United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
the Court are Beckham's Motion to Dismiss and Motion to
Suppress (Doc. Nos. 52, 53). Beckham moves to dismiss the
indictment because it is procedurally improper and does not
support federal jurisdiction under the Commerce Clause of the
United States Constitution. He moves to suppress statements
made to federal investigators without legal counsel. The
Government opposes both motions. (Doc. Nos. 59, 60.) The
parties have filed supporting exhibits, supplemental
briefing, and additional authority. (Doc. Nos. 52-1 to 52-4,
53-1, 53-2, 60-1, 64-1, 65-1, 65-2, 86, 86-1, 87, 87-1, 88,
91, 107, 107-1, 112, 123, 127, 130, 131.) For the following
reasons, the motions will be denied.
Indictment alleges that, on October 24, 2017, Beckham
willfully caused bodily injury to A.A. by threatening him
with a knife that traveled in interstate commerce. Beckham
did so because he believed that A.A. and his daughters A.H.
and F.H. were Muslim and not of American nationality. (Doc.
No. 3 at 1.) Beckham said “Allahu Akbar” and
“go back to your country” to the girls, who were
wearing hijabs. (Id.) He then threatened A.A. by
swinging a knife and punching at him. (Id.) He
called all three family members “Iranis” and
Indictment further alleges that during a March 12, 2018
interview with Federal Bureau of Investigation
(“FBI”) agents, without his state attorney (Doc.
No. 86-1), Beckham made false statements, including that he
saw A.H. and F.H. trying to break into cars, he heard them
yell “Allahu Akbar, ” and they hit him on the
back of the head. (Doc. No. 3 at 2.)
grand jury charged Beckham with (1) assaulting A.A. with a
dangerous weapon that traveled in interstate commerce, in
violation of the Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act (“HCPA”), 18 U.S.C. §
249(a)(2), and (2) knowingly and willfully making materially
false statements and representations to the FBI, in violation
of 18 U.S.C. § 1001. (Doc. No. 3 at 1-2.)
Motion to Dismiss
party may raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits.” Fed. R. Crim. P. 12(b). Grounds for
challenging “a defect in [an] indictment or
information” include “failure to state an
offense.” Fed. R. Crim. P. 12(b)(3)(B). Generally,
motions are capable of determination before trial if they
raise questions of law rather than fact. United States v.
Jones, 542 F.2d 661, 665 (6th Cir. 1976). On a motion to
dismiss, “the [c]ourt must view the [i]ndictment's
factual allegations as true[.]” United States v.
Kettles, Crim. No. 3:16-00163-1, 2017 WL 2080181, at *2
(M.D. Tenn. May 15, 2017) (quoting Costello v. United
States, 350 U.S. 359, 363 (1956)); see also United
States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001).
Rule 12 allows a court to make preliminary findings of fact
necessary to decide the questions of law presented by
pre-trial motion only if those findings do not invade the
province of the ultimate finder of fact. Jones, 542
F.2d at 665.
plaintiff can challenge the constitutionality of a statute in
two ways. “A facial challenge to a law's
constitutionality is an effort to invalidate the law in each
of its applications, to take the law off the books
completely.” Speet v. Schuette, 726 F.3d 867,
871 (6th Cir. 2013) (internal quotation marks omitted). In
contrast, an as-applied challenge “argues that a law is
unconstitutional as enforced against the [party] before the
court.” Id. at 872. This is an attack that
implicates a court's jurisdiction to apply a statute.
United States v. Lechner, 806 F.3d 869, 876 (6th
Cir. 2015); United States v. Slone, 411 F.3d 643,
646 (6th Cir. 2005).
has moved to dismiss both counts of the indictment. The Court
first considers Beckham's procedural ground for dismissal
of the HCPA count, Gulf Oil Co. v. Bernard, 452 U.S.
89, 99 (1981) (holding that “prior to reaching any
constitutional questions, federal courts must consider
non-constitutional grounds for decision”), then
considers his as-applied Commerce Clause challenge,
then his arguments to dismiss the false statements count.
249(b)(1) of the United States Code requires that:
No prosecution of any offense . . . may be undertaken by the
United States, except under the certification in writing of
the Attorney General, or a designee, that (A) the State does
not have jurisdiction; (B) the State has requested that the
Federal Government assume jurisdiction; (C) the verdict or
sentence obtained pursuant to State charges left
demonstratively unvindicated the Federal interest in
eradicating bias-motivated violence; or (D) a prosecution by
the United States is in the public interest and necessary to
secure substantial justice.
challenges the timeliness of the Government's
certification. He contends that the HCPA count must be
dismissed because the Government undertook his prosecution
prior to securing the required § 249(b)(1)
certification. (See Doc. Nos. 52 at 6-8; 65 at 7.)
Government's argument that the Court may not review any
issue concerning an HCPA certification is wrong. While the
Sixth Circuit has not directly addressed review of an §
249(b)(1) certification, numerous courts of appeal have held
that certifications under an analogous statutory requirement,
18 U.S.C. § 5032, may be reviewed for procedural defects
including timeliness, as argued here by Beckham. See
United States v. Smith, 178 F.3d 22, 26 n.2 (1st Cir.
