USA v. Fuhrer et al

United States v. King
3:19-cr-00026-TMB-DMS-5
Final R&R re: Motion to Dismiss 	1
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CRAIG KING, a/k/a “Oakie”,
Defendant.
Case 3:19-cr-00026-5-TMB-DMS
FINAL REPORT &
RECOMMENDATION1 TO
DENY MOTION TO DISMISS
FOR LACK OF JURISDICTION
[Doc. 325]
I. INTRODUCTION
Defendant Craig King has moved to dismiss four counts of the criminal
indictment against him for lack of jurisdiction (Doc. 325). Mr. King is charged with
four counts of Violent Crimes in Aid of Racketeering (VICAR) under 18 U.S.C.
section 1959(a) and one count of kidnapping under 18 U.S.C. section 1201(a)(1)
(Doc. 2). He seeks dismissal of the VICAR counts (Doc. 326 at 10).
Mr. King claims dismissal is required for two reasons: (1) “[n]one of the
statements provided in discovery indicate that Craig King is, was, or ever has been
a member of the 1488’s as directly alleged in the indictment”; and (2) at a November
4, 2019 detention hearing AUSA Klugman twice stated, “to be clear, we are not
1 This report and recommendation is being issued as a final report and recommendation. Pursuant
to Fed. R. Crim. P. 59(b)(3), any objections will be considered by the District Court Judge who will
accept, reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for
additional consideration and recommendations.
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United States v. King
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alleging that Mr. King is a member of the 1488’s” (Doc. 326 at 3). An essential
element of all violent crimes in aid of racketeering under section 1959 subsection (a)
is that the act must have been committed “for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in racketeering
activity.” 18 U.S.C. § 1959(a). Mr. King claims that because “it is undisputed that
King is not affiliated with the 1488s,” the indictment does not allege an offense and
this Court lacks jurisdiction under 18 U.S.C. section 3231.
The government responded in opposition, arguing the Court does indeed have
jurisdiction and the indictment is facially sufficient to state an offense (Doc. 327).
The defendant’s motion is now ripe for consideration. For the following
reasons, this Court recommends the District Court DENY the motion.
II. APPLICABLE LAW
Title 18 of the United States Code section 3231 gives U.S. District Courts
original jurisdiction of all offenses against the laws of the United States. A
defendant may move pretrial for dismissal of an indictment that fails to state an
offense. Fed. R. Crim. Pro. 12(b)(3)(B)(v). An indictment which fails to allege all the
elements of an offense does not state an offense and must be dismissed.
Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998); United States v. Du
Bo, 186 F.3d 1177, 1179-80 (9th Cir. 1999).
In ruling on a pre-trial motion to dismiss an indictment for failure to state an
offense, the district court is bound by the four corners of the indictment. United
States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). A court should not consider
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evidence not appearing on the face of the indictment. United States v. Jensen, 93
F.3d 667, 669 (9th Cir. 1996) (“A motion to dismiss the indictment cannot be used as
a device for a summary trial of the evidence”); see also United States v. Sampson,
371 U.S. 75, 78-79 (1962) (“Of course, none of these charges have been established
by evidence, but at this stage of the proceedings the indictment must be tested by
its sufficiency to charge an offense”). Although a court may make preliminary
findings of fact necessary to decide the legal questions presented by the motion, the
court may not “invade the province of the ultimate finder of fact.” United States v.
Nukida, 8 F.3d 665, 669 (9th Cir. 1993).
III. DISCUSSION
Mr. King’s motion requests dismissal of the four VICAR counts charged
against him based upon what Mr. King claims is this Court’s lack of jurisdiction.
This claim is rooted in King’s belief that the government has failed to allege an
essential element of an offense under the VICAR Act. For the following reasons,
however, the Court concludes that it does indeed possess jurisdiction and Mr. King’s
motion must fail.
First, King cannot show that the indictment fails to state an offense under
section 1959(a). King’s motion argues forcefully that the government has failed to
allege the “purpose” element of section 1959(a). In order for an act to constitute a
violent crime in aid of racketeering under section 1959(a), the act must be
committed “for the purpose of gaining entrance to or maintaining or increasing
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position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a). But,
this is precisely what the indictment alleges.
