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United States v. Cruscial

United States District Court, D. Oregon

March 7, 2019



          Jolie A. Russo, United States Magistrate Judge.

         Plaintiff the United States of America filed an Information against defendants Cameron Cruscial, Lauren Halcomb-Hudson, Mackenzie Hilmes, Emma Mavros, Anna Moklayk, Kathryn Pyland, and Stuart Tanquist[1] alleging misdemeanor violations of 41 C.F.R. § 102-74.390(b) (unreasonably obstructing the usual use of entrances) and 41 C.F.R. § 102-74.385 (failing to comply with lawful direction).

         Defendants jointly move for a jury trial. Additionally, Holcomb-Hudson moves to dismiss all charges pursuant to Fed. R. Crim. P. 12(b)(1); Cruscial, Hilmes, Mavros, Moklayk, and Pyland subsequently joined in that motion. Oral argument was held on February 26, 2019. Pursuant to defendants' joint request at oral argument, going forward the Court will assume joinder by all defendants in any defense motion unless notified otherwise. For the reasons set forth below, defendants' motions are denied.


         The federal government leases a privately-owned building located at 4310 S.W. Macadam Avenue, Portland, Oregon (“Macadam Building”). More than 150 federal employees and contractors work at the Macadam Building for several federal agencies, including certain divisions of Immigration and Customs Enforcement.

         Beginning on June 17, 2018, individuals began assembling around the Macadam Building to protest presidential immigration policies. On June 19, 2018, protesters erected tents and other temporary structures that impeded vehicle and pedestrian entrances to the Macadam Building. On June 20, 2018, the Macadam Building was closed due to purported safety concerns.

         From June 25 through June 27, 2018, Federal Protective Service (“FPS”) officers provided written and verbal notice to protestors, including defendants, that their continued obstruction of the entrances to the Macadam Building impeded government employees and the public from utilizing federal services and violated federal law. Also on June 25, FPS conspicuously posted a notice advising it was illegal to block the driveway or entrance of the Macadam Building, and that “[i]ndividuals who continue to obstruct the entrance of this federal facility will be subject to arrest and prosecution in federal court under 41 C.F.R. § 102-74.390 and 41 C.F.R. § 102-74.450.” Pl.'s Resp. to Mot. Dismiss Ex. 1 (doc. 48).

         On June 28, 2018, at approximately 5:30 a.m., FPS officers gave a series of verbal dispersal orders, directing protestors to cease blocking the entrances of the Macadam Building. Protestors were warned that if they did not comply, they would be subject to arrest on a federal violation. Defendants did not leave the Macadam Building and instead linked arms. At 5:38 a.m., FPS officers arrested defendants, charging each with two Class C misdemeanors under 41 C.F.R. § 102-74.390 and 41 C.F.R. § 102-74.385.[2] After plea negotiations failed, defendants were joined in an Information relating to the aforementioned offenses.


         “A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). A pretrial motion requesting dismissal “cannot be used as a device for a summary trial of the evidence” and the court “should not consider evidence not appearing on the face of the indictment.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). In other words, a motion to dismiss is generally only “capable of determination” before trial “if [the motion] involves questions of law rather than fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (internal citations and quotations omitted).


         Defendants raise three legal theories in support of dismissal: violation of the “same offense” doctrine, unconstitutional delegation of Congressional power, and facial and as applied void for vagueness and overbreadth. Def.'s Mot. Dismiss 2 (doc. 43). In addition, defendants request “the Court exercise its discretion to empanel a jury to hear this matter.” Defs.' Mot. Jury Trial 1 (doc. 39).

         I. Motion to Dismiss

         Defendants contend dismissal is proper in relation to all charges because 41 C.F.R. § 102-74.390 and 41 C.F.R. § 102-74.385 are: (1) an invalid “Congress[ional] delegation of rule-making authority [that] lacked specificity and failed to provide meaningful constraint on the Department of Homeland Security's exercise of discretion”; and (2) “unconstitutionally void for vagueness and overbroad in violation of due process.” Def.'s Mot. Dismiss 4-13 (doc. 43). Alternatively, defendants argue dismissal of at least one count is warranted because each “charge[s] for violation of the same conduct” in contravention of the “same offense” doctrine. Id. at 3-4 (doc. 43).

         A. Unconstitutional Delegation of Power

         Congress may not delegate its legislative power to another branch of government. Touby v. United States, 500 U.S. 160, 165 (1991). Congress may nonetheless seek assistance from other branches when legislating, so long as it provides guidance in conjunction with the delegated authority. Id. Specifically, Congress must “clearly delineate the general public policy, the public agency which is to apply ...

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