United States v. Mayes

UNITED STATES OF AMERICA, Plaintiff, v. VAN L. MAYES, Defendant.

No. 18-cr-154-pp

United States District Court, E.D. Wisconsin

January 24, 2022

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO 136), DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT (DKT. NO. 123) AND REQUIRING PARTIES TO FILE STATUS REPORT

PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE

The defendant filed a motion to dismiss the indictment, arguing that 18 U.S.C.§§231(a)(1) and (2) exceed Congress's Commerce Clause authority, operate as a content-based restriction on expression and violate his Due Process rights. Dkt. No. 124. Following briefing, Magistrate Judge William E. Duffin recommended that this court deny the motion to dismiss. Dkt. No. 135. On October 4, 2021, the defendant filed objections to the recommendation. Dkt. No 143. The government responded on October 18, 2021. Dkt. No 146. The court will adopt the recommendation and deny the motion to dismiss the 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. 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 of the magistrate judge's recommendations to which a party timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b)(2), (3). The court may “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).

II. Background

A. Factual Background

The grand jury returned a superseding indictment on October 8, 2019, charging the defendant with seven counts relating to events that occurred in Milwaukee between August 13 and 15, 2016. Dkt. No. 62. Count One charged the defendant with conspiring with others to maliciously damage the

Milwaukee Police Department and residences in West Allis by means of fire and use of a destructive device under 18 U.S.C. §§844(m) and 2. Id. at 1. Count Two charged him with using a cellphone to encourage others to riot and to coordinate the making of destructive devices to firebomb the above locations under 18 U.S.C. §§2101(a)(2) and (3) and 2. Id. at 2. Count Three charged him with knowingly possessing a destructive device in relationship to a crime of violence under 18 U.S.C. §924(c)(1)(B)(ii). Id. at 3. Count Four charged the defendant with teaching and demonstrating to others, including juveniles, the use, application and making of Molotov cocktails, knowing that the devices would be used in furtherance of civil disorder, “which in any way and degree would obstruct, delay, and adversely affect interstate commerce and the conduct and performance of any federally protected function, to wit: the functioning of the Milwaukee Police Department” under 18 U.S.C. §§231(a)(1) and 2. Id. at 4. Count Five charged the defendant with knowingly and intentionally conspiring to intimidate, threaten and corruptly persuade witnesses to engage in the described acts by creating a false and common story to be communicated to law enforcement and threatening to expose witnesses with the intent to hinder the ATF under 18 U.S.C. §§1512(b)(3) and (k) and 2. Id. at 5. Count Six charged him with knowingly possessing a firearm after having previously been convicted of a crime punishable by a term exceeding one year under 18 U.S.C. §§921(a)(3) and (4). Id. at 6. Finally, Count Seven charged the defendant with knowingly making a National Firearms Act firearm, a “Molotov cocktail, ” under 26 U.S.C. §§5822 and 5861(f) and 18 U.S.C. §2. Id. at 7.

These charges arose from incidents that occurred after a young Black man was shot by police in a neighborhood near Sherman Park in Milwaukee on August 13, 2016. Dkt. No. 124 at 4. According to the defendant, the crowd that gathered after the shooting “became more agitated, louder and aggressive, ” culminating in incidents of arson, destruction of property and assault. Id. At some point, a BP station was completely destroyed by fire. Id. “Over two nights, citizens threw bricks and bottles at police officers and vandalized, looted, and burned businesses in the neighborhood where the shooting occurred.” Dkt. No. 135 at 1 (citing generally dkt. no. 1).

The government says the evidence shows that the defendant demonstrated-in front of children and adults-how to make Molotov cocktails as part of a plan to throw them at the police station and homes. Dkt. No. 131 at 3. The defendant allegedly attempted to intimidate and interfere with witnesses and with the investigation by lying, compiling a list of those who received subpoenas with the intent of exposing those witnesses, saying he wanted something done about a witness, creating a story to protect the witnesses from prosecution, and posting intimidating video messages referring to citizen witnesses as “snitches” and threating to find out who made statements. Id. at 3. The government indicates that one witness was assaulted by an unknown assailant because of his/her cooperation. Id.

