The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:
On November 18, 2010, a grand jury indicted Julian Heicklen, charging him with attempting to influence the actions or decisions of a juror of a United States Court, in violation of 18 U.S.C. § 1504, a federal jury tampering statute. The Indictment states that, from October 2009 through May 2010, in front of the entrance to the United States Court for the Southern District of New York (the "Courthouse"), Heicklen distributed pamphlets that advocated jury nullification. (Dkt. No. 1.) Heicklen has chosen to exercise his constitutional right to represent himself, and the Court has appointed stand-by counsel to assist him. Heicklen now moves to dismiss the Indictment on the ground that it is insufficient, because it fails to allege all the required elements of the crime, and on the ground that it is duplicitous, because it alleges multiple distinct crimes in one count. Heicklen also moves to dismiss the Indictment on the ground that the statute, both on its face and as applied, is unconstitutionally overbroad in violation of the First Amendment and unconstitutionally vague in violation of the Fifth Amendment. Heicklen also moves for a jury trial and a bill of particulars, in order to clarify the nature of the charges against him.
Heicklen advocates passionately for the right of jurors to determine the law as well as the facts. The Government states that, in advocating these views, Heicklen has on several occasions stood outside the entrance to the Courthouse, holding a sign reading "Jury Info" and distributing pamphlets from the Fully Informed Jury Association ("FIJA"). (Government's Memorandum of Law in Opposition to Defendant's Motions ("Govt.'s Mem.") at 1.) The pamphlets state that a juror has not just the responsibility to determine the facts of a case before her on the basis of the evidence presented, but also the power to determine the law according to her conscience.*fn1
In opposition to Heicklen's motion, the Government quotes an excerpt
of a transcript of a recorded conversation that it alleges Heicklen
had with an undercover agent from the Federal Bureau of Investigation
("FBI"), in which the agent specifically identified herself as a
juror; the agent was not actually a juror.*fn2
(Govt.'s Mem. at 2.) The Government alleges that Heicklen
handed that "juror" a FIJA pamphlet and a single-sided, typewritten
handout. (Govt.'s Mem., Ex. A.) The handout states in relevant part
that "[i]t is not the duty of the jury to uphold the law. It is the
jury's duty to see that justice is done." *fn3 (Id.)
The FIJA pamphlet is entitled "A Primer for Prospective Jurors" and
contains 13 questions and answers for jurors regarding what FIJA
characterizes as jurors' rights and responsibilities.*fn4
In considering a motion to dismiss, the Court relies on the Indictment and accepts the allegations of the Indictment as true. United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985). In full, the Indictment charges that:
From at least in or about October 2009 up to and including in or about May 2010, in the Southern District of New York, Julian Heicklen, the defendant, attempted to influence the actions and decisions of a grand and petit juror of a court of the United States, to wit, the United States District Court for the Southern District of New York, upon an issue and matter pending before such juror, and before a jury of which he was a member, and pertaining to his duties, by writing and sending to him a written communication in relation to such issue or matter, to wit, Heicklen distributed pamphlets urging jury nullification, immediately in front of an entrance to the United States District Court for the Southern District of New York, located at 500 Pearl Street, New York, New York.
I.The Sufficiency of the Indictment
Heicklen argues that the Indictment does not charge all of the elements of the crime defined in 18 U.S.C. § 1504 and must be dismissed.
A.The Legal Standard for a Motion to Dismiss an Indictment
The Sixth Amendment guarantees a defendant's right "to be informed of the nature and cause of the accusation" against him. U.S. Const., amend. VI. This guarantee is given effect, in part, by Rule 7 of the Federal Rules of Criminal Procedure, which requires the prosecution to present to a grand jury an indictment that is "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). The two requirements of an indictment are that it "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend" and that it "enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz--Ponce, 549 U.S. 102, 108 (2007) (internal quotations omitted); In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 150 (2d Cir. 2008) (internal quotations omitted).
