Opinion
Case No. 01-Cr-152
October 23, 2001
Brian E Pawlak, Milwaukee, WI, Barbara Bernstein, Washington, DC, for Plaintiff
Leonard D Kachinsky, Neenah, WI, Brian M Maloney, Green Bay, WI, Kelly Brown Watzka, Erica C Straub, Milwaukee, WI, for Defendants
MAGISTRATE JUDGE'S RECOMMENDATION TO THE HONORABLE J. P. STADTMUELLER NATURE OF CASE
On August 16, 2001, a federal grand jury sitting in this district returned a eight-count indictment against defendants Michael Nicholson, Miguel Rodela, Casey Lynn Tegelman, and Tomas VanLannen. The indictment contains two conspiracy counts. Defendant Nicholson is the only defendant charged in the first three counts of the indictment. All four defendants are charged in the remaining five counts.
The defendants appeared before United States Magistrate Judge William E. Callahan, Jr. for arraignment and entered pleas of not guilty. The defendants have filed various pretrial motions. Some of those motions were previously addressed. The defendants, with the exception of defendant Nicholson, have filed plea agreements. Only defendant Nicholson's motion to dismiss will be addressed herein.
DEFENDANT NICHOLSON'S MOTION TO DISMISS
Defendant Michael Nicholson moves the court for an order dismissing the indictment on the grounds that the conduct that is the subject of the indictment is beyond the power of Congress to regulate. (Docket #42). He states that he incorporates and adopts, by reference, the motions and the supporting memorandum of his co-defendants as to the motions filed by them seeking dismissal of the indictment on the same or similar grounds. He also relies upon the arguments set forth in his own supporting memorandum.
Defendant Nicholson is charged in all eight counts of the indictment. He states that each of the charged offenses, except for Count Eight, is alleged to have been motivated by the race and national origin of the occupants of the dwellings of the victims. He states that with the possible exception of Count Eight, none of the offenses are alleged to affect interstate commerce or other unique concerns of the federal government. He asserts that they involve "`street crime' offenses which constitute the staple of state criminal courts." (Memorandum in Support of Michael Nicholson's Motion to Dismiss Indictment as Unconstitutional Applied to Facts of this Case at 2 [unnumbered]).
Defendant Nicholson contends that the indictment in this case reaches conduct that is beyond the power of Congress to regulate, citing United States v. Lopez, 514 U.S. 549, 552 (1995). He notes that in Lopez, the Court struck down the Gun-Free School Zones Act of 1990 as an invalid exercise of Congress's power under the commerce clause. Defendant Rodela also relies upon the Court's holding in Jones v. United States, 529 U.S. 848 (2000). He states that in Jones, 529 U.S. at 848, the court expressed similar concerns and set aside a conviction for arson of an owner-occupied residence in violation of 18 U.S.C. § 844 (i). He states that the Court rejected an argument by the government that the commerce clause covered virtually every building in the United States.
Defendant Nicholson notes that in a case decided before Lopez andJones, the court held that the purpose of 42 U.S.C. § 3631 (b) is to protect the right of an individual to associate freely in his home with anyone, regardless of race, citing United States v. Hayward, 6 F.3d 1241, 1250 (7th Cir. 1993). He also acknowledges that in Hayward, the the court of appeals for this circuit expressly held that, "[b]ecause section 3631(b) is part of the Fair Housing Act, its enactment was a proper exercise of the government's power under the Thirteenth Amendment to eradicate all incidents and badges of slavery." Id.
However, defendant Nicholson states that he and his co-defendants are charged with interfering with the rights of two Hmong families to security in their respective dwellings. He states that both offenses occurred in the same county within approximately ten miles of each other three days apart. He also states that there is no allegation that interstate communication or transportation facilities were involved. He further states that there is no reason to believe that prosecution by state authorities was problematic. He asserts that offenses charged are matters of "traditional state concern" and should have been prosecuted in state court. (Memorandum in Support of Michael Nicholson's Motion to Dismiss Indictment as Unconstitutional Applied to Facts of this Case at 3 [unnumbered]. Defendant Nicholson further contends that to argue that this case should proceed because it involves "`civil rights' would open the door to the ever-expanding federal involvement in local law enforcement concerns that the Supreme Court sought to curtail in Lopez and Jones." Id. Thus he asserts that all the counts of the indictment should be dismissed. In the alternative, he asserts that all the counts except Count Eight should be dismissed.
