MEMORANDUM OPINION & ORDER
Though it would be an exceedingly rare occurrence for any person to physically assault another without as much as a fleeting trace of hate in his or her heart, Congress has seen fit to provide special federal protections against designated “hate crimes.” The United States alleges that when David Jenkins and Anthony Jenkins kidnapped Michael Pennington and assaulted him, they did so on the basis of Pennington’s sexual orientation in violation of, among other crimes, 18 U.S.C. § 249(a)(2), the Matthew Shepherd and James Bird Hate Crime Prevention Act (“HCPA”).
I.
According to the Government, on a spring night in 2011, Anthony and David Jenkins made plans to kidnap and assault Kevin Pennington because they knew him to be a homosexual. They solicited assistance of Mable Ashley Jenkins and Alexis Leeann Jenkins to lure Pennington from his home under the false pretense of accompanying them to obtain drugs. They led him into Anthony Jenkins’s new white pick-up truck wherein the Jenkinses had obscured the light and used clothing to conceal their identity so that Pennington, who might have had reason to recognize their intentions, did not know of their presence.
The group traveled on U.S. Highway 119 toward Kingdom Come State Park. In transit, Pennington realized that the defendants were in the car, but despite his requests, he was prevented from exiting the vehicle. Pursuant to the plan, the Jenkinses drove Pennington to a secluded area of Kingdom Come State Park, where they restrained and “brutally beat Pennington while yelling anti-homosexual comments.” [R. 70 at 3].
Fortunately, Pennington escaped from the attack and alerted local law enforcement officials. The Jenkinses were ultimately arrested and charged with the attempted murder of Penningtоn. The state court prosecution against them was dismissed on March 26, 2012, because they, “had been charged by federal authorities under the same facts as the Commonwealth charges.” [R. 61-2]. The Office of the Attorney General certified the case for federal prosecution on April 9, 2012 because, “the State has requested that the Federal Government assume jurisdiction, and because it is in the public interest and necessary to secure substantial justice.” [R. 61-1]. The United States filed its Indictment against the Jenkinses on April 11, 2012, charging them with conspiring to kidnap Pennington in violation of 18 U.S.C. § 1201(c), kidnapping Pennington in violation of 18 U.S.C. § 1201, and willfully causing bodily injury to Pennington because of his actual or perceived sexual orientation in violation of 18 U.S.C. § 249(a)(2). Based primarily upon the latter of these charges, the Jenkinses have now raised four Motions to Dismiss.
II.
Congress passed the Hate Crimes Prevention Act in 2009 and it has since been considered in a very limited number of cases across the county, including only once by the Sixth Circuit. See Glenn v.
(2) Offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.—
(A) In general. — Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—
(I) death results from the offense; or
(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
(B) Circumstances described. — For purposes of subparagraph (A), the circumstances described in this subparagraph are that—
(i) the conduct dеscribed in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim-
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described in sub-paragraph (A)—
(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.
(b) Certification requirements—
(1) In general. — No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that-
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Fedеral interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the public interest andnecessary to secure substantial justice.
Though the HCPA is not the first piece of hate crime legislation, it does make substantial changes to the predecessor statute, 18 U.S.C. § 245, including the addition of sexual orientation as a basis of violation.
A.
1.
Why is this a Federal Crime? After all, this type of violent act is exactly the kind of crime traditionally prosecuted by state and local authorities. What is it about this circumstance that gives the Federal Government the power to hold these defendants accountable for these acts? Traditionally, it is the Commerce Clause that answers the 'questions posed. Congress, after all, has the power to regulate the “channels of interstate commerce” and “persons or things in interstate commerce,” and even certain activities that “substantially affect interstate commerce.” United States v. Lopez,
In Lopez, the Supreme Court recognized that while the changing American economy had led to a considerable broadening of the power provided Congress under the Commerce Clause, “this power is subject to outer limits.” Lopez,
To more clearly define these limits, the Court summarized its previous Commerce Clause jurisprudence and set forth “three broad categories of activity that Congress may regulate under its Commerce Clause power.” Lopez,
First Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstatе commerce, i.e., those activities that substantially affect interstate commerce.