B. Motion to Dismiss

1. Defendant's Motion (Dkt. No. 124)

The defendant argued that in Count Four, the government had charged a violation of a statute (18 U.S.C. §§231(a)(1) and (2)) that violates the Constitution in three ways: (1) it does not require a substantial nexus to interstate commerce as mandated by the Commerce Clause; (2) it burdens expressive conduct under the First Amendment; and (3) it is unconstitutionally vague because it chills protected speech, provides inadequate notice of criminal conduct and allows for discriminatory enforcement and prosecution. Dkt. No. 124 at 5-24.

As to the first argument, the defendant argued that the Commerce Clause prohibits the criminalization of noneconomic intrastate activity unless the activity “substantially affects interstate commerce.” Id. at 5 (citing United States v. Lopez, 514 U.S. 549 (1995)). He cited the four-factor test articulated by the Supreme Court for determining whether the regulated activity “substantially affects” interstate commerce:

(1) whether the regulated activity is commercial/economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated.

Dkt. No. 124 at 6 (citing United States v. Morrison, 529 U.S. 598, 610-12 (2000)). Applying those factors, the defendant first argued that the activity regulated by §§231(a)(1) and (2) is noneconomic. Id. at 8. Second, the defendant asserted that the facial commercial nexus contained in the statute is not connected to the prohibited acts because it uses permissive language (“may”) and requires a civil disorder that affects commerce “in any way or degree.” Id. at 10. Third, the defendant asserted that Congress has made no findings to establish that the activity regulated by §§231(a)(1) and (2) “substantially affect[s] interstate commerce beyond any impact ‘visible to the naked eye.'” Id. at 10-11 (quoting Lopez, 541 U.S. at 563). Fourth, the defendant claimed that the relationship between the activity regulated under §§231(a)(1) and (2) and interstate commerce is too attenuated to survive a constitutional challenge. Id. at 11.

Next, the defendant argued that the statute violates the First Amendment in two ways: (1) §§231(a)(1) and (2) are substantially overbroad regulations of protected expression because they impose steep criminal penalties on an expansive range of speech and expressive conduct; and (2) §§231(a)(1) and (2) were enacted for the express legislative purpose of suppressing the content of messages that favor civil rights advocacy. Id. at 12. According to the defendant, §§231(a)(1) and (2) draw no distinction between acts that would violate the statute and acts that are undertaken “merely to convey a message or symbolic conduct.” Id. at 13. He argued that the failure to provide proper notice and the over-inclusiveness of the statute create a substantial risk of arbitrary or discriminatory enforcement and places a significant burden on expression. Id. at 14. With respect to the content-based restriction argument, the defendant insisted that the statute cannot survive the strict scrutiny analysis because it regulates protected expression, the legislative history reveals an intent to suppress the messages supporting the civil rights and racial justice for Black Americans, and the burdens imposed are only remotely connected to any potential federal interest. Id. at 16.

Finally, the defendant argued that the §§231(a)(1) and (2) are unconstitutionally vague in violation of the Due Process Clause because they chill protected speech, provide inadequate notice of criminal conduct and invite arbitrary and discriminatory enforcement and prosecution. Id. at 17. The defendant cited allegedly vague terms such as “to obstruct, delay or adversely affect, ” “use in or in furtherance of a civil disorder, ” “knowing or having reason to know or intended that the same will be unlawfully employed, ” “unlawfully employed, ” “technique, ” “teaches or demonstrates, ” “in any way, ” “impact on commerce or impact on the conduct or performance of any federally protected function, ” “civil disorder, ” and “may.” Id. at 18, 19. The defendant asserted that the alleged vagueness cannot be remedied by construction without violation the Constitutional separation of powers. Id. at 21-22.

Although the motion to dismiss addressed only Count Four, the defendant argued that the court...