U.S. v. Coronado

• Decision Date: 15 November 2006
• Docket Number: No. 06cr0298 JM.,06cr0298 JM.
• Parties: UNITED STATES of America, Plaintiff, v. Rodney Adam CORONADO, Defendant.
• Court: U.S. District Court — Southern District of California

Page 1209

461 F.Supp.2d 1209

UNITED STATES of America, Plaintiff, v. Rodney Adam CORONADO, Defendant.

No. 06cr0298 JM.

United States District Court, S.D. California.

November 15, 2006.

John Parmley, AUSA, Office of the U.S. Attorney, San Diego, CA, for United States.

Gerald Singleton, Esq., Law Offices of Gerald Singleton, San Diego, CA, for Defendant.

J. David Blair-Loy, ACLU of San Diego and Imperial Counties, San Diego, CA, Amicus Cuziae.

ORDER DENYING MOTION TO DISMISS INDICTMENT

MILLER, District Judge.

Defendant Rodney Adam Coronado ("Coronado") moves to dismiss the indictment charging him with violation of 18 U.S.C. § 842(p)(2)(A), Distribution of Information Relating to Explosives, Destructive Devices and Weapons of Mass Destruction, on grounds that the statute is impermissibly overbroad and excessively vague. The Government opposes the motion. For the reasons set forth below, the court denies the motion to dismiss the indictment.

BACKGROUND

On February 15, 2006, Coronado was charged in a single count indictment with violation of 18 U.S.C. § 842(p)(2)(A), Distribution of Information Relating to Explosives, Destructive Devices and Weapons of Mass Destruction. The indictment alleges that on August 1, 2003, Coronado "did teach and demonstrate the making and use of a destructive device and did distribute by any means, information pertaining to, in whole or in part, the manufacture of a destructive device, with the intent that the teaching, demonstration, and information be used for, and in furtherance of, an activity that constitutes a federal crime of violence, to wit, arson."

The parties identify the following events and background information. As the identified facts appear to be largely undisputed by the parties, they will be considered as true for the purpose of addressing the current motion to dismiss the indictment. Coronado is a self-characterized radical animal and environmental rights activist. In 1992 Coronado participated in an action that destroyed fur-industry research facilities involved in animal testing at Michigan State University. Coronado pled guilty and was sentenced to 57 months incarceration.

On August 1, 2003 Coronado gave a lecture on militant animal and earth liberation rights at the Lesbian Gay Bisexual Transgender Center located in the Hillcrest area of San Diego, California. The flyer promoting the lecture indicated that Coronado was an individual who "lives by the principles of direct action. Rod Coronado talks beyond theory." (Motion, Exh 1). The flyer also represented that Coronado participated in an action that "sunk two illegal whaling ships off the coast of Iceland." The advertisement also touted Coronado's experience as a "hunt saboteur" defending threatened species. Coronado's speech attracted media attention because, on the day before the lecture, an apartment structure in the University Town Center area of San Diego had been destroyed by arson, causing as estimated loss of $50 million. At the, scene of the fire, investigators found a large banner reading "IF YOU BUILD IT — WE WILL BURN IT. THE ELF'S (sic) ARE MAD.¹"

During the speech, recorded by FBI agents present at the meeting, Coronado spoke about his experiences and beliefs in direct action in support of animals and the environment against human exploitation. After his prepared remarks, Coronado fielded questions from the audience. One unidentified attendee asked, according to Coronado, "tell us about the device you used at the Michigan State arson." (Motion at p. 3:28). The Government, in contrast, represents that the attendee asked how she could "make a bomb for an action." (Oppo. at p. 5:7). In response to the question, Coronado explained that he did not use a bomb, but an incendiary device. He then approached the food table, picked-up a plastic one-gallon apple juice container, and described how he made the device. Coronado also commented that he "wouldn't be surprised if investigators found a device similar to this at the fire scene last night," a reference to the $50 million arson fire in the University Town Center the previous day. (Oppo. at p. 5:15-16).

