United States v. Mujahid

• Decision Date: 27 August 2015
• Docket Number: 12–30070.,Nos. 11–30276,s. 11–30276
• Citation: 799 F.3d 1228
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sabil M. MUJAHID, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

799 F.3d 1228

UNITED STATES of America, Plaintiff–Appellee

v.Sabil M. MUJAHID, Defendant–Appellant.

Nos. 11–30276

12–30070.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2014.

Submission Vacated Oct. 23, 2014.

Resubmitted and Filed Aug. 27, 2015.

John P. Balazs (argued), Law Office of John P. Balazs, Sacramento, CA, for Defendant–Appellant.

Jo Ann Farrington (argued), Assistant United States Attorney; Karen Loeffler, United States Attorney, United States Attorney's Office, Anchorage, AK, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, Presiding. D.C. No. 3:10–cr–00091–HRH–1.

Before: J. CLIFFORD WALLACE, KIM McLANE WARDLAW, and MORGAN CHRISTEN, Circuit Judges.

OPINION

CHRISTEN, Circuit Judge:

Sexual assault by and against prison inmates is a distressing and pernicious problem. In this case, we decide whether the Constitution gives Congress the power to address it by criminalizing sexual assaults in facilities where federal inmates are held by agreement with state and local governments. We also decide whether the existence of such an agreement is a question of law that may be decided by the trial court. Our answer to both questions is “yes.”

BACKGROUND

On March 5, 2009, Sabil Mumin Mujahid was arrested in Anchorage, Alaska after officers found a firearm in the trunk of a car he had driven to the Nesbett Courthouse for a bail hearing on a pending state drug charge. Mujahid was taken to the Anchorage Correctional Complex, which provides housing for state prisoners as well as federal prisoners pursuant to a contract with the U.S. Marshals Service.

The day after his arrest, Mujahid was charged in a federal criminal complaint with one count of being a felon in possession of a firearm.¹ The federal court ordered him detained pending trial, and thereafter the state court revoked his bail on the drug charge. In June 2009, a jury convicted Mujahid on the federal felon-in-possession charge. The federal court sentenced Mujahid to 120 months' imprisonment. ²

On June 28, 2010—after the state drug charge was resolved—Mujahid was transferred from the Anchorage Correctional Complex to a federal prison in Washington state.

During his time at the Anchorage Correctional Complex, Mujahid repeatedly sexually assaulted other prisoners. As a result, he was charged with multiple counts of aggravated sexual abuse, sexual abuse, and abusive sexual contact, in violation of 18 U.S.C. §§ 2241, 2242, and 2244, respectively.

18 U.S.C. § 2241 defines and proscribes aggravated sexual abuse by any person “in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency. ” (Emphasis added.) 18 U.S.C. §§ 2242 and 2244 define and proscribe sexual abuse and abusive sexual contact, respectively, under the same circumstances.

Before trial, Mujahid moved to dismiss the indictment on the ground that the “the Constitution does not confer upon the National Government the power to suppress violent crime that occurs in state jails.” He argued that 18 U.S.C. §§ 2241, 2242, and 2244 exceed Congress' authority under Article I of the Constitution and contravene the Tenth Amendment, both “facially and as applied.” Mujahid did not explain, however, why the statutes would be unconstitutional as applied to him if they are constitutional on their face.

The district court denied Mujahid's motion to dismiss. In April 2011, the government filed a second superseding indictment, which added additional counts under the same statutes. The parties stipulated that the district court's order on the motion to dismiss applied to all counts in the second superseding indictment.

Mujahid was tried before a jury in June 2011. At trial, Deputy U.S. Marshal Rochelle Liedike testified on behalf of the government concerning the Anchorage Correctional Complex. Liedike explained that there are no federal prisons in Alaska, but that the U.S. Marshals Service has a contract with the Alaska Department of Corrections to house federal prisoners. Liedike testified that the majority of federal inmates in Alaska are detained at the Anchorage Correctional Complex, where the Marshals Service has contracted for 60 beds. She authenticated a copy of the contract, which was introduced into evidence as Exhibit 23. Liedike confirmed that the contract was in effect from May 3, 2009, through May 26, 2010—the period during which the events charged in the second superseding indictment took place.

