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United States v. Beckham

United States District Court, M.D. Tennessee, Nashville Division

July 3, 2019




         Before 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.

         I. The Indictment

         The 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 “ni---rs.” (Id.)

         The 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.)

         The 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.)

         II. Motion to Dismiss

         A. Legal Standards

         “A 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.

         A 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).

         B. Analysis

         Beckham 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, [1] and then his arguments to dismiss the false statements count.

         1. Statutory Certification

         Section 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.

         Beckham 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.)

         The 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).

         The 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 (last accessed June 29, 2019).

         There 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.” Id.

         As a 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 prosecution.

         This is not a sufficient ground for dismissal of the HCPA count.

         2. As-Applied Commerce Clause Challenge

         “Congress 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 ...

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