Lopez,
The Lopez Court began its analysis by determining which of the three categories of activity Congress was regulating in its passage of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(l)(A) (“GFZA”). The GFZA proscribed the knowing possession of a firearm within a school zone. The Court quickly reasoned that because the GFZA did not regulate the use of channels of interstate commerce nor protect an instrumentality or thing in interstate commerce, it could not be sustained under the first two categories, and its constitutionality would be determined under the third, which asked whether the activities regulated had a substantial impact on interstate commerce. Lopez,
This framework is further developed by United States v. Morrison,
The HCPA, like the VAWA in Morrison, falls under the Third Category. Though the VAWA provides a civil remedy to victims of gender motivated crime, at the core, both it and the HCPA are laws punishing bias-motivated violence. In addition, both laws regulate violent activity rather than channels or instrumentalities of interstate commerce. It is true that unlike the VAWA, HCPA § 245(a)(2)(B) contains a jurisdictional element that discusses channels and instrumentalities of interstate commerce. At oral argument, the Government proceeded as though the addition of this hook moved the HCPA into a Category One and Two analysis. While this argument is not per se incorrect, the case law does not suggest that the talismanic use of jurisdictional element language can transform a law otherwise regulating violent activity into a law regulating channels or instrumentalities of interstate commerce. The Lopez-Morrison framework takes a statute’s jurisdictional element into consideration, but not at this point in the analysis. Instead, a the teaching of Lopez and Morrison is that the relevance of a jurisdictional element is not related to which category to apply, but to whether activities that are already classified under Category Three have been properly limited by Congress so as to only regulate activity having a substantial impact on- interstate commerce. Though this distinction might not have a great deal of substantive impact on the outcome in this case, it is the analysis that most closely adheres to the Lopez framework. The HCPA is not a statute to regulate the roads or automobiles, but violent conduct. Regulation of violent conduct is a Category Three issue. Therefore, like the laws in both Lopez and Morrison, for the HCPA to be a valid exercise of Congressional power, it must regulate an activity that substantially affects interstate commerce.
The framework for determining whether an activity has a substantial impact on interstate commerce was set fоrth in Lopez and again applied in Morrison. First, a reviewing court must determine whether the prohibited activity is economic in nature or an essential part of a larger regulation of economic activity. Lopez,
The first factor in determining whether the prohibited activity substantially affects interstate commerce is whether this activity is economic in nature or part of a larger regulatory scheme of economic activity. Morrison found that, “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison,
This outcome is not changed by the Supreme Court’s subsequent decision in Gonzales v. Raich,
The analysis in Raich has been used in this Circuit to find that statutes involving child pornography were constitutional under the Commerce Clause. In United States v. Bowers,
Unlike the drug trade and illicit pornographic industry, the statutes at issue in Lopez and Morrison are clearly distinct from Raich because the activities that they regulate are not economic in nature or part of a larger regulatory scheme that is economic in nature. As previously established, the Supreme Court has already determined that the conduct proscribed in the HCPA is non-economic. Further, like Lopez and Morrison, the HCPA is a “brief, single-subject statute,” addressing a particular type of violent conduct. Raich,
Additional factors used in determining whether the conduct prohibited by a statute substantially affects interstate commerce under the Lopez-Morrison framework are whether Congress has made findings as to the effect of the prohibited conduct on interstate commerce, and whether the link between the activity and interstate commerce is attenuated. The Morrison Court analyzed these two factors together in determining that findings for the VAWA were insufficient and the link between bias-motivated crime and interstate commerce was too attenuated.
The Supreme Court rejected congressional findings related to the high costs of violent crime that is spread throughout the population, that violent crime reduces the ability of people to travel and participate in commerce among states, and that violent crime damaged the productivity of the nation. Id. at 615,
Knowing this, it is easy to see that the HCPA does not contain adequate findings
And though until this point, the analysis of the HCPA has directly tracked the analysis of the VAWA in Morrison, the laws are distinct. Unlike the VAWA, the HCPA contains a jurisdictional element. The final measure of whether a statute regulates activity that has a substantial impact on interstate commerce sufficient to support Commerce Clause jurisdiction is whether the statute contains such an element. Lopez,
A jurisdictional element is a limiting factor contained in the statute that would ensure on a case-by-case basis that the activity regulated in a statute has the required nexus with interstate commerce. Id. at 562,
(B) Circumstances described. — For purposes of subparagraph (A), the circumstances described in this subparagraph are that—
(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim—
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described in subparagraph (A)—
(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.
