United States v. Urbina

1

UNITED STATES OF AMERICA, Plaintiff, v. ANGEL URBINA, Defendant.

CVB CITATION Nos. 9466907, 9466908

United States District Court, D. Puerto Rico

July 24, 2024

OPINION AND ORDER

Marshal D. Morgan United States Magistrate Judge

Pending before the Court is defendant Angel Urbina's (the “defendant” or “Mr. Urbina”) Motion to Dismiss the two Central Violations Bureau (“CVB”) minor violation citations issued to him by Department of Veterans Affairs (“VA”) police officers on September 6, 2022 (the “Motion to Dismiss”). For the reasons espoused more thoroughly below, the Court GRANTS IN PART and DENIES IN PART the defendant's the Motion to Dismiss.

I. BACKGROUND AND RELEVANT FACTS^[1]

Mr Angel Urbina is a sixty-four-year-old veteran of the United States Military who purportedly suffers from a variety of mental and physical ailments including chronic post-traumatic stress disorder (“PTSD”), chronic anxiety disorder, major depressive disorder, trigger finger, etc. Plaintiff submits that his mental conditions are the result of having witnessed, among other things, an individual shoot himself in the head with a rifle. To treat his mental and physical ailments, the defendant visits the VA Hospital located in San Juan, Puerto Rico periodically.

On September 6, 2022, during the COVID-19 pandemic, Mr. Urbina visited the VA Hospital accompanied by his uncle-in-law, Mr. Angel Merced Rivera. The parties disagree as to whether or what type of face covering Mr. Urbina was wearing when he entered the VA facilities. The defendant claims he was wearing a cloth face mask and a plastic face shield. See Motion to Dismiss at 2. The government, however, claims he was only wearing a face shield. See Govt. Response in Opposition at 2, n.1. While standing in line, two VA police officers approached Mr. Urbina and informed him that he was wearing the wrong type of face mask. Mr. Urbina explained that he was wearing that type of face mask because it was the kind that did not make him feel dizzy or sick. Mr. Urbina then asked the officers for permission to go to the restroom. Upon exiting the restroom, Mr. Urbina was met by more officers and subsequently handcuffed and escorted to the Police Operations Room. At some time during his interaction with police, Mr. Urbina is alleged to have acted disorderly by “disrupt[ing] the normal operation of the area by utilizing a loud tone of voice and refus[ing] to follow instructions.” See Probable Cause Statement associated with Citation No. 9466908.

Mr. Urbina was therefore given two CVB minor violation citations, one charging “disorderly conduct,” in violation of 38 CFR § 1.218(b)(11) (see Citation 9466908) (the “Disorderly Conduct Citation”), and the other charging “failure to comply,” in violation of 38 CFR § 1.218(b)(24) [sic]^[2](see Citation 9466907) (the “Failure to Comply Citation”) (emphasis added). The defendant denies the allegations.

On October 3, 2023, Mr. Urbina filed a Motion to Dismiss, pursuant to Rules 12(b)(1) and 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure, for failure to state an offense. On October 19, 2023, the Government filed an opposition to the Motion to Dismiss (the “Opposition”) and on October 25, 2023, Mr. Urbina filed a reply (the “Reply”).

II. THE MOTION TO DISMISS

In his Motion to Dismiss, the defendant raises four arguments in support of his contention that the two CVB Citations against him should be dismissed. The first two arguments target the Disorderly Conduct Citation, while the second two arguments target the Failure to Comply Citation.

Regarding his challenge to the Disorderly Conduct Citation, the defendant first contends that his “response to the officers who swarmed him does not rise to the level contemplated under the statute governing disorderly conduct,” and even if it did, “the [disorderly conduct] provision would [nevertheless] be void-for-vagueness.” Second, the defendant argues that he “lacked the mens rea and actus rea required to commit a violation of 38 CFR § 1.218(11).”

With respect to the Failure to Comply Citation, the defendant first contends that the citation, which charges a violation of 38 CFR § 1.218(b)(24), is completely devoid of probable cause because it relates to the “[f]ailure to comply with traffic directions of VA police,” not compliance with signs posted for safety purposes and the use of face masks. And second, assuming the Failure to Comply Citation did include an adequate statement of probable cause, the defendant nevertheless complied with the requirement because he was in fact wearing a mask at the time of the incident.

