U.S. v. Martinez, Cause No. 3:08-CR-3354-KC.

• Citation: 599 F.Supp.2d 784
• Decision Date: 27 February 2009
• Docket Number: Cause No. 3:08-CR-3354-KC.
• Parties: UNITED STATES of America, Plaintiff, v. Julio Adrian MARTINEZ, Defendant.
• Court: U.S. District Court — Western District of Texas

599 F.Supp.2d 784

UNITED STATES of America, Plaintiff, v. Julio Adrian MARTINEZ, Defendant.

Cause No. 3:08-CR-3354-KC.

United States District Court, W.D. Texas, El Paso Division.

February 27, 2009.

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J. Brandy Gardes, Assistant U.S. Attorney, El Paso, TX, for Plaintiff.

Tyrone Thelonious Mansfield, Federal Public Defender's Office, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered "Defendant's Motions for Dismissal and for Bill of Particulars" ("Defendant's Motion") (Doc. No. 23) and "Government's Response to Defendant's Motion to Dismiss Indictment and for Bill of Particulars" ("Government's Response") (Doc. No. 26). For the reasons set forth herein, Defendant's Motion is DENIED.

I. BACKGROUND

The following facts are alleged in the Probable Cause Statement appended to the Criminal Complaint. (Doc. No. 1). On September 23, 2008, deputies from the El Paso County Sheriff's Office ("EPCSO") responded to a kidnapping complaint in Vinton, Texas, in the Western District of Texas. When the deputies arrived at the scene, they interviewed Maria Villalobos ("Villalobos"), who stated that her minor cousin ("JC"), had been staying with her while JC's mother was at work.¹ Just after 6 p.m. on that day, a vehicle arrived at Villalobos's residence. Villalobos told JC to see who it was. A few minutes later, Villalobos looked out the window and saw Defendant forcing JC into a brown Kia Sephia. Villalobos stated that it seemed to her that JC was attempting to get away, but Defendant pushed JC into the vehicle with his body. Once JC was in the car, the vehicle drove off.

EPCSO deputies also interviewed Lucy Guillen ("Guillen"), JC's mother. Guillen stated that on September 23, 2008, she had taken her other daughter to the hospital emergency room and had left JC with Villalobos. Just after 7 p.m., when Guillen arrived at Villalobos's house to pick up JC, Villalobos informed Guillen that Defendant had taken JC. Guillen stated that JC had been dating Defendant for three months. Guillen also stated that she feared for her life and her family's lives because of everything that had happened. Guillen filed kidnapping charges on behalf of JC.

On September 24, 2008, EPCSO issued an AMBER Alert² for suspected kidnap victim JC and Defendant in a brown Kia Sephia.³ Later that same day, JC was recovered while crossing from Juarez, Mexico, to the United States.

In a subsequent interview, JC stated that she was eating outside the Villalobos residence on September 23, when she saw Defendant pull up in the brown Kia Sephia and park in front of the residence. Defendant then got out of the car, grabbed her by her arm and pushed her into the vehicle. JC stated she tried to fight back, but Defendant hugged her from behind and forced her into the backseat of the car, tearing her shirt in the process. Defendant then jumped in after JC and told the driver to go.

As the car drove off, Defendant asked JC why she did not want to be with him. She stated that he was just a friend, and Defendant got angry. The car then dropped her and Defendant off in the downtown area, where they were picked up by another driver in a different vehicle. They then drove around in the area of Defendant's aunt's house, but never stopped because Defendant thought he saw police in the area.

After an hour, JC and Defendant were dropped off near a bridge from El Paso, Texas to Juarez, Mexico. Defendant then grabbed JC's arm and led her across the bridge into Juarez. Once in Juarez, Defendant took JC in a taxi cab to a house that Defendant was able to unlock with a key. Defendant told JC that the house belonged to his aunt and that she was not home. Once inside, JC laid down on the couch and Defendant sat down beside her. Defendant started to touch JC's leg, but she told him to get away. Initially, Defendant stopped, but after a few minutes he came back and got on top of JC. Defendant pulled JC's pants down while he held JC hands above her head. Defendant then raped JC. JC struggled to push Defendant off and repeatedly told Defendant to get off of her. JC continued to struggle and Defendant stopped a few minutes later.

