Case 2:16-cr-00046-GMN-PAL Document 754 Filed 10/03/16 Page 1 of 10

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RENE L. VALLADARES
Federal Public Defender
State Bar No. 11479
WILLIAM CARRICO
State Bar No. 003042
Assistant Federal Public Defender
BRENDA WEKSLER
State Bar No. 8124
Assistant Federal Public Defender
RYAN NORWOOD
Assistant Federal Public Defender
411 E. Bonneville Avenue, Suite 250
Las Vegas, Nevada 89101
(702) 388-6577/Phone
(702) 388-6261/Fax
Ryan_Norwood@fd.org
Attorneys for Ryan W. Payne

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
-oOo-

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UNITED STATES OF AMERICA,

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Plaintiff,
vs.
RYAN W. PAYNE,
Defendant.

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Certification: This Motion is timely filed.

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COMES

NOW

defendant

RYAN

Case No. 2:16-cr-046-GMN-PAL

DEFENDANT RYAN PAYNES
MOTION TO DISMISS COUNTS TWO
AND THREE ON OVERBREADTH
GROUNDS
(Hearing Requested)

W.

PAYNE,

through

his

counsel,

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WILLIAM CARRICO, RYAN NORWOOD, and BRENDA WEKSLER, Assistant Federal

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Public Defenders, and respectfully requests the Court dismiss Counts Two and Three on

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overbreadth grounds. The statute the government relies on in charging Counts Two and Three

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covers a substantial amount of conduct protected by the First Amendment. Accordingly, these

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Case 2:16-cr-00046-GMN-PAL Document 754 Filed 10/03/16 Page 2 of 10

Counts must be dismissed. This Motion is based on the following points and authorities, all

papers on file herein, and any oral argument ordered by the Court.

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DATED this 3rd day of October, 2016.

RENE VALLADARES
Federal Public Defender

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By: /s/ William Carrico

WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender
By: /s/ Brenda Weksler
BRENDA WEKSLER
Assistant Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

This case arose from a group of individuals gathering to protest the governments actions.

The government alleges some of the protestors carried firearms during the protest. But there are

no allegations that any of the protestors were persons prohibited from carrying firearms. Thus,

the protestors were exercising their constitutional rights to political free speech, to assembly, and

to bear arms.

Counts Two and Three of the superseding indictment seek to criminalize this protected

speech and conduct. Count Two charges the defendants, including Defendant Ryan Payne, with

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conspiracy to impede or injure a federal officer under 18 U.S.C. 372. ECF No. 27, p. 39-40.

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Count Three charges the defendants, including Mr. Payne, with aiding and abetting the use and

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carry of a firearm in relation to a crime of violence under 18 U.S.C. 924(c) and (2). ECF No.

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27, pp. 40-41. The underlying alleged crime of violence is the conspiracy charge outlined in

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Count Two. ECF No. p. 41.

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Section 372 is unconstitutionally overbroad and this Court must therefore dismiss Counts
Two and Three.
II.

ARGUMENT

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A.

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The statute at issue, 18 U.S.C. 372, is on its face a long, convoluted sentence that fails

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The statute at issue

to define its terms or articulate a necessary mental state. It provides:

If two or more persons in any State, Territory, Possession, or District conspire to
prevent, by force, intimidation, or threat, any person from accepting or holding any
office, trust, or place of confidence under the United States, or from discharging
any duties thereof, or to induce by like means any officer of the United States to
leave the place, where his duties as an officer are required to be performed, or to
injure him in his person or property on account of his lawful discharge of the duties

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of his office, or while engaged in the lawful discharge thereof, or to injure his
property so as to molest, interrupt, hinder, or impede him in the discharge of his
official duties, each of such persons shall be fined under this title or imprisoned not
more than six years, or both.

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18 U.S.C. 372. As noted by the only district court that appears to have delved into 372s

statutory construction: Without question, the statute could have been drafted more clearly and

with more precision. United States v. DeMott, No. 05-cr-0073, 2005 WL 2314134, at *1-2

(N.D.N.Y. Sept. 22, 2005) (unpublished). Neither the Supreme Court nor the Ninth Circuit has

addressed the scope of this statute to address its lack of clarity and imprecision. 1

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Overbreadth
1.

