United States District Court, D. Arizona
ORDER
Neil
V. Wake Senior United States District Judge.
Before
the Court is Defendant's Motion to Dismiss Counts Three
and Four for Failure to State an Offense Due to Absence of a
Predicate Crime of Violence (Doc. 177).
I.
LEGAL STANDARD
The
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). “An
indictment should be read in its entirety, construed
according to common sense, and interpreted to include facts
which are necessarily implied.” United States v.
Berger, 473 F.3d 1080, 1103 (9th Cir. 2007).
In
ruling on a pretrial motion under Rule 12(b)(3)(B)(v) of the
Federal Rules of Criminal Procedure to dismiss an indictment
for failure to state an offense, the district court is bound
by the four corners of the indictment. United States v.
Boren, 278 F.3d 911, 914 (9th Cir. 2002). In analyzing
whether a cognizable offense has been charged, the court must
accept as true the allegations in the indictment.
Id. The court should not consider evidence not
appearing on the face of the indictment. Id.
II.
BACKGROUND
Count
Three of the Second Superseding Indictment charges Defendant
with Possession of a Destructive Device in Furtherance of a
Crime of Violence and Aiding and Abetting in violation of 18
U.S.C. §§ 924(c)(1)(A), (B)(ii), and 2. It alleges
that from January 2005 to July 2010, Defendant aided and
abetted other persons “to knowingly possess a firearm,
that is, a destructive device, in furtherance of a crime of
violence for which they may be prosecuted in a court of the
United States, that is Conspiracy to Use a Weapon of Mass.
Destruction, as set forth in Count One of this Indictment,
and Conspiracy to Maliciously Damage or Destroy U.S.
Government Property by Means of an Explosive, as set forth in
Count Two of this Indictment.” (Doc. 232 at 5.) Section
924(c)(1)(A) imposes an additional sentence for a crime of
violence committed by a person who uses or carries a firearm
during and in relation to the crime of violence or who
possesses a firearm in furtherance of a crime of violence.
Section 924(c)(1)(B)(ii) imposes an additional sentence if
the firearm is a destructive device.
Count
Four charges Defendant with Conspiracy to Possess a
Destructive Device in Furtherance of a Crime of Violence in
violation of 18 U.S.C. § 924(o). It alleges that from
January 2005 to July 2010, Defendant “did knowingly
combine, conspire, confederate, and agree together with other
persons . . . to commit an offense under Title 18, United
States Code, Section 924(c), that is, to possess a firearm,
that is, a destructive device, in furtherance of a crime of
violence for which he may be prosecuted in a court of the
United States, that is Conspiracy to Use a Weapon of Mass.
Destruction, as set forth in Count One of this Indictment,
and Conspiracy to Maliciously Damage or Destroy U.S.
Government Property by Means of an Explosive, as set forth in
Count Two of this Indictment.” (Id. at 5-6.)
Section 924(o) makes it illegal to conspire to commit an
offense under § 924(c) and imposes a maximum life
sentence if the firearm is a destructive device.
Count
One charges Defendant with Conspiracy to Use a Weapon of
Mass. Destruction in violation of 18 U.S.C. §
2332a(a)(1) and (3). It alleges that from January 2005 to
July 2010, Defendant knowingly conspired and agreed with
other persons, without lawful authority, to use a weapon of
mass destruction, i.e., a destructive device,
against nationals of the United States, while such nationals
were outside the United States, and against property that was
owned, leased, and used by the United States outside the
United States. It specifically alleges that Defendant
designed and manufactured parts for wireless initiation
systems to be used in radio-controlled improvised explosive
devices and supplied parts to an Iraqi insurgent group that
employed radio-controlled improvised explosive devices
against United States military personnel and vehicles in
Iraq. Section 2332a makes it illegal for a person without
lawful authority to use, threaten, or attempt or conspire to
use a weapon of mass destruction against a national of the
United States while the national is outside the United States
or to do so against any property that is owned, leased, or
used by the United States or by any department or agency of
the United States, whether the property is within or outside
the United States.
Count
Two charges Defendant with Conspiracy to Maliciously Damage
or Destroy U.S. Government Property by Means of an Explosive
in violation of 18 U.S.C. § 844(f)(1), (2), and (n). It
alleges that from January 2005 to July 2010, Defendant
knowingly conspired and agreed with other persons to
“maliciously damage, destroy, attempt to damage,
attempt to destroy, vehicles, used by the United States
Military in Iraq, in whole and in part owned, or possessed by
the United States Department of Defense, a department of the
United States, by means of explosives.” Section
844(f)(1) sets minimum and maximum sentences for anyone who
maliciously damages or destroys, or attempts to damage or
destroy, by means of an explosive, a vehicle owned or
possessed by the United States. Section 844(f)(2) increases
the sentencing range if the conduct penalized by §
844(f)(1) directly or proximately caused personal injury or
created a substantial risk of injury to any person. Section
844(n) provides that, with certain exceptions, a person who
conspires to commit any offense defined in chapter 40 of
Title 18 “shall be subject to the same penalties (other
than the penalty of death) as the penalties prescribed for
the offense the commission of which was the object of the
conspiracy.” The definition of “destructive
device” includes “any explosive, incendiary, or
poison gas, ” including bomb, grenade, mine, and
certain rockets and missiles. 18 U.S.C. § 921(a)(4). The
term “firearm” includes any destructive device.
18 U.S.C. § 921(a)(3). The term “weapon of mass
destruction” includes any destructive device as defined
in § 921. 18 U.S.C. § 2332a(c).
III.
ANALYSIS
A.
Counts Three and Four of the Second Superseding Indictment
Are Not Time-Barred.
Defendant's
Motion to Dismiss contended that Counts Three and Four failed
to state offenses because they alleged possession of a
destructive device “during and in relation to a crime
of violence” instead of “in furtherance of a
crime of violence” as stated in 18 U.S.C. §
924(c)(1)(A). On May 30, 2017, a grand jury returned the
Second Superseding Indictment (Doc. 232), which amended the
pleading language in Counts Three and Four from “during
and in relation to a crime of violence” to “in
furtherance of a crime of violence.” In his reply
brief, Defendant contends that the five-year statute of
limitation ceased to toll because the Second Superseding
Indictment broadened or substantially amended the original
charges.
Generally,
the return of an indictment tolls the statute of limitations
as to the charges within the indictment. United States v.
Liu, 731 F.3d 982, 996 (9th Cir. 2013). Tolling
continues when a superseding indictment on the same charges
is returned while the previous indictment is pending, but it
does not continue for charges in the superseding indictment
that broaden or substantially amend the charges in the
original indictment. Id. To determine whether the
charges have been broadened or substantially amended, a court
may consider whether the additional pleadings allege
violations of a different statute, contain different
elements, rely on different evidence, or expose the defendant
to a potentially greater sentence. Id. at 996-97.
The primary consideration is whether the prior indictment
gave the defendant notice that he will be called to account
for certain activities and should prepare a defense.
Id. at 997.
The
Second Superseding Indictment did not alter the statutes,
elements, evidence, potential sentences, or trial preparation
required and/or implicated by the previous indictment. It did
not broaden or substantially amend any charges. Therefore,
tolling of the statute of limitations continues, and Counts
Three and Four are not time-barred.
B.
Section 924(c)(3)(B) Is Not Unconstitutionally
Vague.
The
Government violates the Fifth Amendment's Due Process
Clause by “taking away someone's life, liberty, or
property under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.”
Johnson v. United States, __ U.S. __, 135 S.Ct.
2551, 2556 (2015). The protection of the Fifth
Amendment's Due Process ...