The next day, September 24, 2008, at approximately 9 a.m., JC and Defendant were watching television and saw the ABER Alert that had been issued for JC. JC suggested that Defendant let her go, but Defendant said that things could not get any worse. Defendant also stated that he believed that no one could find them in Juarez. Later that morning, Defendant received a telephone call regarding a work opportunity. Defendant told JC that he would be back in half an hour and that JC should not do anything stupid. Defendant then locked the door and left.

Once Defendant had left, JC found an open window and climbed out of the house. JC then made her way towards the border by following road signs. When she arrived at the border, JC begged for the money needed to pay the toll and cross over the bridge. Once JC had received enough money, she crossed back into the United States and informed Customs and Border Protection that she was the female in the AMBER Alert.

On October 8, 2008, a bench warrant was issued for Defendant, pursuant to a Criminal Complaint filed on that same day. (Docs. No. 1, 4). The Criminal Complaint charged Defendant with knowingly transporting a minor in foreign commerce with the intent to engage in illicit sexual conduct, in violation of Title 18, United States Code § 2423(a). Compl. 1. On November 25, 2008, Defendant was arrested and held without bond.

On December 10, 2009, a Grand Jury sitting in the Western District of Texas returned a seven-count Indictment against Defendant, charging Defendant with:

Count 1: Transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a).

Count 2: Travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C § 2423(b).

Count 3: Engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c).

Count 4: Coercion and enticement, in violation of 18 U.S.C. § 2422(a)

Count 5: Coercion and enticement, in violation of 18 U.S.C. § 2422(c)

Count 6: Transportation, in violation of 18 U.S.C. § 2421.

Count 7: Kidnapping, in violation of 18 U.S.C. § 1201(a).

Indictment 1-4.

On January 14, 2009, Defendant filed the instant Motion. In his Motion, Defendant argues that the charges in the Indictment are multiplicitous, and that the Government should be compelled to elect the Counts it chooses to prosecute and to dismiss the others. Def.'s Mot. 2-6. Defendant also argues that the Court lacks jurisdiction over Defendant's underlying alleged illicit sex acts in Counts 1, 2, and 3, because such actions took place in Mexico, and applying the laws in these Counts to Defendant violates principles of international law. Id. at 8-16. Defendant also argues that Count 3 must be dismissed because 18 U.S.C. § 2423(c) violates the Commerce Clause of the United States Constitution. Id. at 16-18. Defendant also requests the Court to order the Government to produce the minutes of the Grand Jury proceedings and to file a bill of particulars. Id. at 7-8; 18-22.

On January 27, 2009, the Government filed its Response to Defendant's Motion.

II. STANDARD

Federal Rule of Criminal Procedure 12(b)(2) states that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." FED. R.CRIM.P. 12(b)(2); United States v. Lankford, 196 F.3d 563, 569 (5th Cir.1999). A party must raise before trial "a motion [that] alleged a defect in the indictment or information—but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense[.]" FED.R.CRIM.P. 12(b)(3).

When challenging the constitutionality of a statute, a defendant may challenge the statute either on its face, or as the statute is applied to a defendant's particular circumstances. See United States v. Luna, 165 F.3d 316, 319-22 (5th Cir.1999) (analyzing the constitutionality of 18 U.S.C. § 922 both facially and as applied); United States v. Robinson, 119 F.3d 1205, 1213-15 (5th Cir.1997) (holding the Hobbs Act to be constitutional both facially and as applied to the defendant). Outside of the First Amendment context, a plaintiff may only succeed in a facial challenge to the constitutionality of a statute by "establishing that no set of circumstances exists under which the Act would be valid."⁴ Washington State Grange v Washington State Republican Party, ___ U.S. ___, 128 S.Ct. 1184, 1190 & n. 6, 170 L.Ed.2d 151 (2008) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); Center for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir.2006).

III. DISCUSSION

A. Multiplicity of Counts

Defendant first argues that a number of the Counts in the Indictment are multiplicitous. Def.'s Mot. 2. Specifically, Defendant argues that several of the Counts, though charged under different statutes or statutory subsections, require proof of the same facts, and therefore expose Defendant to multiple punishments for the same act. Id. Defendant argues that Counts one and six are multiplicitous, and Counts four, five and seven are multiplicitous. Id. at 3-7. Defendant argues that the Government should be compelled to elect the Counts it chooses to prosecute and to dismiss all other Counts. Id. at 2.

"The rule against multiplicitous prosecutions stems from the Fifth Amendment's proscription against double jeopardy." United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007) (citing United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995)). "The rule prevents the Government from charging a single offense in more than one count...