United States v. Cowden

UNITED STATES OF AMERICA, Plaintiff, v. MARK COWDEN, Defendant.

Criminal Action No. 5:16-cr-24

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

September 12, 2016

(JUDGE STAMP)

REPORT AND RECOMMENDATION

I. Introduction

A. Background

On June 21, 2016, the Defendant was named in a two count indictment charging him with Count I-Deprivation of Rights in violation of 18 U.S.C. § 242 and Count II-Obstruction of Justice in violation of 18 U.S.C. § 1519. The alleged violations occurred on January 29, 2015. An initial appearance was held on June 27, 2016, at which the Defendant was released subject to conditions.

This matter comes before the court on Defendant's [ECF No. 25] Motion to Dismiss Count Two of the Indictment. The Defendant's motion was filed on August 9, 2016. The United States filed a response to the Defendant's motion on August 18, 2016. ECF No. 34. This court held a hearing on September 9, 2016. The Defendant appeared in person and by his counsel Michael Nogay, Esq. The United States (hereinafter the "Government") appeared by Nicholas Murphy, Esq. and Jarod Douglas, Esq. Both parties presented argument, however, no testimony or evidence was presented at the hearing.

B. Recommendation

This court recommends that Defendant's [ECF No. 25] motion to dismiss be DENIED because the indictment is legally sufficient and this court lacks the authority to dismiss the indictment based on questions reserved for the trier of fact.

II. Discussion

The Defendant advances three arguments in support of his motion to dismiss. First, the Defendant did not have fair notice that his conduct violated 18 U.S.C. § 1519. Second, 18 U.S.C. § 1519 is unconstitutionally vague despite the scienter requirement. Third, the court must consider the excessive force test established in Graham v. Connor, 490 U.S. 386(1989). This court is unpersuaded by the Defendant's arguments.

A. The Defendant Had Fair Notice that His Conduct Violated 18 U.S.C. § 1519

The Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." The Supreme Court has "establish[ed] that the Government violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States, 135 S. Ct. 2551, 2556 (2015) (citations omitted).

18 U.S.C. § 1519 provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

The Defendant raises two arguments that he did not have fair notice that his conduct violated 18U.S.C. § 1519 therefore, the statute is unconstitutionally vague. First, he did not have fair notice that his conduct violated section 1519 because he is accused of omitting facts and section 1519 does not state that an omission constitutes a violation. Second, the Defendant could not have known that the forms at issue were submitted "in contemplation of a matter within the jurisdiction of any department or agency of the United States" because the federal investigation did not begin until fourteen months after the forms were submitted. The court is unpersuaded by these arguments.

1. An Omission Can Constitute a Violation of 18 U.S.C. § 1519

The Defendant first argues that 18 U.S.C. § 1519 does not include the word "omit" or "omission" therefore, he did not have fair notice that his behavior charged in the indictment—"(5) omitting that the defendant struck [the arrestee] in the head and (6) omitting that the defendant's use of force injured [the arrestee]"—violated the law.

The Defendant acknowledges that other circuits have held that omissions can violate 18 U.S.C. § 1519. For example, in United States v. Moyer, 674 F.3d 192, 207 (3d Cir. 2012), the court stated that, "[i]t borders on the ridiculous to assert that a Chief of Police would not have a duty to disclose the identity of suspects in his official police reports or, conversely, that withholding the names of suspects—known to him—in those official police reports would be deemed acceptable." (emphasis original). Moreover, in United States v. Lanham, 617 F. 3d. 873, 887 (6th Cir. 2010), the court held that, "[m]aterial omissions of fact can be interpreted as an attempt to 'cover up' or 'conceal' information." This court agrees with the precedents cited by both the Defendant and the Government that an omission can constitute a violation of 18 U.S.C. § 1519.

