US v. Fitzgerald, CR-87-20060-WAI.

• Decision Date: 24 September 1987
• Docket Number: No. CR-87-20060-WAI.,CR-87-20060-WAI.
• Citation: 676 F. Supp. 949
• Parties: UNITED STATES of America, Plaintiff, v. Russell Tyrone FITZGERALD, Defendant.
• Court: U.S. District Court — Northern District of California

676 F. Supp. 949

UNITED STATES of America, Plaintiff, v. Russell Tyrone FITZGERALD, Defendant.

No. CR-87-20060-WAI.

United States District Court, N.D. California.

September 24, 1987.

Marcia J. Allmand, Asst. U.S. Atty., San Jose, Cal., for plaintiff.

Daniel F. Cook, Asst. Federal Public Defender, San Jose, Cal., for defendant.

ORDER

INGRAM, District Judge.

The defendant's motion to dismiss counts two and three of the indictment came on regularly for hearing on August 10, 1987. Upon consideration of the papers submitted and argument of counsel, it is HEREBY ORDERED that the motion to dismiss is DENIED.

I. Introduction

The defendant Russell Tyrone Fitzgerald was indicted on June 9, 1987 on one count of assault with a dangerous weapon with the specific intent to do bodily harm, in violation of 18 U.S.C. § 113(c), and on two counts of assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(f).¹ The indictment alleges that each assault offense was committed by the defendant at Fort Ord in the County of Monterey, which is an area within the special maritime and territorial jurisdiction of the United States for purposes of 18 U.S.C. § 113, recognized as the federal assault statute.

The defendant has moved to dismiss counts two and three of the indictment on three different grounds. First, the defendant claims that the phrase "serious bodily injury" under 18 U.S.C. § 113(f) is unconstitutionally void for vagueness. Second, the defendant contends the indictment is insufficient for failing to state the element of "serious bodily injury" with factual specificity. Finally, the defendant asserts that the indictment inadequately alleges the element of intent for a section 113(f) offense. Each of these contentions is considered below.

II. Whether Section 113(f), As Applied, Is Void For Vagueness?

A. Vagueness Standard

To withstand a challenge of vagueness, in violation of due process, a statute must afford fair notice and, more importantly, fair enforcement. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, 371, reh'g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972)). See also Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983) (noting that "the requirement that a legislature establish minimal guidelines to govern law enforcement" is more important relative to the requirement of fair notice); United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir.1985) ("A criminal sanction is not vague if it provides fair notice of the conduct proscribed.") (citation omitted). In considering the fair notice and fair enforcement of an enactment, a stricter standard must be applied to statutes containing criminal, as opposed to civil, penalties. Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193, 71 L.Ed.2d at 372.

There being no implication of constitutionally protected speech or conduct to support a challenge of facial vagueness or overbreadth, and the defendant not expressly asserting that any constitutionally protected conduct is chilled by operation of the challenged enactment, this court only considers "whether the defendant had fair notice that the conduct he allegedly engaged in was prohibited." United States v. Mussry, 726 F.2d 1448, 1454 (9th Cir.) (appellate review of district court dismissal of several counts in the indictment) (citing United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 714 (1975)), cert. denied sub nom., Singman v. United States, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984). See also Hogue, 752 F.2d at 1504; Schwartzmiller v. Gardner, 752 F.2d 1341, 1348 (9th Cir. 1984); United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir.), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979); United States v. Ocegueda, 564 F.2d 1363, 1365 (9th Cir.1977); United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.1976) (reversing district court dismissal of indictment and holding that statutory term "assault" within 18 U.S.C. § 113(c) was not unconstitutionally vague).²

B. "Serious Bodily Injury"

Because this is the first constitutional challenge on vagueness grounds to the statutory terms "serious bodily injury" as used in 18 U.S.C. § 113(f),³ this court considers the plain meaning or common sense meaning of "serious bodily injury," the judicial construction of these terms under the statute as considered in other contexts, and the common law meaning of the phrase.

