United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION
F. KING JUDGE
before the court are Defendant Brandon Baldwin's motions
[Docs. 26 and 27] to dismiss the superseding indictment
charging him with violation of 18 U.S.C. § 1038(a) for
insufficiency and because § 1038, as applied to his
conduct, is void for vagueness. After consideration of the
arguments of the parties, presented both in the briefing on
the motions and at oral argument, the court recommends that
Defendant's motions be denied.
August 15, 2017, the federal grand jury returned a one-count
indictment charging Defendant with a violation of 18 U.S.C.
§ 1038(a). [Doc. 1]. Defendant filed a motion [Doc. 13]
to dismiss the indictment returned on August 15, 2017. That
motion was subsequently withdrawn after the Government
returned to the grand jury and obtained a superseding
indictment on November 20, 2017, still charging in one-count
a violation of § 1038(a), but amending the charging
language. [Doc. 19]. Thereafter, Defendant filed the two
pending motions to dismiss the superseding indictment. [Docs.
26 and 27]. Based on the charging language set forth in the
superseding indictment, Defendant moved to dismiss the
indictment as being insufficient under the Fifth and Sixth
Amendments for a number of reasons having to do with alleged
omissions from the indictment and, in the alternative, argued
that the rule of lenity is applicable. [Doc. 26 at 6-9].
Defendant also moved to dismiss the superseding indictment
arguing that the § 1038(a) charge as applied to him was
void for vagueness and, in the alternative, again argued that
the rule of lenity is applicable. [Doc. 27].
response to the motions to dismiss, while generally opposing
the motions, the Government acknowledged that the superseding
indictment did not fully track the elements of the offense
charged and stated an intent to supersede the indictment.
[Doc. 30 at 11 & n.3]. In reply, among other arguments,
Defendant contended that the superseding indictment also
failed to provide sufficient notice regarding the
subsection(s) being charged under 18 U.S.C. § 844(h),
the predicate offense for the § 1038(a) violation. [Doc.
31]. Based on the arguments of the parties, the court
determined that the motions to dismiss were not ripe for
submission and allowed time for the Government to seek a
second superseding indictment before holding oral argument on
the motions to dismiss based on a second superseding
indictment.[Docket Entry dated 3/28/18].
grand jury returned a second superseding indictment on April
17, 2018, the charging document now before the court. [Doc.
34]. Oral argument was held on April 27, 2018, at which, as
will be discussed below, Defendant revised his arguments in
support of the motions to dismiss to reflect the revisions
made in charging § 1308(a). [Docs. 41 and 42].
second superseding indictment alleges:
On or about June 12, 2015, in the Northern District of
Georgia, the defendant, BRANDON JERALD BALDWIN, did knowingly
and intentionally convey false and misleading information
under circumstances where such information may reasonably
have been believed and that indicated that an activity would
take place; that is, the Defendant, after having been
previously convicted of a felony offense punishable by a term
of imprisonment of more than one year, placed a hoax bomb
near a residence with the intent to convey the false and
misleading information that the device was a real explosive,
and where the carrying of such an explosive device would have
been a violation of Title 18, United States Code, Section
844(h), in connection with Title 26, United States Code,
Sections 5861(a) and (d), and Title 18, United States Code,
Section 922(g)(1); all in violation of Title 18, United
States Code, Section 1038(a).
[Doc. 34 (“2nd Sup. Ind.”)].
1038(a) provides in pertinent part:
(1) In general.-Whoever engages in any conduct with intent to
convey false or misleading information under circumstances
where such information may reasonably be believed and where
such information indicates that an activity has taken, is
taking, or will take place that would constitute a violation
of [certain enumerated predicate offenses] shall be [fined
and/or imprisoned as set forth in the statute] . . . .
18 U.S.C. § 1308(a). One of the enumerated predicate
offenses is 18 U.S.C. § 844(h)(2), the provision alleged
in the second superseding indictment. That statue provides in
(2) carries an explosive device during the commission of any
felony which may be prosecuted in a court of the United
including a felony which provides for an enhanced punishment
if committed by the use of a deadly or dangerous weapon or
device shall, in addition to the punishment provided for such
felony, be sentenced to imprisonment for 10 years.
“any felony which may be prosecuted in a court of the
United States” required to establish federal
jurisdiction for a violation of § 844(h)(2) are
specified in the indictment as 18 U.S.C. § 922(g), 26
U.S.C. § 5861(a) and 26 U.S.C. §
5861(d). [2nd Sup. Ind.].
to Defendant, three issues remain that pertain to the pending
motions to dismiss:
(1) “[T]he charge as stated in the indictment still
does not state an offense because . . . Congress did not
intend for [§ 844(h)(2)] to reach the three underlying
predicates in a situation like this[, ] the way the
Government has charged this[, ]” and also “that
the Rule of Lenity would preclude that from being a
reasonable belief that Congress meant . . . that somebody
could get an extra ten years for carrying an explosive and
the underlying crime is possessing or transporting or
receiving the same explosive.”
(2) “[I]f Congress did intend the language to reach
this particular situation, then it is void for
(3) Even if incorrect regarding arguments (1) and (2),
“the indictment as written . . . [is] still
insufficient because it has to allege all of the elements of
the offenses charged, not just pick and choose which ...