1999); United States v. Jarrett, 133 F.3d 519,
537-39 (7th Cir. 1998); In re Sealed Case, 131 F.3d
208, 212-15 (D.C. Cir. 1997); United States v. Juvenile
No. 1, 118 F.3d 298, 303-07 (5th Cir. 1997);
Impounded (Juvenile R.G.), 117 F.3d 730, 733-36 (3d
Cir. 1997); United States v. I.D.P., 102 F.3d 507,
510-13 (11th Cir. 1996); United States v. Doe, 49
F.3d 859 (2d Cir. 1995); United States v.
Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir. 1981). These
courts and the Sixth Circuit all agree that under this
analogous requirement certifications may not be reviewed for
factual determinations or the “federal interest”
in prosecutorial decisions. See United States v.
Doe, 226 F.3d 672, 678 (6th Cir. 2000). The
Government's argument misses this distinction. (Doc. No.
60 at 11-12.) In the three cases cited by the Government, the
defendants sought substantive, not procedural, review of
Department of Justice certifications. Furthermore, two
district court cases cited by the Government acknowledge the
appropriateness of procedural review. See United States
v. Maybee, No. 3:11-CR-30006-002, 2013 WL 3930562, at *3
(W.D. Ark. July 30, 2013); United States v. Jenkins,
909 F.Supp.2d 758, 775 (E.D. Ky. 2012). The Court has
authority to review the Government's procedural
compliance with § 249(b)(1).
parties disagree about whether the Government's
certification was timely. The Court starts with the plain
language of § 249(b)(1) that creates the Attorney
General's certification. Deutsche Bank Nat'l Tr.
Co. v. Tucker, 621 F.3d 460, 462-63 (6th Cir. 2010)
(citing United States v. Plavcak, 411 F.3d 655, 660
(6th Cir. 2005)). The dispositive words in § 249(b)(1)
are “[n]o prosecution of any offense . . . may be
undertaken by the United States” unless it is first
properly certified by the Attorney General or his or her
designee. If the statutory language is unambiguous,
“the judicial inquiry is at an end, and the plain
meaning of the text must be enforced.” Id. at
661 (quotation omitted). The plain meaning of
“undertake” is to “engage in, ”
“set about to do, ” or “perform.”
See Black's Law Dictionary (online 2d ed.),
available at https://thelawdictionary.org/undertake/
(last accessed June 29, 2019).
can be no question that a prosecution is
“commenced” only by means of a “formal
charge, preliminary hearing, indictment, information, or
arraignment.” Rothgery v. Gillespie Cty., 554
U.S. 191, 198 (2008); McNeil v. Wisconsin, 501 U.S.
171, 175 (1991); United States v. Gouveia, 467 U.S.
180, 188 (1984); see also Turner v. United States,
885 F.3d 949, 951 (6th Cir. 2018) (en banc) (quoting
Kirby v. Illinois, 406 U.S. 682, 688-89 (1972)
(plurality opinion)). “This is not ‘mere
formalism,' but a recognition of the point at which
‘the government has committed itself to prosecute,'
‘the adverse positions of government and defendant have
solidified,' and . . . the accused ‘finds himself
faced with the prosecutorial forces of organized
society[.]'” Rothgery, 554 U.S. at 198
(quoting Kirby, 406 U.S. at 689). Identifying
precisely when the Government begins a criminal prosecution
has been particularly important to the Supreme Court because
it is critical to the Sixth Amendment right to assistance of
counsel in “all criminal prosecutions.”
matter of simple logic, the Government can only “engage
in” or “perform” a prosecution that has,
according to the Supreme Court, “commenced.”
Applying the plain meaning of § 249(b)(1) here, the
Government “undertook” Beckham's prosecution
no earlier than when the Indictment was filed on April 4,
2018. The Acting Assistant Attorney General executed the
§ 249(b)(1) certification on March 27, 2018. (Doc. No.
65-1 at 2.) The certification was timely. That the Government
presented an alleged eyewitness to the federal grand jury on
February 22, 2018 (see Doc. No. 65-1 at 2) did not
start the prosecution against Beckham because there was
nothing that Beckham had to defend; only the Indictment
issued by the grand jury told Beckham that his liberty was at
issue. See, e.g., Rothgery, 554 U.S. at 206
(rejecting use of a prosecutor's preliminary involvement
in a criminal case as a substitute measure for identifying
the beginning of a prosecution). The Government's
“target letter, ” sent to Beckham on March 28,
2019, one day after the certification was executed, supports
the Court's conclusion. (Doc. No. 87-1.) In the letter,
the Government informed Beckham that he needed to respond by
April 2, 2018 or the Government would “begin the
process of seeking criminal charges against [him.]”
(Id. at 2.) This further highlights that after the
certification date, but before the filing of the Indictment,
the Government had not formally commenced Beckham's HCPA
not a sufficient ground for dismissal of the HCPA count.
As-Applied Commerce Clause Challenge
possesses only the powers that are ‘delegated' to
it by the text of the Constitution.” Lechner,
806 F.3d at 876; see also U.S. Const. amend. X.;
James Madison, The Federalist No. 45, pp. 292-293 (C.
Rossiter ed. 1961) (“The powers delegated by the
proposed Constitution to the federal government are few and
defined.”). The Commerce Clause contains one of these
delegated powers. See U.S. Const. art. I, § 8,
cl. 3 (“Congress shall have the power . . . to regulate
Commerce with foreign Nations, and among the several States,
and with the Indian ...