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United States v. Baldwin

United States District Court, N.D. Georgia, Atlanta Division

May 30, 2018

UNITED STATES OF AMERICA
v.
BRANDON JERALD BALDWIN, Defendant.

          REPORT AND RECOMMENDATION

          JANET F. KING JUDGE

         Pending 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.

         I. Procedural History

         On 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 That motion was subsequently withdrawn after the Government returned to the grand jury and obtained a superseding indictment on November 20, 2017, still charging in one-count a violation of §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].

         In 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.[1][Docket Entry dated 3/28/18].

         The 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].

         II. Discussion

         The 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.”)].

         Section 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).[2] 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 pertinent part:

(h) Whoever-
(2) carries an explosive device during the commission of any felony which may be prosecuted in a court of the United States,
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.

         And the “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).[3] [2nd Sup. Ind.].

         According 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 vagueness[.]”
(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 ...

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