The indictment charges at the outset that “[a]t all times relevant to this
Indictment, . . . CRAIG KING, a/k/a “Oakie” . . . [was a] member[ ] and associate[ ]
of the 1488 gang (collectively, the ‘1488s’)” (Doc. 2 at paragraph 1). It further
alleges, in each of the subsequent VICAR counts, that Mr. King undertook the
alleged activity “for the purpose of gaining entrance to and maintaining and
increasing position in the 1488s, an enterprise engaged in racketeering activity”
(Doc. 2 at paragraphs 7, 9, 11, and 14). The indictment thus clearly alleges the
“purpose” element sufficient to survive a motion to dismiss.
Notably, Mr. King’s motion acknowledges the principal of law this conclusion
naturally follows from. See Doc. 326 at 8 n.28 (citing United States v. Todd, 446,
F.3d 1062, 1068 (10th Cir. 2006) (“the question is not whether the government has
presented sufficient evidence to support the charge, but solely whether the
allegations in the indictment, if true, are sufficient to establish a violation of the
charged offense.”)).
Nevertheless, King directs the Court’s attention to a case from the Tenth
Circuit, United States v. Hall, which held a district court may dismiss charges
“where the operative facts are undisputed and the government fails to object to the
district court’s consideration of those undisputed facts in making the determination
. . . that, as a matter of law, the government is incapable of proving its case beyond
a reasonable doubt.” 20 F.3d 1084, 1088 (9th Cir. 1994).
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King claims that the government is incapable of proving its case beyond a
reasonable doubt because (1) “[n]one of the statements provided in discovery
indicate that Craig King is, was, or ever has been a member of the 1488’s as directly
alleged in the indictment”; and (2) at a November 4, 2019 detention hearing AUSA
Klugman twice stated, “to be clear, we are not alleging that Mr. King is a member of
the 1488’s” (Doc. 326 at 3). See Hall, 20 F.3d at 1088.
But Hall does not make King’s case. First, unlike in Hall, it is not clear that
the “operative facts” are undisputed. The government’s statement at the November
detention hearing was not a “stipulation” 2 (Doc. 326 at 6) to King’s non-membership
in the 1488s; nor was it admissible evidence. Second, the government’s response in
opposition calls into question whether King’s potential membership is in fact
operative to its legal theories (Doc. 327 at 5). Finally, the Tenth Circuit expressly
limited its holding in Hall. The sentences quoted by the defense are immediately
followed with this qualification: “however . . . such a scenario is not likely to recur
and we caution both the trial courts and counsel that the procedure here employed
is indeed the rare exception.” Hall, 20 F.3d at 1088. Hall thus does not persuade
this Court it should stray from the Ninth Circuits’ established precedent that, when
faced with a motion for dismissal, a trial court should not consider evidence outside
2 stipulation, n. 1. A material condition or requirement in an agreement; esp., a factual
representation that is incorporated into a contract as a term. 2. A voluntary agreement between
opposing parties concerning some relevant point; esp., an agreement relating to a proceeding, made
by attorneys representing adverse parties to the proceeding. Black’s Law Dictionary (Garner, 10th
ed. 2014).
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the “four corners of the indictment.” See Boren, 278 F.3d at 914; Jensen, 93 F.3d at
669.
Another case cited by the defense is United States v. Jones, 291 F.Supp.2d 78
(D. Conn. 2003). In Jones, a trial court granted the convicted defendant’s motion
for judgment of acquittal after finding the evidence was insufficient to show that the
defendant’s VICAR murder had been committed in furtherance of the defendant’s
membership in a VICAR enterprise. Id. at 87-92. In so finding, the court spent a
great deal of time reweighing the trial evidence which showed a potentially personal
purpose of the murder—specifically, that it was committed in retaliation for the
victim’s disrespectful conduct toward the defendant’s girlfriend and the defendant
himself. The court eventually concluded “the government’s theory of VICAR motive
essentially ignores the personal nature of [the victim’s] allegedly disrespectful
conduct,” and instead “dramatically and impermissibly expands the breadth of its
respect theory by asserting that the jury could infer [the defendant] perceived all
acts of disrespect toward him, whether personal or Enterprise-related, through the
prism of his position and membership in the enterprise.” Id. at 92.
