U.S.A v. King

• Decision Date: 13 May 2010
• Docket Number: No. Cr. No. 09-00207 DAE.,Cr. No. 09-00207 DAE.
• Citation: 713 F.Supp.2d 1207
• Parties: UNITED STATES of America, Plaintiff,v.Rodney D. KING, and [01] Sharon-Mae Nishimura [02], Defendants.
• Court: U.S. District Court — District of Hawaii

713 F.Supp.2d 1207

UNITED STATES of America, Plaintiff,v.Rodney D. KING, and [01] Sharon-Mae Nishimura [02], Defendants.

No. Cr. No. 09-00207 DAE.

United States District Court D. Hawai‘i.

May 13, 2010.

Darren W.K. Ching, Office of the United States Attorney, Honolulu, HI, Kayla Bakshi, Edward G. Caspar, US Department of Justice, Washington, DC, for Plaintiff.

Matthew C. Winter, Office of the Federal Public Defender, Honolulu, HI, Randall M. Oyama, Honolulu, HI, for Defendants.

ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS COUNTS OF THE SECOND SUPERSEDING INDICTMENT

DAVID ALAN EZRA, District Judge.

On May 3, 2010, Defendant Rodney King's motions to dismiss multiple counts of the indictment (Docs. 139, 140, 141) came before the Court for hearing. Edward G. Caspar, Trial Attorney, U.S. Department of Justice, and Darren W.K. Ching, Assistant U.S. Attorney, appeared at the hearing on behalf of the Government; Matthew C. Winter and Salina Althof, Assistant Federal Defenders, appeared at the hearing on behalf of Defendant King (“Defendant”). After reviewing the motions and the supporting and opposing memoranda, the Court DENIES Defendant's motions.

BACKGROUND

Many of the facts of this case have been described in a previous order by this Court. ( See Doc. # 114.) Accordingly, only facts relevant to the assessment of the instant motions are recounted.

On May 20, 2009, a federal grand jury returned a six-count indictment against Defendant and co-defendant Sharon-Mae Nishimura (“Nishimura”). (Doc. # 1.) On September 23, 2009, the Government filed a superseding indictment charging Defendant with 13 counts. (Doc. # 35.) On September 30, 2009, Defendant entered a plea of not guilty. (Doc. # 44.)

On January 14, 2010, the Government filed a second superseding indictment (“Indictment”) charging Defendant with Counts 1-4 and 7-12, in violation of 18 U.S.C. § 1591, Counts 5-6, in violation of 18 U.S.C. §§ 1594, 1591; and Count 13, in violation of 18 U.S.C. § 371. (Doc. # 64.) On January 15, 2010, Defendant entered a plea of not guilty. (Doc. # 70.)

On April 5, 2010, Defendant filed the instant motions to dismiss multiple counts against him from the Indictment. (Docs. 139-141.) Defendant's first motion (“First Motion”) moves to dismiss Counts 7, 8, 11, and 12 for failure to state offenses. (“First Mot.,” Doc. # 139.) Defendant's second motion (“Second Motion”) moves to dismiss Counts 1, 3, 5, 7, 9, and 11 or counts 2, 4, 6, 8, and 12, or otherwise redress the multiplicity of these counts. (“Second Mot.,” Doc. # 140.) Defendant's third motion (“Third Motion”) moves to dismiss Counts 9 and 10 or counts 11 and 12, or otherwise redress the multiplicity of these counts. (“Third Mot.,” Doc. # 141.) On April 19, 2010, the Government filed its response in opposition to Defendant's motions. (“Opp'n to ____ Mot.,” Docs 155-157.) On April 20, 2010, Defendant filed his replies. (“Reply to ____ Mot.,” Docs. 160-161.)

DISCUSSION

I. First Motion: Motion to Dismiss Counts 7, 8, 11, and 12 for Failure to State Offenses

Defendant moves to dismiss Counts 7, 8, 11, and 12 of the Indictment because, allegedly, each count fails to allege an element that is necessary to impose the punishment set forth in 18 U.S.C. § 1591(b)(2). (First Mot. at 3-8.) Specifically, Defendant argues that section 1591 requires as an element that the victims had in fact attained the age of 14 but had not yet attained the age of 18 instead of the Indictment's charge that Defendant acted knowing that his victims had attained the age of 14 but had not yet attained the age of 18.( Id.) Defendant alleges that the grand jury, therefore, failed to find all of the elements necessary to sufficiently allege an offense against the United States as to each of these counts, and accordingly, the counts must be dismissed because each fails to state an offense. ( Id.) The Government argues that Defendant makes the implausible claim that the charges that he acted “knowing that” his victims had attained the age of 14 but had not yet attained the age of 18 do not suffice to allege that his victims had in fact attained the age of 14 but had not yet attained the age of 18. (Opp'n to First Mot. at 3.)

