" further supports § 247 ’s validity. For example, in United States v. Mahon , the Ninth Circuit considered whether 18 U.S.C. § 844(i) , the federal arson statute, is facially constitutional, and rejected Mahon's facial challenge to the statute because " § 844(i) has the necessary jurisdictional element" of "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. " 804 F.3d 946, 953 (9th Cir. 2015) (emphasis in original). In its decision, the Ninth Circuit distinguished § 844(i) from the Violence Against Women Act and the Gun-Free School Zones Act in Morrison and Lopez , respectively—explaining that the Supreme Court invalidated those statutes "because each exceeded Congress's authority; the statutes did not regulate economic activity and they did not require that the activity be connected to interstate commerce." Id. Here, § 247 is analogous to § 844(i) because it too "has the necessary jurisdictional element" and therefore is also distinguishable from Morrison and Lopez. Furthermore, because the jurisdictional element limits the scope of § 247 to only those offenses that are "in or affects interstate or foreign commerce," Earnest's concerns over Congress exceeding its authority under the Commerce Clause and usurping the states’ police powers are unavailing.
2. Substantially Affects Interstate Commerce
The Court also considers the CAPA's validity under Lopez category three. To evaluate a regulated activity's effect on interstate commerce, courts consider four factors: (1) whether the regulated activity is economic in nature; (2) whether the challenged statute contains an express jurisdictional element; (3) whether the statute's legislative history contains any express congressional findings on the regulated activity's effects on interstate commerce; and (4) whether the link between the regulated activity and interstate commerce is too attenuated. San Luis & Delta-Mendota Water Auth. v. Salazar , 638 F.3d 1163, 1174 (9th Cir. 2011) (citing Lopez , 514 U.S. at 561–67, 115 S.Ct. 1624 and Morrison , 529 U.S. at 610–12, 120 S.Ct. 1740 ). The determination "is a modest one." Gonzales v. Raich , 545 U.S. 1, 22, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). The Court need not determine whether the regulated "activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding. " United States v. McCalla , 545 F.3d 750, 754 (9th Cir. 2008) (emphasis in original and alterations omitted) (citing Raich , 545 U.S. at 22, 125 S.Ct. 2195 ). Otherwise stated, the task before the Court is to determine whether Congress could rationally conclude that the cumulative effect of the regulated conduct would substantially affect interstate commerce. Id. at 755.
Considering the first and second factors, although the regulated conduct (damaging religious property or obstructing a person's religious freedom) may not be inherently economic, the CAPA does, as previously discussed, have an express jurisdictional element to limit its scope to only those offenses "in or affecting interstate or foreign commerce." 18 U.S.C. § 247(b) . See also H.R. Rep. No. 104-621, at 7 (1996) (contrasting the CAPA to the statute invalidated in Lopez : "by contrast, [ § 247 ] specifically limits its reach to conduct which can be shown to be in or to affect interstate commerce. Thus, if in prosecuting a particular case, the government is unable to establish this interstate commerce connection to the act, section 247 will not apply to the offense.").
As for the third factor, "Congress made several explicit findings when it passed § 247." Hari , 2019 WL 7838282, at *5. Among those are Congress’ findings that the problem of destruction or damage to religious property "is sufficiently serious, widespread, and interstate in scope to warrant Federal intervention to assist State and local jurisdictions" in responding to those challenges, and that "Congress has authority, pursuant to the Commerce Clause of the Constitution, to make acts of destruction or damage to religious property a violation of Federal law." Church Arson Prevention Act of 1996, PL 104-155, July 3, 1996, 110 Stat 1392 (1996). These findings reveal that Congress was concerned over the "acts of destruction or damage to religious property" being pervasive and "interstate in scope" and concluded that exercising its powers under the Commerce Clause was warranted and appropriate. See Hari , 2019 WL 7838282, at *5.
The CAPA's legislative history is also informative. When the bill was introduced, Senator Edward Kennedy delivered the following statement:
Congress [ ] has authority under the commerce clause to enact this legislation. As the record makes clear, the churches, synagogues, and mosques that have been the targets of arson and vandalism, serve many purposes. On Saturdays or Sundays, they are places of worship. During the rest of the week, they are centers of activity. A wide array of social services, such as inoculations, day care, aid to the homeless, are performed at these places of worship. People often register to vote, and vote at the neighborhood church or synagogue. Activities that attract people from a regional, interstate area often take place at these places of worship. There is ample evidence to establish that Congress is regulating an activity that has a "substantial effect" upon interstate commerce.
142 Cong. Rec. S6517-04, S6522 (June 19, 1996) (statement of Sen. Kennedy). And as the Tenth Circuit noted:
To the extent the legislative history is informative on the specific impact of church attacks on interstate commerce, there are references to a broad range of activities in which churches engage, including social services, educational and religious activities, the purchase and distribution of goods and services, civil participation, and the collection and distribution of funds for these and other activities across state lines.
