United States v. Williams

• Decision Date: 25 March 2014
• Docket Number: Crim. No. 06–00079 JMS–KSC.
• Citation: 8 F.Supp.3d 1219
• Parties: UNITED STATES of America, Plaintiff, v. Naeem J. WILLIAMS, Defendant.
• Court: U.S. District Court — District of Hawaii

8 F.Supp.3d 1219

UNITED STATES of America, Plaintiff

v.Naeem J. WILLIAMS, Defendant.

Crim. No. 06–00079 JMS–KSC.

United States District Court, D. Hawai‘i.

Signed March 25, 2014.

Darren W.K. Ching, Office of the United States Attorney, Honolulu, HI, for Plaintiff.

Barry D. Edwards, Kaneohe, HI, John Timothy Philipsborn, Michael N. Burt, Law Office of Michael Burt, San Francisco, CA, for Defendant.

ORDER REGARDING SUFFICIENCY OF COUNT ONE OF THE SECOND SUPERCEDING INDICTMENT, RAISED IN DEFENDANT'S MARCH 18, 2014 TRIAL MEMORANDUM, DOC. NO. 2452

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

In this capital murder case, Defendant Naeem Williams filed a Trial Memorandum on March 18, 2014, objecting to certain testimony of Dr. Sharon Cooper and Dr. Kanthi De Alwis, who are proposed government expert witnesses. Doc. No. 2452.¹ Defendant's Trial Memorandum, however, does more than challenge expert testimony—it raises a more fundamental issue, challenging the sufficiency of Count One of the Second Superceding Indictment (the “Indictment”). The court denied that legal challenge in open court on March 20, 2014. This Order explains the court's reasons for rejecting Defendant's argument, and for upholding the sufficiency of the Indictment.

II. DISCUSSION

A. The Indictment and Corresponding Statutory Provisions

Among other Counts, the Indictment charges Defendant with two capital-eligible Counts of felony murder arising out of Defendant's role in allegedly killing his five-year-old daughter. Specifically, Count One charges Defendant with first degree felony murder, in violation of 18 U.S.C. §§ 7 & 1111, as follows:

On or about July 16, 2005 ... the defendant NAEEM J. WILLIAMS, with malice aforethought, did unlawfully kill Talia Williams, a “child,” in the perpetration of “child abuse,” as those terms are defined by Title 18 United States Code, Section 1111(c).

All in violation of Title 18, United States Code, sections 7(3) and 1111(a) & (b).

Doc. No. 1004, Indictment at 2. Count Two charges Defendant with first degree felony murder, and aiding and abetting first degree felony murder, in violation of 18 U.S.C. §§ 7 & 1111, as follows:

From beginning on a date unknown to the Grand Jury, but at some time after December 13, 2004, and culminating in the death of Talia Williams on July 16, 2005 ... the defendant NAEEM J. WILLIAMS and Delilah Williams (who is not a defendant in this Second Superceding Indictment) with malice aforethought, did unlawfully kill, and did aid and abet each other in the killing of Talia Williams, a “child,” in the perpetration of part of a “pattern and practice of assault and torture” against a “child,” as those terms are defined by Title 18, United States Code, Section 1111(c).

All in violation of Title 18, United States Code, Sections 2, 7(3) and 1111(a) & (b).

Id. at 3.

Thus, the Indictment charges two violations of 18 U.S.C. § 1111, which provides, in relevant part:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. [Emphases added]

....

(c) For purposes of this section—

....

(2) the term “child” means a person who has not attained the age of 18 years and is—

(A) under the perpetrator's care or control; or

(B) at least six years younger than the perpetrator;

(3) the term “child abuse” means intentionally or knowingly causing death or serious bodily injury to a child;

(4) the term “pattern or practice of assault or torture” means assault or torture engaged in on at least two occasions;(5) the term “serious bodily injury” has the meaning set forth in section 1365; and

(6) the term “torture” means conduct, whether or not committed under the color of law, that otherwise satisfies the definition set forth in section 2340(1).

In turn, 18 U.S.C. § 1365(h) provides in relevant part:

(3) the term “serious bodily injury” means bodily injury which involves—

(A) a substantial risk of death;

(B) extreme physical pain;

(C) protracted and obvious disfigurement; or

(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; and

(4) the term “bodily injury” means—

(A) a cut, abrasion, bruise, burn, or disfigurement;

(B) physical pain;

(C) illness;

(D) impairment of the function of a bodily member, organ, or mental faculty; or

(E) any other injury to the body, no matter how temporary.

