U.S. v. Wright
| Decision Date | 02 May 1997 |
| Docket Number | No. 8:96CR-145.,8:96CR-145. |
| Citation | 965 F.Supp. 1307 |
| Parties | UNITED STATES of America, Plaintiff, v. Larry G. WRIGHT, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Mary H. Buckley, Assistant Federal Public Defender, Omaha, NE, for Defendant.
Michael P. Norris, Assistant U.S. Attorney, Omaha, NE, for Plaintiff.
Before the court is the "Motion To Dismiss" (filing no. 13 amended by filing no. 14) filed by the defendant, Larry G. Wright, who requests dismissal of the indictment (filing no. 1) against him because 18 U.S.C. § 2262(a)(1) is unconstitutional and, therefore, the court lacks subject matter jurisdiction in a prosecution based on an unconstitutional statute. Also before the court is filing no. 17, the "Report and Recommendation" of Magistrate Judge Thomas D. Thalken who recommends dismissal of the indictment because under the circumstances, Congress enacted 18 U.S.C. § 2262(a)(1) without the requisite basis of the Commerce Clause. See United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (). The government objects to Magistrate Judge Thalken's report and recommendation. See filing no. 18.
In view of the government's objections to Magistrate Judge Thalken's report and recommendation (filing no. 17), this court, pursuant to 28 U.S.C. § 636(b)(1)(B) and NELR 72.4; has conducted a de novo review of the report and recommendation and the record in this matter, including a review of the hearing conducted by Magistrate Judge Thalken on February 13, 1997 (filing no. 19).
In a three-count indictment, Wright is charged with separate violations of 18 U.S.C. § 2262(a)(1), namely, Wright, with the intent to violate a state court protection order concerning Michelle Lempka, traveled from Nebraska to Iowa where he entered Lempka's premises; later threw a brick through the window of Lempka's residence; and, finally, followed Lempka on Interstate 80 from Omaha Nebraska to Council Bluffs, Iowa. 18 U.S.C. § 2262(a)(1) states:
(a) Offenses
(1) Crossing a State line — A person who travels across a state line or enters or leaves Indian country with the intent to engage in conduct that —
(A)(i) violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued; or
(ii) would violate this subparagraph if the conduct occurred in the jurisdiction in which the order was issued; and
(B) subsequently engages in such conduct, shall be punished as provided in subsection (b).
Magistrate Judge Thalken concluded that § 2262(a)(1) exceeds Congress' legislative authority based on the Commerce Clause and that, therefore, § 2262(a)(a) is unconstitutional. See U.S. Const., Art. I, § 8, cl. 3 ("Commerce Clause"). After a de novo review of Magistrate Judge Thalken's thorough opinion which is the product of extensive research pertaining to all aspects of 18 U.S.C. § 2262(a)(1), the court finds and concludes that Magistrate Judge Thalken correctly analyzed § 2262(a)(1) under the requirements of Lopez. Consequently, the court adopts Magistrate Judge Thalken's report and recommendation in its entirety.
The court has considered the government's argument that "crossing a state line," as required by § 2262(a)(1), is equivalent to "interstate commerce." However, while crossing a state line may be activity that is "interstate," the government has failed to present any statutory language, legislative history, or other authority to support its assertion that "crossing a state line" constitutes interstate commerce subject to regulation by Congress.1 An interstate movement does not necessarily involve or otherwise have an impact or effect on interstate commerce, an indispensable and fundamental requirement for the constitutionality of legislation such as 18 U.S.C. § 2262(a)(1) and a jurisdictional element for violation of the statute under examination in this action. Additionally, Magistrate Judge Thalken observed that there is a paucity of legislative history surrounding the enactment of § 2262(a)(1). Consequently, Congress' failure to include "interstate commerce" as an element of the crime specified in 18 U.S.C. § 2262(a)(1) renders the statute unconstitutional in view of Lopez and the absence of a possible explanation in the rather limited legislative history regarding the "commerce" nexus necessary for the constitutional enactment of the legislation which is the basis of the present prosecution of Wright.
