United States v. Lira
| Decision Date | 05 December 2022 |
| Docket Number | 22 Cr. 151 (LGS) |
| Parties | UNITED STATES OF AMERICA, v. ERIC LIRA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant Eric Lira was indicted on March 8, 2022, on one count of engaging in a major international doping fraud conspiracy in violation of the Rodchenkov Anti-Doping Act of 2019 (“RADA”), 21 U.S.C §§ 2401-2404, and one count of engaging in a drug adulteration and misbranding conspiracy in violation of 21 U.S.C. §§ 331, 333(a)(1). Defendant moved to dismiss Count One of the Indictment on various constitutional grounds and to dismiss or transfer the case for lack of proper venue. For the reasons below, both motions are denied.
The following facts are taken from the allegations in the Indictment filed on March 8, 2022. Count One charges Defendant with conspiring with others to effect a scheme in which he “agreed with others to provide, and did provide, multiple prohibited performance enhancing drugs including but not limited to human growth hormone and erythropoietin, to athletes qualifying for and intending to compete in the 2020 Tokyo Olympics.” Count Two charges Defendant with a conspiracy the object of which was to defraud by introducing misbranded drugs into interstate commerce. The Indictment alleges that Defendant engaged in the conduct alleged in both counts “in the Southern District of New York and elsewhere.”
The Indictment alleges the following overt acts in furtherance of the alleged conspiracies. On or about June 7, 2021, while in New York City, Defendant “engaged in conversations with” a Nigerian athlete about Defendant's plans to travel to sell misbranded performance enhancing drugs (“PEDs”) to the athlete. On or about June 14 2021, Defendant provided human growth hormone (“hGH”) and erythropoietin to a Swiss athlete. On or about June 20, 2021, Defendant and the Swiss athlete discussed potential effects of using hGH. On or about August 11 and 16, 2021, Defendant and an unnamed co-conspirator discussed the fact that the Swiss and Nigerian athletes, respectively, had tested positive for hGH. Defendant and his co-conspirator discussed that the athletes could claim that that their positive tests were caused by the consumption of beef.
” United States v. Hoskins, 44 F.4th 140, 157 (2d Cir. 2022) (quoting United States v. Lange, 834 F.3d 58, 68-69 (2d Cir. 2016)). When “a defendant is charged with multiple crimes in a single indictment, the government must satisfy venue with respect to each charge.” United States v. Purcell, 967 F.3d 159, 186 (2d Cir. 2020), cert. denied, 142 S.Ct. 121 (2021).
“[W]here venue is challenged on a pre-trial motion to dismiss, the Government's burden is limited to showing that the indictment alleges facts sufficient to support venue.” United States v. Milton, No. 21 Crim. 478, 2021 WL 5304328, at *3 (S.D.N.Y. Nov. 15, 2021), appeal dismissed, No. 21-2937, 2022 WL 1738158 (2d Cir. Mar. 17, 2022) (internal quotation marks omitted). “At this initial stage, the government need only ‘allege that criminal conduct occurred within the venue, even if phrased broadly and without a specific address or other information,' and the question of whether there is sufficient evidence to establish venue is left for trial.” Id. (quoting United States v. Ohle, 678 F.Supp.2d 215, 231 (S.D.N.Y. 2010)).
Defendant's motion to dismiss for lack of venue is denied without prejudice to renewal at the close of the Government's case because the Indictment alleges that the conduct constituting the offenses occurred “within the Southern District of New York and elsewhere.” United States v. Dupigny, 18 Crim. 528, 2019 WL 2327697, at *4 . That language is sufficient to establish venue on a motion to dismiss. See, e.g., United States v. Chocron, No. 20 Crim. 400, 2021 WL 3005086, at *1 (S.D.N.Y. July 14, 2021) (citing United States v. Chalmers, 474 F.Supp.2d 555, 574-75 (S.D.N.Y. 2007)); United States v. Griffith, No. 20 Crim. 15, 2020 WL 4369650, at *2 (S.D.N.Y. July 29, 2020). “[W]hether there is sufficient evidence to support venue in this District is appropriately left for trial.” Chalmers, 474 F.Supp.2d at 575.