From the face of the statute it is clear that Congress has employed the full breadth of its regulatory power to ensure that this jurisdictional hook is sufficient. The jurisdictional element in HCPA
To put that theory to the test, the aforementioned “case-by-case inquiry”' discussed above must be applied to the facts of this case to see if the HCPA captures conduct beyond the reach of Congress or is limited, to activity that Congress is empowered to regulate under the Commerce Clause. The Jenkinses are charged under the HCPA for the willful infliction of a bodily injury to Michael Pennington because of his sexual orientation. This base situation would not be captured under the jurisdictional element of HCPA § 249(a)(2)(B). However, the Government alleges that the Jenkinses used a motor vehicle to secret Pennington via U.S. Highway 119 to the remote location where they beat him. In the Government’s view, the use of the vehicle and the highway triggers the jurisdictional element of the statute because the Jenkinses used an instrumentality and channel of interstate commerce, which Congress has the power to regulate under the Commerce Clause.
The Sixth Circuit has held that “ears are themselves instrumentalities of commerce, which Congress may protect.” United States v. McHenry,
Thus, even though the Jenkinses never crossed state lines, their use of a car to secret Pennington to the place where they beat him triggers the “instrumentality of interstate commerce” jurisdictional element of the HCPA. And though the intrastate use of a truck to affect a violent act is seemingly аttenuated from interstate commerce, precedent in this Circuit is clear that when Congress limits a law to cover activity effectuated with a motor vehicle, it is inherently acting within its power to regulate the instrumentalities of interstate commerce.
Channels of commerce are “the interstate transportation routes through which persons and goods move [including] highways, railroads,' navigable waters and airspace.” Morrison,
The statutes in Lopez and Morrison did not contain a jurisdictional element, and thus, having failed every measure of substantial interstate commerce effect, both were deemed unconstitutional exercises of Commerce Clause authority and were struck down by the Supreme Court. Despite its failure under every other factor оf the Lopez-Morrison analysis, the HCPA does contain a jurisdictional element and this hook does appear to be sufficient to capture the facts in this case.
The question remains whether constitutional salvation is available to an otherwise deficient law by a sufficient jurisdictional hook alone? The Sixth Circuit has recently answered this question in the affirmative, stating, “where a statute lacks a clear economic purpose, the inclusion of an explicit jurisdictional element suffices to ensure, through case-by-case inquiry, that the violation in question affects interstate commerce.” United States v. Coleman,
It is also worth noting that this Court is not alone in reaching this conclusion. The only other court to consider this issue upheld the HCPA as constitutional under the Commerce Clause using the same rationale. In United States v. Mullet,
If wholly intrastate non-economic activity can be transformed into conduct that the federal government may punish simply because the defendant used a car or a road to get there, the Interstate Commerce Clause cоntinues to cast a very large shadow, indeed, and very little activity remains in the exclusive province of the police powers of the state. Even so, this is the ultimate outcome of the current prevailing constitutional precedents in this Circuit as applied to these facts. Therefore, as the HCPA § 249(a)(2) regulates activity that is within the power of Congress under the Interstate Commerce Clause, federal jurisdiction, is appropriate under this statute generally and as applied to this case.
2.
There is another section of the HCPA, challenged by the Jenkinses, that seeks to address federalism concerns. This provision, HCPA § 249(b)(1), states that:
(1) In general. — No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that—
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D) a prosecution by the United Statеs is in the public interest and necessary to secure substantial justice.
One of the stated purposes of this requirement was to, “ensure the federal government will assert its new hate crimes jurisdiction only in a principled and properly limited fashion.” H.R. No. 86, 111th Cong., 1st Session 5,14 (2009).
