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United States v. Payne

United States District Court, D. Nevada

February 10, 2017

RYAN W. PAYNE, Defendant.


          Gloria M. Navarro, Chief Judge.

         This 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. (See id.).

         Pending 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).[1]

         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. (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).

         In his 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).


         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 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).[2] 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.

         Having 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 order.

         As 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 ...

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