In the alternative, Defendant requests a transfer of venue to the Western District of Texas. Defendant's only argument in favor of a transfer is that venue is improper in this District. Defendant's request for alternative relief is denied for the same reasons discussed above.
Defendant moves to dismiss Count One of the Indictment on non-delegation, vagueness and overbreadth grounds. Defendant's motion is denied because none of the three constitutional doctrines invoked applies to RADA.
Defendant argues that RADA violates the constitution's non-delegation doctrine, which “limits Congress' authority to delegate its law-making function.” United States v. Mingo, 964 F.3d 134, 137 (2d Cir. 2020). Defendant's motion to dismiss on this ground is denied because RADA contains no delegation by Congress of legislative or regulatory authority.
In general, the non-delegation doctrine holds that Congress “may not transfer to another branch ‘powers which are strictly and exclusively legislative.'” Gundy v. United States, 139 S.Ct. 2116, 2123 (2019). Courts recognize, however, that “Congress simply cannot do its job absent an ability to delegate power under broad general directives,” id., and may “obtain the assistance of its coordinate branches.” Mingo, 964 F.3d at 137 (cleaned up). Congress may delegate its power to other branches of the federal government so long as it also “lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.” Gundy, 139 S.Ct. at 2123 (cleaned up). “This ‘intelligible principle' test requires that ‘Congress clearly delineates the policy, the public agency which is to apply it, and the boundaries of this delegated authority.'” Mingo, 964 F.3d at 137-38 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).
While Congress has well-established authority to delegate such regulatory authority to the Executive branch it cannot delegate regulatory authority to a private entity. See Dep't of Transp. v. Ass'n of Am. R.R., 575 U.S. 43, 46, 50-51, 55 (2015) (). Defendant invokes this “private non-delegation doctrine,” arguing that RADA is unconstitutional because its scope can change based on the act of an entity outside of the U.S. government. Defendant lacks standing to raise this argument. In any event, Defendant has identified no precedent for holding that a statute like RADA acts as a delegation of regulatory authority, and the Government has identified ample precedent for Congress exercising its legislative authority in the manner it did in RADA.
RADA makes it illegal “for any person, other than an athlete, to knowingly carry into effect, attempt to carry into effect, or conspire with any other person to carry into effect a scheme in commerce to influence by use of a prohibited substance or prohibited method any major international sports competition.” 21 U.S.C. § 2402(a). Defendant's argument rests on RADA's definitions of “prohibited substance” and “prohibited method.” The statute gives each of those terms the “meaning given the term in Article 2” of the United Nations Educational, Scientific, and Cultural Organization International Convention Against Doping in Sport done at Paris October 19, 2005, and ratified by the United States in 2008 (the “Convention”). See 21 U.S.C. § 2401(4), (7), (8). The definitions of “prohibited substance” and “prohibited method” in Article 2 of the Convention, in turn, refer to “any substance” or “any method” so described on the “Prohibited List,” “which appears in Annex I to this Convention.” Convention, art. 2, ¶¶ 17-19, https://unesdoc.unesco.Org/ark:/48223/pf0000142594. The “Prohibited List” referenced in the Convention is promulgated periodically by the World Anti-Doping Agency (“WADA”) -subject to a veto by the parties to the Convention -- as part of the World Anti-Doping Code (the “Code”). See World Anti-Doping Agency, World Anti-Doping Code 2021 at 31 n.24, https://www.wada-ama.org/sites/default/files/resources/files/2021wadacode.pdf (“The Prohibited List is an integral part of the International Convention against Doping in Sport.”); Convention, art. 34 (governing amendments to Annex I).
Defendant lacks standing to assert a non-delegation challenge to RADA. Even assuming RADA delegates regulatory authority, Defendant is not harmed by any exercise of that authority.
RADA is ambiguous about whether the list of “prohibited substances” and “prohibited methods” was fixed at the time the Convention was “ratified by the United States in 2008,” or whether it incorporates the list as it continues to be updated. If the fixed interpretation is correct, then RADA's scope cannot be changed except by an act of Congress, and there is no colorable basis for finding a...
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