Case No.: 15cr3175 JM
ORDER DENYING DEFENDANT MEZA'S MOTIONS TO DISMISS THE SUPERSEDING INDICTMENT
On March 29, 2017, Defendant David Enrique Meza filed a motion to dismiss Count 1 of the superseding indictment for lack of jurisdiction. (Doc. No. 145.) The next day, Meza filed a motion to dismiss Count 2. (Doc. No. 147.) The Government opposes both motions. (Doc. Nos. 149, 152.) The court heard argument on both motions on April 7, 2017, and, for following reasons, denies each.
Count 1 of the superseding indictment, (Doc. No. 139), charges Meza with violating 18 U.S.C. § 2261(a)(1) ("section 2261(a)(1)"). Section 2261(a)(1) provides that any "person who travels in interstate or foreign commerce . . . with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner, and who, in the course of or as a result of such travel or presence, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner, shall be punished as provided in subsection (b)." Count 2 charges Meza with conspiring to obstruct "an official proceeding, that is, a foreseeable Federal Grand Jury proceeding and a foreseeable criminal proceeding before a Court of the United States regarding the death of Jake Clyde Merendino," in violation of 18 U.S.C. § 1512(c)(2), (k).
A. The Superseding Indictment
An indictment must only "be a plain, concise and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. P. 7(c)(1). Thus, an indictment is sufficient if it: (1) contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and (2) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007). "The Government need not allege its theory of the case or supporting evidence, but only the essential facts necessary to apprise a defendant of the crime charged." United States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982). "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. Davis, 336 F.3d 920, 922 (9th Cir. 2003) (internal quotations omitted).
B. Meza's Motions to Dismiss
Meza's motions both fall within the ambit of Federal Rule of Criminal Procedure 12(b). See Fed. R. Crim. P. 12(b)(2), (b)(3)(A)(v) (covering lack of jurisdiction and error in grand jury proceeding, respectively). Rule 12(b) provides that a "party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Under Rule 12(b), a "motion to dismiss is generally capable of determination before trial if it involves questions of law rather than fact," for example "such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, and lack of jurisdiction." United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993) (internal quotations and alterations omitted). A Rule 12(b) motion to dismiss is not the proper way to raise a factual defense. Id. ("If the pretrial claim is substantially founded upon and intertwined with evidence concerning the alleged offense, the motion falls within the province of the ultimate finder of fact and must be deferred.").
The court will address Meza's two motions in turn.
A. Motion to Dismiss Count 1
Meza argues that because section 2261(a)(1) punishes traveling in foreign commerce with merely bad intent, it exceeds the bounds of the Foreign Commerce Clause. Therefore, according to Meza, the court lacks jurisdiction and must dismiss the superseding indictment. Meza bases his argument on Caminetti v. United States, 242 U.S. 470 (1917), which he contends "stands for the principle that travel with bad intent is not enough to fall within the limits of the Commerce Clause; there also must be an immoral or injurious act that itself used the channels of foreign commerce." As Meza sees it, because section 2261(a)(1) "does not punish traveling with the intent to commit an illegal or immoral act in the course of the travel itself," but instead "prohibits travel with the intent merely to accomplish a bad act at the conclusion of the journey," it exceeds the scope of Caminetti and, more importantly, Congress's power under the Commerce Clause.
The court disagrees.
In reaching this conclusion, the court first looks to United States v. Clark, 435 F.3d 1100 (9th Cir. 2006). In Clark, the defendant was convicted of traveling in "foreign commerce," i.e., to a foreign country, to engage in a sexual act with a person under eighteen years of age, in violation of 18 U.S.C. § 2423(c). While holding that Congress properly utilized the Foreign Commerce Clause as constitutional authority for the enactment of section 2423(c), the court observed that despite the paucity of cases addressing "the reach of the Foreign Commerce Clause vis-a-vis congressional authority to regulate our citizens' conduct abroad," there was "evidence that the Founders intended the scope of the foreign commerce power" to be even greater than the scope of interstate commerce power. Id. at 1102-03. The Ninth Circuit therefore "ground[ed] [its] analysis in the fundamental principle that it is an essential attribute of Congress's power over foreign commerce that it is exclusive and plenary." Id. at 1109 (internal quotations and alterations omitted).
The Clark court was "further mindful of the Supreme Court's caution that '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.'" Id. (quoting United States v. Morrison, 529 U.S. 598, 607 (2000)). "In fact," the court noted, "the Supreme Court has never struck down an act of Congress as exceeding its powers to regulate foreign commerce." Id. at 1113. Thus, Clark makes clear that Congress's power to regulate foreign commerce is more extensive than its already broad power to regulate interstate commerce.