The Attorney General certified this case for federal prosecution pursuant to HCPA § 249(b)(1). [R. 61-1]. The Jenkinses assert that this Court should engage in a substantive review of the certification process to determine if the federal government is rightly involved in this case. “Judicial review of executive action ‘will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.’ ” United States v. Doe,
Though the Jenkinses concede that the Sixth Circuit has not considered the certification issue in the context of HCPA § 249(b)(1), they state that the Fourth Circuit has permitted review of a similar certification requirement for the prosecution of a juvenile defender as an adult under 18 U.S.C. § 5032. And though the Defendants are correct that the Fourth Circuit did make such a ruling in U.S. v. Juvenile Male #1,
For the same reasons, judicial review of the Attorney General’s certification under HCPA § 249(b)(1) is inappropriate. Like § 5032, HCPA § 249(a)(2) simply requires that the Attorney General provide “certification in writing” of one of the four listed grounds. The statute is devoid of any provision for judicial review or a standard оf review under which such a review could be conducted. Therefore, the text of the statute indicates Congress intended that judicial review of the certification process should be precluded in favor of the broad discretion of federal prosecutors. As a result, this Court may not engage in a substantive review of the prosecution’s certification.
The Jenkinses also claim the Attorney General did not follow the proper procedure in certifying this case for prosecution. The certification of the Attorney General states that, “the State has requested that the Federal Government assume jurisdiction and because it is in the public interest and necessary to secure substantial justice.” [R. 61-1]. Both of
Prior to certification, state charges had been filed against Anthony Jenkins, but were dismissed by the Commonwealth because “the Commonwealth [was] advised that the above named defendant has been charged by the federal authorities under the same facts as the Commonwealth.” [R. 61-2]. The Jenkinses claim that this order of dismissal from state court demonstrates that the Commonwealth did not request that the federal authorities assume jurisdiction, and the certification for federal prosecution is procedurally flawed on that ground. However, any procedural ambiguity that might have been caused by the state court order of dismissal was resolved by the August 8, 2012 letter from the Commonwealth’s Attorney in which he states that on October 13, 2011 he requested that the Attorney General’s office pursue the Jenkinses’ cases in federal court. In demonstrating that the State requested the United States to assume authority, the Government has done enough to show that it satisfied the procedural requirements of § 249(b)(1). Beyond that, as previously discussed, the certification process used by the Government is not reviewable and the Jenkinses’ motion to dismiss on this basis will therefore be denied.
B.
1.
The Jenkinses next argue that on its face § 249(a)(2) creates special protection for a class of individuals based on the victim’s sexual orientation, which violates the equal protection component of the Fifth Amendment to the United States Constitution. The Supreme Cornet has found the guarantee of equal protection under the law to be inherent in the due process that is secured in the Fifth Amendment. That applies to the federal government via the same analysis that the Equal Protection Clause of the Fourteenth Amendment applies to the states. United States. v. Baker,
It is not necessary to discuss which level of scrutiny HCPA § 249(a)(2) is subject to under the tripartite test of equal protection because the law creates no classifications among citizens, but is neutral on its facе. HCPA § 249(a)(2)’s protections extend to any person who is the victim of bodily injury on the basis of his or her sexual orientation. By its terms, this statute does not provide preferential treatment only to homosexuals, but instead provides equal protection to peoplé of all sexual orientations, which would include heterosexuals. As the HCPA § 249(a)(2) does not create classes of citizens, but provides neutral protection for all people, it does not give rise to any equal protection concerns on its face. At least one court agrees, having considered
The Jenkinses’ unsupported suggestion that the law merely uses clever wording to disguise a discriminatory intent does not change this conclusion. When a facially neutral rule is challenged on equal protection grounds, the one challenging the law must show that it was enacted “because of,” not merely “in spite of,” its adverse impact on persons in plaintiffs class. United States v. Johnson,
2.
The Jenkinses next argue that the HCPA § 249(a)(2) violates the substantive due process component of the Fifth Amendment. Substantive due process provides “heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg,
C.
Resting on the protections of the First Amendment, the Jenkinses next contend that the HCPA § 249(a)(2) is over-broad and void for vagueness. When a facial overbreadth challenge is raised “a court must fist determine whether the regulation reaches a substantial amount of
Simply put, the HCPA reaches no constitutional conduct restricted by the First Amendment. The conduct that the HCPA § 249(a)(2) prohibits is “willfully eaus[ing] bodily injury.” The definitions are clear that “bodily injury” must be an actual physical injury, with emotional or psychological harm being insufficient. 18 U.S.C. § 249(c)(1). Violence is not constitutionally protected conduct. N.A.A.C.P. v. Claiborne Hardware Co.,
If the overbreadth challenge fails, courts next consider any facial vagueness challenges and “should uphold the challеnge only if it is impermissibly vague in all its applications.” Village of Hoffman,
The Jenkinses suggest that in § 249(a)(2) the phrase “actual or perceived ... sexual orientation” is so vague that the statute should be voided. According to the claims made by the United States, the Jenkinses knew that Pennington was gay, they had seen him engage in conduct that would suggest he was gay, and then they assaulted him while shouting gay slurs. Regardless of whatever else these words of § 249(a)(2) mean, they must at least give rise to the meaning that one cannot assault someone because he is gay without being subject to the HCPA. Because the Jenkinses alleged conduct falls squarely within the meaning of the statute, they may not generally complain of its vagueness.
