United States v. Diaz

UNITED STATES OF AMERICA, v. SALVADOR DIAZ, Defendant.

17-CR-227 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 13, 2018

MEMORANDUM OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Defendant Salvador Diaz is charged with failure to register as a convicted sex offender under the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250. See Compl., Dkt. 1; Indictment, Dkt. 12. Diaz, appearing pro se, moves to dismiss the Indictment on numerous grounds, including: that his prior sex-offense conviction was procedurally defective; that the state-court proceedings that determined his sex-offender risk level deprived him of due process; and that the registration requirements imposed by SORNA are unconstitutional. See Def. Mem. of Law, Dkt. 61, at 6-12. Additionally, Diaz moves to modify the mandatory conditions of his pretrial release, arguing that they are unconstitutional. See id. at 11. For the following reasons, Diaz's motion to dismiss the Indictment is DENIED. The Government, however, is ORDERED to respond by letter to Diaz's motion to modify his bail conditions no later than July 27, 2018. Diaz may submit a reply no later than August 3, 2018. The Government, Diaz, and Diaz's standby counsel are further ORDERED to appear for a conference on August 21, 2018 at 3:30 p.m., in Courtroom 443 of the Thurgood Marshall U.S. Courthouse, so that the Court can set a trial schedule.

BACKGROUND

I. Diaz's Attempts to Challenge His Prior Conviction¹

On December 1, 2000, Diaz, then a chief petty officer in the United States Navy, was convicted at court-martial of rape and indecent acts, in violation of the Uniform Code of Military Justice ("UCMJ"). See Compl. ¶ 3. The victim of Diaz's crimes was his daughter, who was approximately 12 years old at the time. See id. Diaz was dishonorably discharged from the Navy and sentenced to nine years' imprisonment. See id.

Following his conviction, Diaz filed a series of appeals through the military justice system, each of which was denied. First, Diaz appealed to the Navy-Marine Corps Court of Criminal Appeals ("NMCCA"), alleging 18 assignments of error, including ineffective assistance of counsel, abuse of discretion by the trial judge, and failure to prove his crimes beyond a reasonable doubt. See United States v. Diaz, 61 M.J. 594, 596-98 (N-M. Ct. Crim. App. 2005). The NMCCA affirmed Diaz's conviction, holding that the trial court's "findings and sentence [were] correct in law and fact." Id. at 598. Diaz appealed the NMCAA's decision to the United States Court of Appeals for the Armed Forces ("CAAF"). See United States v. Diaz, 64 M.J. 180 (C.A.A.F. 2006). CAAF affirmed the NMCAA's decision in a summary disposition. Id. Diaz's petition for reconsideration of CAAF's decision was denied. See United States v. Diaz, 64 M.J. 221 (C.A.A.F. 2006). Diaz then filed two petitions for a writ of certiorari in the United States Supreme Court. Both were denied. See Diaz v. United States, 549 U.S. 1167 (2007); Diaz v. United States, 549 U.S. 1356 (2007).

Diaz also attempted to collaterally attack his conviction a number of times. He filed three separate petitions in the U.S. District Court for the District of Kansas, challenging his conviction, the appeals process, and the conditions of his confinement. See Diaz v. McGuire, No. 02-3271 (D. Kan. Nov. 1, 2004); Diaz v. Harrison, No. 04-3401 (D. Kan. Sept. 18, 2006); Diaz v. Inch, No. 06-3306 (D. Kan. Sept. 28, 2007). Each petition was denied. Diaz appealed two of the denials, and the Tenth Circuit affirmed both, holding that Diaz's arguments had been "given full and fair consideration by the military courts." Diaz v. Inch, 268 F. App'x 802, 803 (10th Cir. 2008); see also Diaz v. McGuire, 154 F. App'x 81 (10th Cir. 2005).

Diaz also attempted to challenge his conviction through two civil actions in this District. First, in July 2007, Diaz sued the Department of Defense. His lawsuit principally raised the same arguments he made when he appealed his court martial conviction: that he was convicted without effective assistance of counsel and that the court martial appellate review process was defective. See Compl., Diaz v. Dep't of Def., No. 08-CV-370 (S.D.N.Y. Jan. 15, 2008). Judge Wood sua sponte dismissed the Complaint to the extent it sought to overturn his conviction and to stay ongoing New York State proceedings requiring him to register as a sex offender. See Order, Diaz v. Dep't of Def., No. 08-CV-370 (S.D.N.Y. Jan. 15, 2008); Diaz v. Dep't of Def., No. 08-CV-370, 2008 WL 4671833, at *2 (S.D.N.Y. Oct. 23, 2008). After the case was reassigned to then-District Judge Denny Chin, Judge Chin denied Diaz's motion for reconsideration of Judge Wood's order. Order, Diaz v. Dep't of Def., No. 08-CV-370 (S.D.N.Y. Aug. 27, 2008). In a subsequent decision, Judge Chin dismissed the Complaint's remaining claims, noting that Diaz's claims had been repeatedly litigated and—aside from lacking merit—were barred by claim preclusion. See Diaz, 2008 WL 4671833, at *4.

