United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS (ECF
NOS. 147, 176 AND 180)
DERRICK K. WATSON JUDGE
three motions to dismiss, Defendant Peter Christopher
(“Defendant” or “Christopher”) moves
this Court to dismiss Counts 1 and 2 of the First Superseding
Indictment. ECF Nos. 147, 176 and 180.
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.
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
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.
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.
STANDARDS OF REVIEW
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.
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)).
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).
Defendant's Motion to Dismiss Count 2 of First
Superseding Indictment, ECF No. 147
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.
U.S.C. § 1542 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.
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.
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 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 §
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)).
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