Grassie , 237 F.3d at 1209 (citations omitted). The existence of these findings evince that Congress believed that because churches engage in various "interstate commercial activities such as traveling, using the mail, and providing daycare, medical, civic, and other social services," Hari , 2019 WL 7838282, at *6, the destruction of religious property and obstruction of people's religious liberties would have an effect on these services, and correspondingly, on interstate commerce. See, e.g., United States v. Renteria , 557 F.3d 1003, 1009 (9th Cir. 2009) (discussing a case involving a synagogue-operated gift shop and pre-school and noting that "[w]hile a house of worship may engage in activities that primarily further worship, it may also engage in other activities that are commercial in nature."). Lastly, the Court considers the fourth factor: whether the link between the regulated activity and interstate commerce is too attenuated. Earnest argues that the CAPA creates criminal liability for common-law crimes where the targets are chosen for reasons of religion; as such, it is untethered to economic activity and therefore bears attenuated or insubstantial relation to interstate commerce. In support, Earnest relies on United States v. Lamont , 330 F.3d 1249 (9th Cir. 2003). The Court finds Lamont distinguishable. Unlike here, the Lamont court was not considering the constitutionality of a statute. Rather, it was tasked with deciding the narrow question of whether a church building qualifies as property within the scope of the federal arson statute. Id. at 1250. To be sure, the Ninth Circuit observed that "[a] church's primary function is essentially non-commercial and non-economic." Id. at 1254. However, this observation does not necessarily foreclose a finding that in addition to its primary function, places of worship also partake in economic activity. Indeed, in Renteria , the Ninth Circuit acknowledged that churches also partake in commerce "through ancillary activities such as daycare, radio stations, and gift shops." 557 F.3d at 1010 (citations omitted).
As confirmed by the CAPA's legislative findings and history, these additional church functions constitute commercial use and affect interstate commerce. See id. Thus, the destruction of religious property and obstruction of a person's free exercise of beliefs have a tenable connection to interstate commerce. See generally United States v. Corum , No. CR. 01-236(JRTFLN), 2002 WL 1285078, at *3 (D. Minn. June 5, 2002) ("It is well established that religious organizations can and do engage in and affect interstate commerce.") (citing cases). The Court therefore finds that the link between the regulated activity and interstate commerce is not, as Earnest argues, too attenuated.
Thus, the Court, like other courts to have considered this issue, finds that on balance, Congress did not exceed its authority under the Commerce Clause in enacting § 247. Although the prohibited activity is not economic in nature, that factor is outweighed by the statute's express jurisdictional element, Congress’ findings that the prohibited activity affects interstate commerce, and the sufficient link between the prohibited activity and interstate commerce. See San Luis , 638 F.3d at 1174. Based on the foregoing, the Court finds that Congress had a rational basis to conclude that the conduct regulated by § 247 substantially affects interstate commerce. See Raich , 545 U.S. at 22, 125 S.Ct. 2195 ; United States v. Allen , 341 F.3d 870, 881 (9th Cir. 2003) ([I]f Congress had a rational basis for concluding that the activities regulated by [the statute] affected interstate commerce, then we must uphold the statute.").
In sum, the Court finds that § 247 is facially constitutional because Earnest has not met his burden of showing that there are no circumstances under which § 247 implicates the channels and instrumentalities of commerce, and Morris ’ four-factor test weighs in favor of the determination that Congress rationally concluded that the regulated activity under § 247 substantially affects interstate commerce. Accordingly, the Court rejects Earnest's facial challenge to the CAPA and DENIES his motion to dismiss on this basis.
B. CAPA As-Applied Constitutional Challenge
Turning to the as-applied challenge, Earnest argues that the Court should rule that the CAPA is unconstitutional as applied to him because his conduct at the Chabad of Poway Synagogue and the Escondido Mosque was not "in commerce" and did not substantially affect interstate or foreign commerce. In support, defense counsel submitted a declaration, attesting that his review of discovery documents showed no evidence that Earnest traveled outside of the State of California during the alleged planning of, commission of, and flight from the charged offenses. The Government contends that Earnest's as-applied challenge is premature because the commerce evidence is disputed by the parties. The Court agrees.
Generally, "[t]he proper way for a defendant to challenge the sufficiency of the government's evidence pertaining to the jurisdictional element of affecting interstate commerce is a motion for acquittal under Rule 29, presented at the close of the government's case-in-chief." United States v. Morgan , 238 F.3d 1180, 1186 (9th Cir. 2001). Although Earnest requests the Court to order the Government to submit a proffer of facts it intends to prove to establish the jurisdictional requirement under the CAPA, the Court does not find it appropriate to compel the Government to submit such a proffer. There is no indication that the Government has not made a good faith representation or evaluation of its ability to present commerce evidence.
