MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
Defendants Michael Van Hise, Christopher Asch, and Richard Meltz are charged in Count One of Indictment S4 12 Cr. 847 (the "Indictment") with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c). (Dkt. No. 204) The conspiracy is alleged to have taken place between the spring of 2011 and January 2013. The Government alleges that the targets of this kidnapping conspiracy include Van Hise's wife, his step-daughter, his sister-in-law, and her children. (Govt. Opp. Br. (Dkt. No. 226) at 4; United States v. Van Hise, 13 Mag. 0011 (Cmplt.) at 4; United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.) at 3-6)
Defendants Asch and Meltz are charged in Count Two of the Indictment with participating in a second kidnapping conspiracy that took place between January 2013 and April 15, 2013. The Government alleges that the intended victim of this conspiracy was a woman who - unbeknownst to the Defendants - is an undercover FBI agent. (Govt. Opp. Br. (Dkt. No. 226) at 4; United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.) at 6-22)
Van Hise, Asch, and Meltz have moved to (1) dismiss Count One for failure to properly allege venue and the interstate commerce element of the charged kidnapping offense; and (2) for a severance. Van Hise has also moved to dismiss Count One on the grounds that this charge violates his First Amendment rights. For the reasons stated below, Defendants' motions will be denied in their entirety.
Van Hise came to the attention of federal authorities as a result of an investigation of Gilberto Valle. That investigation revealed Internet chats in which Valle and others discussed kidnapping, raping, and murdering certain women. In September 2012, the FBI learned that Van Hise was one of the individuals participating in such Internet chats with Valle. (United States v. Van Hise, 13 Mag. 0011 (Cmplt.) at ¶¶ 5, 7; United States v. Valle, 12 Mag. 2820 (Cmplt.) at ¶ 15)
Valle was arrested on October 24, 2012, and on November 15, 2012, he was charged with conspiracy to commit kidnapping, in violation of 18 U.S.C. § 1201(c), and with unauthorized use of a federal database, in violation of 18 U.S.C. § 1030(a)(2)(B). (United States v. Valle, 12 Cr. 847 (PGG), Indictment (Dkt. No. 9)) The Valle case proceeded to trial, and at trial the Government contended that Valle conspired with, inter alia, Van Hise to kidnap a young woman from Manhattan. (United States v. Valle, 12 Cr. 847 (PGG) Trial Transcript at 1518-20)
Shortly before and after Valle's arrest, agents of the Federal Bureau of Investigation interviewed Van Hise. (US XXXXXX-XX) Van Hise told the FBI that he had been communicating with Defendants Asch and Meltz about kidnapping, raping, and murdering his wife, step-daughter, sister-in-law, and the sister-in-law's minor children. (United States v. Van Hise, 13 Mag. 0011 (Cmplt.) at ¶ 11; United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.) at ¶¶ 5-12) Van Hise also informed the FBI that he and Asch had met in New Jersey to discuss the kidnapping. (United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.) at ¶ 8) The FBI's analysis of Van Hise's email communications with Asch and Meltz confirmed Van Hise's account. (Id. at ¶¶ 10-11) Van Hise agreed to "introduce" an FBI undercover agent to Asch over the Internet. (Dec. 11, 2013 Govt. Ltr. (Dkt. No. 230) at 1-2)
On January 4, 2013, Van Hise was arrested on a complaint and charged with conspiracy to commit kidnapping. (United States v. Van Hise, 13 Mag. 0011 (Cmplt.)) On January 31, 2013, a grand jury returned an indictment charging Van Hise with kidnapping conspiracy. (United States v. Van Hise, 12 Cr. 847 (PGG), Indictment (Dkt. No. 78))
The FBI's investigation of Asch and Meltz continued after Van Hise's arrest. On January 5, 2013, an undercover FBI agent ("UC-1"), posing as someone interested in kidnapping, raping, and murdering women, emailed Asch. (United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.) at ¶ 13) In their email exchanges, UC-1 and Asch discussed kidnapping, raping, and murdering women. (Id.) On January 7, 2013, Asch met with UC-1 in lower Manhattan to discuss a kidnapping plan. (Id. at ¶ 14)
Because UC-1 had "met" Asch through an Internet introduction by Van Hise, UC-1 and Asch frequently discussed Asch's relationship with Van Hise. (Dec. 11, 2013 Govt. Ltr. (Dkt. No. 230) at 1-2) The Government argues that these conversations are important to understanding how and why Asch developed a relationship of trust with UC-1. As Asch became more comfortable with the undercover agent, he began discussing aspects of the kidnapping-related activities he had engaged in with Van Hise, including the plans to kidnap Van Hise's wife and sister-in-law. (Id.) UC-1 was fully knowledgeable of these activities, and a jury could find that UC-1's knowledge of the plan to kidnap Van Hise's wife and sister-in-law made it more likely that Asch would trust UC-1 sufficiently to have conversations with UC-1 about other abductions. That relationship of trust is also demonstrated by the fact that Asch discussed with UC-1 whether Van Hise's arrest presented a risk to Asch. (Id.)
