U.S. v. Ho

Decision Date20 August 2009
Docket NumberCriminal No. 08-00337 JMS.
Citation651 F.Supp.2d 1191
PartiesUNITED STATES of America, Plaintiff, v. Robert Tam HO, Defendant.
CourtU.S. District Court — District of Hawaii

Amy K. Olson, William L. Shipley, Jr., Office of the United States Attorney, Honolulu, HI, for Plaintiff.

Alexander Silvert, Office of the Federal Public Defender, Honolulu, HI, for Defendant.

ORDER (1) DENYING DEFENDANT'S MOTION TO DISMISS COUNTS 4 AND 6 OF THE SECOND SUPERCEDING INDICTMENT; (2) DENYING DEFENDANT'S MOTION TO DISMISS COUNTS 5 AND 7 OF THE SECOND SUPERCEDING INDICTMENT; AND (3) DENYING DEFENDANT'S MOTION TO SEVER CIVIL RIGHTS COUNTS FROM WITNESS TAMPERING COUNTS, OR, IN THE ALTERNATIVE, TO BIFURCATE TRIAL

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

The Second Superseding Indictment ("SSI"), filed March 11, 2009, charges Defendant Robert Tam Ho ("Defendant") with three counts of unlawful use of force under color of law in violation of 18 U.S.C. § 242 (Counts 1-3), and four counts of witness tampering in violation of 18 U.S.C. §§ 1512(b)(1) and 1512(b)(3) (Counts 4-7). Currently before the court are Defendant's two Motions to Dismiss—one arguing that the SSI fails to state violations of § 1512(b)(1) ("Def.'s Mot. 1"), and the other arguing that the SSI fails to state violations of § 1512(b)(3) ("Def.'s Mot. 2")—as well as Defendant's Motion to Sever Civil Rights Counts from the Witness Tampering Counts ("Def.'s Mot. to Sever"). Based on the following, the court DENIES Defendant's Motions to Dismiss and DENIES Defendant's Motion to Sever.

II. BACKGROUND

As alleged in the SSI, Defendant was the Security Manager for Wackenhut Security Corporation at the Kahului Airport in Maui, which provides on-site security for the airport through a contract with the State of Hawaii Department of Transportation. SSI ¶ 1. Defendant was the direct supervisor of the "Law Enforcement Officers," ("LEOs"), who have full "peace officer" authority pursuant to Hawaii state law, including the authority to arrest and detain individuals suspected of criminal activity. Id.

On October 20, 2005, during a meeting with Pacific Wings Airline employees G.K., W.G., and others, Defendant got into a verbal confrontation with G.K. and left the meeting. Id. ¶¶ 2-4. Defendant returned with two LEOs, advised G.K. that he was placing him under "citizen's arrest" for "harassment," and directed the LEOs to effectuate the arrest. Id. ¶¶ 5-6. Defendant also ordered the other individuals to leave the conference room, and then repeatedly struck W.G. after he refused to leave. Id. ¶¶ 7-9. When Maui Police Department ("MPD") officers arrived, Defendant requested them to place both G.K. and W.G. in custody, where they were held until bail was posted for their release. Id. ¶ 13.

Based on these events, Count 1 alleges that Defendant, "while acting under color of the laws of the State of Hawaii, . . . did wilfully deprive W.G. of his right secured by the Constitution and laws of the United States not to be deprived of liberty without due process of law. . . ." Id. ¶ 11. Similarly, Count 2 alleges that Defendant, "while acting under color of the laws of the State of Hawaii, did wilfully deprive W.G. of his right secured by the Constitution and laws of the United States to be free from unreasonable seizure by one acting under color of law. . . ." Id. ¶ 14. Count 3 alleges that Defendant, "while acting under color of the laws of the State of Hawaii, . . . did wilfully deprive G.K. of his right secured by the Constitution and laws of the United States to be free from unreasonable seizure by one acting under color of law. . . ." Id. ¶ 16.

