Case Information
*2
CHRISTEN, Circuit Judge:
Sexual assault by and against prison inmates is a distressing and pernicious problem. In this case, we decide whether the Constitution gives Congress the power to address it by criminalizing sexual assaults in facilities where federal inmates are held by agreement with state and local governments. We also decide whether the existence of such an agreement is a question of law that may be decided by the trial court. Our answer to both questions is “yes.”
BACKGROUND
On March 5, 2009, Sabil Mumin Mujahid was arrested in Anchorage, Alaska after officers found a firearm in the trunk of a car he had driven to the Nesbett Courthouse for a bail hearing on a pending state drug charge. Mujahid was taken to the Anchorage Correctional Complex, which provides housing for state prisoners as well as federal prisoners pursuant to a contract with the U.S. Marshals Service.
The day after his arrest, Mujahid was charged in a federal criminal complaint with one count of being a felon in possession of a firearm. The federal court ordered him detained pending trial, and thereafter the state court revoked his bail on the drug charge. In June 2009, a jury convicted Mujahid on the federal felon-in-possession charge. The federal court sentenced Mujahid to 120 months’ imprisonment. On June 28, 2010—after the state drug charge was resolved—Mujahid was transferred from the Anchorage Correctional Complex to a federal prison in Washington state.
During his time at the Anchorage Correctional Complex, Mujahid repeatedly sexually assaulted other prisoners. As a result, he was charged with multiple counts of aggravated sexual abuse, sexual abuse, and abusive sexual contact, in violation of 18 U.S.C. §§ 2241, 2242, and 2244, respectively.
18 U.S.C. § 2241 defines and proscribes aggravated
sexual abuse by any person “in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison,
or in any prison, institution, or facility in which
persons are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal
department or agency
.” (Emphasis added.) 18 U.S.C.
§§ 2242 and 2244 define and proscribe sexual abuse and
A grand jury indicted him on this charge twelve days later.
We later affirmed the judgment of conviction and the sentence.
See
United States v. Mujahid
,
Before trial, Mujahid moved to dismiss the indictment on the ground that the “the Constitution does not confer upon the National Government the power to suppress violent crime that occurs in state jails.” He argued that 18 U.S.C. §§ 2241, 2242, and 2244 exceed Congress’ authority under Article I of the Constitution and contravene the Tenth Amendment, both “facially and as applied.” Mujahid did not explain, however, why the statutes would be unconstitutional as applied to him if they are constitutional on their face.
The district court denied Mujahid’s motion to dismiss. In April 2011, the government filed a second superseding indictment, which added additional counts under the same statutes. The parties stipulated that the district court’s order on the motion to dismiss applied to all counts in the second superseding indictment.
Mujahid was tried before a jury in June 2011. At trial, Deputy U.S. Marshal Rochelle Liedike testified on behalf of the government concerning the Anchorage Correctional Complex. Liedike explained that there are no federal prisons in Alaska, but that the U.S. Marshals Service has a contract with the Alaska Department of Corrections to house federal prisoners. Liedike testified that the majority of federal inmates in Alaska are detained at the Anchorage Correctional Complex, where the Marshals Service has contracted for 60 beds. She authenticated a copy of the contract, which was introduced into evidence as Exhibit 23. Liedike confirmed that the contract was in effect from May 3, 2009, through May 26, 2010—the period during which the events charged in the second superseding indictment took place. *5 6 U NITED S TATES V . M UJAHID At the end of the trial, the district court told counsel that it would use the Ninth Circuit Pattern Jury Instructions to instruct the jury that the government must prove beyond a reasonable doubt that “the offense was committed at the Anchorage Correctional Complex.” Mujahid objected, arguing that the jury should also have to determine whether the Anchorage Correctional Complex is “a facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency.” See 18 U.S.C. §§ 2241, 2242, 2244. The district court overruled this objection, stating “the existence of the contract is a legal question for the Court to decide, and the fact question that’s for the jury to decide is simply was the victim housed in, you know, the institution.” The court subsequently granted the government’s unopposed motion for a legal finding on the record, and “conclude[d] that, as a matter of law, the Anchorage Correctional Complex is a facility in which persons are held in custody pursuant to an agreement with the United States Marshals Service, a federal agency.”
