United States v. Chardón-Sierra
| Decision Date | 16 July 2019 |
| Docket Number | Criminal No. 19-153 (FAB) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ELIMAR ALICIA CHARDÓN-SIERRA, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Defendant Elimar Alicia Chardón-Sierra ("Chardón") moves to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b) ("Rule 12(b)"). (Docket No. 47.) For the reasons set forth below, the Court DENIES Chardón's motion.
On February 21, 2019, Federal Bureau of Investigation ("FBI") Special Agent Gerald Cavis ("Cavis") filed an affidavit in support of a criminal complaint against Chardón "regarding harassing phone messages left on the chambers voicemail of the Honorable Laura Swain, a United States District Judge in the Southern District of New York." (Docket No. 3, Ex. 1 at p. 2.)1 According to the affidavit, Chardón left three voicemail messages of increasinglengths for Judge Swain on February 5, 2019 at 9:03 a.m., 12:40 p.m., and 12:46 p.m. Id.
On February 28, 2019, a federal grand jury returned an indictment charging Chardón with violating 47 U.S.C. § 223(a)(1)(E) ("section 223(a)(1)(E)"). (Docket No. 21.) Pursuant to section 223(a)(1)(E):
Whoever in interstate or foreign communications . . . makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any specific person . . . shall be fined under Title 18 or imprisoned not more than two years, or both.
47 U.S.C. § 223(a)(1)(E). According to the indictment, "in interstate and foreign communications," Chardón "made repeated interstate telephone calls during which communication ensued in the form of several harassing voice messages, solely to harass a person at the called number and the person who received the communication." (Docket No. 21 at p. 1.)
On May 6, 2019, Chardón moved to dismiss the indictment because (1) the indictment "fails to state a criminal offense," and (2) section 223(a)(1)(E) is unconstitutional "on its face" and "as applied" to Chardón. (Docket No. 47 at pp. 2, 12, 20.) Chardón asserts that the indictment "fails to include alleged facts which state a prosecutable offense." Id. at p. 27. According to Chardón, "This 'offense depends crucially upon a specific identification of what the defendant [] said or did that constituted the course of conduct involving threats . . . harassment, and intimidation,'" and "this information is completely missing from the indictment." Id. (alteration in original) (citation omitted). Chardón argues that her voicemails "are clearly political" and "do not meet th[e] mens rea requirement" of section 223(a)(1)(E), and that the voicemails cannot be considered "repeated telephone calls" pursuant to section 223(a)(1)(E). Id. at pp. 27 and 29. Chardón states:
It is common knowledge that answering machines allow callers to leave voicemail messages on a limited time frame, so the fact that someone left three voicemails does not necessarily mean that they had the specific intent to make "repeated phone calls," but could easily had [sic] been interrupted by the answering service limited timeframe.
Chardón also contends that section 223(a)(1)(E) is unconstitutional as applied to her because it "imposes criminal sanctions" on her "First Amendment protected speech." (Docket No. 47 at p. 12.) Chardón maintains that she "is being prosecuted for the content of her speech, not her conduct." Id. at p. 13. She argues that the "voicemails were left at Judge Swain's public office not her home or personal phone number," that "[p]olitical speech has been granted extensive constitutional protection," and that the voicemails are "clearly political." Id. at pp. 14 and 17. According to Chardón, the voicemails express "her disappointment in Judge Swain [sic] approval of the COFINA settlement that will impose additional taxes to the residents of Puerto Rico for at least forty (40) more years." Id. at p. 17. "Her speeches criticize and describe the colonial relationship between U.S.A. and Puerto Rico, the poverty and the social crisis Puerto Ricans suffer on [sic] daily basis." Id.
Finally, Chardón claims that section 223(a)(1)(E) "is unconstitutional on its face because it prohibits a wide range of speech that would otherwise be protected under the Free Speech Clause of the First Amendment" of the United States Constitution. (Docket No. 47 at p. 20.) According to Chardón, "the statute's plain sweep encompasses a substantial amount of protected speech," such as "telephone calls to public officials where the caller has an intent to verbally 'abuse' a public official for taking a decision on an important political matter, 'annoy' him into changing a course of action, or 'harass' him until he addresses problems previously left unaddressed." Id. at p. 23.
An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7. When considering a motion to dismiss an indictment, the Court "must take the allegations in the indictment as true" and must be mindful that "the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense." United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (internal citation omitted).
An indictment is sufficient "if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy." United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and citation omitted). "[I]t is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words set forth all the elements of the offense without any uncertainty or ambiguity." United States v. Brown, 295 F.3d 152, 154 (1st Cir. 2002) (internal quotation marks and citation omitted). "[M]istaken or omitted indictment language is reversible if it deprived the appellant of notice or otherwise misled him to his detriment." Ford, 839 F.3d at 104 (internal quotation marks and citation omitted).
"[C]ourts routinely rebuff efforts to use a motion to dismiss as a way to test the sufficiency of the evidence behind an indictment's allegations." United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011). Whitehouse v. United States District Court, 53 F.3d 1349, 1360 (1st Cir. 1995) (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988)).
Chardón's indictment is sufficient because it apprises her of the charged offense, setting forth the elements of the crime and the nature of the charge. See Docket No. 21; Ford, 839 F.3d at 104. The indictment states that Chardón "made repeated interstate telephone calls during which communication ensued in the form of several harassing voice messages" on February 5, 2019. (Docket No. 21 at p. 1.) According to the indictment, Chardón made those calls "solely to harass a person at the called number and the person who received the communication" in violation of section 223(a)(1)(E). Id. These details afford Chardón the opportunity to "prepare a defense and plead double jeopardy in any future prosecution for the same offense." Guerrier, 669 F.3d at 3.
Chardón's counterarguments are unavailing. Her contention that the indictment must provide the precise language of the voicemails in order to satisfy the legal standard is erroneous because the United States "need not put forth specific evidence," Ngige, 780 F.3d at 502 (citing Fed. R. Crim. P. 7(c)(1)), and Chardón fails to demonstrate how the indictment deprives her of notice or misleads her to her detriment. See Ford, 839 F.3d at 104. Chardón's contentions that her voicemails "do not meet th[e] mens rea requirement" of section 223(a)(1)(E) and that "[s]he had the intention of making only one phone call but was interrupted by the answering service" are questions of fact reserved for the jury. See Docket No. 47 at pp. 29 and 30; McCormick v. United States, 500 U.S. 257, 270 (1991) (); United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (citing United States v. Covington, 395 U.S. 57, 60 (1969)) ("[A] court must deny a motion to dismiss if the motion relies on disputed facts."). Accordingly, the Court DENIES Chardón's motion to dismiss the indictment on sufficiency grounds. (Docket No. 47 at pp. 26-30.)
The First Amendment "removes from the government any power 'to restrict expression because of its message, its ideas, its subject matter, or its content.'" United States v. White, 610 F.3d 956, 959 (7th Cir. 2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)). "Even speech that a 'vast majority of its citizens believe to be false and fraught with evil consequence[s]' cannot be punished." Id. at 960 (quoting Whitney v. California, 274 U.S. 357, 374 (1927)).
There are limits, however, to First Amendment speech protections. See, e.g., White, 610 F.3d at 960. For example, "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 397, 376 (1968). A government regulation is "sufficiently justified" if: (1) "it is within the constitutional power of the...
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