United States v. Phillips

1

UNITED STATES OF AMERICA Plaintiff, v. RAYMOND DAVID PHILLIPS, Defendant.

No. 22-CR-145-JFH

United States District Court, E.D. Oklahoma

May 10, 2023

OPINION AND ORDER

JOHN F. HEIL, III UNITED STATES DISTRICT JUDGE.

Before the Court are two pretrial motions and an expert notice filed by Defendant Raymond David Phillips (“Defendant”). First, Defendant filed a Motion to Dismiss Certain Counts (“Motion to Dismiss”). Dkt. No. 39. The United States of America (“Government”) filed a response in opposition [Dkt. No. 53] and, after obtaining leave from the Court Defendant filed a reply brief [Dkt. No. 58]. Next, Defendant filed a Motion in Limine seeking to prohibit witnesses from testifying while wearing Sheriff Deputy uniforms. Dkt. No 50. The Government filed a response in opposition [Dkt. No 51] and, after obtaining leave from the Court, Defendant filed a reply brief [Dkt. No. 60]. Finally, Defendant filed an expert notice [Dkt. No. 49] to which the Government objected [Dkt. No. 52]. After obtaining leave from the Court Defendant filed a reply brief. Dkt. No. 59. The Court will address the motions and expert notice in turn.

BACKGROUND

On December 14, 2022, the United States of America (“Government”) filed a Superseding Indictment charging Defendant with seven counts: (1) Arson, in violation of 18 U.S.C. 844(i); (2) Attempt to Destroy and Injure Property in Indian Country, in violation of 18 U.S.C. §§ 1363, 1151, and 1152; (3) Use of Fire to Commit a Felony, in violation of 18 U.S.C. § 844(h)(1); (4) Animal Crushing in Indian Country, in violation of 18 U.S.C. §§ 48, 1151, and 1152; (5) Cruelty to Animals in Indian Country, in violation of 18 U.S.C. §§ 13, 1151, 1152, and 21 O.S. § 1685; (6) Simple Assault in Indian Country, in violation of 18 U.S.C. §§ 113(a)(5), 1151, and 1152; and (7) Simple Assault in Indian Country, in violation of 18 U.S.C. §§ 113(a)(5), 1151, and 1152. Dkt. No. 10. This case is currently on the Court's jury trial docket set to begin on June 12, 2023. Dkt. No. 42.

This case arises out of an incident that occurred at the Eagle Bluff Resort (“Resort”) in Tahlequah, Cherokee County, Oklahoma on September 3, 2022. Dkt. No. 39 at 3. Witnesses to the incident stated that Defendant was upset after his significant other had been arrested at the Resort earlier in the day. Id. at 4. Defendant was heard making threatening remarks about the Resort, such as “that he was going to make the [R]esort pay” and that “he was going to burn it all.” Id. Defendant was seen tearing down his campsite, placing his camping items into a large pile in the middle of his campsite, and setting them on fire. Id. Individuals in nearby campsites were able to put out the fire. Dkt. No. 39 at 4. Defendant then confronted the owner of the Resort, Sunghwan Yun (“Yun”). Id. Specifically, Defendant decapitated Yun's cat and threw the cat's head at Yun. Id. at 4-5. Defendant then fled the Resort, but was later apprehended by Grand River Dam Authority police officer, Lieutenant Timothy N. Cooper (“Cooper”), who Defendant allegedly assaulted during the arrest. Dkt. No. 39 at 3, 5; Dkt. No. 53 at 2.

AUTHORITY AND ANALYSIS

I. Motion to Dismiss Certain Counts [Dkt. No. 39]

Defendant filed his Motion to Dismiss seeking to dismiss certain counts of the Superseding Indictment under various theories. Dkt. No. 39. Defendant seeks to dismiss Counts One, Two, Three, Six and Seven because he argues that they are constitutionally insufficient and fail to put him on fair notice of the crimes charged. Id. at 1. In the alternative, Defendant argues that Counts One, Two, and Three are multiplicitous and, therefore, two of the three counts should be dismissed. Id. Next, Defendant seeks to dismiss Count Five because it attempts to assimilate a state law where a federal statute already occupies the field. Id. In the alternative, Defendant argues that Counts Four and Five are multiplicitous and, therefore, one of the counts must be dismissed. Id. at 2. The Court will address each of these arguments in turn.