Legal Principles

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A typical facial attack requires showing that no set of circumstances exists under which

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[a statute] would be valid. United States v. Stevens, 559 U.S. 460, 472 (2010). But because of

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courts special solicitude for First Amendment freedoms, a party raising a First Amendment

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overbreadth challenge is not required to make such a demanding showing. Rather, the challenging

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In United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997), overruled on other grounds
by United States v. Heredia, 483 F.3d 913, 917 (9th Cir. 2007), the defendant was convicted under
18 U.S.C. 372 after he (1) mailed a Notice and Demand for Declaration of Judges Impartiality
to the judge overseeing his bankruptcy case, and (2) filed a Citizens Arrest Warrant for Citizens
Arrest against the judge in bankruptcy court. Id. at 446. The defendant argued 372 was
unconstitutionally vague as applied to his conduct and effected over-broad content and viewpoint
regulation in violation of the First Amendment because the mere filing of an official document
against a government official could constitute force, threat, or intimidation within the meaning of
the statute. Id. at 452. The Ninth Circuit rejected these arguments, holding criminal liability
attached only to filing false forms or illegitimate documents, not valid ones. Id. As the superseding
indictment against Mr. Payne challenges protected speech and conduct, Fulbright does not apply.
Furthermore, in United States v. Crozier, 268 F. Appx 604 (9th Cir. 2008), an unpublished
and therefore not precedential order, the Ninth Circuit held that the property a defendant is
convicted of injuring under 372 must be owned by the federal government and in the control of
the officer. Counts Two and Three do not allege injury to property. ECF No. 27, pp. 39-41.
Crozier is therefore inapposite.
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party need only show that a substantial number of [the statutes] applications are unconstitutional,

judged in relation to the statutes plainly legitimate sweep. Arce v. Douglas, 793 F.3d 968, 984

(9th Cir. 2015) (internal quotation marks omitted). This doctrine exists out of concern that the

threat of enforcement of an overbroad law may deter or chill constitutionally protected speech

especially when the overbroad statute imposes criminal sanctions, as it does here. Comite de

Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011)

(quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)).

The party challenging the law need not necessarily introduce admissible evidence of

overbreadth, but generally must at least describe the instances of arguable overbreadth of the

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contested law. Id. (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

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449 n.6 (2008)). Courts permit First Amendment overbreadth attacks on overly broad statutes

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with no requirement that the person making the attack demonstrate that his own conduct could not

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be regulated by a statute drawn with the requisite narrow specificity. Id. (quoting Parker v. Levy,

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417 U.S. 733, 759 (1974)).

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2.

Section 372 Is Unconstitutionally Overbroad

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The first step in an overbreadth analysis is to construe the statute, as it is impossible to

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determine whether a statute reaches too far without first knowing what the statute covers. Arce,

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793 F.3d at 984 (internal quotation marks omitted). As explained above, see supra note 1, neither

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the Ninth Circuit nor the Supreme Court has given 372 a general limiting construction. The

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Court must therefore interpret 372 according to its texts ordinary meaning. See Stevens, 559

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U.S. at 474-75. This interpretation create[s] a criminal prohibition of alarming breadth. Id. at

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474.

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a.

The Statute Is Not Limited to True Threats

Section 372 prohibits using force, intimidation, or threat to conspire to prevent a

federal officer from discharging his duties. Under Ninth Circuit case law, a threat is an

expression of an intention to inflict evil, injury, or damage on another. Planned Parenthood of

Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en

banc) (internal quotation marks omitted). But many threats are protected by the First Amendment;

it is only true threats that receive no First Amendment protection. Id. at 1071.

For a statement to qualify as a true threat, the speaker must subjectively intend the

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speech as a threat. United States v. Bagdasarian, 652 F.3d 1113, 1118 (9th Cir. 2011). [T]he

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element of intent [is] the determinative factor separating protected expression from unprotected

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criminal behavior. Id. (internal quotation marks omitted) (second brackets in original). Yet 372

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contains no language indicating the statute reaches only true threats. Nothing in the text of 372

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bars courts from applying it to political rhetoric or hyperbole, which the Supreme Court has held

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is constitutionally protected. Fogel v. Collins, 531 F.3d 824, 830 (9th Cir. 2008) (citing NAACP

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v. Claiborne Hardware Co., 458 U.S. 886, 902, 928 (1982)).

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Absent a narrowing constructionwhich neither the Ninth Circuit nor the Supreme Court

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has provided 372 by its terms covers overheated political statements that appear to express an

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intent to inflict injury, even if the speaker has no intention of harming anyone. In Watts v. United

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States, 394 U.S. 705 (1969) (per curiam), for example, the defendant said at a public anti-war rally,

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And now I have already received my draft classification as 1-A and I have got to report for my

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physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I

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want to get in my sights is L.B.J. 394 U.S. at 706. The Supreme Court held this kind of political

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hyperbole was not a true threat and therefore could not subject the defendant to criminal

liability. Id. at 708. Such a statement, however, plainly falls within the text of 372, which

contains no requirement that the speaker subjectively intend to threaten anyone. The statute is

therefore overbroad, as it would criminalize constitutionally protected speech in many of its

applications. Arce, 793 F.3d at 984.