Even though this case does not involve constitutional conduct, the Sixth Circuit has recognized that courts may still engage in the stricter vagueness facial challenge analysis where the enactment imposes criminal sanctions. Belle Maer Harbor v. Charter Tp. of Harrison,
The Jenkinses claim that men of ordinary intelligence cannot understand what it would mean to willfully cause bodily injury to someone because of “actual or perceived sexual orientation.” In support, the Jenkinses provide an internet search that reveals as many as 30 different categories of sexual orientation, proving the term to be so broad that no person would be able to know what was being prohibited. It may be true that, “condemned to words, we can never expect mathematical certainty from our language.” Grayned,
Additionally, the Sixth Circuit has considered an enactment containing the words “sexual orientation” without finding that it was too nebulous for comprehension. Equality Foundation of Greater Cincinnati, Inc.,
The Jenkinses next assert that § 249(a)(4)’s admonition to the Attorney General to establish “neutral and objective” criteria for determining whether a crime was committed because of the “actual or perceived” status of a person permits too much discretion for those enforcing the law. There are two fatal flaws in this argument. First, the “perception” that matters under the statute is that of the person committing the bodily injury, not the perception of the one enforcing the law. Adding “perceived” to the statute impermissibly delegates no one additional authority, but merely operates to protect a victim who, for example, was assaulted by someone believing him to be a homosexual, when in fact he maintained a different sexual orientation. Second, prosecutors have, “great discretion in determining whether or not to prosecute and what charge to file so long as there is probable cause to believe an offense has been.committed.” United States v. Davis,
In short, HCPA § 249(a)(2) is neither overbroad nor void for vagueness. The statute covers no protected constitutional conduct and the Jenkinses fall within the clear bounds of the statute. Even when viewing the language of the statute under a stricter test, the words “actual or perceived sexual orientation” are sufficient to put a person of average intelligence on notice of the prohibited conduct under this Act. Finally, the requirement that the Attorney General provide “neutral and objective” standards for determining “actual or
D.
Finally, the Jenkinses argue that because the proof necessary to convict them on the kidnapping charges of the indictment is the same proof necessary to prove a portion of the elements of the HCPA § 249(a)(2) charge, the indictment is multiplicitous and therefore violative of the Double Jeopardy Clаuse of the Fifth Amendment. The Double Jeopardy Clause of the United States Constitution prohibits the government from putting any person twice, “in jeopardy of life or limb” for the same event. U.S. Const, amend. V. Multiplicity occurs when a defendant is charged for a single offense in multiple counts in an indictment, which raises the danger of either being punished twice or unfairly suggesting that more than one crime has been committed. United States v. Swafford,
Though a defendant may not be punished for the same event twice, “a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause.” United States v. Dudeck,
The Jenkinses claim that the kidnapping charges brought against them by the United States are included in HCPA § 249(a)(2), and therefore the Government should not be able to bring both charges under the Double Jeopardy Clause. HCPA § 249(a)(2)(A) that:
(A) In general. — Whoever ... willfully causes bodily injury to any person ... because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—
(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—
(I) death results from the offense; or
(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
The contention of the Jenkinses lies specifically in § 249(a)(2)(A)(ii)(II), which provides for a larger sentence “if the offense includes kidnapping.” That the intention of Congress is not clear from the face of the statute or any accompanying legislative history is highlighted by the fact that both parties suggest thаt their proposed meaning was intended by Congress. The United States argues that “Congress intended to punish kidnapping and hate
If the double jeopardy question cannot be answered by the legislative intent of the statutes, it must be solved by comparing the elements of each offense using the Blockburger test framework. As to Count Three, for the Jenkinses to be convicted of a hate crime under HCPA § 249(a)(2), the United States would be required to prove: (1) the defendants willfully caused bodily injury to Pennington; (2) because of Pennington’s actual or perceived sexual orientation; and (3) that the conduct occurred using a channel of interstate commerce [as required by § 249(a)(2)(B)(i)(II) ]. As to Count Two, for the Jenkinses to be convicted under 18 U.S.C. § 1201, the United States must prove that they: (1) knowingly and willfully seized confined, decoyed, inveigled, kidnapped, abducted, or carried away Pennington; (2) for some benefit or reason; (3) using any means or instrumentality of interstate commerce. Finally, as to Count One, for the Jenkinses to be convicted under 18 U.S.C. § 1201(c), the United States must prove that they conspired to violate the aforementioned kidnapping statute and one or more of them engaged in an overt act to bring about the object of the conspiracy. When comparing the basic elements required for a conviction, it is clear that no double jeopardy violation exists. To be convicted under § 249(a)(2), bodily injury is required, but not a kidnapping; while to be convicted under § 1201, a kidnapping or conspiracy to kidnap is required, but not bodily injury.
