United States v. Jenkins

• Decision Date: 15 October 2012
• Docket Number: Criminal No. 12–15–GFVT.
• Citation: 909 F.Supp.2d 758
• Parties: UNITED STATES of America, Plaintiff, v. David Jason JENKINS and Anthony Ray Jenkins, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

909 F.Supp.2d 758

UNITED STATES of America, Plaintiff,

v.David Jason JENKINS and Anthony Ray Jenkins, Defendants.

Criminal No. 12–15–GFVT.

United States District Court,

E.D. Kentucky,

Southern Division,

London.

Oct. 15, 2012.

Hydee R. Hawkins, U.S. Attorney's Office, Lexington, KY, for Plaintiff.

Andrew M. Stephens, Lexington, KY, for Defendants.

MEMORANDUM OPINION & ORDER

GREGORY F. VAN TATENHOVE, District Judge.

Though it would be an exceedingly rare occurrence for any person to physically assault another without as much as a fleeting trace of hate in his or her heart, Congress has seen fit to provide special federal protections against designated “hate crimes.” The United States alleges that when David Jenkins and Anthony Jenkins kidnapped Michael Pennington and assaulted him, they did so on the basis of Pennington's sexual orientation in violation of, among other crimes, 18 U.S.C. § 249(a)(2), the Matthew Shepherd and James Bird Hate Crime Prevention Act (“HCPA”).

The Jenkinses believe this law violates the United States Constitution. As a preliminary matter, they believe that federal jurisdiction here cannot rest on the Commerce Clause.¹ If it does, they contend that § 249(a)(2) of the HCPA violates the equal protection and substantive due process components of the Fifth Amendment; the First Amendment prohibition against vague and overbroad statutes; and, by charging the Jenkinses with kidnapping, they have been unconstitutionally placed in jeopardy twice for the same criminal event. For the reasons that follow, the Jenkinses' Motions to Dismiss will be denied.²

I.

According to the Government, on a spring night in 2011, Anthony and David Jenkins made plans to kidnap and assault Kevin Pennington because they knew him to be a homosexual. They solicited assistance of Mable Ashley Jenkins and Alexis Leeann Jenkins to lure Pennington from his home under the false pretense of accompanying them to obtain drugs. They led him into Anthony Jenkins's new white pick-up truck wherein the Jenkinses had obscured the light and used clothing to conceal their identity so that Pennington, who might have had reason to recognize their intentions, did not know of their presence.

The group traveled on U.S. Highway 119 toward Kingdom Come State Park. In transit, Pennington realized that the defendants were in the car, but despite his requests, he was prevented from exiting the vehicle. Pursuant to the plan, the Jenkinses drove Pennington to a secluded area of Kingdom Come State Park, where they restrained and “brutally beat Pennington while yelling anti-homosexual comments.” [R. 70 at 3].

Fortunately, Pennington escaped from the attack and alerted local law enforcement officials. The Jenkinses were ultimately arrested and charged with the attempted murder of Pennington. The state court prosecution against them was dismissed on March 26, 2012, because they, “had been charged by federal authorities under the same facts as the Commonwealth charges.” [R. 61–2]. The Office of the Attorney General certified the case for federal prosecution on April 9, 2012 because, “the State has requested that the Federal Government assume jurisdiction, and because it is in the public interest and necessary to secure substantial justice.” [R. 61–1]. The United States filed its Indictment against the Jenkinses on April 11, 2012, charging them with conspiring to kidnap Pennington in violation of 18 U.S.C. § 1201(c), kidnapping Pennington in violation of 18 U.S.C. § 1201, and willfully causing bodily injury to Pennington because of his actual or perceived sexual orientation in violation of 18 U.S.C. § 249(a)(2). Based primarily upon the latter of these charges, the Jenkinses have now raised four Motions to Dismiss.

II.

Congress passed the Hate Crimes Prevention Act in 2009 and it has since been considered in a very limited number of cases across the county, including only once by the Sixth Circuit. See Glenn v. Holder 690 F.3d 417 (6th Cir.2012) (concluding that two pastors did not have standing to challenge the constitutionality of the Act). The Jenkinses are charged under § 249(a)(2):

(2) Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.—

(A) In general.—Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—

(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(I) death results from the offense; or

(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

(B) Circumstances described.—For purposes of subparagraph (A), the circumstances described in this subparagraph are that—

(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim-

(I) across a State line or national border; or

(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

(iv) the conduct described in subparagraph (A)—

(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

(II) otherwise affects interstate or foreign commerce.

(b) Certification requirement.—

(1) In general.—No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that-

(A) the State does not have jurisdiction;

(B) the State has requested that the Federal Government assume jurisdiction;

(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

Though the HCPA is not the first piece of hate crime legislation, it does make substantial changes to the predecessor statute, 18 U.S.C. § 245, including the addition of sexual orientation as a basis of violation.

A.

1.

Why is this a Federal Crime? After all, this type of violent act is exactly the kind of crime traditionally prosecuted by state and local authorities. What is it about this circumstance that gives the Federal Government the power to hold these defendants accountable for these acts? Traditionally, it is the Commerce Clause that answers the questions posed. Congress, after all, has the power to regulate the “channels of interstate commerce” and “persons or things in interstate commerce,” and even certain activities that “substantially affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). And it is these categories that deserve careful attention before going any further.

In Lopez, the Supreme Court recognized that while the changing American economy had led to a considerable broadening of the power provided Congress under the Commerce Clause, “this power is subject to outer limits.” Lopez, 514 U.S. at 556–57, 115 S.Ct. 1624. The Court seemed especially concerned that the expanding power available under the Commerce Clause would encroach on federalism to an extent that “would effectively obliterate the distinction between what is national and what is local and create a completely centralized government.” Lopez, 514 U.S. at 557, 115 S.Ct. 1624 (quoting NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)), (quoted by United States v. Faasse, 265 F.3d 475, 481 (6th Cir.2001)).

To more clearly define these limits, the Court summarized its previous Commerce Clause jurisprudence and set forth “three broad categories of activity that Congress may regulate under its Commerce Clause power.” Lopez, 514 U.S. at 558, 115 S.Ct. 1624. The Court articulated those categories as follows:

First Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Lopez, 514 U.S. at 558–59, 115 S.Ct. 1624 (internal citations omitted).

The Lopez Court began its analysis by determining which of the three categories of activity Congress was regulating in its passage of the Gun–Free School Zones Act, 18 U.S.C. § 922(q)(1)(A) (“GFZA”). The GFZA proscribed the knowing possession of a firearm within a school zone. The Court quickly reasoned that because the GFZA did not regulate the use of channels of interstate commerce nor protect an instrumentality or thing in interstate commerce, it could not be sustained under the first two categories, and its constitutionality would be determined under the third, which asked whether the activities regulated had a substantial impact on interstate commerce. Lo...