U.S. v. Francis

• Decision Date: 15 August 1997
• Docket Number: No. 97 Cr. 0008(RWS).,97 Cr. 0008(RWS).
• Citation: 975 F.Supp. 288
• Parties: UNITED STATES of America, v. Michael FRANCIS, Defendant.
• Court: U.S. District Court — Southern District of New York

975 F.Supp. 288

UNITED STATES of America, v. Michael FRANCIS, Defendant.

No. 97 Cr. 0008(RWS).

United States District Court, S.D. New York.

August 15, 1997.

COPYRIGHT MATERIAL OMITTED

Mary Jo White, U.S. Atty. for the Southern Dist. of New York, New York City (Jane A. Levine, Asst. U.S. Atty., of Counsel), for U.S.

Galasso, Langoine & Goidell, Melville, NY (Mark E. Goidell, of Counsel), for Michael Francis.

OPINION

SWEET, District Judge.

In this criminal action, the defendant Michael Francis ("Francis") has moved, pursuant to Fed.R.Crim.P. 12(b), to dismiss the indictment for lack of federal jurisdiction or as facially defective, or to transfer the case to the Northern District of California pursuant to Fed.R.Crim.P. 21. For the reasons below, the indictment will be dismissed as facially defective.

Prior Proceedings

Indictment 97 Cr. 0008(RWS) was handed up on January 7, 1997. It contains one count, which charges that Francis, a California resident, "unlawfully, wilfully, and knowingly did transmit in interstate commerce communications containing threats to injure the person of another," in violation of 18 U.S.C. § 875(c). On April 24, 1997, Francis was arraigned and entered a plea of not guilty. Francis filed the instant motion on May 28, 1997. Oral arguments were heard and the motion was fully submitted on June 18, 1997.

Facts

The Government charges that Francis placed six telephone calls on February 22, 1996 from his residence in Santa Cruz, California to a telephone number in San Francisco, California where the Complainant had once resided. The Complainant received six calls, in the form of voice mail messages, in New York, where he was located at the time. The Complainant recognized the caller on each of the six calls to be Francis.

The Complainant received the six telephone calls in New York via a call-forwarding service that automatically forwarded the Complainant's telephone calls from his California telephone number to his New York telephone number. The call-forwarding service activated a "switch" function that automatically routed the Complainant's telephone calls coming into his California telephone number to his New York telephone number. No manual actions were involved in transferring the calls.

The Complainant also subscribed to a voice-mail message service through NYNEX, his New York telephone carrier. The message service operated like an answering machine. If the telephone was not answered after a designated number of rings, the caller heard a message recorded by the Complainant and was offered an opportunity to leave a recorded message. The Complainant could retrieve messages by dialing into his voice-mail system. The Government has a tape of the six telephone calls the Defendant made to the Complainant on February 22, 1996. Among other things, the Defendant threatened to "blow [the complainant's] fucking head off," "cut [the complainant] up into a thousand goddamn fucking tiny pieces," "slit [the complainant's] fucking throat," and kill the complainant.

Discussion

I. Federal Jurisdiction Exists

Francis moves to dismiss the indictment for lack of federal jurisdiction pursuant to Fed.R.Crim.P. 12(b). The Defendant is charged under 18 U.S.C. § 875(c), which provides that it is unlawful to transmit "in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." Francis contends that federal jurisdiction is lacking because he did not know his calls were being forwarded across state lines.

However, criminal statutes founded on the government's commerce-clause power generally do not require that an offender have knowledge of the interstate nexus of his actions. United States v. Darby, 37 F.3d 1059, 1067 (4th Cir.1994), cert. denied, 514 U.S. 1097, 115 S.Ct. 1826, 131 L.Ed.2d 747 (1995); see also United States v. Blackmon, 839 F.2d 900, 907 (2d Cir.1988) (in a wire fraud prosecution it is not necessary to show that the defendant knew interstate communications were involved). The element of interstate commerce is a device through which to obtain federal jurisdiction, and does not require a mens rea element. Darby, 37 F.3d at 1067; See United States v. Blassingame, 427 F.2d 329, 330-31 (2d Cir.1970) (statute prohibiting use of interstate wires to execute fraudulent scheme does not condition guilt upon knowledge that interstate communication is used), cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971). Thus, although the Government must allege that the telephone calls at issue crossed state lines, it need not allege that Francis was aware of the interstate nexus. See Darby, 37 F.3d at 1067. Whether Francis' knew that his communications traveled in interstate commerce is irrelevant to jurisdiction.