Counts 7, 8, 11, and 12 charge Defendant with the sex trafficking of two girls under the age of 18. ( See Indictment.) Title 18, section 1591 prohibits sex trafficking of minors and of adults if the trafficking is effected by force, fraud, or coercion. See 18 U.S.C. § 1591. Counts 7, 8, 11, and 12 of the Indictment each allege a violation of subsections 1591(a) and 1591(b)(2).¹ (Indictment at 7, 8, 11, & 12.) Subsections 1591(a) and 1591(b) provide as follows:

(a) Whoever knowingly-

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, or obtains by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing that force, fraud or coercion described in subsection (c)(2)[ ²] will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

(b) The punishment for an offense under subsection (a) is-

(1) if the offense was effected by force, fraud, or coercion or if the person recruited, enticed, harbored, transported, provided, or obtained had not attained the age of 14 years at the time of such offense, by a fine under this title and imprisonment for any term of years not less than 15 or for life; or

(2) if the offense was not so effected, and the person recruited, enticed, harbored, transported, provided, or obtained had attained the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title and imprisonment for not less than 10 years or for life.

18 U.S.C. § 1591.

Counts 7 and 11 allege violations of subsections 1591(a)(1) and (b)(2). Counts 8 and 12 allege violations of subsections 1591(a)(2) and (b)(2). All of these Counts charge that Defendant acted “knowing that [each victim] had attained the age of fourteen (14) but had not yet attained eighteen (18) years of age.” (Indictment at 6, 7, 9.) The charges do not state additionally that each victim had in fact attained the age of 14 but had not yet attained the age of 18.

Preliminarily, the Government argues that it need not have alleged any of the factors in subsection 1591(b) because such factors operate solely to limit the court's discretion in sentencing by increasing the mandatory minimum sentence. (Opp'n to First Mot. at 10.) In support, the Government states that the penalty provision set out in subsection 1591(b) does not alter the maximum penalty for the sex trafficking crimes it prohibits in subsection 1591(a), nor does it create a separate offense. Rather, the Government argues, the provision operates solely to limit the court's discretion in sentencing by increasing the mandatory minimum sentence. See 18 U.S.C. § 1591(b). As such, the Government states that the factors identified in section 1591(b)-whether a defendant's victims had attained the age of 14 but had not yet attained the age of 18-would not need be alleged in the indictment or proved to a jury. ( See id. (citing Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)); see also McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).)

The Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) held that “ ‘any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (quoting Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215) (emphasis added). Defendant argues that the subsection 1591(b) elements must be found by both the grand and petite juries because such elements provide the only authority for punishment in the statute. ( See First Mot. at 3-4; Reply to First Mot. at 2-5.)

In support, Defendant asserts that in United States v. Todd, 584 F.3d 788, 793-794 (9th Cir.2009) the Ninth Circuit recognized that there is a hole in section 1591 when the victims are over 18 and the offense was not effected by force, fraud, or coercion. Todd, 584 F.3d at 793. The Todd court found that in such a circumstance, no punishment could be imposed upon a defendant because the jury failed to find the facts set forth in subsection 1591(b) on which imprisonment is justified. Id. at 793-794. Therefore, Defendant argues that because the facts set forth in subsection 1591(b) are necessary in order to authorize the maximum punishment to which a defendant is exposed, those facts are elements, not sentencing factors, and they must therefore be alleged in the indictment and proven to a jury beyond a reasonable doubt. (Reply to First Mot. at 4-5.)

This Court agrees with Defendant that as per Todd, the facts set forth in subsection 1591(b) are offense elements necessary to justify the maximum sentence, or any sentence, imposed by the statute. Section 1591 provides for the imposition of a sentence in three circumstances: (1) if the violation of subsection 1591(a) is effected by force, fraud, or coercion, then the defendant may be sentenced to a term of imprisonment between 15 years to life, 18 U.S.C. § 1591(b)(1); (2) if the violation of subsection 1591(a) is against a victim who is younger than 14 years of age at the time of the offense, then the defendant may be sentenced to a term of imprisonment between 15 years to life, 18 U.S.C. § 1591(b)(1); or (3) if the violation of subsection 1591(a) is against a victim who...