United States District Court, D. Oregon
OPINION AND ORDER
A. Russo, United States Magistrate Judge.
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 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).
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.
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
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
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
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. After plea
negotiations failed, defendants were joined in an Information
relating to the aforementioned offenses.
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).
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).
Motion to Dismiss
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).
Unconstitutional Delegation of Power
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 ...