Consequently, because adjudication of Earnest's as-applied challenge "requires consideration of a developed factual record and the application of the statute to those facts," the Court finds it premature to determine the issue at this time. Bowers , 495 F.Supp.3d at 373. Accordingly, the Court DENIES Earnest's as-applied challenge, without prejudice to renewal once an evidentiary record is complete and the issue can be analyzed fully.
VI. EARNEST'S MOTION TO DISMISS THE HATE CRIMES ACT COUNTS
Earnest also challenges the constitutionality of the HCPA. He is charged with 54 counts of having violated the HCPA, 18 U.S.C. § 249 , and moves to dismiss those charges. (Doc. No. 70-3.) The HCPA makes it a federal crime to commit "[o]ffenses involving actual or perceived race, color, religion, or national origin." 18 U.S.C. § 249(a)(1) . The statute provides, in relevant part:
(a)(1) ... whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--
...
(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(i) death results from the offense; or
(ii) the offense includes ... an attempt to kill.
Id.
In his motion to dismiss, Earnest argues that the HCPA is unconstitutional. Like with his challenge to the CAPA, Earnest raises both a facial and an as-applied constitutional challenge to the HCPA.
A. HCPA Facial Constitutional Challenge
To start, Earnest argues that the Thirteenth Amendment does not authorize Congress to enact the HCPA. The Thirteenth Amendment, Section 1, provides: "Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Section 2, the Enabling Clause of the Amendment, states: "Congress shall have power to enforce this article by appropriate legislation." According to the Supreme Court, this "clause clothed Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. " Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 439, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (quoting Civil Rights Cases , 109 U.S. 3, 20, 3 S.Ct. 18, 27 L.Ed. 835 (1883) ) (emphasis in original). As such, " ‘Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.’ " Griffin v. Breckenridge , 403 U.S. 88, 105, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (quoting Jones , 392 U.S. at 440, 88 S.Ct. 2186 ).
Consequently, if "Congress rationally determines that something is a badge or incident of slavery, it may broadly legislate it through Section 2 of the Thirteenth Amendment." Hatch , 722 F.3d at 1201 ; United States v. Cannon , 750 F.3d 492, 501 (5th Cir. 2014) ("[W]e must respect Congress's determination unless it lacks a rational basis."); see United States v. Allen , 341 F.3d 870, 884 (9th Cir. 2003) (approving a Thirteenth Amendment determination by the Second Circuit, which "framed its analysis as follows: ‘We must ask whether Congress could rationally have determined that the acts of violence covered by [the statute] impose a badge or incident of servitude on their victims.’ ") (alterations and citation omitted).
In attacking the facial constitutionality of the HCPA, Earnest primarily argues that § 249(a)(1) is not "appropriate legislation" within the meaning of Section 2 of the Thirteenth Amendment because it is neither "necessary and proper," nor is it a "congruent and proportional" response to a "current need." (Doc. No. 70-3 at 10.) In so arguing, Earnest relies on the "congruence and proportionality" and "current needs" tests from cases analyzing the Fourteen and Fifteenth Amendments. The Government maintains that the appropriate standard under the Thirteenth Amendment is that promulgated in Jones : whether Congress rationally determined that something is a badge or incident of slavery and translated that determination into effective legislation. 392 U.S. at 440, 88 S.Ct. 2186 . The Court agrees.
While Earnest asserts that the Jones standard is limited only to civil cases, he cites no authority in support of this position. Indeed, contrary to Earnest's view, the Supreme Court specified in Griffin v. Breckenridge that "the varieties of private conduct that [Congress] may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude"—and in the same breath—reaffirmed the standard in Jones. 403 U.S. at 105, 91 S.Ct. 1790 (emphasis added). As such, the Court finds the characterization of a case as criminal or civil to be a distinction without a difference in the context of a Thirteenth Amendment analysis. Moreover, courts that have considered the validity of the HCPA have continued to apply the standard in Jones and found the HCPA to be a valid exercise of Congress’ authority under the Thirteenth Amendment. See, e.g., United States v. Metcalf , 881 F.3d 641, 645 (8th Cir. 2018) ; Cannon , 750 F.3d at 505 ; Hatch , 722 F.3d at 1195. Accordingly, absent case law from the Supreme Court overturning the analysis in Jones , the Court applies the Jones standard, and proceeds to the question of whether Congress rationally determined that something is a badge or incident of slavery when it enacted the HCPA.
Here, Congress rationally determined that race-based violence is a badge and incident of slavery and that eliminating it is crucial to eliminating the remnants of slavery. Congress expressly found:
(7) For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.
(8) Both at the time when the 13th, 14th, and 15th amendments to the Constitution of the United States were adopted, and continuing to date, members of certain religious and national origin groups were and are perceived to be distinct "races." Thus, in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments to the Constitution of the United States.
34 U.S.C. § 30501(7) ; Shepard-Byrd Act, Pub. L. No. 111-84, § 4702(7), 123 Stat. 2836 (2009). Moreover, in 2009, Congress noted that "[s]ince 1991, the FBI has identified over 118,000 reported violent hate crimes," with more than 7,600 hate crimes in 2007 alone, including nearly 4,900 motivated by race or national origin. H.R. Rep. No. 111-86, pt. 1, at 5 (2009).
