United States v. Good
| Decision Date | 29 May 2019 |
| Docket Number | 4:18-CR-3088 |
| Citation | 386 F.Supp.3d 1073 |
| Parties | UNITED STATES of America, Plaintiff, v. John Christopher GOOD, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on defendant, John Christopher Good's, objection (filing 512) to the Findings and Recommendation and Order (filing 503) of the Magistrate Judge, recommending that the defendant's Motion to Dismiss (filing 335) be denied. The Court has conducted a de novo review of the motion to suppress, pursuant to 28 U.S.C. § 636(b)(1). The Court concurs in the Magistrate Judge's factual findings, analysis, and conclusions of law. See filing 68. The Court therefore finds the defendant's objections to be without merit, and will adopt the Magistrate Judge's findings and recommendation.
Specifically, the Court does not accept the defendant's contention that the Magistrate Judge failed to address the "overly broad features" of 8 U.S.C. § 1324. Filing 512 at 21. In the context of the First Amendment, a statute may also be challenged as facially overbroad. The facial overbreadth doctrine "provides an avenue whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks , 864 F.3d 905, 912 (8th Cir. 2017) (citations and quotation marks omitted).
For a federal court to entertain a facial challenge under the overbreadth doctrine, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. Id. Facial challenges are disfavored because they "often rest on speculation ... [and] raise the risk of premature interpretation of statutes on the basis of factually barebones records." Phelps–Roper v. City of Manchester , 697 F.3d 678, 685 (8th Cir. 2012). That means the defendant "must identify a significant difference between his claim that the statute is facially invalid on overbreadth grounds, and his claim that it is unconstitutional as applied to his particular activity." Id. And it is inappropriate to entertain a facial overbreadth challenge when the defendant fails to adduce any evidence that third parties will be affected in any manner differently from himself. Id.
Here, as the Magistrate Judge correctly pointed out, the defendant has failed to meet that burden. Filing 503. Indeed, the defendant has made no attempt to allege any realistic scenarios in which § 1324(a)(1)(A)(iii) and (v)(I) would "compromise recognized First Amendment protections of parties not before the court." Id. So, to the extent that the defendant's objection to the Magistrate Judge's findings and recommendation is based on the facial overbreadth challenge, that objection will be overruled. Id. ; see Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (); see also Harrington v. Strong , 363 F. Supp. 3d 984, 1004 (D. Neb. Jan. 29, 2019) ().
As a final matter, the defendant also argues that "if the charges are not dismissed, Mr. Good does request an order disposing of any and all government contentions that his communications, including nonverbal communications, are evidence of criminal conduct and an order in limine excluding it." Filing 512 at 6. This argument is premature. And as such, the Court will deny this request without prejudice to reassertion before trial.
The Court will therefore adopt the Findings and Recommendation.
Defendant John Christopher Good is charged with four counts of violating the alien harboring statute, 8 U.S.C. § 1324. (Filing No. 284). Defendant argues each count is barred under the First Amendment and the Due Process Clause of the Fifth Amendment of the United States Constitution.1 Defendant Good seeks dismissal of all charges against him for failure to state an offense under Fed. R. Crim P. 12(b)(1) & (3) and on grounds that may be asserted under Fed. R. Crim. P. 29.2 (Filing No. 335, at CM/ECF p. 1).
After reviewing the parties' extensive briefing and the allegations within the superseding indictment, (Filing No. 284), for the reasons stated below, the motion to dismiss should be denied in its entirely.
CONTENTS
STANDARD OF REVIEW...––––
FACTUAL STATEMENT...––––
SUMMARY OF FINDINGS...––––
LEGAL ANALYSIS...––––
In general, "[a]n indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal to bar a subsequent prosecution." United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993). "In determining whether an Indictment has sufficiently set forth the elements of the charge, the Indictment will generally be deemed sufficient ‘unless no reasonable construction can be said to charge the offense.’ "
United States v. Hughson, 488 F. Supp. 2d 835, 840-41 (D. Minn. 2007) (quoting United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir. 1989) ). "An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994).3
However, even where the indictment alleges all the essential elements of a federal crime, a defendant may move to dismiss based on "any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b). Here, Good moves to dismiss on constitutional grounds, arguing the harboring and conspiracy subsections of 8 U.S.C. § 1324 as applied to Good4 are void for vagueness, fail to provide adequate notice, and violate Good's First Amendment rights. (Filing No. 338). Good also argues 8 U.S.C. § 1324 is overbroad and unconstitutional on its face. Finally, Good argues applying Rule 12(b), all counts must be dismissed as unconstitutional, Count I must be dismissed because under Good's interpretation of the statute and superseding indictment, Good had no co-conspirators, and Count II must be dismissed for lack of specificity.
On November 15, 2018, a grand jury returned a superseding indictment charging Good with one count of violating 8 U.S.C. § 1324(a)(1)(A)(v)(I) by conspiring to harbor and conceal aliens to reside in the country in knowing and reckless disregard that the aliens were not lawfully in the United States; two counts of violating 8 U.S.C. § 1324(a)(1)(A)(iii) for substantive violations of the same offense; and, one count of violating 18 U.S.C. § 1956(h) and Section 2 for conspiring to commit money laundering.
Specifically, as to Defendant Good, the superseding indictment on its face alleges as follows:
(Filing No. 284, at CM/ECF p. 5).
(Filing No. 284, at CM/ECF p. 6).
On or about June 21, 2018, JOHN C. GOOD advised JUAN PABLO SANCHEZ DELGADO and MAGDALENA CASTRO BENITEZ of possible ICE presence in the area and advised them to close the La Herradura restaurant if necessary to avoid detection and apprehension by law enforcement.
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