United States v. Jordan
| Decision Date | 13 May 2021 |
| Docket Number | CRIMINAL NO.: 3:18cr67-CWR-LGI |
| Parties | UNITED STATES OF AMERICA v. AUBREY MAURICE JORDAN |
| Court | U.S. District Court — Southern District of Mississippi |
Aubrey Jordan has filed a Motion to Dismiss Counts 6 and 7 [Doc. #200], in which he contends that the indictment of him on those two counts fails to include necessary elements of the crimes for which he has been charged and that the Government cannot prove those charges on the basis of the evidence that has been presented thus far. For the reasons more fully set out below, the Court denies the Motion.
As taken from the Governments statement of facts in response to the Motion to Dismiss, the relevant facts are these:
On September 21, 2017, and October 9, 2017, a confidential source ("A.F.") for the East Mississippi Drug Task Force ("EMDTF"), working in conjunction with the U.S. Drug Enforcement Administration ("DEA-Jackson"), conducted two controlled purchases of suspected MDMA/Ecstasy pills from Defendant Monroe Hughes ("Defendant Hughes") and Defendant Cortez Byrd ("Defendant Byrd"). While the Government was awaiting results from the DEA Lab, between February 2018, and March 10, 2018, a series of conversations took place between Defendant Hughes, Defendant Byrd and Defendant Jordan, all in an attempt to determine the identity of the informant in the October 2017, drug transaction. On March 10, 2018, Defendant Byrd told an unidentified female not to go out, telling her that he "got something planned" and that he did not need any witnesses. That night, on March 10, 2018, A.F. was shot in the back of the neck at Just Friends nightclub (also known as "JR's lounge") in Meridian, Mississippi.
Based on these events, Aubrey Jordan was charged with several offenses; the charges at issue here are as follows:
COUNT 6
COUNT 7
Jordan contends that the indictment fails to contain all of the necessary elements of 18 U.S.C. § 1513(a)(1)(B) and (f), which provide:
. . . .
(f) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
Count 6 of the indictment charges that Jordan "killed A.F. by shooting A.F. with a firearm, with the intent to retaliate against A.F. for providing to a law enforcement officer information relating to the commission or possible commission of a federal offense." Thislanguage tracks the language of the statute exactly; however, that is not the end of the analysis. Another statute, 18 U.S.C. § 1515, provides definitions for the terms used in § 1513, and defines the term "law enforcement officer" as "an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government, or serving the Federal Government as an adviser or consultant" who is authorized to engage in the investigation or prosecution of offenses. Combining those statutes, it is clear that the Government will have to provide evidence that the law enforcement officer to whom A.F. was providing information was connected to the federal government.
Jordan seeks to add yet another qualifier to the charges against him - that he knew that A.F. was providing information to a law enforcement officer connected to the federal government. As support for that contention, Jordan has provided a case in which this requirement was adopted, in the context of a plea bargain. United States v. Denham, 663 F. Supp. 2d 561, 565 (E.D. Ky. 2009). Denham dealt with 18 U.S.C. § 1513(b). Both 1513(a) and (b) prohibit retaliation for attending or testifying at an official proceeding or providing information to a law enforcement officer. Section 1513(a), under which Jordan was charged, is violated by killing or attempting to kill; 1513(b) is violated by causing bodily injury, property damage, or threats of injury or damage. Both sections rely on 18 U.S.C.A. § 1515 for definitions, and, in accordance with that statute, an official proceeding must be before a federal court, and a law enforcement officer must be a federal agent.
In Denham, the defendants were charged with conspiring to threaten bodily injury to someone who had given information to law enforcement. During a plea hearing, the court inquired as to whether the defendants had to know that the law enforcement official was federal, and ordered briefing on the issue. Recognizing the lack of judicial precedent on this issue, thecourt conducted an exhaustive review of caselaw, statutory construction, and legislative history to conclude that it could not accept a guilty plea from a defendant who had not admitted knowledge of a federal connection. Id. at 574. While rejecting the guilty plea, however, the court further explained that the rejection "does not prejudice the Government's opportunity to prove each essential offense element at trial." Id. at 575.1
Similarly, a later case from the Fourth Circuit affirmed a conviction under 18 U.S.C. § 1513(b)(1) despite a claim that a jury instruction misstated the law by informing the jury that it did not have to find knowledge that the law enforcement officer was a federal agent. United States v. Bullock, 603 F. App'x 157, 159 (4th Cir. 2015). The defendant claimed that the instruction confused the jury as to the charge of retaliation for testimony at an official proceeding. Without discussion, the court stated, "[T]he district court twice properly instructed the jury that to convict Bullock under 18 U.S.C. § 1513(b)(1), it needed to find that Bullock knew the official proceeding was a federal one." Id. In yet another case, a West Virginia district court recognized that the requirement of knowledge of the federal character of law enforcement was an unsettled question; however, where the defendant had stipulated as part of his plea agreement to the facts that would establish it, even if the stipulation was the only proof on that issue, and even if the stipulation was inadvertent, the plea agreement would stand. United States v. Stevens, No. 2:09-cr-00222-11, 2010 WL 5343189, at *3 (S.D. W.V. Dec. 21, 2010).
In contrast to Denham, the Second Circuit reached the opposite conclusion on the issue of knowledge of the federal character of law enforcement, where the provision at issue was §1513(b)(1),2 and the question was whether to affirm a conviction in the absence of proof that the defendant knew that the victim had testified in a federal proceeding. United States v. Escalera, 957 F.3d 122 (2d Cir.), cert. denied, Cotto v. United States, 141 S.Ct. 399 (2020). Like the Denham court, the Second Circuit parsed the language of the statute, reviewed similar case law, and considered legislative history, but concluded, "Neither the text nor legislative history of § 1513 demonstrates that Congress considered a defendant's knowledge of the federal nature of the 'official proceeding' to be an essential element of the offense." Id. at 132. "We hold," the court declared, "that to convict under § 1513(b)(1) the Government is not required to prove that the defendant knew of the federal nature of the proceedings." Id. at 129.
Counsel for Jordan contends that the holding in Escalera is "fatally flawed." Docket No. 211, at 3. He expresses his disagreement with that court throughout his reply, asserting that the court's analysis "misses the mark;," "is puzzling;" is "terribly wrong," and that court's errors were due in large part to it reliance on one of its erroneous prior decisions, United States v. Jennings, 471 F.2d 1310 (2d Cir. 1973). Id. at 10, 13, 14.
Unfortunately, for Jordan, this Court does not see the flaws of the Escalera decision. In fact, like the Escalera court, this this Court believes that "the legislative history confirms that Congress intended the limitation of § 1513 to acts of retaliation for participation in federal proceedings as a jurisdictional element, i.e., a provision to limit the effect of the statute to offenses within Congress's power to regulate." Escalera, 957 F.3d at 132. As the Fifth Circuit has acknowledged, "courts have been consistent in not applying the mens rea of statutes to federal jurisdictional elements, unless the language of the statute requires such a result." United States v. Terrell, 700 F.3d 755, 759 (5th Cir. 2012). See also United States v. Feola, 420 U.S.671, 676 n. 9, ("[T]he existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act...
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