United States District Court, D. Nevada
M. Navarro, Chief Judge.
Order amends the previous Order (ECF No. 1544) to refer to
the Amended Report and Recommendation. The original Report
and Recommendation (ECF No. 1231) was amended to correct a
scrivener's error. (See ECF No. 1288). All
citations in this Order have been changed to refer to the
Amended Report and Recommendation. This Order also amends
footnote one to explain that the Amended Report and
Recommendation did not alter or extend the deadline to file
an objection to the original Report and Recommendation.
before the Court is the Amended Report and Recommendation
(ECF No. 1288) entered by Magistrate Judge Peggy A. Leen on
January 13, 2017, denying Defendant Ryan W. Payne's
(“Defendant's”) Motion to Dismiss Counts Ten,
Eleven, and Twelve (ECF No. 712). Defendant timely filed his
Objection (ECF No. 1345), to which the Government timely
filed a Response (ECF No. 1480).
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. (See Superseding Indictment,
ECF No. 27). At issue here are Counts Ten, Eleven, and
Twelve, all three of which charge Defendant and his
co-defendants with Obstruction of the Due Administration of
Justice, a violation of Title 18, United States Code, Section
1503. Section 1503 states in pertinent part:
Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to influence,
intimidate, or impede any grand or petit juror, or officer in
or of any court of the United States, or officer who may be
serving at any examination or other proceeding before any
United States magistrate judge or other committing
magistrate, in the discharge of his duty, or injures any such
grand or petit juror in his person or property on account of
any verdict or indictment assented to by him, or on account
of his being or having been such juror, or injures any such
officer, magistrate judge, or other committing magistrate in
his person or property on account of the performance of his
official duties, or corruptly or by threats or force, or
by any threatening letter or communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct,
or impede, the due administration of justice, shall be
punished as provided in subsection (b).
18 U.S.C. § 1503(a) (emphasis added). The italicized
section of the statute is considered the “Omnibus
Clause, ” which “serves as a catchall.”
United States v. Aguilar, 515 U.S. 593, 598 (1995).
A charge of § 1503's Omnibus Clause requires the
Government to prove “[first, ] the defendant
influenced, obstructed, or impeded, or tried to influence,
obstruct, or impede the due administration of justice; and
[s]econd, the defendant acted corruptly, or by threats or
force, or by any threatening communication, with the intent
to obstruct justice.” Instruction 8.131, Ninth Cir.
Model Jury Instructions (10th ed.) (last modified Dec. 2016).
Additionally, the Ninth Circuit has construed the “due
administration of justice” to require proof of a
“pending judicial proceeding.” See United
States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003).
Motion to Dismiss, Defendant seeks to dismiss these counts
because “the alleged obstructive conduct in this case
lacks the requisite nexus in time, causation, or logic with .
. . [a] judicial proceeding [as] required by [§
1503].” (Mot. to Dismiss 5:7-9, ECF No. 712).
Additionally, Defendant asserts that “[t]he omnibus
clause of 18 U.S.C. §1503 is [un]constitutionally
overbroad.” (See Id. 7:24-9:15). In her
Amended Report and Recommendation, Judge Leen rejected these
arguments and recommended denial of the Motion. (Am. R. &
R. 8:1-12:21, 13:12-19, ECF No. 1288).
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 Amended Report
and Recommendation denying his Motion to Dismiss. (Obj., ECF
No. 1345). Defendant first argues that Judge Leen erred by
“applying a novel construction of § 1503 that
neither the statute nor any prior judicial decision has
fairly noticed to be within its scope.” (Id.
8:8-10). Specifically, Defendant disagrees with
Judge Leen's reliance on United States v.
Sussman, 709 F.3d 155 (3d Cir. 2013) and United
States v. Frank, 354 F.3d 910 (8th Cir. 2004) to support
that § 1503 encompasses violations of permanent
injunctions. (Id. 9:20-11:21). Defendant then
asserts that Judge Leen's “novel construction of
§ 1503 [to include permanent injunctive orders as
pending judicial proceedings] violates ejusdem generis and
the rule of lenity.” (Id. 11:22- 12:26).
Lastly, Defendant reasserts his argument from his original
Motion to Dismiss that “§ 1503 is
[un]constitutionally overbroad.” (Id.
13:1-14:10). As such, these objections do not present new or
rebuttal legal arguments, but rather request that this Court
reject Judge Leen's determinations.
reviewed the record in this case de novo, the Court
agrees with the analysis and findings of Judge Leen in her
Amended Report and Recommendation (ECF No. 1288) denying the
Motion to Dismiss and incorporates them by reference in this
Judge Leen noted, the Ninth Circuit has not addressed a
§ 1503 prosecution in which a defendant's conduct
was alleged to violate a permanent injunction. (See
Am. R. & R. 10:1-2). Indeed, few courts have considered
“when a proceeding ends for purposes of §
1503.” United States v. Novak, 217 F.3d 566,
572 (8th Cir. 2000) (citing United States v.
Fulbright, 105 F.3d 443, 450 (9th Cir. 1997) (noting
that only “a few cases address post-trial
conduct”), cert. denied, 520 U.S. 1236 (1997);
United States v. Johnson,605 F.2d 729, 730 (4th
Cir. 1979) (“While many cases have determined when a
proceeding begins for purposes of [§ 1503], neither
counsel nor research has produced any authority as to when
one terminates.”), cert. denied, 444 U.S. 1020
(1980)). However, the Court agrees with Judge Leen that case
law regarding permanent injunctions is instructive.
“[A]n injunction often requires continuing supervision
by the issuing court and always a continuing willingness to
apply its powers and processes on behalf of the party who
obtained that equitable relief.” Sys. Fed'n No.
91, Ry. Emp. Dep't, AFL-CIO v. Wright, 364 U.S. 642,
647 (1961). The court may, in its “sound judicial
discretion, ” modify the terms of an injunction upon a
change in legal or factual circumstances. Id. at
647. When a court has issued a permanent ...