The SSI further alleges that on that same day, Defendant approached J.W. to discuss the witness statement she intended to give to MPD and told her that she should state that she was heading home for the day at the time of the incident and did not see what happened because her view was blocked by other people. Id. ¶ 18. J.W. knew this version was untrue, but repeated this version to MPD anyway. Id. Count 4 therefore alleges that Defendant "did knowingly and corruptly persuade J.W. to give false information with respect to the physical assault perpetuated by [Defendant] upon W.G., with the intent to influence, delay or prevent the testimony of J.W. in an official proceeding." Id. ¶ 19. Count V similarly alleges that Defendant "did knowingly and corruptly persuade J.W. to give false information with respect to the physical assault perpetuated by [Defendant] upon W.G., with the intent to hinder, delay and prevent the communication to a law enforcement officer of the United States of information relating to the commission and possible commission of a Federal offense, namely the deprivation of rights under color of law. . . ." Id. ¶ 21.

Finally, the SSI alleges that on the next day, October 21, 2005, Defendant directed J.W. to prepare a written witness statement summarizing a false version of events of October 20, 2005. As in Count 4, Count 6 alleges that Defendant "did knowingly and corruptly persuade J.W. to give false information with respect to the physical assault perpetuated by [Defendant] upon W.G., with the intent to influence, delay or prevent the testimony of J.W. in an official proceeding." Id. ¶ 27. Similar to Count 5, Count 7 alleges that Defendant "did knowingly and corruptly persuade J.W. to give false information with respect to the physical assault perpetuated by [Defendant] upon W.G., with the intent to hinder, delay and prevent the communication to a law enforcement officer of the United States of information relating to the commission or possible commission of a Federal offense namely the deprivation of rights under color of law. . . ." Id. ¶ 29.

III. STANDARDS OF REVIEW
A. Motion to Dismiss

Federal Rule of Criminal Procedure 12(b) allows consideration at the pretrial stage of any defense "which is capable of determination without the trial of the general issue." United States v. Nukida, 8 F.3d 665, 669 (9th Cir.1993). "On a motion to dismiss an indictment for failure to state an offense, the court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged. The indictment either states an offense or it doesn't." United States v. Boren, 278 F.3d 911, 914 (9th Cir.2002) (citing United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996)).

An indictment need only be a "plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). United States v. Awad, 551 F.3d 930, 935 (9th Cir.2009), recently explained the standard for determining when this standard is met:

An indictment is sufficient if it contains "the elements of the charged crime in adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy." United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995) (internal quotation signals omitted). The test for sufficiency of the indictment is "not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Hinton, 222 F.3d 664, 672 (9th Cir.2000).

An indictment that tracks the offense in the words of the statute is sufficient if those words fully, directly, and expressly set forth all the elements necessary to constitute the offense intended to be proved. See Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Tavelman, 650 F.2d 1133, 1137 (9th Cir.1981). "While the indictment may be insufficient if it fails to allege an essential element of the offense, nevertheless the indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied." United States v. Drew, 722 F.2d 551, 552 (9th Cir.1983) (citations omitted); cf. United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001) ("An indictment's failure to `recite an essential element of the charged offense is not a minor or technical flaw . . . but a fatal flaw requiring dismissal of the indictment.'" (quoting United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.1999))). An indictment that follows the statutory language, and otherwise puts the accused on fair notice of all the implied elements of the charge, is not also required to incorporate judicial decisions that have interpreted that language. See United States v. Godinez-Rabadan, 289 F.3d 630, 634 (9th Cir.2002); see also United States v. Renteria, 557 F.3d 1003, 1006 (9th Cir.2009) (discussing previous opinion that rejected argument that indictment must include allegations that are merely "judicial gloss" upon the statutory language).

"[A] Rule 12(b) motion to dismiss is not the proper way to raise a factual defense." Nukida, 8 F.3d at 669. Specifically, a defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not supported by adequate evidence. United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996). Therefore, a motion to dismiss an indictment may not be used as a device for summary trial of the evidence. Boren, 278 F.3d at 914; Jensen, 93 F.3d at 669.

B. Motion to Sever

Federal Rule of Criminal Procedure 14(a) provides that "[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Joinder is "the rule rather than the exception," United States v. Armstrong, 621 F.2d 951, 954 (9th Cir.1980), and accordingly, "Rule 14 sets a high standard for a showing of prejudice." United States v. Vasquez-Velasco, 15 F.3d 833, 845 (9th Cir.1994).

Defendant must show that a joint trial is "so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a...

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