On January 18, 2013, Asch and UC-1 met at the South Street Seaport in Manhattan. UC-1 and Asch discussed the fact that Van Hise's wife and sister-in-law had been kidnapping targets. (Id.) The two also discussed a meeting Asch had had with Van Hise in New Jersey. Asch stated:
We talked about a number of things. I mean we drove around Trenton. He showed me this bar that he sometimes went to that he thought would be good so I, you know pick up a hooker. We drove down an alley that he thought would be a really good place to dump some(one). I mean it was too residential first of all, it was uhm, so we talked about a lot of things. He took me to a park where he thought would be a good dumping ground but you know I thought this is you know, no, you need to go to the mountains or something.
(Id. at 3)
Other meetings and numerous tape-recorded telephone conversations between UC-1 and Asch took place in February and March 2013. At one meeting, UC-1 introduced Asch to a second FBI undercover agent ("UC-2"). The two undercover agents ultimately proposed to Asch that they target a third FBI undercover agent ("UC-3") - a female - for abduction, rape, torture, and murder. (United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt) at ¶ 15)
On March 13, 2013, UC-1, UC-2, and Asch met in Manhattan to further discuss the kidnapping of UC-3. Asch brought a bag to the meeting that contained a number of items that he believed were necessary for the planned kidnapping and torture. The bag contained, inter alia, a black ski mask, hypodermic needles, handcuffs, a hammer, leather ties, forceps, and doxepin hydrochloride, an anti-psychotic drug that is commonly used as a sleep agent. (Id. at ¶ 16) Asch also brought literature regarding sexually-related torture devices, including a "leg-spreader" and a "dental retractor." (Id.) During the March 13, 2013 meeting, Asch, UC-1, and UC-2 also conducted surveillance of UC-3 as she left her workplace. (Id. at ¶ 17)
In early March 2013, Asch told UC-1 that his friend "Rick" - later identified as Defendant Meltz - was interested in participating in the kidnapping of UC-3. Asch gave UC-1 Meltz's cell phone number, and in a subsequent telephone call, Meltz discussed the kidnapping of UC-3 with UC-1. (Id. at ¶¶ 18-19) A wiretap was installed on Asch's home telephone in February 2013, and the FBI intercepted numerous telephone conversations between Asch and Meltz in which they discussed the kidnap and murder of women, including the planned kidnapping, rape, torture, and murder of UC-3. (Id. at ¶¶ 20-24)
On April 6, 2013, FBI agents followed Asch from Manhattan to a gun show in Allentown, Pennsylvania, at which he purchased a taser gun. (Id. at ¶ 25) During an intercepted March 3, 2013 telephone conversation, Asch and Meltz had discussed at length how useful a taser gun would be in effecting a kidnapping. (Id. at ¶ 22) In an April 7, 2013 telephone call, Asch told UC-1 that he had purchased a taser gun. (Id. at ¶ 26) More conversations between Meltz told UC-1 followed, in which the two discussed the kidnapping and murder of UC-3. (Id. at ¶ 28). On April 15, 2013, Asch met UC-1 in lower Manhattan to conduct surveillance of UC-3. Asch brought with him a number of items he believed would be useful in connection with the kidnapping, rape, torture, and murder of UC-3, including the taser gun, rope, a hammer, duct tape, zip ties, speculums, skewers, pliers, a dental retractor, and a leg-spreader. (Id. at ¶ 29)
On April 15, 2013, Asch and Meltz were arrested on a criminal complaint and charged with conspiracy to commit kidnapping. (United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.)) On September 18, 2013, the Government obtained a fourth superseding indictment. (United States v. Van Hise et al., S4 12 Cr. 847 (PGG) (Dkt. No. 204)) As discussed above, Count One of the fourth superseding indictment charges Van Hise, Asch, and Meltz with participating in a conspiracy between spring 2011 and January 2013 to kidnap Van Hise's family members, and Count Two charges Asch and Meltz with conspiring between January 2013 and April 15, 2013 to kidnap UC-3. (Id.)