Francis also asserts that Section 875(c)'s jurisdictional predicate is not satisfied, because he did not "cause" the transmission of the calls over state lines. Francis contends that the action of the call-forwarding service, as an intervening cause of the interstate transmission of his message, vitiates federal jurisdiction.

Adoption of Francis' theory that the telephone company's actions undermine the interstate nature of the transmission would defeat federal jurisdiction over virtually any offense charged under § 875(c). Even in the absence of a call-forwarding service, an interstate telephone call is transmitted across state lines by telephone companies, not the defendant. Francis advances no authorities that support his novel proposition. Indeed, the case upon which Francis most heavily relies strongly suggests that the manner in which the communication facility operates in conveying a message is irrelevant to determining jurisdiction where, as here, the parties to the communication were located in different states. See United States v. Paredes, 950 F.Supp. 584, 590 (S.D.N.Y.1996) (defendant's use of his paging system, which transmitted signals to a tower across state lines, did not satisfy interstate nexus requirement because the sender and the recipient were both located in the same state; jurisdictional analysis focuses on location of sender and receiver); compare United States v. Stevens, 842 F.Supp. 96 (S.D.N.Y.1994) (use of paging system which transmits interstate signals satisfies interstate nexus for federal jurisdiction, even though paged party was ultimately reached in the same state as the paging party). It is undisputed that Francis placed telephone calls in California that were received in New York. The fact that the telephone constitutes an "intervening cause" is irrelevant to the jurisdictional question.

Even if causation is relevant to the jurisdictional issue, the fact that the calls were forwarded does not warrant dismissal prior to trial. It is an axiomatic premise of our criminal law that a person cannot be liable for criminal conduct which he has not "caused." United States v. Kelner, 534 F.2d 1020, 1022 (2d Cir.), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976). Yet, it is also a general principle of causation in criminal law that an individual may be held liable if he is a cause in fact of the criminal violation, even though the result which the law condemns is achieved through the actions of innocent intermediaries. Id.

An intervening act, tortious or criminal, will insulate a defendant from liability only when the subsequent act could not have been reasonably anticipated by the defendant. Cullen v. BMW of North America, Inc., 691 F.2d 1097, 1101 (2d Cir.1982), cert. denied, 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948 (1983). In general, questions of whether an intervening act severs the chain of causation depend on the foreseeability of the intervening act and should be determined by the finder of fact. McCarthy v. Sturm, Ruger and Co., Inc., 916 F.Supp. 366, 372 (S.D.N.Y.1996), aff'd, 119 F.3d 148 (2d Cir. 1997). Francis took action without which the communication at issue would not have occurred. Francis called the Complainant's telephone number six times and his voice was recorded while making threats to the Complainant. Whether or not the call forwarding service is an unforeseeable intervening act by a third party which breaks the causal chain is a factual question, and it thus would be inappropriate to dismiss the indictment prior to trial.

Finally, Francis asserts that federal jurisdiction here is undermined by the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Lopez, however, is inapposite. There, the Supreme Court addressed a facial challenge to the Gun-Free School Zones Act of 1990 ("GFSZA"), 18 U.S.C. § 922(g)(1)(A), which criminalized the possession of a gun, simpliciter, in or near a school. Lopez, 514 U.S. at 550, 115 S.Ct. at 1626. The Supreme Court held that the GFSZA exceeded Congress's authority under the Commerce Clause. Unlike § 875(c), the GFSZA did not require an interstate jurisdictional nexus. Id. at 561, 115 S.Ct. at 1631 (noting that the statute does not contain a jurisdictional element that would ensure that the firearm possession in question affects interstate commerce). Because § 875(c) requires an interstate jurisdictional nexus, it does not suffer from the same constitutional infirmity as the GFSZA.

Accordingly, this court has subject-matter jurisdiction over the indictment.

II. The Indictment Is Facially Defective

Francis has moved to dismiss the indictment, pursuant to Fed.R.Crim.P. 12(b), as facially defective because it does not allege an essential element of the charged offense. In particular, Francis contends that the Government must allege that he subjectively intended the communication to be perceived as a threat and asserts that the indictment fails to make such a charge. The Government, in contrast, maintains that it must prove only that Francis acted with the intent to transmit interstate communications, and that an objective, reasonable...