In its response, the government properly characterizes defendant Nicholson's motion as asserting, "without clearly identifying the authority on which he relies," that Congress lacked authority to federalize any of the crimes alleged in the indictment. (Government Response to Defense Motions to Dismiss Indictment as Unconstitutional [Response to Motion to Dismiss] at 3). The government further contends that to the extent defendant Nicholson intends to argue that the federal government cannot criminalize any intrastate activity, his contention is without support. It also contends that "because the civil rights legislation at issue here is constitutionally authorized and is part of a well-established federal scheme aimed at the national problem of racial discrimination, federalization of these crimes in no way upsets the federal-state balance at the heart of this country's federalist system." (Response to Motions to Dismiss at 3).
Additionally, the government states that "Congress had ample authority under both the Commerce Clause and the Thirteenth Amendment to criminalize violent interference with properly-enacted housing rights, and therefore the power to criminalize conspiracies directed at those rights." (Response to Motions to Dismiss at 12). The government also states that federal legislation must be sustained if Congress had the authority to enact the statute under any provision of the Constitution, citing EEOC v. Wyominci, 460 U.S. 226, 243 n. 18 (1983).
Indeed, defendant Nicholson's memorandum in support of his motion does not provide a basis for this court's analysis of his motion. His characterization of the offenses as being "street crimes" ignores the critical nature of the crimes, namely, that the defendants were allegedly motivated because of the victims' race and national origin. This allegation is included in Counts One through Seven, either expressly or by incorporation.
Furthermore, although the defendant states that he incorporates by reference the motions and arguments of co-defendants who filed similar or the same motions to dismiss, he did not file a motion to adopt. The court has a well-established policy with respect to adoption of motions.
It is the policy of this court that any adoption of co-defendant's motions must be done with specificity. Such motions to adopt should also indicate the reason why it is appropriate for a defendant to adopt the motions of a particular co-defendant. Furthermore, adoption of a co-defendant's motion does not dispense with the requirement of Criminal L.R. 16.1(a) (E.D. Wis.) that prior to filing any discovery motions, a defendant must include a statement that counsel for the parties have met and conferred and are unable to resolve a particular discovery dispute. Furthermore, any defendant who seeks to adopt a motion of another defendant is specifically advised that if the defendant who filed the motion withdraws such motion or pleads guilty or otherwise elects not to pursue that motion, such motion will not be addressed or further resolved by the court. In this case, all the defendants have entered into pleas agreements with the government. Thus, they are not pursing their motions. In any event, the motions and arguments of defendants Tegelman and Rodela do not provide a basis for the dismissal of the challenged counts.
Nonetheless, court will briefly review the relevant case law. InLopez, 514 U.S. at 549, the Court held that Congress exceeded its authority to regulate under the commerce clause when it enacted 18 U.S.C. § 922 (q)(1)(A), which made it a federal offense for any individual knowingly to possess a firearm at a place that an individual knows or has reasonable cause to believe is a school zone. In its analysis the Court noted that there are three broad categories of activity which Congress may regulate under its commerce power. Lopez, 514 U.S. at 558. Under the commerce clause, Congress can regulate: 1) the use of the channels of interstate commerce; 2) the instrumentalities of interstate commerce and persons and things in interstate commerce; and 3) activities having a substantial relation to interstate commerce. Id. at 558-559.
The court noted that the third category was the only potential justification for § 922(q). Id. at 559. However, § 922(q) did not survive the commerce clause challenge because it was not "an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated." Id. at 561. The Court also noted that the statutory provision did not contain "a jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. Also absent were any congressional findings that would enable the Court to "evaluate the legislative judgment that the activity in question substantially affected interstate commerce."Id. at 563.
Similarly, in United States v. Morrison, 529 U.S. 598 (2000), the Court held that the commerce clause did not provide Congress with authority to enact 42 U.S.C. § 13981, which provides a federal civil remedy for the victims of gender-motivated violence. The Court also found that section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate legislation the constitutional guaranty that no state shall deprive any person of life, liberty or property without due process or deny any person equal protection of the laws, did not give Congress the authority to enact § 13981.
