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United States v. Daley

United States District Court, W.D. Virginia, Charlottesville Division

May 2, 2019

United States of America,
v.
Benjamin Daley, ET AL., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon Defendants Benjamin Daley, Michael Miselis, and Thomas Gillen's motions to dismiss the indictment.[1] (Dkts. 72, 73, 74). On October 10, 2018, Defendants were indicted on one count of conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371 (Count One) and one count of traveling in interstate commerce with the intent to riot (Count Two) in violation of 18 U.S.C. § 2101 (“Federal Anti-Riot Act” or “Anti-Riot Act”). (Dkt. 8). Defendants mount a sweeping attack on the validity of 18 U.S.C. § 2101 and both counts of the indictment. Defendants' arguments fail, and the Court will deny the motions to dismiss the indictment.

         I. Legal Standard

         “An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.” United States v. Palin, 874 F.3d 418, 423-24 (4th Cir. 2017) (quoting United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992)). “Absent a charge of every essential element of an offense, an indictment is invalid, ” id. at 424, and “mere reference to the applicable statute does not cure the defect.” United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). “When the words of a statute are used to describe the offense generally, they ‘must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.'” Id. (quoting United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002)). See also Fed. R. Crim. P. 7(c)(1) (“The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . .”). In ruling on Defendants' motions to dismiss the indictment, the Court must accept all factual allegations in the indictment as true. See Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952). Moreover, the Court must construe the indictment in a “practical” rather than “purely technical” manner, “[a]pplying a liberal standard in support of sufficiency.” United States v. Matzkin, 14 F.3d 1014, 1019-20 (4th Cir. 1994) (citations omitted).

         II. Facts As Alleged in the Indictment

         Defendants are allegedly residents of California who associated with the “Rise Above Movement” (RAM), a “white-supremacist, ” “alt-right” organization whose members allegedly hold “anti-Semitic, racist, and white-supremacist views and promoted violence against those they believed held opposing political views.” (Dkt. 8 ¶¶ 4-6). Between March 2017 and August 2017, Defendants and other members of RAM allegedly “traveled to multiple political rallies and organized demonstrations in California and Virginia, where they prepared to and engaged in acts of violence against numerous individuals.” (Id. ¶ 7).

         Count One of the indictment alleges that beginning in March 2017, Defendants “knowingly and willfully” conspired to violate 18 U.S.C. § 2101 by “traveling in interstate commerce and using a facility of interstate commerce with intent to (a) incite a riot, (b) to organize, promote, encourage, participate in, and carry on a riot, (c) to commit an act of violence in furtherance of a riot, and (d) to aid or abet” others in doing the same, all in violation of 18 U.S.C. § 371. (Id. ¶ 9).

         Defendants allegedly committed a number of overt acts “during and in furtherance of the conspiracy, ” including traveling to and committing one or more acts of violence at a “purported political rally” in Huntington Beach, California on or about March 25, 2017; “traveling in interstate commerce” and committing acts of violence at a “purported political rally” in Berkeley, California on or about April 15, 2017; purchasing flights from California to, and reserving lodging in, Charlottesville, Virginia for August 11-13, 2017, and then traveling in interstate commerce on those flights to Charlottesville; purchasing athletic tape and baseball helmets in Charlottesville; “obtain[ing] torches and attend[ing] a torch-lit march” on the grounds of the University of Virginia (UVA) on August 11, 2017, where they incited and “committed acts of violence in furtherance of a riot”; “attend[ing] the Unite the Right rally in and around the vicinity of Emancipation Park” on August 12, 2017 after “wrapping their hands with athletic tape, ” where they incited and “committed acts of violence in furtherance of a riot”; and, finally, traveling on return flights to California on or around August 13, 2017. (Id. ¶¶ 10(a)-(o)).

         Count Two alleges that Defendants traveled in interstate commerce from California to Charlottesville on or about August 11, 2017, “with intent” to incite, organize, promote, encourage, participate in, and carry on a riot, commit an act of violence in furtherance of a riot, and aid or abet others in doing the same, and then “perform[ing] or attempt[ing] to perform” such acts in furtherance of a riot on August 11, 2017 on the grounds of UVA and on August 12, 2017 in and around Emancipation Park, all in violation of 18 U.S.C. § 2101. (Id. ¶ 13).

         III. Analysis

         Defendants raise numerous challenges to the validity of 18 U.S.C. § 2101 and both counts of the indictment. The Court addresses each argument in turn.

         A. Judicial Notice of Kessler v. City of Charlottesville

         Defendants first ask the Court take judicial notice of various factual findings and legal conclusions made in Kessler v. City of Charlottesville, No. 3:17-cv-00056, 2017 WL 3474071 (W.D. Va. Aug. 11, 2017). (Dkt. 72 at 5-7). There, Judge Conrad granted Jason Kessler's motion for a preliminary injunction preventing the City of Charlottesville “from revoking the permit to conduct a demonstration at Emancipation Park on August 12, 2017.” Kessler, 2017 WL, at *3. Federal Rule of Evidence 201(b) allows courts to “judicially notice” “a fact” that is not “subject to reasonable dispute” because the fact (1) is “generally known within the trial court's territorial jurisdiction”; or (2) “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