Such a conclusion would have been difficult, if not impossible, to reach before
the government had presented all of its evidence at trial and placed it within the
context of its theory of the case. The weighing of such evidence is “the province of
[the jury,] the ultimate finder of fact.” See Nukida, 8 F.3d at 669.
In this motion, the defense asks this Court to ignore the sufficiency of the
indictment and weigh evidence whose value cannot reasonably be known until the
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government has presented its case. The defense is correct (Doc. 326 at 6-7) that the
indictment alleges members of the 1488 gang use Nazi-derived symbols to identify
themselves and demonstrate their affiliation with the gang (Doc. 2 at 4) and
prospective members must serve a prison term of at least fourteen months before
gaining full membership3 (Doc. 2 at 5). The defense may also be correct that Mr.
King meets neither of these criteria of membership (Doc. 326 at 6). Critically,
however, the indictment alleges that King undertook the acts charged by the
VICAR counts “for the purpose of gaining entrance to and maintaining and
increasing position in the 1488s, an enterprise engaged in racketeering activity”
(Doc. 2 at paragraphs 7, 9, 11, and 14). This allegation is all that is required for the
indictment to survive dismissal.
The factual question of King’s membership in a VICAR enterprise, his desire,
if any, to join the enterprise, or his desire to increase his standing with the
enterprise, is best answered by a jury which has considered all of the government’s
evidence after it has been placed within the context of its theory of the case. See
Nukida, 8 F.3d at 669. Mr. King may argue that the government’s evidence of his
membership in the 1488s is weak, but “the weakness of the Government’s case is
irrelevant to the sufficiency of the indictment.” United States v. Buckley, 689 F.2d
893, 900 (9th Cir. 1982).
3 It is significant to note, the indictment also provides, “[p]rospects were considered part of the 1488’s
family and entitled to the full protection of the gang,” even without full membership (Doc. 2 at 5).
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The government further argues in its opposition that King could be convicted
of VICAR if it is established that he aided, abetted, commanded, induced or
procured the commission of the offense in violation of 18 U.S.C. § 2. See Rosemund
v. United States, 572 U.S. 65 (2014). On its face, the indictment does not allege King
aided or abetted the commission of the offense or that his liability springs from the
fact he entered a criminal conspiracy and so is liable for crimes foreseeably
committed in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S.
640 (1946).
However, the government is correct that these theories of liability do not
have to be alleged in the indictment and that “all indictments for substantive
offenses must be read as if the alternative provided in 18 U.S.C. § 2 were embodied
in the indictment.” United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988)
(quoting United States v. Megna, 450 F.2d 511-12 (5th Cir. 1971). See also United
States v. Roselli, 432 F.2d 879, 895 (9th Cir. 1970).
IV. CONCLUSION
For the foregoing reasons, this Court recommends the District Court DENY
the defendant’s motion at Docket 325.
DATED at Anchorage, Alaska this 10 th day of January, 2020.
/s/ Deborah M. Smith
CHIEF U.S. MAGISTRATE JUDGE
Pursuant to Fed. R. Crim. P. 59(b)(2) and D.Ak.L.M.R. 6(a), a party seeking to object
to this proposed finding and recommendation shall file written objections with the Clerk of
Court no later than CLOSE OF BUSINESS, January 24, 2020. 	Pursuant to Fed. R.
Crim. P. 59(b)(3), objections will be considered by the District Court Judge who will then
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accept, reject, or modify the recommendation following de novo review, or resubmit the
matter to the Magistrate Judge for additional consideration. Failure to object to a
magistrate judge=s findings of fact may be treated as a procedural default and waiver of the
right to contest those findings on appeal. Miranda v. Anchondo, et. al, 684 F.3d 844 (9th
Cir. 2012). The Ninth Circuit concludes that a district court is not required to consider
evidence introduced for the first time in a party=s objection to a magistrate judge=s
recommendation. United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and
responses shall not exceed five (5) pages in length and shall not merely reargue positions
presented in motion papers. Rather, objections and responses shall specifically designate
the findings or recommendations objected to, the basis of the objection, and the points and
authorities in support. Response(s) to the objections shall be filed on or before
CLOSE OF BUSINESS January 31, 2020. The parties shall otherwise comply with
provisions of D.Ak.L.M.R. 6(a).
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