The Tenth Circuit's decision in Hatch is also highly persuasive. There, the court found:
Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery. The antebellum North Carolina Supreme Court, for example, characterized unrestrained master-on-slave violence as one of slavery's most necessary features.... Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.
722 F.3d at 1206 (citing State v. Mann , 13 N.C. 263, 267 (1829) ).
Based on the foregoing, the Court joins the other courts in concluding that Congress rationally determined racially motivated violence is a badge and incident of slavery, and translated that determination into the HCPA pursuant to its powers under Section 2 of the Thirteenth Amendment. See Metcalf , 881 F.3d at 645 ("Congress rationally determined that racially motivated violence constitutes a badge and incident of slavery"); Cannon , 750 F.3d at 505 ("We therefore continue to follow the Supreme Court's binding precedent in Jones. As explained above, § 249(a)(1) is a valid exercise of congressional power because Congress could rationally determine that racially motivated violence is a badge or incident of slavery."); Hatch , 722 F.3d at 1195 ("[U]nder the authority of Jones , we conclude Congress rationally determined that racially motivated violence is a badge or incident of slavery against which it may legislate through its power to enforce the Thirteenth Amendment."). Accordingly, the Court rejects Earnest's facial challenge to the HCPA and DENIES his motion to dismiss on this basis. B. HCPA As-Applied Constitutional Challenge
Turning to the as-applied challenge, Earnest contends that the HCPA is unconstitutional as applied here to the extent the government alleges in the § 249(a)(1) counts that Earnest's conduct was motivated by the victims’ perceived race of being Jews. According to Earnest, although Jews have been subjected to involuntary servitude and slavery in other parts of the world throughout history, that has not been their legacy in the United States. He goes on to argue that because the Jewish victims are not a member of a class that suffered slavery before the passage of the Thirteenth Amendment, § 249(a)(1) is unconstitutional as applied in this case. The Court disagrees.
Contrary to Earnest's position, the Thirteenth Amendment is not limited only to races who were previously enslaved. Indeed, the Supreme Court has noted, "while the immediate concern [of the Thirteenth Amendment] was with African slavery, the Amendment was not limited to that. It was a charter of universal freedom for all persons, whatever the race, color or estate, under the flag." Bailey v. Alabama , 219 U.S. 219, 240–41, 31 S.Ct. 145, 55 L.Ed. 191 (1911). Moreover, United States v. Beebe , the case on which Earnest relies to limit the Thirteenth Amendment's protection to only those races who have been previously enslaved in the United States, does not support such a limitation. 807 F. Supp. 2d 1045, 1053–54 (D.N.M. 2011). Beebe expressly noted that the Thirteenth Amendment "bans ‘slavery’ as an institution in its entirety, whatever its form and whomever its victims might be " and that "[i]t nowhere limits that ban to enslavement of Africans and African Americans, or more broadly to enslavement of any class of persons that was enslaved in America before the passage of the Thirteenth Amendment." 807 F. Supp. 2d at 1055 (emphasis added). As such, the Court therefore declines to adopt Earnest's narrowing of the Thirteenth Amendment's protections.
Furthermore, there is ample case law to support a finding that Jews "were considered a distinct race when the Thirteenth Amendment was[ ] applied." Bowers , 495 F.Supp.3d at 370 ; see also United States v. Nelson , 277 F.3d 164, 177 (2d Cir. 2002) (noting that the Supreme Court's Reconstruction Era civil rights statutes jurisprudence "implicitly rule that the Thirteenth Amendment, the source of congressional power upon which the Court found that these statutes relied, protects Jews as a race.") (citing St. Francis Coll. v. Al–Khazraji , 481 U.S. 604, 611, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) and Shaare Tefila Congregation v. Cobb , 481 U.S. 615, 617–18, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987) ). Thus, for the foregoing reasons, the Court is unpersuaded that Jews, as a race, are not protected under the Thirteenth Amendment. Accordingly, the Court rejects Earnest's as-applied challenge to the HCPA and DENIES his motion to dismiss on this basis.
VII. EARNEST'S MOTION TO DISMISS THE SECTION 924(c) COUNTS
Lastly, Earnest is charged with 4 counts of having violated 18 U.S.C. § 924(c), and moves to dismiss those charges. (Doc. No. 70-5. ) Earnest argues that the counts must be dismissed because the predicate offenses charged in his case are not "crimes of violence" as required under § 924(c). Earnest also asserts that the counts must be dismissed because the statute is void for vagueness. The Court discusses these arguments in turn.
