U.S. v. Bird
| Citation | 279 F.Supp.2d 827 |
| Decision Date | 18 August 2003 |
| Docket Number | No. H-03-0163.,H-03-0163. |
| Parties | UNITED STATES of America, Plaintiff, v. Frank Lafayette BIRD, Defendant |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas |
Financial Litigation, U.S. Attorney's Office, Southern District of Texas, Richard Harris, Office of U.S. Attorney, U.S. Probation —H, Pretrial Services—H, Houston, TX, for U.S. Attorneys.
Frank Lafayette Bird, Jr., In Custody, Federal Public Defender, Brent Evan Newton, Asst. Fed. Pub. Defender, Houston, TX, for Defendant.
Before the Court is the defendant, Frank Lafayette Bird's motion to dismiss the indictment against himself based on his contention that the Freedom of Access to Clinic Entrance ["FACE"] Act is unconstitutional. See Title 18 U.S.C. § 248. Also before the Court is the government's opposition and response to the defendant's motion. The Court has reviewed the motion, response and supporting arguments and is of the opinion that the defendant's motion is meritorious and should be granted.1
A federal grand jury returned a one count indictment against the defendant charging him with intentionally damaging and destroying the property of Planned Parenthood. The government charges that the defendant drove a van through the front door of Houston Planned Parenthood facility in violation of § 248, , subsections (a)(3) and (b)(2).2 Planned Parenthood is an organization/facility that provides reproductive health services.
Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). It is the defendant's contention that Congress, in enacting § 248, relied upon its "perceived authority under the Commerce Clause, U.S. Const. Art. 1 § 8, and on § 5 of the 14th Amendment" to the federal Constitution. See Pub.L. 103-259, § 2. It is the defendant's contention that Congress exceeded its authority, thereby rendering § 248 unconstitutional under both the Commerce Clause and the Fourteenth Amendment to the federal Constitution.3
The government argues serially that the defendant's contentions concerning the constitutionality of § 248 were previously addressed in Bird I. There, the government argues, Bird made similar arguments concerning the constitutionality of § 248. And, in spite of the defendant's arguments, the court upheld the constitutionality of the statute and affirmed Bird's conviction. Id. at 682.
Next, the government argues that congressional passage of § 248 was a valid exercise of Congress' Commerce Clause power under the federal Constitution. In support of its validity argument, the government asserts that: (a) § 248 involves an "economic activity"4; (b) a jurisdictional element is not a necessary component of a constitutional statute, citing to Groome v. Jefferson, 234 F.3d 192 (5th Cir.2000) []; (c) a court, making a statutory constitutional assessment must defer to a legislative determination so long as the legislative determination is a rational one; and, (d) § 248 has more than an attenuated affect on interstate commerce. Finally, the government argues that decisions made by other Circuit Courts, since the Morrison decision, support the constitutionality of § 248. In support of this argument, the government cites to Scheidler v. National Organization of Women, 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003); Norton v. Ashcroft, 298 F.3d 547 (6th Cir.2002) cert denied, ___ U.S. ___, 123 S.Ct. 1003, 154 L.Ed.2d 915 (2003); and United States v. Gregg, 226 F.3d 253 (3rd Cir.2000).5
In his response to the government's contentions, the defendant argues that Bird I is now invalid, in light of Morrison, as having been "implicitly" overruled therein. The defendant also argues that the government's view, that the Supreme Court cannot implicitly invalidate an appeals court decision, is not supported by the decision in United States v. Kallestad, 236 F.3d 225, 228 (5th Cir.2000). Finally, the defendant argues that the government, in relying upon Bird I and Kallestad, ignores two recent post Bird I cases decided by the Fifth Circuit that bear upon Congress' Commerce Clause authority. See GDF Realty Investments Ltd. v. Norton, 326 F.3d 622, 631 (5th Cir.2003); see also United States v. Ho, 311 F.3d 589, 600 (5th Cir.2002).
In addressing the defendant's claim that § 248 is unconstitutional, the Court will examine in some detail the Fifth Circuit's decisions in Bird I, 124 F.3d 667; Kallestad, 236 F.3d 225; and Ho, 311 F.3d 589, and the Supreme Court's decision in Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658.