         The Court declines to judicially notice any specific factual findings, legal reasoning, or legal conclusions from Kessler. Judicial notice of legal conclusions or legal reasoning concerning Kessler's entitlement to a preliminary injunction would be inappropriate.[2] See Fed. R. Evid. 201(b) (“The court may judicially notice a fact. . . .” (emphasis added)). Moreover, “[o]nly indisputable facts” are “susceptible to judicial notice.” United States v. Zayyad, 741 F.3d 452, 463 (4th Cir. 2014). “[F]acts adjudicated in a prior case . . . do not meet either test of indisputability contained in Rule 201(b).” Id.[3] In taking judicial notice of records from prior judicial proceedings, “generally, a court will recognize only indisputable court actions, such as the entry of a guilty plea or the dismissal of a civil action.” In re Omnicare Inc. Sec. Litig., 769 F.3d 455, 468 (6th Cir. 2014).[4] But where, as here, parties “disagree about the meaning to be ascribed” to facts, judicial notice of such facts under Rule 201(b) is inappropriate. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 216 (4th Cir. 2009). See also Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 511 (4th Cir. 2015) (declining to judicially notice exhibits where “parties vehemently disagree about the nature and scope” of the exhibits, “putting at issue basic factual matters relevant to interpreting what those exhibits mean”). Moreover, the Government correctly notes that the findings and conclusions at issue “reflect the positions of parties not involved in the present criminal case: Jason Kessler and the City of Charlottesville.” (Dkt. 79 at 6).

         Accordingly, the Court will judicially notice that Judge Conrad granted Jason Kessler's motion for a preliminary injunction as an incontrovertible matter of public record, but will deny Defendants' request for judicial notice of any specific factual finding, legal reasoning, or legal conclusion from Kessler as inappropriate under Federal Rule of Evidence 201(b).

         B. Facial & As-Applied Challenges to 18 U.S.C. § 2101

         The bulk of Defendants' arguments concern the facial validity of 18 U.S.C. § 2101 (the “Anti-Riot Act” or “Federal Anti-Riot Act”). Specifically, Defendants assert that § 2101 must be facially invalidated for (1) vagueness; (2) overbreadth; (3) failure to properly criminalize incitement; and (4) exceeding Congress's powers under the Commerce Clause. Defendants also contend that § 2101 cannot constitutionally be applied to “disorders arising from political demonstrations.” (Dkt. 72 at 18). Before assessing these arguments, a review of the Anti-Riot Act's primary provisions is in order.

         Section 2101(a) provides that:

Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent (1) to incite a riot; or (2) to organize, promote, encourage, participate in, or carry on a riot; or (3) to commit any act of violence in furtherance of a riot; or (4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot; and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified [in (1)-(4)] . . . [s]hall be fined . . . or imprisoned not more than five years, or both.

         Certain terms employed in § 2101 are further defined in 18 U.S.C. § 2102. Section 2102(a) defines “riot” as:

[A] public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

         Section 2102(b) provides that the term “to incite a riot” or “to organize, promote, encourage, participate in, or carry on a riot” “includes, but is not limited to”:

[U]rging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.

         1. Facial Validity of 18 U.S.C. § 2101

         The Court first considers Defendants' arguments that § 2101 must be facially invalidated for vagueness, overbreadth, improperly criminalizing incitement, and exceeding Congress's powers under the Commerce Clause.

         i. Vagueness Challenge

         Defendants first assert that § 2101 is void for vagueness because it “fails to give citizens reasonable notice and fails to provide explicit standards for law enforcement and prosecution.” (Dkt. 72 at 11). Defendants' argument is two-fold. First, Defendants argue that the statute's definitions of “riot, ” “incite a riot, ” and “organize, promote, encourage, participate in, or carry on a riot” are vague. (Id. at 13). Second, Defendants contend § 2101 impermissibly requires intent at the moment of interstate travel but not at the time of any subsequent overt acts. (Id.).

         A criminal statute is void for vagueness under the Fifth Amendment if “it fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S.Ct. 2251, 2256 (2015). “[W]hen a statute interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010). “But ‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.'” United States v. Williams, 553 U.S. 285, 304 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)). See also Kolbe v. Hogan, 849 F.3d 114, 148 (4th Cir. 2017) (noting that a “criminal statute need not . . . spell out every possible factual scenario with celestial precision” (internal quotes omitted)).

         The vagueness inquiry “focuses on the intractability of identifying the applicable legal standard, not on the difficulty of ascertaining the relevant facts in close cases.” Id. at 149. See also Williams, 553 U.S. at 306 (“What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.”). Ultimately, the touchstone of the void-for-vagueness inquiry is whether the criminal statute at issue “provide[s] adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal.” United States v. Hager, 721 F.3d 167, 183 (4th Cir. 2013). Thus, the Supreme Court has “struck down statutes that tied criminal culpability to whether the defendant's conduct” was, for instance, “‘annoying' or ‘indecent'-wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” Williams, 553 U.S. at 306.[5]

         With respect to the term “riot, ” Defendants primarily opine that the statutory definition covers not only “public disturbance[s] involving . . . an act or acts of violence, ” 18 U.S.C. § 2102(a)(1), but also public disturbances involving “a threat or threats of the commission” of such acts of violence by “one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat[s].” § 2102(a)(2). Defendants argue that “conduct that constitutes a threat of violence that can be immediately executed is neither adequately defined nor does the case law provide a principled and objective standard to resolve its indeterminacy.” (Dkt. 72 at 12). Rather, Defendants contend, “the determination of whether an act constitutes a threat of violence . . . requires an abstract assessment of chance.” (Id.).

         This argument fails. A criminal statute is not void for vagueness simply because it “call[s] for the application of a qualitative standard . . . to real-world conduct; the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree.” Johnson, 135 S.Ct. at 2562. Moreover, the Court cannot say that whether a “public disturbance” involves a “threat” of an “act or acts of violence” fortified by “the ability of immediate execution” calls for “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” Williams, 553 U.S. at 306. Indeed, § 2102(a)(2) is itself a statutory definition refining the term “riot, ” and both “riot”[6] and “threat”[7] have settled legal meanings. Accordingly, Defendants have failed to show that the phrase “riot” as defined by § ...


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