A. "Crime of Violence" for Purposes of § 924(c)
Pertinent here, § 924(c)(1)(A) prohibits any person "who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm[.]" 18 U.S.C. § 924(c)(1)(A) . A "crime of violence" is "an offense that is a felony and ... has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A) . The crime of violence definition requires intentional use or threatened use of force. United States v. Begay , 934 F.3d 1033, 1039 (9th Cir. 2019). According to the Supreme Court, "physical force" is "force capable of causing physical pain or injury," and "includes the amount of force necessary to overcome a victim's resistance." Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 555, 202 L.Ed.2d 512 (2019) (citing Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). The Supreme Court has also noted that the "use" of physical force may be applied both directly and indirectly. United States v. Castleman , 572 U.S. 157, 171, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014). "That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter." Id.
To determine whether an offense is a crime of violence, the Court applies the categorical approach. United States v. Dominguez , 954 F.3d 1251, 1259 (9th Cir. 2020). Under the categorical approach, the Court focuses on the elements of the predicate offense—not on the facts underlying the offense of conviction. Id. "An offense is categorically a crime of violence only if the least violent form of the offense qualifies as a crime of violence." Id. The focus on the minimum conduct is not an invitation to apply "legal imagination to a [ ] statute's language." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Rather, to find that a statute is overbroad and not a categorical match to a crime of violence, there must be "a realistic probability, not a theoretical possibility," that the statute would be applied to conduct that falls outside of the crime of violence definition. Id. To show that realistic probability, an offender "must at least point to his own case or other cases in which the [ ] courts in fact did apply the statute in the special (nongeneric) manner for which he argues." Id.
Here, the predicate offenses at issue are the HCPA and CAPA offenses pursuant to 18 U.S.C. §§ 249(a)(1) and 247(a)(2) , respectively. Earnest contends that neither is a crime of violence. The Court discusses the predicate offenses in turn.
1. The HCPA, 18 U.S.C. § 249(a)(1) , is a "Crime of Violence"
As previously noted, § 249(a)(1) of the HCPA, penalizes a person who "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person." 18 U.S.C. § 249(a)(1) . If "death results" or the offense "involves an attempt to kill," the maximum penalty is a sentence of death. 18 U.S.C. § 249(a)(1)(B) . As relevant here, the elements of the offense are: (i) the defendant willfully causes (ii) bodily injury to any person (iii) because of his or her actual or perceived race, color, or national origin, and (iv) death results. See 18 U.S.C. § 249(a)(1) ; Cannon , 750 F.3d at 505 .
Earnest contends that § 249(a)(1) is not a "crime of violence" because it is overbroad vis-à-vis the crime of violence's definition of physical force. Specifically, he argues that the HCPA criminalizes conduct that does not amount to physical force because it can be violated by de minimis force or no force. According to Earnest, § 249(a)(1) encompasses more conduct than a crime of violence because the "bodily injury" definition includes a cut, an abrasion, a bruise, or "any other injury to the body, no matter how temporary." 18 U.S.C. § 249(c)(1) (cross-referencing the definition at 18 U.S.C. § 1365(h)(4) ). As such, Earnest asserts, the statute reaches conduct that does not necessarily entail violent physical force. In support, Earnest provided examples of "bodily injury" that involve either de minimis force or no force at all—i.e., a mere squeeze of the arm that causes a bruise, unwanted touching that inflicts temporary pain, a nurse's removal of painkiller from a patient's syringe, a physician failing to provide a patient with life-saving medication, or a caregiver withholding food from a child.
The Court, however, finds that Earnest's proposed scenarios of what could be willful causation of bodily injury under § 249(a)(1) but not use of force under § 924(c) are unavailing. In Stokeling , the Supreme Court held that "force as small as hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling" satisfies the physical force definition because "[n]one of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury." 139 S. Ct. at 544. Extending this logic to Earnest's case, his examples of an arm squeeze that causes a bruise, a touching that inflicts momentary pain, and removing a patient's painkiller medication are all actions that do not bear "any real resemblance to mere offensive touching," and indeed, all caused physical pain or injury. Id. That the force applied is characterized as minimal or slight is of no moment. In fact, following Stokeling , the Ninth Circuit stated that the "analytical distinction between substantial and minimal force" upon which it rested its prior opinions "no longer exists." United States v. Baldon , 956 F.3d 1115, 1121 (9th Cir. 2020) ; see Ward v. United States , 936 F.3d 914, 919 (9th Cir. 2019). As such, the Court declines to distinguish between substantial and de minimis force here.
Again, "physical force" only requires "force capable of causing physical pain or injury to another person." Stokeling , 139 S. Ct. at 555 (emphasis added). It "does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality." Id. In this case, § 249(a)(1) requires that the force actually cause bodily injury. Logically then, a § 249(a)(1) offender will always employ "force capable of causing physical pain or injury to another person" because the statute requires them to have actually caused it. 139 S. Ct. at 555 ; see United States v. Laurico-Yeno , 590 F.3d 818, 821 (9th Cir. 2010) (holding that a statute making it a crime to "willfully inflict[ ] upon a person ... corporal injury resulting in a traumatic condition" is a crime of violence because "willfully is a synonym for intentionally" and therefore "a person cannot be convicted without the intentional use of physical force"); United States v. Doggart , No. 1:15-CR-39, 2016 WL 6205804, at *5 (E.D. Tenn. Oct. 24, 2016) (holding that 18 U.S.C. § 249(a)(1) is a crime of violence because it "categorically include[s] an element of using or attempting to use physical, violent force sufficient to cause physical pain or injury.").