In December of 1994, the defendant, "while protesting outside the Americans Women Clinic in Houston, threw a bottle at a car driven by Dr. Theodore Herring, an abortion provider, as he attempted to enter the clinic premises." Herring was not injured when the bottle shattered the windshield of Herring's vehicle. The defendant was charged in a one-count indictment with violating § 248(a)(1)6 of the FACE Act, which criminalizes threats and acts of intimidation directed at providers of abortion services.
A jury returned a guilty verdict against Bird on June 12, 1995. After being sentenced, the defendant filed a notice of appeal challenging the constitutionality of the FACE Act. His challenge to the validity of the statute was presented on four (4) grounds. Bird, 124 F.3d 667. First, the defendant argued that § 248(a)(1) was beyond the authority granted Congress under the Commerce Clause because the statute criminalized private, noneconomic conduct, relying on the decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Next, he argued that the application of the Act caused "invidious discrimination" because it protected certain family relations while failing to protect others. Third, he argued that the Act was unconstitutionally overbroad. And finally, he argued that the Act was void for vagueness. Bird, at 672.
The government defended Congress' enactment as a proper exercise of its authority under the Commerce Clause. The government maintained that the "congressional findings" showed that the targeted conduct "in the aggregate" affected interstate commerce because the targeted conduct threatened to "eliminate abortion services from the national commerce." Id at 673. Relying in part on Lopez, the Fifth Circuit held that § 248 of the Act was constitutional. The court addressed the three (3) areas of permissible congressional regulation most recently pronounced in Lopez and rested its opinion on the third area of permissible congressional regulation.
Concerning the first area of permissible regulation, the court acknowledged that Congress may regulate the use of "channels" of interstate commerce. However, it found that § 248(a) did not seek to regulate the use of the channels of interstate commerce. Bird at 673. Specifically, the court held that the Act did not attempt to prohibit the interstate transportation of a commodity through the channels of commerce. Id.
The second area that Congress may regulate through Commerce Clause authority is the area of "instrumentalities" of interstate commerce, persons or things in interstate commerce even when the threat comes from intrastate activities. 124 F.3d at 673 (citation omitted). The court found that this area too, was not the basis or object of congressional regulation. Finding congressional commerce authority under the third area of permissible authority, the court held that Congress had the authority to "regulate those activities having a `substantial relation' to interstate commerce, i.e., those activities that, in the aggregate, substantially affect interstate commerce." Id at 674 (citing Lopez, 514 U.S. at 557-58, 115 S.Ct. 1624). Thus, the court held that in order for Congress to enact a statute that also regulates intrastate conduct, the regulation must be based on "an essential part of a larger regulation of economic activity in which the larger regulatory scheme could be undercut unless the intrastate activity were regulated." Bird, 124 F.3d at 675 (citing Lopez, 514 U.S. at 561, 115 S.Ct. 1624).
The court went on to define that "larger regulation of economic activity" as a broad "class of activities" in reproductive health services that, "viewed in the aggregate ... substantially affects interstate commerce." Id. at 676. The aggregation principle permitted the court to amass the entirety of the commercial activity and treat it as a class of activity. And, because the interstate mass was having, what the court viewed as a substantial affect on interstate commerce, it held that § 248 was a legitimate regulation of intrastate activity. Hence, the court concluded that Bird's conduct, although intrastate and noneconomic in nature, was conduct that fell within Congress' authority to regulate under the Commerce Clause. Since Bird I, however, the Fifth Circuit addressed Congress' Commerce Clause authority in United States v. Kallestad, 236 F.3d 225 (5th Cir.2000).
In Kallestad, the Circuit Court was faced with a constitutional challenge to Title 18 U.S.C. § 2252(a)(4)(B), which prohibits possession of sexually explicit depictions of minors shipped in interstate commerce. The facts peculiar to this case show that Kallestad had advertised in the Austin American Statesman newspaper for "slender female nude models." Several of those who responded were girls 16 to 19 years of age, which fact...
To continue reading
Request your trial
-
U.S. v. Bird
...120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) "passage of [the FACE Act] was beyond Congress' Commerce Clause authority." United States v. Bird, 279 F.Supp.2d 827, 838 (S.D.Tex.2003). We do not find that the Supreme Court's decision in Morrison materially affects our holding in Bird I.1 Our decisi......