A. Sufficiency of the Indictment

Defendant argues that Counts One, Two, Three, Six and Seven are constitutionally insufficient and, therefore, must be dismissed. Dkt. No. 39 at 8-10, 18-20. “An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997)). “An indictment that sets forth the words of the statute generally is sufficient so long as the statute itself adequately states the elements of the offense.” Dashney, 117 F.3d at 1205 (internal citations omitted). “[T]he indictment should be read as a whole and interpreted in a common-sense manner .... Courts . . . do not insist that any particular word or phrase be used in stating an essential element.” United States v. Stoner, 98 F.3d 527, 531 (10th Cir. 1996) (quoting United States v. Kilpatrick, 821 F.2d 1456, 1463 (10th Cir. 1987) cert. granted in part, 484 U.S. 1003 (1988), and aff'd, 487 U.S. 250 (1988)).

i. Counts One, Two, and Three

Regarding Counts One, Two, and Three, Defendant argues that the indictment does not put Defendant on fair notice of the charges against him. Dkt. No. 39 at 8-10. Specifically, Defendant argues that he “cannot tell what conduct on September 3, 2022 constituted a malicious attempt to destroy, injure, or damage real or personal property.” Id. at 8. Defendant contends that “[w]hile the date and general location are clearly alleged in the Superseding Indictment, [Defendant] cannot be expected to guess what conduct on his part was the alleged attempts to maliciously destroy property ....” Id. at 9 (citing United States v. Sumner, 89 F.Supp. 1161, 1165 (N.D. Okla. 2015)).

Upon review of the superseding indictment, the Court finds that it provides sufficient notice of the charges against Defendant in Counts One, Two, and Three. First, Counts One, Two, and Three track the language of their respective statutes. See Dkt. No. 10 at 1-2; 18 U.S.C. §§ 844(i), 1363, 844(h)(1). Each of the statutes set forth the elements of their respective offenses. See 18 U.S.C. §§ 844(i), 1363, 844(h)(1). Contrary to Defendant's assertion, the Government is not required to state in the indictment whether the conduct included “a propane bottle/tank” or whether the fire was “within close distance of an occupied campsite.” See e.g., Dkt. No. 39 at 8. By an indictment, Defendant is “not entitled to know all the evidence the [G]overnment intends to produce, but only the theory of the [G]overnment's case.” United States v. Dunn, 841 F.2d 1026, 1030 (10th Cir. 1988) (emphasis removed) (citing United States v. Giese, 597 F.2d 1170, 1181 (9th Cir.), cert. denied, 444 U.S. 979 (1979)). Therefore, because Counts One, Two, and Three track the language of their respective statutes, and the statutes set forth the elements of the offenses, Counts One, Two, and Three are constitutionally sufficient.

ii. Counts Six and Seven

Defendant also challenges the sufficiency of Counts Six and Seven. First, Defendant challenges Counts Six and Seven because he argues that they fail to state an offense. Dkt. No. 39 at 18-19. Defendant further challenges Count Seven arguing that it is insufficient to put Defendant on fair notice of the crime charged because it lacks specificity. Id. at 19.

As stated supra, “[a]n indictment that sets forth the words of the statute generally is sufficient so long as the statute itself adequately states the elements of the offense.” Dashney, 117 F.3d at 1205. Counts Six and Seven charge Defendant with assaulting Yun and Cooper, respectively, in violation of 18 U.S.C. §§ 113(a)(5), 1151, and 1152. Dkt. No. 10 at 3.

The elements of simple assault in Indian Country are: (1) Defendant assaulted an individual; (2) Defendant was an Indian; and (3) the assault took place within Indian Country. See Eighth Circuit Model Criminal Jury Instructions § 6.18.113(5); see also 18 U.S.C. §§ 113(a)(5), 1151, and 1152. Because Counts Six and Seven track the language of §§ 113(a), 1151, and 1152, and these statutes, in combination, set forth the elements of the offense of simple assault in Indian Country, the indictment both states an offense and provides sufficient notice the charges against Defendant in Counts Six and Seven.

Finally, Defendant argues that throwing a cat's head, while “a deeply offensive act,” does not constitute assault under § 113(a) because it is not an attempt to inflict or a threat to inflict injury upon Yun. Dkt. No. 39 at 18-19 (citing United States v. Muskett, 970 F.3d 1233, 1241 (10th Cir. 2020) (defining “assault” under § 113(a) as “either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.”)). However, whether Defendant throwing a cat's head at Yun was a willful attempt to inflict injury or a threat to inflict injury upon Yun and whether this caused Yun a reasonable apprehension of immediate bodily harm, are factual issues which are proper for a jury to resolve at trial. For these reasons, Counts Six and Seven are constitutionally sufficient.

B. Assimilation

Next Defendant argues that Count Five must be dismissed because it attempts to assimilate a state law where a federal statute already occupies the field. Dkt. No. 39 at 12-13. Defendant is charged in Count Five with Cruelty to Animals in Indian Country, in violation 18 U.S.C. §§ 13, 1151, 1152, and 21 O.S.§ 1685. Dkt. No. 10 at 2. In...