United States v. Alahmedalabdaloklah

          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 ...