Opinion
Criminal No. 01-236 (JRT/FLN)
June 5, 2002
Joan Humes and Michael L. Cheever, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Virginia Villa, Assistant Federal Public Defender, FEDERAL DEFENDER'S OFFICE, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Defendant Gary Corum is under indictment for obstruction and attempted obstruction of religious beliefs by threat of force in violation of 18 U.S.C. § 247(a)(2) and for making a threat to injure and damage or destroy property by means of fire or explosives in violation of 18 U.S.C. § 844(e). Defendant has filed five separate motions to dismiss some or all of the charges in the indictment. He also moves to suppress statements he made at his parents' home prior to his arrest. On January 4, 2002, United States Magistrate Judge Franklin L. Noel issued a Report and Recommendation, recommending that each of these motions be denied.
This matter is before the Court on objections by the defendant to the report and recommendation. The Court has conducted a de novo review of these objections pursuant to U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the report and recommendation of the Magistrate Judge and denies defendant's motions.
BACKGROUND
Counts 1 through 3 of the indictment allege that, on or about July 28, 2001, in the District of Minnesota, the defendant did intentionally obstruct and attempt to obstruct, under circumstances in and affecting interstate commerce, by threat of force, the enjoyment of the free exercise of religious beliefs of the members of three area synagogues, the Mt. Zion Temple, the Bet Shalom Temple, and the Bais Yisroel Synagogue/Bais Yaakov School, by placing a telephone call to each of the synagogues and leaving a voice mail message threatening the use of explosives, fire and/or a dangerous weapon to burn down or blow up the synagogue, all in violation of 18 U.S.C. § 247(a)(2).
Counts 4-6 of the indictment allege that, on or about July 28, 2001, in the District of Minnesota, the defendant by means and use of an instrument of interstate commerce, that is, the telephone, willfully threatened by leaving a voice mail message, to injure the members of the three area synagogues mentioned above, and to unlawfully damage and destroy a building, by means of a dangerous weapon, fire and explosives, all in violation of 18 U.S.C. § 844(e).
Defendant challenges the indictment on numerous grounds. In the first motion, defendant seeks to dismiss counts 1 through 3 on the basis that the Church Arson Prevention Act of 1996 is unconstitutional on its face. In the second motion, defendant seeks to dismiss all six counts on the basis that the indictment fails to state a federal crime and fails to state essential facts constituting the offense charged. The next motion seeks to dismiss counts 1-3 on grounds that the counts are duplicitous as stating more than one crime in a single count. Finally, defendant moves to suppress a statement he made to agents of the Federal Bureau of Investigation.
DISCUSSION I. Facial Unconstitutionality of 18 U.S.C. § 247
Defendant moves to dismiss counts 1-3 of the indictment on the basis that the Church Arson Prevention Act of 1996, 18 U.S.C. § 247, is facially unconstitutional under the First Amendment Free Speech and Establishment Clauses as well as the Fifth Amendment Due Process Clause and Sixth Amendment Jury Clause to the United States Constitution. The Court addresses each argument in turn.
A. First Amendment Free Speech Clause
Section 247(a)(2) prohibits an individual from "intentionally obstruct[ing], by force or threat of force, any person in the enjoyment of that person's free exercise of religious beliefs, or attempt[ing] to do so." 18 U.S.C. § 247(a)(2). Defendant argues that the Act violates his free speech rights under the First Amendment and claims that the statute cited above is indistinguishable from the statute at issue in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
The Court disagrees. The Act in question prohibits threats of violence, not speech. Specifically, the Act prohibits the intentional obstruction, by force or threat of force, of the free exercise of religious beliefs. "[I]t is well settled that threats of violence are one of the categories of unprotected speech." United States v. J.H.H. ¶ 22 F.3d 821, 825 (8th Cir. 1999); R.A.V., 505 U.S. at 388 ("threats of violence are outside the First Amendment); Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam); United States v. Dinwiddie, 76 F.3d 913, 922 (8th Cir. 1996). That the statute is limited in its application to those threats which obstruct a person's free exercise of religious beliefs does not render it an impermissible content-based statute. Dinwiddie, 76 F.3d at 922-23 (rejecting defendant's argument that 18 U.S.C. § 248, which prohibits obstructing a person's ability to obtain or provide reproductive health services by threat of force, is a content-based statute). The Court is also not persuaded by the arguments raised by defendant regarding the Eighth Circuit's decision in J.H.H. Rather, the Court finds that the reasons articulated by the Eighth Circuit in upholding another federal civil rights statute, 18 U.S.C. § 241, apply with equal force here. Accordingly, the Court concludes that 18 U.S.C. § 247(a)(2) does not violate defendant's rights under the First Amendment.
B. First Amendment Establishment Clause
The Court also denies defendant's motion to dismiss counts 1 through 3 on the basis that the Act violates the Establishment Clause. The First Amendment provides, in relevant part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. 1. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court set forth a three-part test for determining whether a government practice violates the Establishment Clause. Under this tripartite test, a statute must: 1) have a secular purpose; 2) neither advance nor inhibit religion in its principal or primary effect; and 3) not foster an excessive entanglement with religion. Id. at 612-13.
In his report and recommendation, the Magistrate Judge concluded that the Act serves "the secular purpose of combating the destruction of religious places of worship by unauthorized and unlawful use or threat of force." Relying on a dictionary definition of the term "secular," defendant argues that protecting the free exercise of religion cannot, by definition, be "secular." The Court does not read Lemon or other precedent so narrowly. Rather, what the Lemon test and the Establishment Clause calls for is neutrality. Gillette v. United States, 401 U.S. 437, 450 (1971) ("Necessarily, the constitutional value at issue is `neutrality'"). The Church Arson Prevention Act is neutral. It does not favor one religion over any other and it applies equally to all religious beliefs. The Court also agrees with the Magistrate Judge's reasoning and conclusions on the second and third prongs of the Lemon test. Accordingly, the Court concludes that the Act does not violate the Establishment Clause and defendant's motion to dismiss counts 1 through 3 on this ground is denied.
C. Fifth and Sixth Amendment Challenges
Defendant next contends that the Act violates the due process clause of the Fifth Amendment and the jury clause of the Sixth Amendment. Specifically, defendant argues that the statute impermissibly increases the maximum penalty based on facts which are not part of the offense established by § 247(a). Again, the Court disagrees.
As mentioned above, § 247(a)(2) prohibits "intentionally obstruct[ing], by force or threat of force, any person in the enjoyment of that person's free exercise of religious beliefs," provided "the offense is in or affects interstate commerce." 18 U.S.C. § 247(a), and (b). Section 247(d)(3) provides for an enhanced penalty under the statute "if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire." Each of the first three counts in the indictment allege that the defendant "threate[ned] the use of explosives, and/or fire to burn down and blow up the synagogues." Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government will have to prove the above fact to the jury beyond a reasonable doubt before the twenty-year statutory maximum of § 247(d)(3) may apply. The fact that the penalty provision appears in a different subsection of the statute than the substantive provisions is of no moment. United States v. Woods, 270 F.3d 728, 729 (8th Cir. 2001) ("In Apprendi, the Court was not concerned with statutory structure but with sentencing."). Accordingly, the Court finds nothing constitutionally impermissible in either the structure of the statute charged or in the indictment presented. So long as the fact that increases the penalty for a crime beyond the statutory maximum is submitted to the jury and proved beyond a reasonable doubt, the Court foresees no constitutional violation under Apprendi.
II. Failure to State a Federal Crime; Commerce Clause
Defendant next moves to dismiss all counts of the indictment on the basis that they fail to state federal crimes. Specifically, defendant claims the indictment fails to allege facts which bring the offense charged within the jurisdiction of the federal court. As to counts 1 through 3, defendant maintains that the indictment fails to allege any fact bringing the offenses within the commerce clause requirement of 18 U.S.C. § 247(b). As to counts 4 through 6, defendant maintains that the use of a telephone to make an intrastate call is legally insufficient to invoke federal jurisdiction.
The Magistrate Judge concluded that both statutes charged, 18 U.S.C. § 247(a)(2) and 18 U.S.C. § 844(e) are constitutionally sufficient under the commerce clause and that the indictment sufficiently alleged federal interstate commerce jurisdiction. For the reasons that follow, the Court agrees.
A. § 247(a)(2)
The Church Arson Prevention Act of 1996, prohibits a person from intentional[ly] obstruct[ing], by force or threat of force, any person in the enjoyment of that person's free exercise of religious beliefs," provided that "the offense is in or affects interstate or foreign commerce." 18 U.S.C. § 247(a)(2) and (b). The "offense" in this case is the intentional obstruction of or attempt to obstruct the enjoyment of the free exercise of religious beliefs of the members of each of the area synagogues. The indictment is sufficient because it alleges that the area synagogues were engaged in business affecting interstate commerce. It is well established that religious organizations can and do engage in and affect interstate commerce. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997), United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001); United States v. Ballinger, 153 F. Supp.2d 1361, 1366-70 (N.D.Ga. 2001). It is true that, unlike 18 U.S.C. § 247(a)(1), § 247(a)(2) targets the obstruction of a person's free exercise of religious beliefs, not the damage or destruction to the property itself. Nonetheless, in the Court's view, the activities of the synagogue in question and its connection to interstate commerce are still relevant. At this point, the allegations in the indictment which state that each of the synagogues were involved in activities in and affecting interstate commerce is sufficient to withstand this motion. As the government recognizes, the government still bears the burden of proving a sufficient connection to interstate commerce at trial.
B. § 844(e)
Counts 4-6 of the indictment allege violations of 18 U.S.C. § 844(e), which requires that the offense be committed "through the use of the telephone or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce." The Court agrees that the statute is a constitutional exercise of Congress' commerce clause power and the factual allegations in the indictment are sufficient. Specifically, counts 4-6 allege that the defendant committed the offense in question by means and use of an instrument of commerce, that is, the telephone. Although the telephone call itself did not cross a state line, courts have previously addressed the argument defendant raises here and have rejected it. In United States v. Gilbert, 181 F.3d 152 (1st Cir. 1999), the First Circuit upheld a conviction under § 844(e) premised upon the use of a telephone despite the fact there was no evidence that the threat was routed through an interstate system. Id. at 157-59. ("The use of the telephone in this case to make a bomb-threat was, without more, sufficient to sustain jurisdiction under the interstate commerce clause."). See also United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999) ("It is well established that telephones, even when used intrastate, constitute instrumentalities of interstate commerce."). Defendant's motion to dismiss all counts of the indictment for failure to state a federal crime is therefore denied.
III. Duplicitous Counts
Counts 1 through 3 of the indictment charge that defendant did intentionally obstruct and attempt to obstruct, by threat of force, the enjoyment of the free exercise of religious beliefs of the members of the three area synagogues. Defendant claims that obstructing the enjoyment of the exercise of religious beliefs and attempting to obstruct the exercise of religious beliefs by threat of force are separate and distinct offenses with different defenses and elements and therefore counts 1-3 are duplicitous.
The government argues that § 247(a)(2) provides that the crime can be committed by either means and that the Federal Rules of Criminal Procedure expressly permit the government to "allege in a single count that . . . the defendant committed the crime by one or more specified means." Fed.R.Crim.P. 7(c). The government also relies on Rule 31(c), which provides that a "defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."
An indictment is duplicitous where two or more distinct and separate offenses are joined in a single count. United States v. Street, 66 F.3d 969, 974 (8th Cir. 1995). "`The principal vice of a duplicitous indictment is that the jury may convict a defendant without a unanimous agreement on the defendant's guilt with respect to a particular offense.'" Id. (quoting United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994)). While the defendant raises significant arguments, the Court believes the unanimity concerns can be adequately addressed in the jury instructions and verdict form at trial. The Court also adds that Rule 31(c) allows the government to plead a lesser included offense, such as attempt, where attempt is provided for in the statute. Accordingly, defendant's motion is denied.
IV. Motion to Suppress
In the final motion before the Court, defendant moves to suppress statements he alleges were obtained in violation of his Fifth Amendment rights against self-incrimination. Specifically, defendant contends he was in custody and therefore should have been informed of his rights under Miranda v. Arizona, 384 U.S. 436, 444, 478-79 (1966), before being questioned.
The factual record reveals that on August 3, 2001, FBI special agent Matt Parker and a colleague, Andy Mento, went to the home of the defendant's parents in Brooklyn, Center, Minnesota. The agents found the defendant and his father, James Corum, outside the house cleaning gutters. The agents were in plain clothes and their weapons were concealed. After identifying themselves, Agent Parker asked if they could go inside the house and ask defendant a few questions. James Corum, the defendant's father, who is an attorney, indicated that would be fine and they all went into the house. The agents interviewed the defendant at the kitchen table while his father stood nearby. The interview lasted approximately twenty minutes. No threats or promises were made during the interview. The defendant never asked to stop talking or to have another attorney present nor did he express a desire to leave or move from the kitchen table. Although at one point he asked for a glass of water, his father offered to get it for him. At no time did the agents advise defendant of his Miranda rights.
Unbeknownst to the defendant, the agents had already obtained an arrest warrant and intended to place him under arrest at the completion of the interview. Indeed, Agent Parker testified that the defendant would have been arrested immediately had he refused to answer questions. At the completion of the interview, Agent Parker asked to speak with James Corum in a separate room. They then left the kitchen and Agent Parker informed James Corum of the arrest warrant and their intention to take his son into custody at that time. According to Agent Parker, James Corum was surprised by the announcement, but agreed to inform his son about the warrant. After doing so, defendant was placed under arrest.