With that consideration in mind, the court next looks to decisions of circuit courts addressing the constitutionality of section 2261(a)(1) in the context of Congress's more limited power to regulate interstate commerce. In United States v. Lankford, 196 F.3d 563 (5th Cir. 1999), the Fifth Circuit held "that Congress was well within its Commerce Clause power in enacting § 2261(a)(1). The provision properly . . . regulates the use of channels of interstate commerce—i.e., the use of the interstate transportation routes through which persons and goods move—to further or facilitate domestic violence." Id. at 571 (internal citations omitted). The court observed that "[i]t has long been held that Congress may forbid or punish the use of channels of interstate commerce 'to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin.'" Id. (quoting Brooks v. United States, 267 U.S. 432, 436 (1925)). In United States v. Gluzman, 154 F.3d 49, 50 (2d Cir. 1998), the Second Circuit held that section 2261(a)(1) was "a constitutional exercise of Congress's commerce power." In so doing, the court adopted its previous holding affirming "a similar challenge to 18 U.S.C. § 2262 (1994)—a parallel provision [to section 2261(a)(1)]—which makes it a federal crime to cross a state line with the intent of violating a protective order." Id. (emphasis added).
The Ninth Circuit has not addressed the constitutionality of section 2261(a)(1).
Putting these cases together, an obvious syllogism emerges: if Congress had the power to enact section 2261(a)(1) to regulate interstate commerce, and Congress has even greater power to regulate foreign commerce, then Congress had the power to enact section 2261(a)(1) to regulate foreign commerce.
The analysis could end there. Since neither the Fifth Circuit in Lankford nor the Second Circuit in Gluzman objected to section 2261(a)(1)'s criminalization of "intent," it would be contrary to circuit court authority for this court to invalidate the statute on that basis. Still, to properly address Meza's argument, it is worth noting that Lankford and Gluzman did not object for good reason: statutes regulating persons who travel in commerce while harboring the intent to commit an unlawful activity have consistently been upheld as within Congress's authority under the Commerce Clause.
First, and relevant to Meza's argument here, the Eighth Circuit has held that 18 U.S.C. § 2262(a)(1), a statute that criminalizes crossing a state line with the intent to violate a protection order and then violating it, is a valid exercise of Congress's authority under the Commerce Clause. United States v. Wright, 128 F.3d 1274, 1276 (8th Cir. 1997). In so doing, the court rejected the defendant's argument based on Caminetti, stating that, contrary to the defendant's view, 18 U.S.C. § 2262(a)(1) "does not criminalize the interstate travel 'of an alleged perpetrator carrying nothing more than an intent.' Rather, the statute prohibits crossing a state line with a threatening intent, and then acting on that intent." Id. The Second Circuit, in the case alluded to above, held the same. United States v. Von Foelkel, 136 F.3d 339, 341 (2d Cir. 1998).
Other federal statutes have withstood similar challenges. The Travel Act, 18 U.S.C. § 1952, which makes it a crime to use an interstate facility with the intent to, among other things, "commit any crime of violence to further any unlawful activity" has long been upheld as within Congress's authority to legislate under the Commerce Clause. See, e.g., United States v. Herrera, 584 F.2d 1137, 1147 (2d Cir. 1978). As has 18 U.S.C. § 1958, which proscribes travelling "in interstate or foreign commerce . . . with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of" money. See, e.g., United States v. Marek, 238 F.3d 310, 322 (5th Cir. 2001). Based on these authorities, section 2261(a)(1) must withstand that same challenge.
In sum, no plain showing has been made that Congress exceeded its constitutional bounds in enacting section 2261(a)(1) to regulate foreign commerce. Accordingly, Meza's motion to dismiss Count 1 is denied.
B. Motion to Dismiss Count 2
Count 2 charges Meza with violating 18 U.S.C. § 1512(c)(2) ("section 1512(c)(2)"), which subjects anyone who corruptly "obstructs, influences, or impedes any official proceeding, or attempts to do so," to a fine, imprisonment, or both. An "official proceeding" includes "a proceeding before a judge or court of the United States, a United States magistrate judge," "a Federal grand jury," or "a Federal Government agency which is authorized by law . . . ." 18 U.S.C. § 1515(a)(1). "[A]n official proceeding need not be pending or about to be instituted at the time of the offense. . . ." 18 U.S.C. § 1512(f)(1).
Meza argues that "the requisite consciousness of wrongdoing" for section 1512(c)(2) "demands that an official proceeding be not merely 'foreseeable,' but actually 'foreseen.'" Thus, according to Meza, because Count 2 alleges that the judicial proceedings in this case were "foreseeable," "the grand jury proceedings were defective, the superseding indictment is deficient, and the indictment must be dismissed." In support of this argument, Meza cites Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), and United States v. Aguilar, 515 U.S. 593 (1995).
Meza reads too much into those cases. Although the court agrees with Meza that Aguilar and Arthur Andersen require a nexus between the obstructive act and criminal proceedings under section 1512(c)(2), see also United States v. Ermoian, 752 F.3d 1165, 1172 (9th Cir. 2013), as amended (Aug. 28, 2013) (stating in dicta that, under section 1512, "Supreme Court precedent requir[es] a nexus between the obstructive act and criminal proceedings in court"), the court disagrees that the cases require the indictment to contain the term "foreseen" rather than "foreseeable."