In response, the government opposes the defendant's motion to dismiss the Disorderly Conduct Citation but agrees that the Failure to Comply Citation is defective because it charges the defendant with violating the wrong section of the Code. The government therefore requests that the Failure to Comply Citation be dismissed, albeit without prejudice, and that the Court grant it leave to file an information alleging that the defendant violated 38 CFR § 1.218(b)(6) instead of 38 CFR § 1.218(b)(24).

III. LEGAL STANDARD

A. Petty offenses may be charged through a citation.

In this case, the defendant stands charged with two Class B misdemeanors, both of which qualify as “petty offenses” because they provide for a maximum statutory sentence of six (6) months imprisonment, a fine not to exceed $250, a processing fee of $30.00 (see 28 U.S.C. §1914(b)(item 15)), and a special monetary assessment of $10.00.

Although the defendant stands charge with two petty offenses, Fed.R.Crim.P. 58(b)(1) nevertheless permits the matter to proceed to trial based on the filing of an indictment, an information, or a complaint. Rule 58(b)(1) also provides that petty offenses may proceed by way of a citation or a violation notice. Id. Indeed, Rule 58 contemplates that the charging document for petty offenses need not be as formal nor require as much detail as an indictment or information. United States v. Kowallek, 438 Fed.Appx. 889, 890-91 (11th Cir. 2011); see also United States v. Taylor, 2016 WL 11475025 *1 (N.D. Ala., Mar. 07, 2016) (adopting Report and Recommendation United States v. Taylor, 2016 WL 1459050 (N.D. Ala., Apr. 14, 2016)) (The magistrate judge, for example, is not required to sign the violation notices in order for a petty offense case to proceed to trial. “[I]f [, however,] the defendant receives a citation or violation notice for a petty offense and fails to . . . appear in court on the date provided in the notice to appear, the court may issue a warrant for the defendant's arrest. Then, and only then, must the judge affix his signature to a warrant of arrest for the defendant, noting the existence of probable cause, based on the sworn statement of the issuing officer contained in the citation.”).

Notwithstanding the slightly more relaxed charging requirements for a citation for petty offenses, Rule 58 does contain some safeguards to ensure that a defendant receives the required due process. More specifically, a defendant must be informed of the charges against him at his initial appearance before a magistrate judge. Fed.R.Crim.P. 58(b)(2). And, in cases where the court has had to review the sufficiency of an indictment, it has been held that “even an inadequate indictment satisfies due process if the defendant has actual notice [of the charges against him], such that [he] suffers no prejudice.” United States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001).^[3]

B. Citations must apprise a defendant of the charged offense so that he can mount a defense and plead double jeopardy.

Under the Federal Rules of Criminal Procedure, an indictment must contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged ....” Fed. R. Crim. P. 7(c)(1). However, “[u]like a civil complaint that needs to allege facts that “plausibly narrate a claim for relief,” Germanowski v. Harris, 854 F.3d 68, 71 (1st Cir. 2017) (quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)), a criminal indictment need only “apprise the defendant of the charged offense,” United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (quoting United States v. Savarese, 686 F.3d 1, 7 (1st Cir. 2012)), “so that [he] can prepare a defense and [can] plead double jeopardy in any future prosecution for the same offense.” (quoting United States v. Guerrier, 669 F.3d 1, 3 (1st Cir. 2011)). See also Stepanets, 879 F.3d at 372; United States v. Cotto-Ortiz, No. CR 16-779 (ADC), 2018 WL 3756546, at *2 (D.P.R. Aug. 6, 2018).

Generally speaking, an indictment that tracks the language of the underlying statute is usually sufficient to meet this standard, “provided . . . that the excerpted statutory language sets out all . . . [the] elements of the offense without material uncertainty.” See, e.g., Hamling v. United States, 418 U.S. 87, 117 (1974); Savarese, 686 F.3d at 6; United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010). In other words, the indictment may use the statutory language to describe the offense, but it must also be accompanied by such a statement of facts and circumstances as to inform the accused of the specific offense with which he is charged. United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000).

C. Motions to Dismiss cannot be used to challenge the strength or weakness of the government's case.

Having thus established the scope of notice required by the different charging instruments, from the slightly more formal requirements of an indictment, information, and complaint, to the more informal requirements of a citation, Federal Rule of Criminal Procedure 12(b)(1) provides that a party may attack a charging instrument by raising...