Subsequently, Diaz sued the Navy Judge Advocate General, seeking a judgment declaring his conviction void. This Complaint was, like the first, premised on his claims of ineffective assistance of counsel and a defective appellate review process. See Compl., Diaz v. Judge Advocate Gen. of the Navy, No. 10-CV-1316 (S.D.N.Y. Feb. 18, 2010). Judge Preska dismissed the complaint sua sponte and certified that an appeal would not be in good faith. See Order, Diaz v. Judge Advocate Gen. of the Navy, No. 10-CV-1316 (S.D.N.Y. Feb. 18, 2010). Nevertheless, Diaz appealed, and the Second Circuit affirmed. See Diaz v. Judge Advocate Gen. of the Navy, 413 F. App'x 342 (2d Cir. 2011).

II. Procedural History in the Instant Case

On February 15, 2017, Diaz was arrested on a criminal complaint in this District. The Federal Defenders of New York ("FDNY") were appointed to represent him. See Order (Feb. 15, 2017), Dkt. 5. Following Diaz's indictment, FDNY filed a thorough motion to dismiss the Indictment on constitutional and statutory grounds (the "First Motion to Dismiss"). See Def. Mot. (July 14, 2017), Dkt. 32. Shortly after the First Motion to Dismiss was fully briefed, Diaz moved to terminate FDNY as his counsel. See Def. Ltr. (Aug. 17, 2017), Dkt. 36. Diaz indicated that communication had broken down between him and his attorneys and that he wanted to withdraw the First Motion to Dismiss. See id.; Status Conference Transcript (Aug. 24, 2017), Dkt. 43, at 9-10. The Court granted Diaz's request for new counsel, appointed new counsel pursuant to the Criminal Justice Act ("CJA"), and held the First Motion to Dismiss in abeyance. See Order (Aug. 24, 2017), Dkt. 39.

At a subsequent status conference (with Diaz's new CJA counsel), Diaz explained that he had asked to withdraw the First Motion to Dismiss because he wanted to use the instant criminal proceeding to collaterally attack his prior sex-offense conviction. See Status Conference Transcript (Oct. 11, 2017), Dkt. 49, at 3-6. The Court warned Diaz that a collateral attack waslikely procedurally improper and unlikely to succeed in the instant proceeding. Id. at 4-15. Nevertheless, after hearing that Diaz had consulted with his attorney about the collateral attack motion, the Court set a briefing schedule and continued to hold the First Motion to Dismiss in abeyance. Id. at 15-16.

A few months later, Diaz's attorney filed a letter indicating that Diaz wished to withdraw his motion to collaterally attack the conviction and that, instead, the Court should decide the First Motion to Dismiss. See Def. Ltr. (Jan. 8, 2018), Dkt. 53, at 6. Diaz then wrote the Court personally, stating that his attorney's letter had "ignored [his] wishes" and that he indeed wished to proceed with a collateral attack. See Def. Ltr (Feb. 5, 2018), Dkt. 56. At a subsequent status conference, Diaz asked the Court to relieve his attorney and allow him to proceed pro se. See Status Conference Transcript (Mar. 1, 2018), Dkt. 65, at 2-3. After ensuring that Diaz understood his right to counsel and the perils of proceeding pro se, the Court relieved Diaz's attorney and allowed Diaz to proceed pro se (with his former attorney as standby counsel). See id. at 3-19; Order (Mar. 1, 2018), Dkt. 62. The Court also confirmed that Diaz wished to withdraw the First Motion to Dismiss; accordingly, the Court dismissed the First Motion to Dismiss as moot and allowed Diaz to brief the instant motion. See Order (Mar. 2, 2018), Dkt. 62.

DISCUSSION

I. Standard of Review

Federal Rule of Criminal Procedure 12(b) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the issue." Fed. R. Crim. P. 12(b); see also United States v. Covington, 395 U.S. 57, 60-61 (1969); United States v. Bodmer, 342 F. Supp. 2d 176, 180 (S.D.N.Y. 2004). Because federal crimes are "solely creatures of statute," Dowling v. United States, 473 U.S. 207, 213 (1985) (internalquotation marks omitted), "a federal indictment can be challenged on the ground that it fails to allege a crime within the terms of the applicable statute," United States v. Aleynikov, 676 F.3d 71, 75-76 (2d Cir. 2012). The court, however, must accept all factual allegations in the indictment as true when deciding such a motion. See United States v. Martinez, No. S1 94 CR 219, 1995 WL 10849, at *2 (S.D.N.Y. Jan. 12, 1995) (citing Costello v. United States, 350 U.S. 359 (1956)).

Additionally, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted) (collecting cases).

II. Diaz's Motion to Dismiss the Indictment Is Denied

A. Diaz May Not Attack the Procedural Validity of His Prior Conviction in this Case

Diaz's central claim is...