As to Earnest's argument that § 249(a)(1) can be violated with no force at all, the Court is unpersuaded. See Castleman , 572 U.S. at 170, 134 S.Ct. 1405 ("It is impossible to cause bodily injury without applying force in the common-law sense."). First, the Court agrees with the Government that the examples of a physician failing to provide a patient with life-saving medication and a caregiver withholding food from a child lack are not specific enough to gauge whether they truly involve a situation where the actor really has done nothing at all (i.e., a true omission). Second, the Court disagrees with Earnest that his proposed scenarios involve no force at all. In Castleman , the Supreme Court reiterated that "physical force is simply force exerted by and through concrete bodies, as opposed to intellectual force or emotional force." 572 U.S. at 170, 134 S.Ct. 1405 . Here, the pain or injury caused by not providing life-saving medication to a sick patient or food to a child are not those employed through intellectual or emotional force, but rather, "by and through concrete bodies" (much like poisoning or transmitting a disease) and thus amount to "physical force." Id. ; see United States v. De La Fuente , 353 F.3d 766, 771 (9th Cir. 2003) (affirming that the threat of anthrax poisoning satisfies the threatened use of physical force requirement because "the bacteria's physical effect on the body is no less violently forceful than the effect of a kick or blow"). Thus, the Court rejects Earnest's contention that his examples do not entail any force at all. In any event, Earnest has not shown a "realistic probability" that an offender can violate § 249(a)(1) without the use, attempted use, or threatened use of force. He points to no case in which the statute was applied in the overbroad manner for which he argues. See Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. His legal imagination is not enough.
Furthermore, that the offender in Earnest's hypothetical scenarios applies force indirectly does not matter because Castleman teaches that the "use" of force encompasses both the direct and indirect use of physical force. See 572 U.S. at 171, 134 S.Ct. 1405 ("That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter."). And various courts, including the Ninth Circuit, have interpreted Castleman in this manner. See United States v. Villavicencio-Burruel , 608 F.3d 556, 563 n.6 (9th Cir. 2010) (noting that the use of force required for a crime of violence "need not be force administered directly by the hands of the perpetrator"); United States v. Solorzano , No. 12CR236-GPC, 2017 WL 2172211, at *6 (S.D. Cal. May 17, 2017) ("[I]n United States v. Castleman , ... the Supreme Court held that ‘physical force’ may be both direct and indirect such that use of poison constitutes a use of force."). The Court does the same here.
In both of Earnest's examples, the offender is "employing," as his instrument, the concrete biological effects attendant to withdrawing life-saving medication and food "knowingly as a device to cause physical harm" to the person's body. Castleman , 572 U.S. at 171, 134 S.Ct. 1405 . Accordingly, the Court finds that such schemes are sufficient to qualify as a "use of force" for purposes of a crime of violence. See id. at 170–71, 134 S.Ct. 1405. See also United States v. Nicholas Patrick Matheson , No. 2:15-CR-00087-EJL, 2015 WL 6758138, at *1 (D. Idaho Nov. 5, 2015) (noting that the use of physical force requirement is also satisfied by indirect applications of force such as deceiving the victim into drinking poison.).
Earnest urges the Court not to adopt Castleman ’s view that physical force may be indirectly applied because the Supreme Court's latest crime of violence case, Stokeling , discussed Castleman but made no mention of indirect applications of force. The Court is unpersuaded. The issue of indirect use of force was not before the Stokeling court. Instead, the issue in Stokeling concerned the level of force necessary to qualify as physical force, which is different from the issue of whether the use of force may be directly or indirectly applied.
Lastly, Earnest argues that although § 249(a)(1) has "death results" as an element, this does not turn the statute into a crime of violence because there is no mens rea attached to that element, and the "death results" can be satisfied by an omission (like depriving someone of food or medical care), which requires no force. This argument fails for the reasons previously noted. Moreover, even if there is no mens rea attendant to the "death results" element, the fact that an offender's conduct resulted in death only further bolsters the conclusion that the use of physical force applied and necessarily proven at trial is one that is capable of producing death as a result. As other courts have found, offenses requiring proof of injury or death are offenses that have use of physical force as an element. See United States v. Tsarnaev , 968 F.3d 24, 104 (1st Cir. 2020) ; United States v. Ross , 969 F.3d 829, 838 (8th Cir. 2020) ; Roof , 225 F. Supp. 3d at 453–54 ; United States v. Bowers , 2020 WL 6119480, at *1–2 (W.D. Pa. Oct. 16, 2020).
