U.S. v. Smallbear

Decision Date26 April 2005
Docket NumberNo. CR 04-1558 BB.,CR 04-1558 BB.
Citation368 F.Supp.2d 1260
PartiesUNITED STATES of America, Plaintiff, v. Felicia SMALLBEAR, Defendant.
CourtU.S. District Court — District of New Mexico
368 F.Supp.2d 1260
UNITED STATES of America, Plaintiff,
Felicia SMALLBEAR, Defendant.
No. CR 04-1558 BB.
United States District Court, D. New Mexico.
April 26, 2005.

Page 1261

D. Penni Adrian, Albuquerque, NM, for Felicia J. Smallbear.

Page 1262


BLACK, District Judge.

DEFENDANT has moved to dismiss the one-count indictment charging her with first degree murder on the ground that the amended PROTECT Act, 18 U.S.C. § 1111, (the "Act"), as here applied, violates the Due Process Clause of the Fifth Amendment. At oral argument on the motion on March 22, 2005, Defendant also sought to challenge the Act on Equal Protection grounds as well. The Court allowed supplemental briefing and having considered the briefs finds: (1) the Act does not violate Due Process by allowing "a child exception to the traditional mens rea requirement for first degree murder"; (2) the merger doctrine does not apply; and (3) Equal Protection does not prohibit including of only a child as a basis for felony murder.

I. Facts

The indictment charges Defendant Felicia Smallbear with first degree murder under 18 U.S.C. § 1111(a) in that Ms. Smallbear "did unlawfully kill John Doe, an Indian child, with malice aforethought by perpetrating child abuse wherein the Defendant intentionally and knowingly caused the death and serious bodily injury to John Doe." The Government alleges that on May 28, 2004, Defendant struck the child's head against a fireplace with sufficient force to cause an injury resulting in death.

II. Mens Rea

The PROTECT Act, 18 U.S.C. § 1111, now provides: "Every murder perpetrated by poison, lying in wait, or other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate ..., child abuse ... is murder in the first degree." 18 U.S.C. § 1111. The Act defines "child abuse" as "intentionally or knowingly causing death or serious bodily injury to a child...." 18 U.S.C. § 1111(c)(3).

Defendant argues that under this standard, since "the Government no longer must prove intent to kill, upon the death of a child, the Government may convict a person of murder in the first degree upon nothing more than proof of knowingly causing serious bodily injury to the child." (Mot. Dismiss p. 1). Defendant reasons that this violates the Due Process guaranteed through the Fifth Amendment because "in Anglo-American jurisprudence premeditation is considered of great legal importance ... imposing the same punishment on both a homicide that was not specifically intended and on one that was committed with the specific purpose of taking another's life; i.e., with premeditation, imposes the same degree of punishment and stigma upon acts with widely divergent degrees of culpability." Id. Defendant concludes, "the `actus reus' has been significantly broadened to include acts that have never been considered first degree murder." (Ibid. p. 3).

While there is some logic and respectable legal authority to support Defendant's broad position,1 the Tenth Circuit has expressly held it does not violate Due Process guarantees when Congress criminalizes acts against children even without requiring a mens rea. United States v.

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Ransom, 942 F.2d 775, 777 (10th Cir.1991) (statutory rape is a "strict liability" offense). Moreover, the felony murder rule has long recognized the malice required for the underlying felony, even though it may not be "premeditation," is legally sufficient to transform the unpremeditated murder into first degree murder. United States v. Nguyen, 155 F.3d 1219, 1225 (10th Cir.1998); United States v. Tham, 118 F.3d 1501 (11th Cir.1997). See further 2 CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW § 147 (15th ed.1994). "Thus, to prove the malice aforethought element of felony murder, the prosecution only need show commission of the specified felony." United States v. Pearson, 159 F.3d 480, 485 (10th Cir.1998); Montoya v. United States Parole Comm'n, 908 F.2d 635, 638 (10th Cir.1990); cf. United States v. Sides, 944 F.2d 1554, 1558 (10th Cir.1991) (defendants continuing participation in armed robbery satisfied malice aforethought). "Because malice aforethought is proved by commission of the felony, there is no active intent requirement with respect to the homicide." United States v. Chanthadara, 230 F.3d 1237, 1238 (10th Cir.2000).

Defendant further attacks this metamorphosis of intent contending, "[t]he Act, by creating a presumption of premeditation upon a finding that the defendant knowingly caused serious bodily injury, removes from...

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  • United States v. Bennett, Case No. 12–20459.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • December 4, 2013
    ...be ‘premeditation,’ is legally sufficient to transform the unpremeditated murder into first degree murder.” United States v. Smallbear, 368 F.Supp.2d 1260, 1263 (D.N.M.2005) (collecting cases). “Thus, to prove the ‘malice aforethought’ element of felony murder, the prosecution only need sho......

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