The government and the Court cannot avoid this result by rely[ing] upon the canon of

construction that ambiguous statutory language [should] be construed to avoid serious

constitutional doubts. Stevens, 559 U.S. at 481 (internal quotation marks omitted) (second

brackets in original). As the Supreme Court has explained, courts may impose a limiting

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construction on a statute only if it is readily susceptible to such a construction. Id. (internal

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quotation marks omitted). [R]ewriting a statute to conform it to constitutional requirements

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would constitute a serious invasion of the legislative domain and sharply diminish Congresss

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incentive to draft a narrowly tailored law in the first place. Id. (internal quotation marks omitted).

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Here, 372 is not susceptible to a construction that criminalizes only statements made with the

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subjective intent to threaten. Nothing in the statutes text gives any indication the law is limited

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in that way. Grafting a subjective-intent requirement onto the statute would require the Court to

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rewrite 372, not interpret it.

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b.

The Statute Bars Speech with Second Amendment Overtones

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The Supreme Court held in District of Columbia v. Heller, 554 U.S. 670 (2008), that the

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Second Amendment guarantee[s] the individual right to possess and carry weapons in case of

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confrontation. 554 U.S. at 592. Two years later, the Court described the Second Amendment

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right to keep and bear arms as fundamental to our scheme of ordered liberty and deeply rooted

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in this Nations history and tradition. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)

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(emphasis and internal quotation marks omitted). The right to keep and bear arms, the Court noted,

is the true palladium of liberty. Id. at 769 (internal quotation marks omitted).

This fundamental Second Amendment right has First Amendment implications. Gun

possession can be speech where there is an intent to convey a particularized message, and the

likelihood is great that the message would be understood by those who viewed it. Nordyke v.

King, 319 F.3d 1185, 1190 (9th Cir. 2003) (brackets omitted) (quoting Spence v. Washington, 418

U.S. 405, 410-11 (1974)). As the Ninth Circuit explained: a gun protestor burning a gun may be

engaged in expressive conduct. So might a gun supporter waving a gun at an anti-gun control

rally. Id.

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Neither the text of the statute nor case law has defined force, intimidation, or threat

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within the meaning of 372. Those words must therefore be interpreted according to their plain

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meaning. See Stevens, 559 U.S. at 474-75. Someone who observes a gun supporter waving a

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gun at an anti-gun control rally, Nordyke, 319 F.3d at 1190, might be intimidat[ed] by that

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display or consider it a threat, as those words are commonly understood. Likewise, a federal

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officer might feel intimidated by someone who seeks to make a political statement by taking

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shooting practice on a target made to look like a federal official. Yet such speech is constitutionally

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protected under both the First and Second Amendments and therefore cannot give rise to criminal

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liability. Because a plain text reading of 372 would encompass this kind of speech, the statute

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is unconstitutionally overbroad.

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Application of 18 U.S.C. 372 will in many cases sweep up conduct protected by the First

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Amendment. The statute is therefore impermissibly overbroad. As a result, a violation of 372

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cannot qualify as an underlying crime of violence that creates aiding-and-abetting exposure

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under 18 U.S.C. 2, 924(c). Counts Two and Three, which charge violations of those two

statutes, must therefore be dismissed.

III.

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CONCLUSION
For the foregoing reasons, Mr. Payne respectfully requests the Court dismiss Counts Two

and Three.
DATED this 3rd day of October, 2016.

Respectfully Submitted,

RENE VALLADARES
Federal Public Defender

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By: /s/ William Carrico

WILLIAM CARRICO
Assistant Federal Public Defender
By: /s/ Ryan Norwood
RYAN NORWOOD
Assistant Federal Public Defender

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By: /s/ Brenda Weksler

BRENDA WEKSLER
Assistant Federal Public Defender

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CERTIFICATE OF ELECTRONIC SERVICE

The undersigned hereby certifies that she is an employee of the Federal Public Defender

for the District of Nevada and is a person of such age and discretion as to be competent to

serve papers.

That on October 3, 2016, he served an electronic copy of the above and foregoing

DEFENDANT RYAN PAYNES MOTION TO DISMISS COUNTS TWO AND THREE

ON OVERBREADTH GROUNDS (Hearing Requested) by electronic service (ECF) to the

person named below:

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DANIEL G. BOGDEN
United States Attorney
ERIN M. CREEGAN
Assistant United States Attorney
NADIA JANJUA AHMEN
Assistant United States Attorney
NICHOLAS DICKINSON
Assistant United States Attorney
STEVEN MYHRE
Assistant United States Attorney
501 Las Vegas Blvd. South
Suite 1100
Las Vegas, NV 89101

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/s/ Lauren Pullen

Employee of the Federal Public Defender

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