1. Plain Meaning or Common Sense Meaning

The parties are in agreement that "the ultimate test of whether a statute is unconstitutionally vague depends on the common understanding of its terms."⁴ As the Supreme Court has noted on this point, "although the prohibitions may not satisfy those intent on finding fault at any cost, they must be set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 578-579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796, 816 (1973) (cited in Broaderick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830, 837 (1973)). See also Mussry, 726 F.2d at 1455 ("Although close questions may arise in interpreting the language of a criminal statute, that alone does not render a statute unconstitutionally vague.") (citation omitted).

The statute does not define the phrase "serious bodily injury." However, the court believes that the plain meaning of the phrase is ascertainable and that the terms have a common understanding, as revealed by a review of common dictionary definitions. In a standard legal dictionary, "serious" is defined as "important; weighty; momentous, grave, great, as in the phrases `serious bodily harm,' `serious personal injury,'." Black's Law Dictionary 1226 (5th ed. 1979). According to the same authority, the terms "bodily injury" "generally refer only to injury to the body, or to sickness or disease contracted by the injured as a result of injury." Id. at 159. Another legal dictionary notes that the phrase "serious bodily injury" describes "an injury which gives rise to apprehension; an injury which is attended with danger." In elaborating on this point, this authority states that "the word `serious,' when used to define the degree of bodily harm or injury apprehended, requires or implies as high a degree as the word `great,' and the latter word means high in degree, as constradistinguished from trifling." Ballentine's Law Dictionary 144 (3d ed. 1969) (citations omitted).

These meanings are in accord with more common dictionary definitions. The term "bodily," for example, means "of or relating to the body." Webster's Third New International Dictionary of the English Language 245 (ed. 1981). "Injury" is defined as "an act that damages, harms, or hurts" or as "hurt, damage, or loss sustained." Id. at 1164. Finally, the term "serious" connotes "grave in disposition, appearance, or manner" or "not light." Id. at 2073.

In sum, the plain meaning of the terms "serious bodily injury," characterizes a situation of great or grave injury resulting to the body. Within the meaning of section 113(f), such injury would have to result from an assault, as that term has been defined. See Dupree, 544 F.2d at 1052 (defining "assault" under 18 U.S.C. § 113(c)). The court therefore holds that this plain meaning controls the construction of the phrase "serious bodily injury."⁵

The court concludes that the plain meaning of the terms "serious bodily injury" as applied to one charged with committing an assault under the federal assault statute, has a common sense meaning to sufficiently apprise an individual with average intelligence with reasonable notice of the proscribed assaultive conduct.⁶ The defendant had fair and sufficient notice that his conduct, as alleged in the indictment and within the alleged circumstances of an assault, was prohibited. Under the plain meaning analysis or common sense consideration, the terms "serious bodily injury" as used within section 113(f) are therefore not unconstitutionally vague or imprecise. However, because this is the first constitutional challenge to this phrase under section 113(f), the court also turns to two other accepted means of construing statutory terms under a claim of void for vagueness in order to conclusively consider this issue.

2. Judicial Construction in Other Contexts

It is settled within the Ninth Circuit that "a vagueness challenge will not be upheld if judicial explication of a statute provides sufficient clarity to afford fair notice." Bohonus, 628 F.2d at 1174 (citations omitted). See also Schwartzmiller, 752 F.2d at 1348-49 (applying state court constructions to state statute to conclude adequate notice and enforcement guidance was provided by such judicial explication). While the phrase "serious bodily injury" within the meaning of 18 U.S.C. § 113(f) has not previously been defined with great specificity nor within the context of a constitutional challenge, it has been construed, nonetheless, by two federal appellate courts to mean "more than slight injury."⁷

Notwithstanding the fact that this judicial construction has arisen in circumstances devoid of any constitutional challenge,⁸ this definition is consistent with the plain meaning construction or common dictionary understanding of these terms. More significantly, the judicial explication of these terms provides an alternative justification that the defendant charged with committing an assault which resulted in "serious bodily injury" had reasonable notice that such conduct was unlawful.

3. Common Law Meaning

Finally, the conclusion...