At the end of the trial, the district court told counsel that it would use the Ninth Circuit Pattern Jury Instructions to instruct the jury that the government must prove beyond a reasonable doubt that “the offense was committed at the Anchorage Correctional Complex.”³ Mujahid objected, arguing that the jury should also have to determine whether the Anchorage Correctional Complex is “a facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency.” See 18 U.S.C. §§ 2241, 2242, 2244. The district court overruled this objection, stating “the existence of the contract is a legal question for the Court to decide, and the fact question that's for the jury to decide is simply was the victim housed in, you know, the institution.” The court subsequently granted the government's unopposed motion for a legal finding on the record, and “conclude[d] that, as a matter of law, the Anchorage Correctional Complex is a facility in which persons are held in custody pursuant to an agreement with the United States Marshals Service, a federal agency.”

Mujahid was convicted of four counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241 and three counts of abusive sexual contact in violation of 18 U.S.C. § 2244. The district court sentenced him to 480 months' imprisonment. Mujahid timely filed a notice of appeal from the judgment in September 2011.

Four months later, Mujahid filed a pro se motion for a new trial in district court. Mujahid argued that the government withheld evidence, namely, a memorandum letter and remand detainer that “could have showed that comity was with the State of Alaska at the time of the allege[d] assault on John Doe 3 and John Doe 6.” Mujahid contended that after he was convicted on the federal felon-in-possession charge, the federal government transferred “custody back to the State of Alaska” so Mujahid could be tried on the state drug charges. The district court correctly determined that while it did not have jurisdiction to grant the motion absent a remand from this court, it did have jurisdiction to deny the motion. See United States v. Hays, 454 F.2d 274, 275 (9th Cir.1972) (per curiam). The court ruled it would decline to seek a remand “when defendant is currently represented by counsel.” Mujahid filed a second notice of appeal from the order denying his pro se motion for a new trial. We sua sponte consolidated Mujahid's two appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether a criminal statute is an unconstitutional overreach of congressional authority. United States v. Bohn, 622 F.3d 1129, 1133 (9th Cir.2010). We also review de novo whether the district court's jury instructions omitted an element of the charged offense. United States v. Cherer, 513 F.3d 1150, 1154 (9th Cir.2008).

DISCUSSION

Mujahid raises two arguments in this appeal. First, he argues the district court erred by denying his motion to dismiss the indictment because the statutes of conviction are unconstitutional. Second, he argues that whether the Anchorage Correctional Complex is a facility in which persons are held pursuant to a contract with the head of a federal agency is a question of fact that should have been determined by the jury, not the trial judge. We address each issue in turn.

I. The district court correctly denied Mujahid's motion to dismiss the indictment.

A. The challenged statutes are not facially unconstitutional.

As originally enacted in 1986, the statutes of conviction proscribed aggravated sexual abuse, sexual abuse, and abusive sexual contact by any person “in the maritime and territorial jurisdiction of the United States or in a Federal prison.”⁴ Sexual Abuse Act of 1986, Pub. L. No. 99–654, 100 Stat. 3660 (codified as amended at 18 U.S.C. §§ 2241 –2244 ). In 2003, Congress passed the Prison Rape Elimination Act, which contained measures designed to reduce the widespread incidence of sexual assault in prisons, such as grants to states for prevention of prison rape and the establishment of a National Prison Rape Reduction Commission. Prison Rape Elimination Act of 2003, Pub. L. No. 108–79, 117 Stat. 972. Then, in 2006, Congress expanded the jurisdictional reach of the statutes of conviction to include offenses “in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General.” Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109–162, § 1177(a), 119 Stat. 2960, 3125 (2006) (codified as amended at 18 U.S.C. §§ 2241 –2244 ).

This 2006 amendment is the focus of Mujahid's constitutional claim. Mujahid argues the “police power” belongs to the states, and Congress acted beyond its limited, enumerated powers when it extended the statutory reach to cover sexual abuse that occurs in state and local institutions where federal detainees are held pursuant to a contract with a federal agency. The government responds that the 2006 amendment was a proper exercise of Congress' authority to pass “necessary and proper” laws concerning federal prisoners.

In evaluating Mujahid's claim, we are mindful that Mujahid bears a “heavy...