Thus, for the foregoing reasons, the Court finds that willfully causing bodily injury that results in death necessarily involves the use of physical force within the meaning of the crime of violence definition. Thus, § 249(a)(1) has as an element the use, attempted use, or threatened use of physical force. Accordingly, the Court rejects Earnest's argument that § 249(a)(1) is not a valid predicate offense for a charge under § 924(c), and DENIES his motion to dismiss on this basis.
2. The CAPA, 18 U.S.C. § 247(a)(2) , is a "Crime of Violence"
As mentioned earlier, § 247(a)(2) penalizes one who "intentionally obstructs, by force or threat of force, including by threat of force against religious real property, any person in the enjoyment of that person's free exercise of religious beliefs, or attempts to do so." 18 U.S.C. § 247(a)(2) . If "bodily injury results" or "death results," the penalties vary from not more than 20 years to a sentence of death. 18 U.S.C. § 247(d)(1)–(3). As relevant here, the elements of the offense are: (i) the defendant intentionally or attempts to obstructs; (ii) by force or threat of force, (iii) any person in the enjoyment of that person's free exercise of religious beliefs, and (iv) bodily injury or death results. 18 U.S.C. § 247(a)(2), (d).
Earnest argues that § 247(a)(2) is not a "crime of violence" because it is overbroad vis-à-vis the crime of violence's definition of physical force. Specifically, he contends that § 247(a)(2) is overbroad because the text of the statute makes clear that the use of force against one's own religious real property is proscribed. And because the crime of violence definition encompasses physical force against property only if it is another's property, Earnest argues, § 247(a)(2) is plainly overbroad. Earnest analogizes his case to United States v. Salas , where the Tenth Circuit noted the government's concession that the force clause did not apply in that case because "because § 844(i) arson does not require, as an element, the use of force against the property ‘of another’; for example, § 844(i) may apply to a person who destroys his or her own property." 889 F.3d 681, 684 (10th Cir. 2018).
Earnest's argument appears persuasive at first blush. Upon close inspection of the statutory text, however, the Court disagrees that the CAPA clearly allows prosecution of a person who uses force against his own property. As previously noted, § 247(a)(2) penalizes whoever "intentionally obstructs, by force or threat of force, including by threat of force against religious real property, any person in the enjoyment of that person's free exercise of religious beliefs, or attempts to do so." 18 U.S.C. § 247(a)(2) . The statute goes on to define "religious real property" to mean "any church, synagogue, mosque, religious cemetery, or other religious real property, including fixtures or religious objects contained within a place of religious worship, or real property owned or leased by a nonprofit, religiously affiliated organization ." 18 U.S.C. § 247(f) (emphasis added). Because the statute narrows "religious real property" to only those owned by nonprofit religiously affiliated organizations, it follows that it does not cover those owned by a natural person. This presents serious issues with Earnest's theory.
For Earnest to prevail on his theory that force against one's own property is prosecutable under § 247(a)(2), the statute must clearly allow for prosecution of a nonprofit religiously affiliated organization. This is because those organizations are the only entities that can own religious real property as defined by the statute. Critically, the statute makes no mention of criminal liability for religious organizations. Instead, the statute uses the term " whoever " and specifies that "[n]o person shall be prosecuted, tried, or punished for any noncapital offense under this section unless ..." 18 U.S.C. § 247(a), (g) (emphasis added). These terms demonstrate that natural persons are the targets of the statute—not nonprofit religiously affiliated organizations. Thus, the Court rejects Earnest's assertion that the statute plainly proscribes the use of physical force against a person's own property.
Because the statutory text is not clearly overbroad, it does not save Earnest from his burden of showing a realistic probability that § 247(a)(2) has been applied in the overbroad manner for which he argues. Cf. United States v. Valdivia-Flores , 876 F.3d 1201, 1208 (9th Cir. 2017) ("[W]here, as here, a state statute explicitly defines a crime more broadly than the generic definition, no ‘legal imagination’ is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime."). Although Earnest provided hypothetical examples of a person damaging their own religious real property, such property would not qualify as "religious real property" under the statute because they are owned by a person, and not a nonprofit religiously affiliated organization. See 18 U.S.C. § 247(f) . In any event, to satisfy the realistic probability test, he must point to a case in which the statute was applied to conduct involving force against one's own property. Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. He has not done so. Thus, the Court declines to find that § 247(a)(2) is overbroad in this respect.
Additionally, similar to the arguments he raised with respect to the HCPA, Earnest asserts that § 247(a)(2) is overbroad because it can be violated by de minimis force or no force, and that the "death results" element is of no consequence. In support, Earnest contends that § 247 covers de minimis force because the legislative history demonstrates that it was intended to encompass "simple vandalism." However, Congress’ reference to simple vandalism is irrelevant to the Court's analysis because the comment pertains to § 247(a)(1), which is not the predicate offense at issue here. The relevant offense is § 247(a)(2).
