United States District Court, S.D. Alabama, Southern Division
ORDER DENYING MOTION TO DISMISS INDICTMENT
KRISTI
K. DUBOSE, CHIEF UNITED STATES DISTRICT JUDGE
On the
eve of trial, Defendant Mack Doak filed a motion to dismiss
the superseding indictment. (Doc. 140). For the reasons that
follow, the Court denies the motion and instead construes it
as a motion for a bill of particulars, which the Government
has already addressed by providing the underlying criminal
offenses.
I.
BACKGROUND
Mack
and Jaycee Doak are charged in a nine-count superseding
indictment. Counts 1-6, which are relevant to this motion,
charge transportation with the intent to engage in criminal
sexual activity, in violation of 18 U.S.C. § 2423(a).
Section 2423(a) provides that “A person who knowingly
transports an individual who has not attained the age of 18
years in interstate or foreign commerce . . . with intent
that the individual engage . . . in any sexual activity for
which any person can be charged with a criminal offense,
shall be fined under this title and imprisoned not less than
10 years or for life.” 18 U.S.C. § 2423(a).
“2423(a) incorporates by reference other criminal laws
into its mens rea element by criminalizing the
transportation of minors in interstate commerce ‘with
intent that the [minor] engage in . . . any sexual activity
for which any person can be charged with a criminal
offense.'” United States v. Adleta, 2013
WL 4734824, at *2 (M.D. Fla. Sept. 3, 2013) (quoting §
2423(a)).
Multiple
crimes include the phrase “with intent that the
individual engage . . . in any sexual activity for which any
person can be charged with a criminal offense[.]”
See e.g., 18 U.S.C. §§ 2422(a), 2422(b),
2425. The criminal offense with which any person can be
charged has been held to refer to “state or federal
law[, ]” United States v. Gordon, 713
Fed.Appx. 424, 429 (6th Cir. 2017) (holding that if a
defendant “transports a minor with the intent that the
minor engage in prostitution or criminal sexual activity,
whether under state or federal law-he has violated §
2423(a)”), as well as misdemeanors. United States
v. Shill, 740 F.3d 1347, 1352 (9th Cir. 2014)
(“Because Congress failed to limit § 2422(b) in
this way, the logical inference is that Congress intended the
statute to apply to both state felony and misdemeanor
conduct.”).
The
superseding indictment tracks the statute's language and
subsequently identifies the alleged (1) month of travel; (2)
which victim was transported; and (3) point of origin and
destination. But, it omitted an underlying criminal offense.
The Government submitted proposed jury instructions. (Doc.
138 at 1). In the instructions, the Government requested the
Court instruct the jury with the following Alabama criminal
offenses: rape and sexual abuse. After that request, Mack
Doak filed a motion to dismiss the indictment.
II.
ARGUMENTS
Mack
Doak argues the Government's failure to identify a
criminal offense in the indictment “violates his
constitutional rights, including his Fifth Amendment grand
jury right . . . .” (Doc. 140). “[S]ince the
question whether a person ‘can be charged with a
criminal offense' is an element of a § 2423(a)
offense, Mack Doak objects to the Court supplying possible
Alabama statutes that would qualify under the ‘criminal
offense' requirement, where the government failed to
allege any statute or criminal offense in the indictment at
all.” (Doc. 139 at 6). Because the indictment failed to
identify the criminal offense, he argues that the Court's
plan to explain the suggested Alabama offenses (or any
offenses) would constructively amend the indictment.
The
Government disagrees. It first argues that the motion to
dismiss is untimely, as it was filed on May 13 and the
deadline for all pretrial motions was April 10. Because the
motion fails to “show[] good cause[, ]” Fed. R.
Cim. P. 12(c)(3), it argues the Court should strike the
motion. With respect to the motion's merit, the
Government argues that the indictment is sufficient. It
points out that that “The superseding indictment cites
to 18 U.S.C. § 2423, the relevant statute, and includes
the essential statutory elements. In addition, the
superseding indictment identifies particular acts of
transportation that have given rise to the charges.”
(Doc. 142 at 4). It argues that these types of statutes that
criminalize by reference to other state or federal laws,
“need not lay out every offense that the defendant
could have been prosecuted for had he committed the
underlying offense.” (Doc. 142 at 5).
III.
DISCUSSION
a.
The Indictment Is Sufficient.
“The
indictment . . . must be a plain, concise, and definite
written statement of the essential facts constituting the
offense charged and must be signed by an attorney for the
government.” Fed. R. Crim. P. 7(c)(1). “For each
count, the indictment or information must give the official
or customary citation of the statute, rule, regulation, or
other provision of law that the defendant is alleged to have
violated.” Id. “An indictment is
sufficient when it ‘(1) presents the essential elements
of the charged offense, (2) notifies the accused of the
charges to be defended against, and (3) enables the accused
to rely upon a judgment under the indictment as a bar against
double jeopardy for any subsequent prosecution for the same
offense.'” United States v. Wayerski, 624
F.3d 1342, 1349 (11th Cir. 2010) (quoting United States
v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002))
(internal quotation marks and citation omitted). “A
criminal conviction will not be upheld if the indictment upon
which it is based does not set forth the essential elements
of the offense.” United States v. Gayle, 967
F.2d 483, 485 (11th Cir. 1992).
Here,
because a specific statute or statutes that a defendant's
successful persuasion would have violated does not constitute
an essential element of the offense, the superseding
indictment is not insufficient for failing to present the
essential elements of the charged offense.
“[A]
jury in a federal criminal case cannot convict unless it
unanimously finds that the Government has proved each
element [of the offense].” United States
v. Jockisch, 857 F.3d 1122, 1127 (11th Cir.), cert.
denied,138 S.Ct. 284, 199 L.Ed.2d 181 (2017) (emphasis
in original) (quoting Richardson v. United States,
526 U.S. 813, 817, 119 S.Ct. 1707 (1999)). Unanimity is not,
however, required to “decide ‘which of several
possible sets of underlying brute facts make up a particular
element, say, which of several possible means the
defendant used to commit an element of the crime.'”
Id. (emphasis in original). In Jockisch,
the Eleventh Circuit addressed whether a jury was required to
unanimously agree on which underlying criminal offense the
defendant would have committed if his intended persuasion
occurred. Answering in the negative, the Eleventh Circuit
held that “the jury does not have to unanimously guess
at the one statute that a defendant's successful
persuasion would have violated so long as the jury
unanimously agrees that that sexual activity to be enticed
would violate one of the listed statutes had it been
successfully carried out.” Id. at 1133.
Because unanimity is not required, it cannot be said that a
specific underlying criminal offense with which a defendant
could be charged constitutes an essential element of the
offense. In other words, since the jury must unanimously
agree only that “the completed sexual activity he
attempted to induce would have constituted a
criminal offense[, ]” i ...