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United States v. Crawford

United States District Court, D. Maryland

September 7, 2016

UNITED STATES OF AMERICA
v.
HARRY CRAWFORD, et al.

          MEMORANDUM AND ORDER RE: INDICTMENT DISMISSAL

          Marvin J. Garbis, United States District Judge

         The Court has before it Defendant Crawford's Motion To Dismiss Indictment [ECF No. 149], Defendant Hightower's Motion To Dismiss Count Two Of The Pending Indictment [ECF No. 164] and the materials submitted relating thereto. Each Defendant has joined in the other's dismissal motion. The Court has held a hearing and had the benefit of the arguments of counsel.

         I. INTRODUCTION

         The indictment at issue, the Third Superseding Indictment (Defendants Crawford and Hightower - Extortion) [ECF No. 146] ("the Indictment") presents charges of extortion-related conspiracy and use of interstate facilities in two Counts.

         The Indictment presents, in each Count, 28 paragraphs of allegations that include, among other things, statements that the defendants sent threatening electronic communications to D. W., an individual who owed money to Defendant Hightower and that on September 22, 2013, Defendant Hightower murdered, or aided and abetted in the murder (fatal shooting) of D.W.

         By the instant motions, Defendants seek dismissal of both Counts.

         II. INDICTMENT STANDARD

         A court can dismiss a defective indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Of course, an indictment charge under a statute that is unconstitutional must be dismissed. See United States v. Brown, 715 F.Supp.2d 688, 689-90 (E.D. Va. 2010)(citing In re Civil Rights Cases, 109 U.S. 3, 8-9 (1883))(“An indictment is defective if it alleges a violation of an unconstitutional statute.”)

         Even if a charge is based upon a constitutional statute:

To pass constitutional muster, an indictment must (1) indicate the elements of the offense and fairly inform the defendant of the exact charges and (2) enable the defendant to plead double jeopardy in subsequent prosecutions for the same offense. Sutton, 961 F.2d at 479. “One of the principal purposes of an indictment is to apprise the accused of the charge or charges against him so he can prepare his defense.” United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990).

United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998).

         Moreover, “the indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime.” United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir. 1992).

         III. DISCUSSION

         Defendants contend that both Count One and Count Two of the Indictment should be dismissed.

         A. Count One (conspiracy)

         Section 894 of Title 18 of the United States Code (“§ 894"[1]) provides:

(a) Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means
(1) to collect or attempt to collect any extension of credit, or
(2) to punish any person for the nonrepayment thereof, shall be fined under this title or imprisoned not more than 20 years, or both.

         The Indictment charges in Count One that the defendants violated 18 U.S.C. § 894 by having:

knowingly participated, and conspired together to participate, in the use of extortionate means to collect and attempt to collect an extension of credit and to punish a person, that is, D.W., for the non-repayment of an extension of credit.

         Defendants contend that § 894 is unconstitutional on its face and, if not, then unconstitutional as applied to these defendants whose activities were purely local in nature.

         In 1971, the Supreme Court held that § 894 was constitutional. Perez v. United States, 402 U.S. 146 (1971). The Supreme Court did not, as Defendants contend, effectively overrule Perez in United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the Court held that possession of a gun in a local school zone was not economic activity that substantially affected interstate commerce. However, the Lopez court included Perez in a list of decisions commented favorably upon. Id. at 558-60 (“[W]e have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. Examples include . . . intrastate extortionate credit transactions, Perez, supra.”).

         The fact that the defendants and their alleged crimes were local in nature, does not render the application to them of § 894 unconstitutional. In United States v. Bruce, 405 F.3d 145 (3d Cir. 2005), a prosecution under § 894, the defendants contended that the statute was unconstitutional as applied because they were not loan sharks or members of organized crime and the drug transaction and beating at issue were purely local in nature. The Third Circuit found the argument unpersuasive, saying:

Although Congress had the links between organized crime and loan sharks in mind when it passed Section 894, the statute does not make the extortionate collection of a debt illegal only in cases of known “loan sharks” or members of organized crime. Instead, “[t]he term ‘creditor, ' with reference to any given extension of credit, refers to any person making that extension of credit, or to any person claiming by, under, or through any person making that extension of credit.” 18 U.S.C. § 891(2). Under this definition, the statute will reach individuals such as [the defendants], who act solely in an intrastate context and who are not members of organized crime or loan sharks in the traditional sense. “Where the class of activities is regulated, and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances' of the class.” The statute is constitutional as applied to [the defendants].

Id. at 148-49.

         The Court finds the rationale of the Third Circuit persuasive and, in the absence of Fourth Circuit authority, will follow it.

         Count One will not be dismissed.

         B. Count Two (Use of Interstate Facilities for Extortion)

         The charges in Count Two of the Indictment are brought under § 1952(a)(2) and (3) that provides, in pertinent part:

(a) Whoever . . . uses . . . any facility in interstate . . . commerce, with intent to:
(2) commit any crime of violence to further any unlawful activity; or
(3) otherwise . . . carry on, or facilitate . . . carrying on, of any unlawful activity, and thereafter performs or attempts to perform:
(A) an act described in paragraph [(2)] shall be [subject to a sentence of imprisonment up to 20 years or life ...

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