And while Earnest attempts to offer examples of § 247(a)(2) violations that would not entail physical force (e.g., locking a church door to obstruct congregants from attending service), he forgets that the predicate offense at issue here requires proof of either bodily injury or death, as an additional element. As the Court found with respect to the HCPA, "it is impossible to cause bodily injury [or death] without using force ‘capable of’ producing that result." Castleman , 572 U.S. at 174, 134 S.Ct. 1405 (Scalia, J., concurring); accord Roof , 225 F. Supp. 3d at 459 ("The Supreme Court holds that bodily injury is always caused by physical force and that physical force capable of causing pain or injury is violent force.") (citing cases).
Indeed, the statute explicitly requires that the offender commit intentional conduct "by force or threat of force." 18 U.S.C. § 247(a)(2) . As such, the Court does not find that the statutory text supports Earnest's position that § 247(a)(2) can be violated without the use of force capable of causing physical pain or injury. Importantly, Earnest has not pointed to a case where the statute was applied in the overbroad manner for which he argues—that is, the intentional obstruction of religious freedom, resulting in bodily injury or death, but devoid of any physical force. Absent a realistic probability showing, the Court rejects Earnest's argument that § 247(a)(2) does not necessarily entail the use, attempted use, or threatened use of physical force. Rather, because the predicate offense requires intentional obstruction "by force or threat of force," and bodily injury or death cannot result without the application of force necessary to produce those results, the Court finds that § 247(a)(2) has as an element the use, attempted use, or threatened use of physical force and is therefore a crime of violence within the meaning of § 924(c).
Accordingly, for the foregoing reasons, the Court rejects Earnest's argument that § 247(a)(2) is not a valid predicate offense for a charge under § 924(c), and DENIES his motion to dismiss on this basis.
B. Void for Vagueness Challenge to § 924(c)
As his last challenge to the § 924(c) counts, Earnest contends that these charges must be dismissed because the statute is void for vagueness. According to Earnest, various courts have found § 924(c) to be ambiguous and susceptible to differing interpretations, and thus, the statute fails to state an offense with sufficient clarity and is therefore unconstitutionally vague.
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford , 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Generally, "the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). As such, a criminal statute is invalid "if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. So too, vague sentencing provisions may post constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." United States v. Batchelder , 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (internal quotations and citations omitted). "The burden of showing a statute to be unconstitutional is on the challenging party." New York State Club Ass'n, Inc. v. City of New York , 487 U.S. 1, 17, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988).
Here, the Court does not find that Earnest has met his burden of showing that § 924(c) is unconstitutionally vague. Other than generally asserting that some courts have noted that the statute is ambiguous, he provides no detail or explanation as to how this proves that § 924(c) is unconstitutionally vague. The Court agrees with the Government that Earnest cannot prevail in his vagueness challenge by simply stating that § 924(c) is ambiguous without specifying which and how parts of the statute are fatally ambiguous. See United States v. Petrillo , 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947) ("That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense."). Moreover, the Court is unaware of any court that has concluded that § 924, on its face, is unconstitutionally void for vagueness, and Earnest cites none.
In any event, the Supreme Court has noted that "[v]agueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard v. Cartwright , 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). And because vagueness challenges under the Due Process Clause "rest on the lack of notice," they "may be overcome in any specific case where reasonable persons would know that their conduct is at risk." Id. Here, Earnest cannot and does not suggest that he was uncertain whether his conduct—which includes firing a gun inside a synagogue to harm various individuals—was unlawful under § 924(c) ’s prohibition on using, carrying, or shooting a firearm during and in relation to a crime of violence. Tellingly, Earnest raised no arguments in his reply brief to combat the Government's opposition to his vagueness challenge. See generally Acosta-Huerta v. Estelle , 7 F.3d 139, 144 (9th Cir. 1992) ("Issues raised in a brief which are not supported by argument are deemed abandoned.").
Without more, the Court does not find that Earnest has met his burden of proving that § 924(c) is void for vagueness. Accordingly, for the foregoing reasons, the Court rejects Earnest's overly generalized contention that § 924(c) is unconstitutional and DENIES his motion to dismiss on this basis.
VIII. CONCLUSION
Based on the foregoing, the Court DENIES Earnest's (1) motion to dismiss the Indictment for failure to state federal offenses, (Doc. No. 70-1 ); (2) motion to dismiss the Church Arson Prevention Act counts as outside congressional authority under the Commerce Clause, (Doc. No. 70-2 ); (3) motion to dismiss the Hate Crimes Prevention Act counts as outside congressional authority under the Thirteenth Amendment, (Doc. No. 70-3 ); (4) motion to dismiss the Indictment for multiplicity, (Doc. No. 70-4 ); (5) motion to dismiss the 18 U.S.C. § 924(c) counts, (Doc. No. 70-5 ); and (6) motion to dismiss the Indictment for insufficient certification, (Doc. No. 70-6 ).