United States v. Howard, 21-cr-28-pp

UNITED STATES OF AMERICA, Plaintiff, v. ASHTON L. HOWARD, Defendant.

No. 21-cr-28-pp

United States District Court, E.D. Wisconsin

August 30, 2021

ORDER OVERRULING OBJECTION (DKT. NO. 42), ADOPTING JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 35) AND DENYING MOTION TO DISMISS COUNT ONE OF THE INDICTMENT (DKT. NO 27)

PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE

Following the shooting of Jacob Blake by a police officer in Kenosha Wisconsin, a crowd gathered; some members of the crowd threw objects at law enforcement officers. Dkt. No. 36 at 1. The defendant was a member of the crowd; the government alleges that the defendant threw an object at a law enforcement which hit the officer in the head, causing the officer to collapse and eventually to be taken to a hospital for medical care. Id. at 1-2. The grand jury returned an indictment charging the defendant with obstruction of law enforcement during civil disorder (Count One) and being a felon in possession of ammunition (Count Two). Dkt. No. 12. The defendant moved to dismiss the indictment, challenging the constitutionality of the statute charged in Count One and the sufficiency of the indictment. Dkt. No. 27 at 1-2.

On June 3, 2021, Magistrate Judge William E. Duffin issued a report and recommendation, finding that Count One failed to adequately inform the defendant of the nature of the charges so that he could adequately prepare a defense. Dkt. No. 35 at 16. Judge Duffin determined, however, that the statute (18 U.S.C. §231(a)(3)) does not exceed Congressional authority under the Commerce Clause, violate the First Amendment or violate the Due Process Clause. Id. at 8, 11, 12. Five days after Judge Duffin issued that report and recommendation, the grand jury returned a superseding indictment, rendering moot the motion to dismiss the original indictment and addressing Judge Duffin's concerns as to the sufficiency of Count One. Dkt. No. 36.

Twice after the grand jury returned the superseding indictment the defendant requested an extension of time to object to Judge Duffin's recommendation. Dkt. Nos. 37, 40. The court granted both requests; in granting the second motion, the court extended the objection deadline to July 6, 2021. Dkt No. 42. The defendant did not comply with that court-ordered deadline. Instead, on July 10, 2021, the defendant filed objections without seeking leave of the court or explaining why he had not complied with the court's order. Dkt. No 42. The government filed a motion, noting that the defendant's objections were late, but asking that, if the court decided to entertain the untimely objections, it be allowed the customary two weeks to respond. Dkt. No. 43. The court granted the government's request and ordered the government to file a response by July 26, 2021. Dkt. No. 45. The court will overrule the untimely objections and deny the defendant's motion to dismiss Count One of the (now superseding) indictment.

I. Standard of Review

Federal Rule of Criminal Procedure 59(b) governs a district court's referral of motions to dismiss to magistrate judges. Fed. R. Crim. P. 59(b). Parties have fourteen days to file “specific objections” to a magistrate judge's report and recommendation to a motion to dismiss. Fed. R. Crim. P. 59(b)(2). When reviewing a magistrate judge's recommendation, the district judge must review de novo the portions to which a party timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b)(2), (3). Failure to object under Rule 59(b)(2) results in a waiver of a party's right to review; absent an objection, the court will review the recommendation for clear error. See Fed. R. Crim. P. 59(b)(2).

Normally, the court would construe late-filed objections to a recommendation as a waiver of the right to object; the Seventh Circuit has ruled, however, that failure to meet the deadline does not mandate dismissal if the objections are not egregiously late and the opponent has not been prejudiced. United States v. Robinson, 30 F.3d 774, 777 (7th Cir. 1994). This is not the first time that counsel has filed documents after a court-ordered deadline without seeking leave of the court and counsel made no effort to correct his error after the government pointed out the tardy submission in its motion for extension of time. On the other hand, the government has not claimed any prejudice and says that it does not object to the court considering the objections. Dkt. No. 48 at 4, n. 1. The court will consider the objections.