And 18 U.S.C. § 2340 provides:

(1) “torture” means an act committed by a person ... specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering[.]

B. Defendant's Primary Argument²

Applying the statutory terms, Defendant reads § 1111(c)(3) to mean there are two distinct types of “child abuse”—the first type is “intentionally or knowingly causing death,” and the second type is “intentionally or knowingly causing serious bodily injury.” So construed, Defendant contends that the Indictment charges only the first type (intentionally or knowingly causing death). Thus, Defendant argues that the government—having indicted Defendant on the first type—cannot now pursue the second type of child abuse (serious bodily injury).

Defendant further argues that allowing the government to pursue this second type of child abuse (serious bodily injury) would amount to an unconstitutional constructive amendment of the Indictment. See Doc. No. 2452, Trial Brief at 7 (citing United States v. Shipsey, 190 F.3d 1081, 1085–86 (9th Cir.1999) ( “The Fifth Amendment's Grand Jury Clause endows defendants who are charged with felonies with a substantial right to be tried only on the charges set forth in an indictment by a grand jury.”)).³

And because (according to Defendant) the Indictment does not charge “serious bodily injury” child abuse in Count One, Defendant concludes that expert testimony from Dr. Cooper on “extreme physical pain” (as provided in 18 U.S.C. § 1365(h)(3)(B)'s definition of “serious bodily injury”) is irrelevant and should be excluded.⁴

C. Defendant's Arguments Fail

1. The Indictment Is Sufficient

Initially, Count One of the Indictment does not limit the government only to the first type of child abuse (“intentionally or knowingly causing death”). Rather, Count One alleges felony murder based on a violation of “sections 7(3) and 1111(a) & (b),” where § 1111(a) includes “child abuse” as one of many specific felonies constituting possible predicates.⁵ Count One then describes the elements “child” and “child abuse” by incorporating the meanings set forth in the next part of the felony murder statute—“as those terms are defined by Title 18 United States Code, Section 1111(c).” And because § 1111(c)(3) describes two types of “child abuse,” the indictment charges both theories. That is, § 1111(c)(3) describes two theories of “child abuse” as alternate ways of proving the same crime. It does not define two distinct crimes.

In support of the notion that the language of the Indictment specifically charges only one of the theories of child abuse, Defendant points out that Count One alleges that Defendant “did unlawfully kill Talia Williams ... in the perpetration of ‘child abuse[.]’ ” Doc. No. 1004, Indictment at 2. Defendant believes that this language (“unlawfully kill”) means the Indictment is based only on the first theory of child abuse (“intentionally or knowingly causing death”). See Doc. No. 2452, Trial Memo, at 7 (“Here, although [§ 1111(c)(3) ] defines ‘child abuse’ as ‘intentionally or knowingly causing death or serious bodily injury to a child’, the indictment in this case clearly sets forth in Count 1 that Mr. Williams ‘unlawfully kill[ed] Talia Williams ... in the perpetration of ‘child abuse’. There is simply no allegation that he caused ‘serious bodily injury’ and thus no need or relevancy to proving that the victim suffered ‘extreme physical pain’ within the meaning of Section 1365.”).

But Defendant fails to recognize the obvious—an “unlawful killing of a human being” is a necessary element of every felony murder under § 1111(a) (whether based on child abuse, a pattern or practice of assault and torture, or any other statutory felony in § 1111(a) ). Alleging an “unlawful killing” is not an allegation of a specific type of child abuse, but is an allegation of an otherwise necessary element of felony murder under § 1111(a).

Moreover, there is no requirement that an indictment specifically choose among two alternative theories of a single crime. “An indictment must provide the essential facts necessary to apprise a defendant of the crime charged; it need not specify the theories or evidence upon which the government will rely to prove those facts. ” United States v. Cochrane, 985 F.2d 1027, 1031 (9th Cir.1993) (citing United States v. Jenkins, 884 F.2d 433, 438–39 (9th Cir.1989) (emphasis added)). An indictment is proper if it (1) “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend,” and (2) “enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ; see also United States v. Woodruff, 50 F.3d 673, 676 (9th Cir....