Coronado is currently serving a ten month federal sentence in the District of Arizona for a conviction for conspiracy to interfere with an officer, in relation to his attempts to sabotage a mountain lion hunt.

DISCUSSION

The Statute and Brief Legislative History

Defendant is charged with violating 18 U.S.C. § 842(p)(2)(A), which provides in pertinent part:

It is unlawful for any person —

(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence.

In 1996, following the Oklahoma City bombing, Senators Feinstein and Biden proposed the legislation that would eventually become § 842(p)(2)(A). As originally proposed, the statute set forth a scienter requirement that "the person intends or knows, that such explosive materials or information will likely be used for, or in furtherance of, an activity that constitutes a Federal criminal offense or a criminal purpose affecting interstate commerce." 131 Cong. Rec. S7875 (daily ed. June 7, 1995).

As part of the legislative process, the Department Of Justice ("DOJ") prepared a report regarding the availability of bomb-making information on the Internet and in print, and on the First Amendment implications of federal laws designed to curtail the dissemination of bombmaking information. The DOJ was required to complete this process pursuant to section 709 of the Anti-Terrorism and Effective Death Penalty Act of 1996. See Pub.L. No. 104-132 § 709(a), 110 Stat. 1214, 1297 (1996). In April 1997, the DOJ submitted to Congress its report entitled 1997 Report on the Availability of Bombmaking Information ("Report"), http://www.usdoj.gov/ criminal/cyber-crime/bombmakinginfo. html. The Report generally concluded that bombmaking information is readily available for anyone with access to the Internet. The report noted that by requiring knowledge of someone else's present intent, not of a future event, the knowledge requirement would be less problematic from a constitutional perspective. See Report at VI.B.

The Report also noted that there then existed four different ways to establish criminal liability for the dissemination of bombmaking information and related conduct: federal statutes prohibiting (1) conspiracy, (2) solicitation, (3) aiding and abetting and (4) 18 U.S.C. § 231. Section 231, the precursor statute to 18 U.S.C. § 842(p)(2)(A), was directed specifically at the "teaching or demonstrating" of techniques related to the use or manufacture of explosives and firearms. See Report at IV.

Ultimately, the statute was enacted in its present form.

Facial Overbreadth

Coronado raises a facial challenge to § 842(p)(2)(A) contending that the statute is overbroad because it punishes a substantial amount of constitutionally protected speech. In the area of First Amendment expression, "an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). A party may

challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker ... and in cases where the ordinance sweeps too broadly penalizing a substantial amount of speech that is constitutionally protected.

Id. at 129-30, 112 S.Ct. 2395. Overbroad statutes "may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

The scope of the First Amendment overbreadth doctrine must be "carefully tied to the circumstances in which facial invalidation of a statute is truly warranted." New York v. Ferber, 458 U.S. 747, 768, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Striking down a statute under facial attack is employed "with hesitation and then `only as a last resort.'" Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Consequently, where conduct and not merely speech is involved, a statute may be stricken only where the overbreadth is "substantial," Ferber, 458 U.S. at 768, 102 S.Ct. 3348, and justified by "weighty countervailing policies." Id, at 770, 102 S.Ct. 3348 (quoting United States v. Raines, 362 U.S. 17, 22-23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)). Finally, "[o]verbreadth scrutiny is less rigid when the questioned legislation regulates `conduct in the shadow of the First Amendment, but do[es] so in a neutral, noncensorial manner.'" United States v. Gilbert, 813 F.2d 1523, 1530 (9th Cir. 19876) (quoting Broadrick, 413 U.S. at 614, 93 S.Ct. 2908).

Applying these principles to the facial overbreadth challenge, the court concludes that the statute is not substantially overbroad. To the extent Coronado argues the statute is too broad because it could be applied to individuals who may innocently teach or demonstrate the construction of a destructive device, or otherwise provide such information, this "argument does not identify a constitutional defect." Hill v. Colorado, 530 U.S. 703, 730-31, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). The specific focus of the statute is not on mere teaching, demonstrating, or disseminating information on how to construct a destructive device, but upon...