In its analysis of the issue under the commerce clause, the Court relied upon the three broad categories of activity that Congress may regulate under its commerce power as set forth in Lopez, 514 U.S. at 608-609. The Court determined that, given the statute's focus on gender-motivated violence wherever it occurs, the proper inquiry was under the third category of commerce clause regulation. Id. at 609. The Court concluded that the commerce clause does not provide Congress with the authority to enact § 13981. Id. at 619.
In so holding, the Court noted that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." Id. at 613. The Court also noted that § 13981 contains no jurisdictional element establishing that the federal cause is in pursuance of Congress's power to regulate interstate commerce. Id. The Court further noted that although § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families, the existence of congressional findings is not sufficient by itself to sustain the constitutionality of commerce clause legislation.Id. at 614.
In Jones, the Court addressed the question of whether arson of an owner-occupied private residence falls within the scope of 18 U.S.C. § 844 (i). Section 844(i) makes it a federal crime to damage or destroy, "by means of fire or an explosive, any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. Id. at 850. The Court construed the text of § 844(i) and held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity. Id. at 850-51. Therefore, the Court held that arson of such a dwelling is not subject to federal prosecution under § 844(i). Id. at 851. The Court noted that its construction of § 844(i) was reinforced by its opinion in Lopez, and the interpretive rule that constitutionally doubtful construction should be avoided where possible. Id.
Two statutes which figure prominently in the charges against the defendant are 18 U.S.C. § 241 and 42 U.S.C. § 3631 (a). Section 241 of Title 18 of the United States Code, the charging statute for Counts One and Four, provides in pertinent part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same . . .
They shall be fined under this title or imprisoned not more than ten years, or both . . . .
Section 3631(a) of Title 42 of the United States Code, the charging statute for Counts Two and Five, provides:
Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with —
(a) any person because of his race, color, religion, sex, handicap (as such term is defined in section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings;
shall be fined under Title 18 or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under Title 18 or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under Title 18 imprisoned for any term of years or for life, or both.
This statute is part of the Fair Housing Act of 1978 (FHA), Pub.L. No. 90-284, 82 Stat. 81, codified, as amended, at 42 U.S.C. § 3601-3631.See Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192, 200 n. 11 (5th Cir. 2000). The FHA expressly states that:
[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601.
Provisions of the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3604, were upheld in Groome as a proper exercise of Congress's authority under the commerce clause. The government characterizes Groome as expressly approving Congress's power to pass the "FHA" and states that Groome cites other cases in support of its conclusion. See Response to Motions to Dismiss at 7. The government asserts that Groome notes at some length the substantial and well-documented effect housing discrimination has on the national housing market and concludes that the "`FHA' fits well within the broad definition of economic activity established by the Supreme Court and other circuits." Id.
In Groome, the issue was the constitutionality of the Fair Housing Amendments Act of 1988 (FHAA). Such amendments responded to a recognized prejudice against those with physical disabilities and illness and against "people with mental retardation [who] have been excluded because of stereotypes about their capacity to live safely and independently."Groome, 234 F.3d at 200.
In this case, the only arguably applicable category under Lopez is the third category, namely, activities having a substantial relation to interstate commerce. 514 U.S. at 558-559. In asserting that the § 3631 falls comfortably within Congress' power to legislate under the commerce clause, the government follows the analysis in Groome andMorrison. The government analyzes the statute under the third Lopez category.
The issue arguably presented by defendant Nicholson's motion is whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce. Lopez, 514 U.S. at 557. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. Id. at 560.
In addressing this issue, the court notes that in Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030 (11th Cir. 1992), the court stated that "Congress had ample evidence before it, and was adequately aware, that its exercise of power under the Fair Housing Act was supported by the commerce clause." Id. (citing e.g., Fair Housing Act of 1967: Hearings on S. 1358, S. 2114, and S. 2280 before the Subcomm. on Housing and Urban Affairs of the Senate Comm. on Banking and Currency, 90th Cong., 1st Sess. 13-14, 23-24 [1967]; 114 Cong. Rec. 2536-37 [1967] [including Attorney General's memorandum that Fair Housing Act was supported by commerce clause because of broad interstate effect of housing market]. Furthermore, the statute affects the commercial transactions of purchasing and the commercial rental of housing and, therefore, fits well within the broad definition of economic activity established by the Court. See Groome, 234 F.3d at 205.
