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United States v. Christopher

United States District Court, D. Hawaii

November 28, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
PETER CHRISTOPHER, Defendant.

          ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS (ECF NOS. 147, 176 AND 180)

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In three motions to dismiss, Defendant Peter Christopher (“Defendant” or “Christopher”) moves this Court to dismiss Counts 1 and 2 of the First Superseding Indictment.[1] ECF Nos. 147, 176 and 180.

         On June 7, 2018, Christopher was charged by the grand jury with Wrongful Furnishing of Another's Passport under 18 U.S.C. § 1544 (“Count 1”) and False Statement in a Passport Application under 18 U.S.C. § 1542 (“Count 2”). ECF No. 30 (First Superseding Indictment) at 2.

         Count 1 of the First Superseding Indictment alleges that:

On or about November 13, 2010, in the District of Hawaii and elsewhere, PETER CHRISTOPHER, the defendant, willfully and knowingly furnished United States passport number 455112078, issued and designed for the use of one of his daughters, a minor child whose initials are R.M.C., to another of his daughters, a minor child whose initials are G.G.C.S., for the use of G.G.C.S., well knowing that G.G.C.S. was not the person for whose use said passport was originally issued and designed.

Id.

         Count 2 of the First Superseding Indictment alleges that:

On or about April 1, 2016, in the District of Hawaii, PETER CHRISTOPHER, the defendant, willfully and knowingly made false statements in an application for a passport with intent to induce and secure for the use of another, namely his daughter, whose initials are G.G.C.S., the issuance of a passport under the authority of the United States, contrary to the laws regulating the issuance of such passports and the rules prescribed pursuant to such laws, in that in such application, Form DS-11, and in other State Department Forms relating to such application, including Forms DS-64, DS-5525, and a DS-5525 Continuation form, the defendant falsely stated: (1) that G.G.C.S.'s United States passport, number 433048982, had been lost; (2) that he did not remember how G.G.C.S.'s United States passport had been lost; (3) that he did not know where the loss of G.G.C.S.'s United States passport had occurred, and (4) that the reason G.G.C.S. came to the United States in 2010 was that her mother had ceased to fulfill her obligations to care for G.G.C.S., instead leaving her with other family members who ultimately proposed to the defendant that G.G.C.S. move with him permanently to the United States, which statements the defendant knew to be false.

Id. at 2-3.

         On August 27, 2018, Christopher filed “Defendant's Motion to Dismiss Count 2 of First Superseding Indictment.” ECF No. 147. The Government filed its Opposition to that Motion on October 4, 2018. ECF No. 210. On September 14, 2018, Christopher filed “Defendant's First Motion to Dismiss Count 1 of First Superseding Indictment.” ECF No. 176. The Government filed its Opposition to that Motion on October 3, 2018. ECF No. 208. On September 20, 2018, Christopher filed “Defendant's Motion to Dismiss Counts 1 and 2 of First Superseding Indictment for Grand Jury Misconduct or to Compel Production of Grand Jury records and DHS records.” ECF No. 180. The Government filed its Opposition to that Motion on October 9, 2018. ECF No. 212. A hearing was held on these three Motions to Dismiss on November 5, 2018. For the following reasons, all three Motions are DENIED.

         II. STANDARDS OF REVIEW

         A. Motion to Dismiss - Indictment

         Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v), “a defect in the indictment, ” including “failure to state an offense, ” may be “raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” In considering such a motion, the court “must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged.” United States v. Lyle, 742 F.3d 434, 436 (9th Cir. 2014) (quoting United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002)).

         The indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . .” Fed. R. Crim. P. 7(c)(1). “The essential purpose of an indictment is to give the defendant ‘notice of the charge so that he can defend or plead his case adequately.'” United States v. Neill, 166 F.3d 943, 947 (9th Cir. 1999) (quoting United States v. James, 980 F.2d 1314, 1316 (9th Cir. 1992)). An indictment is sufficient “[u]nder the Due Process Clause . . . if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'” United States v. Huping Zhou, 678 F.3d 1110, 1113 (9th Cir. 2012) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)).

