Opinion
No. 2:15-cr-0231-GEB
08-10-2016
UNITED STATES OF AMERICA, Plaintiff, v. KULWANT SINGH SANDHU, Defendant.
RULING ON DISMISSAL MOTION
On June 24, 2016, Defendant Kulwant Singh Sandhu filed a motion to dismiss the indictment, in which he is charged with two counts of violating 47 U.S.C. § 223(a)(1)(D). (Mot. to Dismiss ("Mot"), ECF No. 22). Defendant argues the indictment should be dismissed because the statute is facially invalid under the First Amendment; contending it abridges speech and unconstitutionally threatens to proscribe speech protected by the First Amendment.
The statute proscribes: "Whoever . . . (1) in interstate or foreign communications . . . makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number . . . shall be fined under Title 18 or imprisoned not more than two years, or both." 47 U.S.C. § 223(a)(1)(D). The indictment tracks the language of the statute.
To succeed on his facial attack challenge, Defendant "would have to establish 'that no set of circumstances exists under which [§ 223(a)(1)(D)] would be valid'" or that the law is "invalidated as overbroad [because] 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 472-73 (2010) (citations omitted).
Defendant cites United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999), in support of his motion. (Mot. at 5:13-16.) In Popa, 187 F.3d at 674, the Eight Circuit addressed defendant's First Amendment challenge to subdivision (a)(1)(C) of section 223 which then stated it was unlawful to "make[] a telephone call . . ., whether or not conversation ensues, without disclosing [one's] identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications." Id. (quoting 47 U.S.C. § 223(a)(1)(C) (emphasis added)). Unlike subdivision (a)(1)(C), subdivision (a)(1)(D) does not specifically address a verbal communication. Instead subdivision (a)(1)(D) of section 223 proscribes the course of conduct involved with repeatedly or continuously making or causing a telephone to ring, "with intent to harass any person at the called number." Further, the statute "precisely specifies that the actor must intend to perform acts of harassment in order to be culpable." United States v. Lampley, 573 F.2d 783, 787 (3rd Cir. 1978) (finding that "the nature of [any resulting] conversation can have no bearing on the constitutionality of [section 223(1)(D)] since its narrow intent requirement precludes the proscription of mere communication."). Therefore, Defendant has not shown that the statute is facially unconstitutional under the First Amendment.
Further, to the extent the Defendant seeks in his motion a determination of facts involved with his defense against the indicted charges, that portion of the motion is also denied since "'[a] motion to dismiss the indictment cannot be used as a device for a summary trial of the evidence [, and t]he Court should not consider evidence not appearing on the face of the indictment'" when considering a pretrial motion to dismiss an indictment. United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (quoting United States v. Marra, 481 F.2d 1196, 1199-1200 (6th Cir. 1973), cert denied, 414 U.S. 1004 (1973)); see also Fed. R. Crim. Pro. 12(b)(1) (prescribing: "A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.").
For the stated reasons, the dismissal motion is denied. Dated: August 10, 2016
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge