United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
before the Court is the Report and Recommendation (ECF No.
1225) entered by Magistrate Judge Peggy A. Leen on January 3,
2017, denying Defendant Ryan W. Payne's
(“Defendant's”) Motions to Dismiss Counts Two
and Three for Overbreadth (ECF No. 754) and
Vagueness (ECF No. 757). Defendant timely filed his Objection
(ECF No. 1314), to which the Government timely filed a
Response (ECF No. 1460).
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging
Defendant and eighteen other co-defendants with sixteen
counts related to a confrontation on April 12, 2014, with
Bureau of Land Management (“BLM”) Officers in
Bunkerville, Nevada. (ECF No. 27).
Two of the Superseding Indictment charges Defendant with
Conspiracy to Impede and Injure a Federal Officer, a
violation of 18 U.S.C. § 372. Defendant's Motion to
Dismiss for Overbreadth seeks to dismiss this count because
§ 372 is “impermissibly overbroad” and
“sweep[s] up conduct protected by the First
Amendment.” (Mot. to Dismiss for Overbreadth 8:21-22,
ECF No. 754). Defendant specifically argues that § 372
criminalizes “constitutionally protected” speech
and conduct as it “contains no language indicating the
statute reaches only true threats.” (Id.
6:12-16). Similarly, Defendant's Motion to Dismiss for
Vagueness seeks to dismiss this count because § 372 is
“unconstitutionally vague both on its face and as
applied to [Defendant].” (Mot. to Dismiss for Vagueness
3:15- 16, ECF No. 757). Specifically, Defendant asserts that
§ 372 is unconstitutionally vague on its face because it
fails to define various terms used, thereby “failing to
provide adequate notice and allowing for arbitrary
enforcement by the government.” (Id. 10:2-3).
Further, Defendant contends that the statute is vague as
applied because it failed to put him “on notice that he
would face federal prosecution for exercising his rights to
free speech, assembly, and bearing arms, to protest the
government.” (Id. 17:12-13). In her Report and
Recommendation, Judge Leen rejected these arguments and
recommended denial of the Motions. (R. & R. 11:13-12:13,
15:6-19, ECF No. 1225).
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. R. IB 3-2. Upon the filing of such objections, the
Court must make a de novo determination of those
portions of the Report to which objections are made.
Id. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations of the
Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB
asserts several objections to Judge Leen's Report and
Recommendation denying his Motions to Dismiss. (Obj., ECF No.
1314). As to overbreadth, Defendant argues that Judge Leen
erred by finding United States v. Fulbright, 105
F.3d 443 (9th Cir. 1997) to control this case because
Fulbright “did not address the argument
[Defendant] raises here, i.e., that much of the conduct
§ 372 proscribes does not qualify as a ‘true
threat' and therefore cannot be criminalized.”
(Id. 4:16-6:6). Defendant also contends that Judge
Leen “improperly read[ ] a mens rea requirement into
§ 372.” (Id. 6:7-9:5). As to vagueness,
Defendant argues that Judge Leen “failed entirely to
address [his] assertion that § 372 allow[s] for . . .
arbitrary and discriminatory enforcement.”
(Id. 12:18-19). He further asserts that Judge
Leen's “analysis erroneously assumes that an
ordinary citizen would be able to tell the difference between
constitutionally protected protest of government action and
action that would be criminally charged under §
372.” (Id. 13:13-15).
reviewed the record in this case de novo, the Court
agrees with the analysis and findings of Judge Leen in her
Report and Recommendation (ECF No. 1225) denying the Motion
to Dismiss and incorporates them by reference in this order.
does not dispute that true threats are an exception to the
First Amendment's free speech provision. (Obj. 6:8-10);
Planned Parenthood of the Columbia / Willamette, Inc. v.
Am. Coal. of Life Activists, 290 F.3d 1058, 1072 (9th
Cir. 2002) (en banc), as amended (July 10, 2002))
(“While advocating violence is protected, threatening a
person with violence is not. In Watts v. United
States, 394 U.S. 705 (1969), the Court explicitly
distinguished between political hyperbole, which is
protected, and true threats, which are not.”). Rather,
Defendant's main argument is that § 372 does not
criminalize only true threats. This simply is not true. As
explained in one of the cases that Defendant cites:
When interpreting federal criminal statutes that are silent
on the required mental state, we read into the statute
“only that mens rea which is necessary to
separate wrongful conduct from ‘otherwise innocent
conduct.'” Carter v. United States, 530
U.S. 255, 269 (2000) (quoting United States v. X-Citement
Video, Inc., 513 U.S. 64, 72 (1994)).
Elonis v. United States, 135 S.Ct. 2001, 2010
(2015). Here, § 372 is silent on the required mental
state, so the Court reads into the statute such a mental
state as necessary to separate wrongful conduct from innocent
conduct. See id.; see also Boos v. Barry,
485 U.S. 312, 330- 31 (1988) (“It is well settled that
federal courts have the power to adopt narrowing
constructions of federal legislation. Indeed, the federal
courts have the duty to avoid constitutional difficulties by
doing so if such a construction is fairly possible.”)
(internal citations omitted); United States v.
Stevens, 559 U.S. 460, 481 (2010) (“[T]his Court
may impose a limiting construction on a statute only if it is
‘readily susceptible' to such a
construction.”) (citing Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 884 (1997)). Threats are not
wrongful conduct unless they are “true threats.”
Virginia v. Black, 538 U.S. 343, 359- 60
(2003). As such, the only reasonable
interpretation of this statute requires the Court to construe
it as referring to true threats. Under such a reading, all of
Defendant's other objections necessarily fail.
Defendant attempts to distinguish Fulbright, the
Court further agrees with Judge Leen regarding its
applicability here. In Fulbright, the defendant was
charged under § 372 for mailing a citizen's arrest
warrant to a judge that charged the judge with crimes such as
high treason. The Court explained: “[I]t is the nature
of these documents, not the simple act of filing them, that
brings them within the statutes' purview. Filing a
false UCC form, or issuing an illegitimate
arrest warrant is prohibited.” Fulbright, 105
F.3d at 452. The Ninth Circuit found that § 372 does not
constitute a free ...