         B. Motion to Dismiss - Grand Jury Proceeding

         Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(A)(v), “a defect in instituting the prosecution, including . . . an error in the grand-jury proceeding . . .” may be “raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.”

         “[A]s a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). Accordingly, for such a dismissal, it must be “established that the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Id. at 256 (citation and internal editorial marks omitted).

         III. DISCUSSION

         A. Defendant's Motion to Dismiss Count 2 of First Superseding Indictment, ECF No. 147

         In his first Motion to Dismiss, Christopher raises six grounds for dismissing Count 2 of the First Superseding Indictment. ECF No. 147 at 1-5. The Court addresses each ground in turn.

         1. Ground One

         18 U.S.C. § 1542[2] implicates false statements made “in an application for passport.” Christopher challenges whether Forms DS-64 and DS-5525 - in which he allegedly made false statements - can be considered part of “an application for passport” for purposes of § 1542. Id. at 21. Christopher argues that what documents are included “in an application for passport” can be defined only by statute (and not by regulations). ECF No. 147-1 at 20.

         According to the First Superseding Indictment, Christopher used U.S. Department of State Forms DS-11, DS-64, and DS-5525 in applying for a passport for his daughter, G.G.C.S. ECF No. 30 at 3. Form DS-11 (Application for a U.S. Passport) provides that an applicant must submit: (1) Form DS-64 (Statement Regarding a Lost or Stolen U.S. Passport) if the previous U.S. passport was lost; and (2) Form DS-5525 (Statement of Exigent/Special Family Circumstances for Issuance of a U.S. Passport to a Minor Under Age 16) if only one parent appears to apply for a child's passport. ECF Nos. 147-9, 147-10, 147-11, 147-13, 210-2, 210-3, 210-5, 210-6, 210-7, 210-8, 210-9. It is thus evident from the forms themselves that DS-64 and DS-5525 constitute a part of the passport application that Christopher submitted on behalf of G.G.C.S.

         Moreover, Christopher ignores that § 1542 makes unlawful false statements in an application for passport when they are “contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws.” Thus, rules prescribed pursuant to passport laws may be utilized to determine which documents are included in an “application for passport.” Title 22 Code of Federal Regulations (“CFR”) § 51.20[3] makes clear that an application for a passport includes the forms that the U.S. Department of State prescribes. The Department of State Form DS-11 used for an application for passport, requires Forms DS-64 and DS-5525 for an application like the one submitted by Christopher. Thus, each of these forms is governed by § 1542.[4]

         2. Ground Two

         Christopher appears to bring a vague-as-applied challenge by arguing that a reasonable person would not understand the term “lost” in the application for a U.S. passport (such as in Forms DS-11 and DS-64). ECF No. 147-1 at 22-28. “‘A statute is void for vagueness if its prohibitions are not clearly defined, because people of ordinary intelligence ought to be able to know what is prohibited, and laws must provide explicit standards for those who apply them to avoid arbitrary and discriminatory enforcement by police, judges and juries.'” United States v. Naghani, 361 F.3d 1255, 1259 (9th Cir. 2004) (quoting United States v. Harris, 185 F.3d 999, 1004 (9th Cir. 1999)). Thus, courts examine “‘the facts of the particular case and decide whether, under a reasonable construction of the statute, the conduct in question is prohibited.'” Id. at 1259-60 (quoting United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989)).

         A reasonable person of ordinary intelligence would understand that declaring that G.G.C.S.'s passport was “lost” in Forms DS-11 and DS-64 - when the applicant knew all along that the passport was in the possession of the child's mother, from whom the applicant was estranged - is prohibited by § 1542 . See United States v. Hack, 2009 WL 577762, at *4-6 (C.D. Cal. Mar. 4, 2009) (finding that Forms DS-11 and DS-64 were not vague as applied under the facts of that case, which concerned checking the “lost” box). A reasonable person of ordinary intelligence would also understand that § 1542 prohibits stating: (1) “I don't remember” on the form to explain the circumstances surrounding a lost passport when, in fact, the applicant knew the whereabouts of the “lost” passport; and (2) “not known” when asked to explain how that same passport was allegedly “lost.” ECF No. 210-2 at 7. Thus, Christopher's vague-as-applied challenge fails.[5]

         3. ...


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