The Defendant attempts to distinguish theses holdings from the facts here. The Defendantindicates that he submitted two forms: (1) an Obstructing an Officer form¹ and (2) an Aggressive and Resistive Behavior form.² The Obstructing an Officer form is a narrative, whereas, the Aggressive and Resistive Behavior form requires the officer to fill in blank spaces with numbers. These numbers correspond to definitions at the bottom of the form regarding the level of force, where on the arrestee the force was used, and the type of force. The alleged omissions at issue relate to the narrative Obstructing an Officer Form. The Defendant argues that he included the alleged omitted information in the Aggressive Resistive Behavior form. Thus, "a reasonable officer in his position would not have understood that he was obligated under federal law to provide such details on the narrative form when he already had provided full information on the Aggressive and Resistive Behavior Response Form." Def.'s Mot. at 12.

Indeed, the Aggressive and Resistive Behavior Response form, completed by the Defendant, shows that under the section "Level of Force" he entered "42" indicating "Hands on Force"; under section "Type of Force" he entered "71" indicating "Hands/Arm"; and under section "How Used" he entered "91, 92, 93" indicating "Grab/Hold," "Push/Pull," and "Strike/Hit." However, a plain reading of these forms leaves several questions unanswered. For example, is the behavior that was allegedly omitted from the narrative form fully disclosed by entering codes in another form. Moreover, did the Defendant think that he was complying with the law by disclosing certain acts in a fill-in-the-blank form yet omitting them from the narrative form. These are questions of fact thus, this court cannot answer them at the pre-trial stage.

Furthermore, the Indictment cites behavior other than an omission that could constitute aviolation of 18 U.S.C. § 1519. The Indictment alleges that the Defendant:

(1) falsely claimed that [the arrestee] became "more agitated" as he approached the Hancock County Sheriff's Office; (2) falsely described [the arrestee] as "verbally abusive/combative" at the Sheriff's Office; (3) falsely claimed that the defendant and another officer told [the arrestee] "to settle down"; (4) falsely claimed that [the arrestee] was told to "stop at the elevator" in the Sheriff's Office.

Therefore, even if the Defendant could show that an omission does not violate the law, the indictment alleges false statements that may amount to a violation of the law. Thus, the indictment is sufficient to survive the Defendant's motion to dismiss.

2. A Foreseeable Investigation is Not Required to Violate Section 1519

The Defendant argues that the investigation did not begin until fourteen months after he submitted the forms therefore, he did not have fair notice that the forms were submitted "in contemplation of a matter within the jurisdiction of any department or agency of the United States" under 18 U.S.C. § 1519. Def.'s Mot. at 13. Stated differently, the federal investigation was so remote that the Defendant could not have contemplated or foreseen the investigation when he submitted the forms. The court is unpersuaded by this argument for two reasons. First, it is well establish that "in relation to or in contemplation of" are part of the jurisdictional element of the statute therefore the Defendant's mens rea are irrelevant. Second, the jurisdictional element includes several clauses separated by "or" therefore, "in relation to or in contemplation of" is merely one way the United States may have jurisdiction thus, this clause does not create a foreseeability requirement.

The Defendant relies on United States v. Kernell, 667 F. 3d 746 (6th Cir. 2012) and United States v. Yielding, 657 F. 3d 688 (8th Cir. 2011) to support his argument, however, these cases are distinguishable. In Kernell, the court held that "[t]he belief that a federal investigation directed atthe defendant's conduct might begin at some point in the future satisfies the 'in contemplation' prong." 667 F. 3d at 755. The Defendant argues that Kernell established that foreseeability is a requirement because the defendant in Kernell foresaw an investigation and thereby satisfied the in contemplation prong. However, the Kernell court explained that the defendant was warned that his conduct had been reported to the FBI thus, the defendant had actual knowledge of an investigation therefore, "[section] 1519 would clearly apply to him." Id. at 751. Because section 1519 clearly applied to the defendant in Kernell, the court did not address whether section 1519 could apply to a hypothetical individual without knowledge of a foreseeable investigation. Therefore, Kernell does not establish that the Defendant must have foreseen an investigation.

Moreover, in Yielding, the court held that "[t]he statute . . . does not allow a defendant to escape liability for shredding documents with intent to obstruct a foreseeable investigation of a matter...