A suspect is "in custody" for purposes of Miranda upon formal arrest, or when the suspect is "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444; United States v. Johnson, 64 F.3d 1120, 1125 (8th Cir. 1995). To make this determination, a court must consider whether a reasonable person in the suspect's position would have understood the situation to be one of custody. Berkemer v. McCarty, 468 U.S. 420, 442 (1984); Johnson, 64 F.3d at 1125. The determination is an objective one and is made by looking at the totality of the circumstances. United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990). The Eighth Circuit has identified relevant mitigating and aggravating factors for courts to consider when determining whether, under the totality of circumstances, a suspect is in custody, but this list is not exhaustive. Id. at 1349. As stated above, "the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994).
These factors are:
(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; [and], (6) whether the suspect was placed under arrest at the termination of the questioning.
United States v. Griffin, 922 F.2d at 1349.
In this case, the totality of the circumstances indicate that the defendant was not in custody at the time of the interview. Although the agents did not affirmatively tell the defendant he was free to leave or did not have to answer their questions, they also did nothing to convey or suggest to defendant that he was under arrest or in custody. The interview took place at his parents' home. He was not transported by the agents but was already present when the agents arrived and asked to speak with him. Although it was the defendant's father who agreed that the agents could question his son, the defendant was present when the agents asked to speak with him and he did not object or indicate a contrary intent. The interview was short, lasting only twenty minutes. The agents did not make any threats or promises before or during the interview and no strong arm tactics were used. The tone of the conversation was comfortable. Although the defendant was taken into custody at the end of the interview, this is only one factor in the multi-factored analysis. In addition, the surprise expressed by defendant's father upon learning that his son was going to be taken into custody indicates that, up until that time, the interview was of a non-custodial nature.
In the Court's view, the most troubling aspect is the existence of the arrest warrant. However, as the standards set forth above confirm, the relevant inquiry is from the perspective of the individual being interviewed. In this case, although the agents possessed an arrest warrant and planned to take the defendant into custody that day, they never informed the defendant of this intent. Courts have held that an officer's unarticulated plan to arrest a defendant does not transform an interrogation into a custodial one. In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court explained:
Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood the situation.
Id. at 442; see also United States v. Boucher, 909 F.2d 1170, 1174 (8th Cir. 1990) (rejecting defendant's argument that questioning was a deliberate attempt to elicit incriminating statements through a "backdoor interrogation" because defendant was unaware of officer's intention to arrest him at the time); United States v. Knowles, 2 F. Supp.2d 1135, 1146 (E.D.Wis. 1998) (agent's delay in executing arrest warrant not impermissible). In light of the foregoing, the Court finds that the defendant was not in custody during the interview and therefore no violation of his Fifth Amendment rights occurred. Defendant's motion to suppress is thus denied.
Defendant also appeals the pretrial orders of the Magistrate Judge issued on January 4, 2002 concerning several motions brought by defendant. See Docket Nos. 54 55. As an initial matter, the Court notes that several of the defendant's motions were granted and therefore the Court presumes no appeal is taken from those favorable rulings. As to the pretrial motions that were denied, although defendant states that he is appealing the orders of the Magistrate Judge at the beginning of his objections to the report and recommendation, the Court has failed to locate any additional argument by defendant in support of his appeal. Consequently, it is difficult for the Court to evaluate the basis upon which the defendant appeals from the Magistrate Judge's rulings. In any event, the Court has independently reviewed the decisions of the Magistrate Judge and finds nothing clearly erroneous or contrary to law in those decisions. Accordingly, defendant's appeal of the motions is denied.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES the defendant's objections [Docket No. 60] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 56]. Accordingly, IT IS HEREBY ORDERED that:1. Defendant's motion to dismiss counts 1, 2, and 3 as being brought under a facially unconstitutional statute [Docket No. 31] is DENIED.
2. Defendant's motion to dismiss Counts 1-6 as failing to state a federal crime [Docket No. 32] is DENIED.
3. Defendant's motion to dismiss the indictment for failing to state essential facts constituting offenses charged [Docket No. 33] is DENIED.
4. Defendant's motion to dismiss Counts 1-3 for failure to comply with the requirements of 18 U.S.C. § 247(e) [Docket No. 35] is DENIED.
5. Defendant's motion to dismiss Counts 1-3 as stating more than one crime in a single count [Docket No. 36] is DENIED.
6. Defendant's motion to suppress statements, admissions and answers [Docket No. 37] is DENIED.
IT IS FURTHER ORDERED that:
7. Defendant's appeal of Magistrate Judge's orders [Docket No. 61] is DENIED and the orders of the Magistrate Judge [Docket Nos. 54 and 55] are AFFIRMED.