U.S. v. Denham

• Decision Date: 08 September 2009
• Docket Number: No. 6:09-CR-07-ART.,6:09-CR-07-ART.
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: UNITED STATES of America, Plaintiff, v. Christina Rose DENHAM and Brandon Bruce Pitman, Defendants.

663 F.Supp.2d 561

UNITED STATES of America, Plaintiff, v. Christina Rose DENHAM and Brandon Bruce Pitman, Defendants.

No. 6:09-CR-07-ART.

United States District Court, E.D. Kentucky, Southern Division, London.

September 8, 2009.

Jason D. Parman, U.S. Attorney's Office, London, KY, for Plaintiff.

Stephanie Lynne McKeehan, Law Office of Stephanie L. McKeehan, Douglas Glenn Benge, Jensen, Cessna, Benge & Webster, London, KY, for Defendants.

OPINION & ORDER

ROBERT E. WIER, United States Magistrate Judge.

The District Judge referred pending motions for rearraignment to the undersigned. See DE #53 (Order). The Court commenced a Rule 11 hearing as to Defendant Christina Rose Denham after receiving her consent, see DE #56 (Consent), and the hearing as to Defendant Brandon Bruce Pitman was set to follow.

The Government has charged Denham and Pitman with conspiring to threaten bodily injury to a person for "providing information related to the possible commission of a federal offense ... to a law enforcement officer, a violation of 18 U.S.C. § 1513(b)(2)." See DE #27 (Superseding Indictment). Both Defendants allegedly made threatening calls to a confidential informant.

While evaluating the factual basis of the matter, the Court queried the parties over the breadth of the intent requirement in 18 U.S.C. § 1513(b)(2), the witness retaliation charge at issue. Specifically, the Court asked whether the United States must prove, as an essential offense element, that Defendants knew of the federal nexus— i.e., the "possible commission of a Federal offense" and the transmission of information to a "law enforcement officer," as defined in 18 U.S.C. § 1515(a)(4).

Because a federal offense must underlie a guilty plea,¹ the Court halted the Rule 11 hearing to permit briefing of this statutory question. Defendants and the United States have submitted briefs in turn, advancing their positions, see DE #63 (Response Brief); DE #64 (Pretrial Memorandum); DE #69 (Response Brief); DE #72 (Reply Brief), and the matter is ripe for decision. For the reasons stated below, this Court finds that, to convict under § 1513(b)(2) in this case, the Government must prove that Defendants knew a "law enforcement officer," as defined in § 1515(a)(4), received information from the retaliation target. The Rule 11 colloquy indicates that Denham does not admit to this part of the crime, foreclosing rearraignment.

Statutory Interpretation of § 1513(b)(2)

The Court interprets § 1513(b)(2) to determine the nature of the specific intent Defendants must have possessed. The statutory section at issue reads as follows:

(b) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the tangible property of another person, or threatens to do so, with intent to retaliate against any person for—

(1) the attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other object produced by a witness in an official proceeding; or

(2) any information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings given by a person to a law enforcement officer;

or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1513(b). The term "law enforcement officer" is, in this statute, a term of art:

(4) the term "law enforcement officer" means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant—

(A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or

(B) serving as a probation or pretrial services officer under this title.

18 U.S.C. § 1515(a)(4). Thus, a law enforcement officer, for § 1513 purposes, is a federally connected officer.

Interpreting a statute begins with "the language of the statute itself to determine if its meaning is plain." United States v. Parrett, 530 F.3d 422 (6th Cir. 2008) (citing United States v. Wagner, 382 F.3d 598, 607 (6th Cir.2004)). Plain meaning emerges from "the language and design of the statute as a whole." Id. If the meaning is plain, then the interpretation need go no further and has concluded. See United States v. Goins, 516 F.3d 416, 420 (6th Cir.2008) (citing United States v. Palacios-Suarez, 418 F.3d 692, 697 (6th Cir.2005)). However, if the meaning is unclear, interpretation next turns to legislative history in an attempt to fill gaps in understanding. See Parrett, 530 F.3d at 422 (citing Wagner, 382 F.3d at 607).

