United States v. Johnson

• Decision Date: 05 March 2015
• Docket Number: Case No. 14-CR-390
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES OF AMERICA v. KEVIN JOHNSON, TYLER LANG

UNITED STATES OF AMERICA v. KEVIN JOHNSON, TYLER LANG

Case No. 14-CR-390

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 5, 2015

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Defendants Kevin Johnson and Tyler Lang ("Defendants") jointly move to dismiss the criminal indictment against them. For the reasons set forth below, the Court denies Defendants' motion.

BACKGROUND

An indictment charged Defendants under the Animal Enterprise Terrorism Act ("AETA") with damaging an animal enterprise, in violation of 18 U.S.C. § 43(a)(2)(A), and conspiring to damage an animal enterprise, in violation of 18 U.S.C. § 43(a)(2)(C). (R. 1, Indictment.) Specifically, the indictment alleges that Defendants caused significant damage to the property of a mink farm. (R. 1.)

The section of the AETA defining its offense conduct states as follows:

(a) Offense. Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate commerce -

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such a purpose -(A) intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family...of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so.

Shall be punished as provided for in subsection (b).

18 U.S.C. § 43(a). The indictment charges Defendants with violating §§ 43(a)(2)(A) and 43(a)(2)(C), but not § 43(a)(2)(B). (R. 1.)

The AETA defines "animal enterprise" as:

(A) a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing;

(B) a zoo, aquarium, animal shelter, pet store, breeder, furrier, circus, or rodeo, or other lawful competitive animal event; or

(C) any fair or similar event intended to advance agricultural arts and sciences.

18 U.S.C. § 43(d)(1). The AETA does not define "real or personal property."

Penalties under the AETA are based, in part, on the amount of "economic damage" that results from the offense. "Economic damage":

(A) means the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated experiment, the loss of profits, or increased costs, including losses and increased costs resulting from threats, acts or vandalism, property damage, trespass, harassment, or intimidation taken against a person or entity on account of that person's or entity's connection to, relationship with, or transactions with the animal enterprise; but

(B) does not include any lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise.

18 U.S.C. § 43(d)(3). Finally, the AETA also contains several "Rules of Construction," including the following:

Nothing in this section shall be construed—

(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.

(2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference...

18 U.S.C. §§ 43(e)(1)-(2).

Defendants move to dismiss the indictment against them, arguing that the AETA: 1) is facially overbroad because it criminalizes protected speech that causes an "animal enterprise" to lose profits or business goodwill; 2) is void for vagueness because its terms allow for and result in arbitrary and discriminatory enforcement against animal rights activists; and 3) violates substantive due process because it punishes as an act of "terrorism" non-violent damage to private property. The Court held oral argument on February 19, 2015 to provide the parties an opportunity to further elucidate their positions.

LEGAL STANDARD

Federal Rule of Criminal Procedure 12(b)(1) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "When considering a motion to dismiss, a court assumes all facts in the indictment are true and 'must view all facts in the light most favorable to the government.'" United States v. Fenzl, 731 F.Supp.2d 796, 799 (N.D. Ill. 2010) (quoting United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999)). "To successfully challenge the sufficiency of an indictment, a defendant must demonstrate that the indictment did not satisfy one or more ofthe required elements and that he suffered prejudice from the alleged deficiency." United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013). "[A]n indictment must state each element of the crimes charged, provide the defendant with adequate notice of the nature of the charges so that the accused may prepare a defense, and allow the defendant to raise the judgment as a bar to future prosecutions for the same offense." United States v. Nayak, 769 F.3d 978, 979-80 (7th Cir. 2014). An indictment also may be dismissed "if subject to a defense that raises a purely legal question." United States v. Boender, 691 F.Supp.2d 833, 837 (N.D. Ill. 2010) (citing United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D. Ill. 2003)). "The Fifth Amendment guarantees the right to an indictment by grand jury and serves as a bar to double jeopardy, while the Sixth Amendment guarantees that a defendant be informed of the charges against him." United States v. Anderson, 280 F.3d 1121, 1124 (7th Cir. 2002). In this regard, "[t]he test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." Vaughn, 722 F.3d at 925 (quoting United States v. Hausmann, 345 F.3d 952, 955 (7th Cir. 2003)).

ANALYSIS

I. Overbreadth Challenge

Defendants first argue that the AETA is facially overbroad because it criminalizes protected speech that causes an "animal enterprise" to lose profits or goodwill. This argument is directed at 18 U.S.C. § 43(a)(2)(A), which criminalizes actions that "intentionally damage[] or cause[] the loss of any real or personal property (including animals or records) used by an animal enterprise...," but does not define "real or personal property." Defendants argue that the phrase "intentionally damage[] or cause[] the loss of any real or personal property" includes lost profits and other purely economic damage. Defendants therefore contend that the AETA is faciallyoverbroad because it criminalizes speech, otherwise protected by the First Amendment, which intentionally causes an animal enterprise to lose profits, but does not damage any of its physical property.

Defendants' challenge to the AETA is facial, rather than as-applied to their charged conduct. "[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when 'judged in relation to the statute's plainly legitimate sweep.'" City of Chicago v. Morales, 527 U.S. 41, 52, 199 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); see also Bell v. Keating, 697 F.3d 445, 455-56 (7th Cir. 2012) (A facial challenge "is inappropriately employed unless the statute 'substantially' criminalizes or suppresses otherwise protected speech vis-à-vis its 'plainly legitimate sweep.'") (quoting United States v. Williams, 553 U.S. 285, 292-93, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)).

"[T]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting United States v. Williams, 553 U.S. at 293, 128 S.Ct. 1830). "To prevail in such a facial challenge, a plaintiff must cross a high bar. A statute is facially overbroad only when 'it prohibits a substantial amount of protected speech.'" Ctr. for Ind'l Freedom v. Madigan, 697 F.3d 464, 470-71 (7th Cir. 2012) (quoting Williams, 553 U.S. at 292, 128 S.Ct. 1830). The Supreme Court has recognized that "[b]ecause of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment," the "overbreadth doctrine is 'strong medicine'" that courts should employ "'onlyas a last resort.'" New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. 2908); see also Williams, 553 U.S. at 293, 128 S.Ct. 1830. A court should "construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction." Ferber, 458 U.S. at 769 n.24, 102 S.Ct. 3348.

A. The Plain Language of the Statute Excludes Economic Damage

The government and Defendants each make arguments as to whether the Court should interpret "real or personal property.used by an animal enterprise" to include (or exclude) purely economic damages or lost profits. See 18 U.S.C. § 43(a)(2)(A). The government argues that the statute is directed exclusively at tangible property, not intangible profits, and...