Trial is scheduled for January 27, 2014. (Dkt. No. 227)
I. VAN HISE'S MOTION TO DISMISS COUNT ONE ON FIRST AMENDMENT GROUNDS
Van Hise argues that the kidnapping charge against him is barred by the First Amendment. (Van Hise Br. (Dkt. No. 175) at 4) According to Van Hise, the kidnapping statute - 18 U.S.C. § 1201 - "is not unconstitutional on its face" but "is unconstitutional as applied to [him], because it prohibits his conduct[, ] which consists of pure speech." (Id.) Van Hise goes on to argue that
there is no evidence that [he] did anything other than talk about kidnapping. He did not have the ability, the intention, or even the actual desire to commit a kidnapping. He did not agree with anyone else to take these actions. Nor did he attempt to persuade or induce, his co-defendants or any other person to actually commit a kidnapping.
(Id. at 6)
While the Second Circuit has stated that "courts must be vigilant to insure that prosecutions are not improperly based on the mere expression of unpopular ideas, " it has also made clear that where "the evidence shows that... speech crossed the line into criminal solicitation, procurement of criminal activity, or conspiracy to violate the laws, [a] prosecution is permissible." United States v. Rahman , 189 F.3d 88, 117 (2d Cir. 1999). Moreover, it is clear that "[t]he First Amendment lends no protection to participation in a conspiracy, even if such participation is through speech." United States v. Sattar , 395 F.Supp.2d 79, 101 (S.D.N.Y. 2005) aff'd sub nom. United States v. Stewart , 590 F.3d 93 (2d Cir. 2009); United States v. Stromber , 22 F.R.D. 513, 521 (S.D.N.Y. 1957) ("The First Amendment does not protect a conspiracy from punishment because speech is used to effect the crime.").
In order to obtain a conviction on the kidnapping conspiracy charged in Count One, the Government would have to demonstrate by proof beyond a reasonable doubt that (1) two or more people agreed to commit a kidnapping as described in Count One; (2) that Van Hise joined that conspiracy knowingly and willfully; and (3) that one member of the conspiracy took a concrete step in furtherance of the kidnapping conspiracy. See 18 U.S.C. 1201(c); United States v. Svoboda , 347 F.3d 471, 476 (2d Cir. 2003).
The Government has offered evidence that Van Hise - through email communications and a meeting with Asch - entered into an agreement with Asch and Meltz to kidnap and murder his wife, his step-daughter, his sister-in-law and her children. The evidence proffered by the Government demonstrates that Van Hise sent photos of his sister-in-law and the children to Asch and Meltz and that he provided them with the name of the street on which the sister-in-law and children live. (United States v. Asch and Meltz, 13 Mag. 00973 (Cmplt.) at ¶ 7) The emails proffered by the Government show that the defendants discussed and debated at length the means and methods by which they would ...