To date, no Supreme Court opinion addresses the § 1513(b) proof requirement. Similarly, the Sixth Circuit has not evaluated the requisite intent scope. See United States v. Edwards, 321 Fed.Appx. 481, 485 (6th Cir.2009) (unreported) (addressing whether property damage must have occurred and whether threats must be transmitted to the witness); United States v. Hankins, 195 Fed.Appx. 295, 299-300 (6th Cir.2006) (unpublished) (denying a sufficiency of the evidence challenge to a conviction); United States v. Levy, 250 F.3d 1015, 1018-19 (6th Cir.2001) (concerning sentencing and statute's applicability to actual or threatened bodily injury); United States v. Blair, 225 F.3d 660, at *2-3 (6th Cir.2000) (table) (considering an evidentiary challenge); United States v. Davis, 992 F.2d 635, 638-39 (6th Cir.1993) (addressing whether a district court has the power under Rule 29 to enter a judgment of acquittal more than seven days after discharge of a jury); United States v. Harris, 943 F.2d 53, at *3 (6th Cir.1991) (table) (per curiam) (denying a sufficiency of the evidence appeal because "information related to the commission ... of a Federal offense" includes the location of a suspected felon).

Plain Language

The § 1513(b)(2) offense elements, as relevant, include the following: (1) knowingly engaging in conduct (2) that threatened bodily injury (3) with intent to retaliate for information relating to the possible commission of a federal offense provided to a law enforcement officer. See United States v. Draper, 553 F.3d 174, 180 (2d Cir.2009) (citing United States v. Brown, 937 F.2d 32, 36 (2d Cir.1991)) (outlining a similar three-element construction ultimately focused on the same proof standard); Edwards, 321 Fed.Appx. at 484 (citing United States v. Paradis, 802 F.2d 553, 562 (1st Cir.1986)) (using a virtually identical three-element construction). The matter before this Court concerns the specific intent element and whether that intent includes knowledge of federal officer involvement.²

A natural reading of the plain language of the specific intent formulation indicates that the Government must prove knowledge of federal involvement on the part of defendants charged under § 1513(b)(2). The natural reading here is to give meaning and effect to all words that Congress penned, rather than discard some or envision that some must be more important than others. See Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058, 1066, 172 L.Ed.2d 791 (2009) ("[W]e are obliged to give effect, if possible, to every word Congress used.") (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979)). The statute defines the crime as a knowing threat "with intent to retaliate" for "information relating" to a federal crime "given by a person to a law enforcement officer." See 18 U.S.C. § 1513(b)(2). Additionally, the statute particularly defines those officials as federal. See 18 U.S.C. § 1515(a)(4). To read the statute solely as requiring proof that intent was "to retaliate for information" unnaturally restricts the plain language because the statute specifies the operative "information." Based on the plain meaning, Congress did not seek to punish any retaliation for information; instead, Congress criminalized retaliation for information provided to federal officers.

Linguistically and syntactically, the plain language supports reading the specific intent of § 1513(b)(2) to require knowledge of a federal official. Reading the statute, as applied in this matter, "intent to retaliate" is modified by the series of phrases constituted by "for information relating to the ... possible commission of a Federal offense ... given by a person to a law enforcement officer." This structure means that "intent to retaliate" draws meaning from the subsequent series of phrases, in particular as limiting language. Considering "intent to retaliate" as though the modifying series of phrases fails to exist would be inaccurate, incomplete, and violative of the text. See Mertens v. Hewitt Assocs., 508 U.S. 248, 113 S.Ct. 2063, 2069, 124 L.Ed.2d 161 (1993) ("We will not read the statute to render the modifier superfluous."); United States ex rel. Wilson v. Graham County Soil & Water Conservation District, 528 F.3d 292, 305 (4th Cir.2008) (finding use of modifiers in statutory language of the False Claims Act to be "deliberate and significant"). In this case, the series of phrases provides further qualification for "intent to retaliate," not a literary aside to be discarded. The United States contends that it must only prove knowing conduct with intent to retaliate: "One cannot knowingly engage in conduct with the intent to retaliate." See DE #69 at 3. The remainder of the statute, according to the United States, amounts only to "qualifying jurisdictional factors." See id. This reading is incomplete and divorces the precise intent Congress required from the defined crime. The retaliatory intent must be for something, and the statute says the retaliation is for information provided to a law enforcement officer.

During the Rule 11 colloquy, the Government argued that, given the complex nature of multi-agency task forces, such a reading of § 1513(b)(2) would be...