II. Background

A. Background

On August 23, 2020, the police shooting of Jacob Black sparked protests and rioting in Kenosha, Wisconsin, that spanned the course of several days. Dkt. No. 31 at 2. On the evening of the shooting-August 23, 2020-members of the Kenosha Police Department were attempting to move “an unsecured, badly damaged, running squad car that still contained a loaded shotgun.” Id. at 3. Among the officers trying to move the vehicle was a captain in the Kenosha Police Department, T.H.; an object thrown from the crowd hit T.H. in the head and knocked him unconscious. Id.

Count One of the original indictment alleged that the defendant, “on or about August 23, 2020, ”

knowingly committed an act to obstruct, impede, and interfere with any law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructed, delayed, and adversely affected commerce, the movement of any article and commodity in commerce, and the conduct and performance of any federally protected function.

In violation of Title 18, United States Code, Section 231(a)(3). Dkt. No. 12 at 1. Count One of the superseding indictment alleges that “on or about August 23, 2020, the defendant

knowingly committed an act to obstruct, impede, and interfere with a law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way and degree obstructed, delayed, and adversely affected commerce, the movement of any article and commodity in commerce, and the conduct and performance of any federally protected function.

In violation of Title 18, United States Code, Section 231(a)(3). Dkt. No. 36 at 2.

Count Two of the original indictment charged the defendant with being a felon in possession of ammunition under 18 U.S.C. §§922(g)(1) and 924(a)(2). Dkt. No. 12 at 2. Count Two of the superseding indictment contains the same charge. Dkt. No. 36 at 3.

B. Defendant's Motion

The defendant moved to dismiss Count One, arguing that the indictment suffered multiple defects. Dkt. No. 27. The first section of the motion addressed the legislative history of the statute charged in Count One and the racial motivations of its proponent, Senator Long of Louisiana. Dkt. No. 27 at 3-9. The defendant asserted that the government had charged him with violating this statute in the context of “a summer of Black Lives Matter protests.” Id. at 9. He alleged that his prosecution, and that of another individual in this district, arose from demonstrations “in support of racial justice.” Id. at 10-11.

The defendant raised four arguments in support of dismissal, three arising under the Constitution and one based on the sufficiency of the indictment. First, the defendant argued that 18 U.S.C. §231(a)(3) exceeds Congress's Commerce Clause authority by reaching purely intrastate activities between individuals and law enforcement officers. Id. at 1, 11. He argued that while Congress has the authority to regulate activities that “substantially affect interstate commerce, ” United States v. Lopez, 514 U.S. 549, 558-59 (1995), the statute targets activity that affects commerce “in any way or degree.” Id. at 2.

The defendant asserted that the statutory language lacked any causal nexus between his acts and the “purported commercial impact, ” and that it did not require a substantial affect on commerce. Id. at 1-2.

Second, the defendant argued that 18 U.S.C. §231(a)(3) violates the First Amendment, asserting that it is overly broad, id. at 21-27, and that it is a content-based restriction on messages favoring civil rights advocacy, id. at 2633.

Third, the defendant argued that the statute is unconstitutionally vague-violating the Due Process Clause-because it chills protected speech, provides inadequate notice of criminal conduct and invites arbitrary and discriminatory enforcement. Id. at 33-38.

Fourth, the defendant challenged the “boilerplate allegations in the indictment”-the original indictment-on the ground that it did not give the defendant sufficient notice of what he was required to defend against, in violation of the Fifth and Sixth Amendments. Id. at 38-40.

C. Government's Response

The government responded that the defendant's reliance on the legislative history was misplaced, asserting that the court must start with the text of the statute to ascertain its plain meaning. Dkt. No. 31 at 5. The government argued that if the statute is unambiguous, the legislative history is irrelevant. Id. at 5. The government asserted that the defendant's “cherry -picked misrepresentations” from the legislative history included quotes relating to earlier proposed legislation and glossed over the fact that Senator Long voted against the proposed legislation that contained §231. Id.

Responding to the defendant's Commerce Clause argument, the government argued that Congress enacted §231(a)(3) to “provide law enforcement and firefighters with the ability to contain and ultimately end” unwarranted interference with interstate commerce. Id. at 8. The government pointed to the statute's jurisdictional hook which it asserted applies only to the “subset of civil disorders that affect...