The court recognizes the undeniable gravity of domestic violence as a serious and widespread problem throughout the United States and that Congress, in passing the Violence Against Women Act, attempted to address that problem. However, in the absence of the foundation afforded by Commerce Clause, 18 U.S.C. § 2262(a)(1) is federal criminalization of a matter that is constitutionally the subject of state legislation.
The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required.... [U]nlike the earlier cases to come before the Court here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the same statute have an evident commercial nexus.... The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. Lopez, 514 U.S. at 580-83, 115 S.Ct. at 1640-1641 (concurring opinion of Justices Kennedy and O'Connor). Also, as noted by Magistrate Judge Thalken and this court, 18 U.S.C. § 2262(a)(1) "is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, 514 U.S. at 561, 115 S.Ct. at 1630-1631. Because this court is bound by the United States Constitution and the decision of the United States Supreme Court in Lopez, this court, in accordance with Lopez, must conclude that § 2262(a)(1) is invalid because the subject statute is legislation beyond Congress' power under the Commerce Clause and, therefore, is an unconstitutional basis for the prosecution of Wright in this action.
THEREFORE, IT IS ORDERED:
(1) That filing no. 17, the "Report and Recommendation" of Magistrate Judge Thomas D. Thalken, is adopted in its entirety;
(2) That filing no. 18, the "Objection" to Magistrate Judge Thalken's report and recommendation, filed by the United States of America, is overruled;
(3) That filing no. 13, as amended by filing no. 14, is granted; and
(4) That the Indictment (filing no. 1) in this action against the defendant, Larry G. Wright, is dismissed.
This matter is before the court on the defendant's motion to dismiss (Filing No. 13) as amended (Filing No. 14). The defendant, Larry G. Wright (Wright), is charged in a three-count indictment (Filing No. 1) with three separate violations of 18 U.S.C. § 2262(a)(1). Wright argues that 18 U.S.C. § 2262(a)(1) is unconstitutional under the rationale of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and that this court therefore lacks subject matter jurisdiction over the case. Wright has submitted a brief in support of his amended motion to dismiss (Filing No. 14), but the United States has elected not to submit a brief in opposition. The court heard oral argument from the parties on February 13, 1997. Appearing on behalf of the defendant was Mary H. Buckley, Assistant Federal Public Defender for the District of Nebraska. Appearing on behalf of the United States was Michael P. Norris, Assistant United States Attorney for the District of Nebraska.
Wright was indicted in the District of Nebraska on October 24, 1996 (Filing No. 1) for three alleged violations of 18 U.S.C. § 2262(a)(1). A protection order was allegedly issued by the District Court of Lancaster County, Nebraska in November of 1995 which prohibited Wright "from harming, harassing or coming near Michelle L. Lempka" (Lempka). Filing No. 1 at 1 and 2. While this protection order was in effect, Wright was alleged to have violated its terms on three separate occasions in violation of 18 U.S.C. § 2262(a)(1).
Specifically, the indictment (Filing No. 1) alleges the following violations of 18 U.S.C. § 2262(a)(1):
1) On or about May 23, 1996, Wright traveled from Omaha, Nebraska to Lempka's residence at 218 South 28th Street in Council Bluffs, Iowa and entered onto the premises in violation of the Lancaster County protection order.
2) On or about June 29, 1996, Wright traveled from Omaha, Nebraska to Lempka's residence at 218 South 28th Street in Council Bluffs, Iowa and threw a brick through her window in violation of the Lancaster County protection order.
3) On or about July 7, 1996, Wright followed Lempka from Omaha, Nebraska to Council Bluffs, Iowa on Interstate 80 in violation of the Lancaster County protection order.
See Filing No. 1. Wright was arraigned on the indictment on December 9, 1996 and he pled not guilty to the charges contained in the indictment.
"A Motion for the dismissal of a Count in an Indictment may be brought at any time pursuant to Rule 12(b)(2), Federal Rules of Criminal Procedure." United States v. Finn, 919 F.Supp. 1305, 1343 (D.Minn.1995). Wright moves for the dismissal of the indictment (Filing No. 1) in the instant case by asserting that 18 U.S.C. § 2262(a)(1) is an unconstitutional exercise of congressional power under...
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