The Jenkinses argue that because the indictment indicates that the United States intends to secure a longer sentence by showing that a kidnapping was involved with the commission of the hate crime, this Court should also consider the aggravator of § 249(a)(2)(A)(ii)(II) to be a substantive element of the offense for the Blockburger analysis. The Jenkinses claim that to secure a sentence greater than ten years, the Government would also have to prove that “offense includes kidnapping.” Under their logic, with this language included as a substantive element of the HCPA, if the Government proved the elements of § 249(a)(2), there would be no additional elements to prove for the other counts, making them multiplicitous. The Jenkins-es conclude that as a result of this multiplicity they will be prejudiced before the jury-
Several flaws exist in the Jenkinses’ rationale. First, as previously mentioned, the focus of the test is-not on the actual evidence to be presented at trial or the facts alleged in a particular indictment, but the proof necessary to prove the statutory elements of each offense. The indictment does suggest that the United States intends to show that the hate crime offense was in conjunction with a kidnapping, which would provide for the availability of a longer sentence; but the Jenkinses can be convicted under § 249(a)(2) without any showing of kidnapping. Further, the Jenkinses can have their sentence enhanced under § 249(a)(2)(A)(ii)(II) without any showing of a kidnapping. The statute provides for such an enhancement if death results or the offense includes aggravated sexual abuse, an attempt to commit aggravated sexual abuse, or an attempt to kill. Even if the specific facts in the indictment were relevant to this analysis, the indictment clearly alleges that the Jenkinses attempted to kill Pennington. Thus, if the United Stаtes failed to prove that a kidnapping occurred, it could still successfully prove that the Jenkinses committed a hate crime qualifying for a sentence longer than ten years under § 249(a)(2)(A)(ii)(II). Therefore, under the Blockburger test, the counts of the indictment are not inherently multiplicitous and do not violate the Dou
III.
Having considered the arguments of both parties and the Court being sufficiently advised, it is hereby ORDERED as follows:
(1) Defendant David Jenkins’s Motion for Joinder [R. 64] in Anthony Jenkins’s First, Second, Third, and Fourth Motions to Dismiss is GRANTED;
(2) The Defendants’ First Motion to Dismiss [R. 53] is DENIED;
(3) The Defendants’ Second Motion to Dismiss [R. 57] is DENIED;
(4) The Defendants’ Third Motion to Dismiss or Alternative Schedule a Hearing for “Substantive” Review [R. 61] is DENIED;
(5) The Defendants’ Fourth Motion to Dismiss [R. 62] is-DENIED.
(6) The Defendants’ October 15, 2012 Oral Motion to Dismiss is DENIED.
Notes
. To be precise, the Commerce Clause issue implicitly arose out of a separate motion by the Jenkinses, and at a hearing on that issue, a specific oral motion was made that challenged the constitutionality of the HCPA on Commerce Clause grounds.
. The Motions to Dismiss were originally filed by Anthony Jenkins, but as the Court will grant David Jenkins’s motion for joinder in each of the motions to dismiss, the arguments shall be discussed as for both defendants.