First, and most importantly for the purposes of deciding this motion, Meza's argument conflates pleading with proof—neither Aguilar nor Arthur Andersen involved the sufficiency of the indictment. Instead, the cases involved the sufficiency of the evidence following a conviction. While the Government must ultimately establish the nexus described in Aguilar and Arthur Andersen, whether an official proceeding was "foreseeable," "in contemplation," or "foreseen" is a question of fact for the jury, not the court in a pretrial motion. United States v. Ring, 628 F. Supp. 2d 195, 224 (D.D.C. 2009) (holding that the nexus requirement of section 1512(c)(2) is a jury question and need not be alleged in the indictment); United States v. Moyer, 726 F. Supp. 2d 498, 510-11 (M.D. Pa. 2010) ("[A] nexus need not be alleged in an indictment for obstruction of justice [under section 1512(c)(2)]; it is an element which must only be proven to the jury beyond a reasonable doubt.").
The court is also not particularly persuaded by Meza's argument that Aguilar demonstrates "that the 'foreseen' requirement obtains regardless of whether the statutes require a mens rea of 'corruptly' as in section 1503 [Aguilar] and section 1512(c)(2) or 'knowingly corruptly' as in section 1512(b)(2) [Arthur Andersen]." Section 1503 necessarily involves a pending judicial proceeding, while section 1512(c)(2) does not. See 18 U.S.C. § 1512(f)(1). Thus, it would be more natural to require the proceeding to be "foreseen"—and not just "foreseeable"—under section 1503 than under section 1512(c)(2). Regardless, Aguilar held that section 1503 required a nexus between the obstructive act and the proceeding, 515 U.S. at 599-600, not that the proceeding must be "foreseen," and certainly not that the indictment must allege as much.
Moreover, in the years since Arthur Andersen, courts have not interpreted its use of the word "foreseen" as rigidly as Meza proposes. For example, while the Eleventh Circuit in United States v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011), stated that "the government was required to prove that Friske knew of, or at least foresaw, the forfeiture proceeding" to convict him under section 1512(c)(2), the Tenth Circuit in United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009), held that "a conviction under [section 1512(c)(2)] is proper if it is foreseeable that the defendant's conduct will interfere with an official proceeding. Or, in terms of the Aguilar nexus requirement, a conviction is proper under the statute if interference with the official proceeding is the 'natural and probable effect' of the defendant's conduct." Using slightly different language, the Eighth Circuit recently held "that a successful prosecution under section 1512(c)(2) requires proof beyond a reasonable doubt that the defendant contemplated a particular, foreseeable proceeding . . . ." United States v. Petruk, 781 F.3d 438, 445 (8th Cir. 2015); see also id. n.2 (observing that the district court properly instructed the jury that the defendant must "contemplate some particular official proceeding in which the testimony, record, document, or other object might be material"). Finally, in analyzing the preceding subsection, the Seventh Circuit stated that "before a defendant may be convicted of obstruction under section 1512(c)(1), he must believe that his acts will be likely to affect a pending or foreseeable proceeding." United States v. Matthews, 505 F.3d 698, 708 (7th Cir. 2007) (citing Arthur Andersen, 544 U.S. at 707).
While these cases may illuminate slight differences in opinion as to what the Government must ultimately prove to convict Meza on Count 2, they do not address what the Government must do to charge Meza with Count 2. Consequently, they, like Aguilar and Arthur Andersen, do not offer any support for deciding the issue on a pretrial motion to dismiss. Indeed, all authority is to the contrary. See Ring, 628 F. Supp. 2d at 224; Moyer, 726 F. Supp. 2d at 510-11.
The parties are welcome to work together to propose jury instructions on Count 2 in line with the cases cited above. The Government even acknowledges in its opposition to Meza's motion that an appropriate instruction would require it to "prove beyond a reasonable doubt that the defendant foresaw the particular official proceeding." (Doc. No. 152 at 3 (citing Fed. Crim. Jury Instr. 7th Cir. 1512 and 1515(a)(1) (2012 ed.).) For now, though, Count 2 sufficiently recites the essential facts of the allegation and informs Meza of the charge against him, and no more is required. Accordingly, Meza's motion to dismiss Count 2 is denied.
For the reasons set forth above, the court denies both of Meza's motions to dismiss the superseding indictment.
In addition, Meza's outstanding motion to exclude evidence allegedly unlawfully obtained by grand jury subpoena is denied. (See Doc. No. 97-1 at 7.) In its previous order on the parties' motions in limine, the court stated that "[a]bsent a more specific showing that [the] evidence was improperly obtained, . . . the court anticipates denying this motion." (Doc. No. 116 at 8.) No such showing has been made, and accordingly, the court denies the motion. --------
IT IS SO ORDERED. DATED: April 7, 2017
JEFFREY T. MILLER
United States District Judge