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United States v. Payne

United States District Court, D. Nevada

February 2, 2017

RYAN W. PAYNE, Defendant.



         Pending 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[1] 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).[2]

         I. BACKGROUND

         On 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).

         Count Two of the Superseding Indictment charges Defendant with Conspiracy to Impede and Injure a Federal Officer, a violation of 18 U.S.C. § 372.[3] 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).


         A party 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 3-2(b).


         Defendant 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).

         Having 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.

         Defendant 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)).[4] Threats are not wrongful conduct unless they are “true threats.” Virginia v. Black, 538 U.S. 343, 359- 60 (2003).[5] 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.

         Although 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 ยง 372 does not constitute a free ...

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