An indictment "must be read to include facts which are necessarily implied by the specific allegations made." United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002) (internal quotations omitted). Generally, a facially valid indictment returned by a duly constituted grand jury suffices to call for a trial on the merits of the charges set forth therein, so long as the indictment provides sufficient detail to permit the preparation of a defense and to protect the defendant against double jeopardy. See Costello v. United States, 350 U.S. 359, 363 (1956). Thus, "[u]nless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial . . . the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment." United States v. Perez, 575 F.3d 164, 166-67 (2d Cir. 2009) (internal quotation marks omitted; alteration in original). Accordingly, an indictment that alleges the essential elements of the crime and states specific facts indicating at least the time and the place of the alleged offense is generally sufficient. LaSpina, 299 F.3d at 177.
In this case, however, the basis for the motion to dismiss the Indictment is neither a pretrial challenge to the evidence nor a claim that the indictment is not pled with sufficient specificity, but rather is an argument that the facts alleged do not constitute an offense as a matter of law. Federal Rule of Criminal Procedure 12(b) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the issue." Fed. R. Crim. P. 12(b); see also United States v. Covington, 395 U.S. 57, 60-61 (1969) (holding that where determinative questions of law were decided in his favor, defendant was entitled to dismissal of indictment); United States v. Bodmer, 342 F. Supp. 2d 176, 189 (S.D.N.Y. 2004) (Scheindlin, J.) (dismissing indictment on the ground that statute contravened the constitutional fair notice requirement). Because federal crimes are "solely creatures of statute," Dowling v. United States, 473 U.S. 207, 213 (1985) (internal quotation marks omitted), "a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute." United States v. Aleynikov, --- F.3d ---, 2012 WL 1193611 at *3 (2d Cir. 2012). "The sufficiency of an indictment and the interpretation of a federal statute are both matters of law."*fn5 Id. A "claim that an indictment does not charge an offense may be raised at any time, and may be considered by a court sua sponte." United States v. Crowley, 236 F.3d 104, 108 n.6 (2d Cir. 2000).
In considering the Indictment, the Court accepts all pertinent allegations as true. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n.16 (1952); United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985). As the Government points out, "[t]here is little, if any, dispute about the factual background of this matter." (Govt.'s Mem. at 1.) The Indictment states that Heicklen "attempted to influence the actions and decisions" of a juror of a United States Court on "an issue or matter pending before such juror," in that, from October of 2009 through May of 2010, Heicklen "distributed pamphlets urging jury nullification, immediately in front of an entrance to the United States District Court for the Southern District of New York." (¶ 1.)
The Indictment thus identifies the relevant time period, states the specific location of the alleged crime, and provides a general description of Heicklen's activities. The Indictment is stated with sufficient specificity.
The question remaining is whether Heicklen's alleged activities, accepted as true, are prohibited by the statute. Whether or not the Indictment charges an offense squarely presents an issue of law determinable before trial. Cf. Crowley, 236 F.3d at 108. In order to answer this question, the Court must first determine what the statute proscribes.
B.Standards of Statutory Construction
"Statutory construction . . . is a holistic endeavor." Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 144 (2d Cir. 2002) (internal quotation marks omitted; alteration in original). When interpreting statutes, courts read statutory terms in light of the surrounding language and framework of the statute. Id.
In construing a statute, courts "must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (internal quotation marks omitted); Hess v. Cohen & Slamowitz LLP, 637 F.3d 117, 125 (2d Cir. 2011). "The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (internal quotation marks omitted); United States v. Am. Soc. of Composers, Authors, Publishers, 627 F.3d 64, 72 (2d Cir. 2010). "[I]f the language of a statute is 'unambiguous,' no further inquiry is required." Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 112 (2d Cir. 2007).
However, "where statutory language is ambiguous a court may resort to the canons of statutory interpretation and to the statute's legislative history to resolve the ambiguity." Canada Life Assurance Co. v. Converium Ruckversicherung (Deutschland) AG, 335 F.3d 52, 57 (2d Cir. 2003); see United States v. Kozeny, 541 F.3d 166, 171 (2d Cir. 2008). Determining the scope of 18 U.S.C. § 1504 requires the Court to construe the statute in light of its text and construction, its legislative history, and any constitutional considerations it may raise.
1. The Text of the Statute
As with any exercise in statutory construction, the Court begins with the text of the statute and draws inferences about its meaning from its composition and structure. United States v. Gray, 642 F.3d 371, 377 (2d Cir. 2011). The federal ...