In Lopez, the Court stated that it would consider legislative findings and even congressional committee findings to determine if there was a rational basis for congressional action; the Court did not say whether it would consider congressional hearings. See 514 U.S. at 562. However, there are instances where even though Congress has not made findings about any substantial effect on interstate commerce, the Court has upheld legislation under the commerce clause solely on the basis of congressional hearings. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53 (1964); Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964).
The legislative history of the FHA also indicates that the intimidation or interference with persons involved in commercial transactions involving the rental or purchase of property on a discriminatory basis affects interstate commerce in several ways. See, 114 Cong. Rec. at 2536 (citing affects of housing discrimination, including restricting the number of new homes that are built, and consequently reducing the amount of building materials and residential financing which moves across state lines, and making it less likely that minorities will change their place of residence to another state which reduces the interstate movement of individuals and hinders the efficient allocation of labor among the interstate components of the economy). The very existence of a home is itself a product of interstate commerce. See, 114 Cong. Rec. at 2536. ("Housing is one of America's principal industries.").
The court notes that § 3631(a) has no express jurisdictional element. However, statutes have been upheld in the absence of such an element. See United States v. Soderna,
82 F.3d 1370 (7th Cir. 1996). (Freedom of Access to Clinic Entrances Act [FACE] did not exceed Congress's constitutional authority to regulate interstate commerce); see also, United States v. Gregg, 226 F.3d 253 (3rd Cir. 2000) (same). Additionally, the court notes that while there are not specific congressional findings, the legislative history previously cited by the court provides support for the conclusion that the activity in question substantially affects interstate commerce.
In sum, this court concludes that the housing discrimination addressed by § 3631 arises out of and is connected with economic activity. It is also part of a larger federal scheme aimed at eliminating the negative effects of discrimination on the national economy. As such, this court rejects any challenge to § 3631(a) under the commerce clause.
With respect to the constitutionality of § 3631(a) under the Thirteenth Amendment, the court notes that The Thirteenth Amendment consists of two parts. Section 1 states:
Neither slavery nor involuntary servitude, except as a punishment for crime whereby the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2 provides: "Congress shall have power to enforce this article by appropriate legislation." The Court has stated: "The Thirteenth Amendment `is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.'" Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968) (quoting Civil Rights Cases, 109 U.S. 3, 20).
The Court powerfully wrote:
. . . at the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, the Thirteenth Amendment made a promise the Nation cannot keep.Jones, 392 U.S. at 443.
In United States v. Hayward, 6 F.3d 1241, 1250 (7th Cir. 1993) cited by defendant Nicholson, the court of appeals for this circuit expressly held that, "[b]ecause section 3631(b) is part of the Fair Housing Act, its enactment was a proper exercise of the government's power under the Thirteenth Amendment to eradicate all incidents and badges of slavery."
Section 3631(b) protects the right of an individual to associate freely in that individual's home with anyone, regardless of race, color, religion, sex, handicap, familial status, or national origin. Thus, §§ 3631(b) and 3631(a) encompass the same protected classes. As such, relying upon the court of appeals for this circuit's determination in Hayward, 6 F.3d at 1250, this court concludes that the enactment of § 3631(a) was a proper exercise of Congress's power under the Thirteenth Amendment.
As such, and absent greater explanation or analysis on the part of defendant Nicholson, this court will recommend that his motion to dismiss (Docket #42) be denied. In sum, this court will recommend of defendant Nicholson's motion to dismiss the indictment (Docket #42).
CONCLUSION
NOW, THEREFORE, IT IS HEREBY RECOMMENDED that the United States district judge enter an order denying defendant Michael Nicholson's motion to dismiss the indictment. (Docket #42).
Your attention is directed to 28 U.S.C. § 636 (b)(1)(B) and (C) and General Local Rule 72.3 (E.D. Wis.), whereby written objections to any recommendation herein or part thereof may be filed within ten days of service of this recommendation. Objections are to be filed in duplicate with the clerk of district court. Failure to file a timely objection with the district court shall result in a waiver of your right to appeal.