Mujahid was convicted of four counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241 and three counts of abusive sexual contact in violation of 18 U.S.C. The pattern jury instructions for 18 U.S.C. §§ 2241, 2242, and 2244 state that the jury must find “the offense was committed at [ specify place of federal jurisdiction ].” See Ninth Circuit Pattern Criminal Jury Instructions §§ 8.164, 8.170, 8.179. The comments to Instruction 8.164 explain: “Whether the crime alleged occurred at a particular location is a question of fact. Whether the location is within the special maritime and territorial jurisdiction of the United States or a federal prison is a question of law.” The comments do not address the provision concerning facilities where federal detainees are held pursuant to a contract, which was added to the statute relatively recently.
§ 2244. The district court sentenced him to 480 months’ imprisonment. Mujahid timely filed a notice of appeal from the judgment in September 2011.
Four months later, Mujahid filed a pro se motion for a
new trial in district court. Mujahid argued that the
government withheld evidence, namely, a memorandum letter
and remand detainer that “could have showed that comity was
*6
with the State of Alaska at the time of the allege[d] assault on
John Doe 3 and John Doe 6.” Mujahid contended that after
he was convicted on the federal felon-in-possession charge,
the federal government transferred “custody back to the State
of Alaska” so Mujahid could be tried on the state drug
charges. The district court correctly determined that while it
did not have jurisdiction to grant the motion absent a remand
from this court, it did have jurisdiction to deny the motion.
See United States v. Hays
,
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo whether a criminal statute is an unconstitutional
overreach of congressional authority.
United States v. Bohn
,
622 F.3d 1129, 1133 (9th Cir. 2010). We also review de
novo whether the district court’s jury instructions omitted an
element of the charged offense.
United States v. Cherer
DISCUSSION
Mujahid raises two arguments in this appeal. First, he argues the district court erred by denying his motion to dismiss the indictment because the statutes of conviction are unconstitutional. Second, he argues that whether the Anchorage Correctional Complex is a facility in which persons are held pursuant to a contract with the head of a federal agency is a question of fact that should have been determined by the jury, not the trial judge. We address each issue in turn.
I. The district court correctly denied Mujahid’s motion
to dismiss the indictment.
A. The challenged statutes are not facially unconstitutional.
As originally enacted in 1986, the statutes of conviction proscribed aggravated sexual abuse, sexual abuse, and abusive sexual contact by any person “in the maritime and *7 territorial jurisdiction of the United States or in a Federal prison.” Sexual Abuse Act of 1986, Pub. L. No. 99-654, 100 Stat. 3660 (codified as amended at 18 U.S.C. §§ 2241–2244). In 2003, Congress passed the Prison Rape Elimination Act, which contained measures designed to reduce the widespread incidence of sexual assault in prisons, such as grants to states Prior to 1986, federal law criminalized rape occurring in the special territorial jurisdiction of the United States. The Sexual Abuse Act of 1986 was designed to ensure the federal government had jurisdiction over sex offenses occurring in prisons not located within the United States’ special territorial jurisdiction. See H.R. Rep. No. 99-594, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 6186, 6192.
for prevention of prison rape and the establishment of a National Prison Rape Reduction Commission. Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, 117 Stat. 972. Then, in 2006, Congress expanded the jurisdictional reach of the statutes of conviction to include offenses “in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General.” Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1177(a), 119 Stat. 2960, 3125 (2006) (codified as amended at 18 U.S.C. §§ 2241–2244).
This 2006 amendment is the focus of Mujahid’s constitutional claim. Mujahid argues the “police power” belongs to the states, and Congress acted beyond its limited, enumerated powers when it extended the statutory reach to cover sexual abuse that occurs in state and local institutions where federal detainees are held pursuant to a contract with a federal agency. The government responds that the 2006 amendment was a proper exercise of Congress’ authority to pass “necessary and proper” laws concerning federal prisoners.
In evaluating Mujahid’s claim, we are mindful that
Mujahid bears a “heavy burden” to demonstrate the statutes
are not within the scope of Congress’ constitutional authority.
See United States v. Salerno
,
“[T]he Necessary and Proper Clause grants Congress
broad authority to enact federal legislation.”
United States v.
Comstock
,
As an example of a law designed to ensure prison safety, Comstock cited 18 U.S.C. § 1791, a statute that prohibits smuggling of contraband. See Comstock , 560 U.S. at 137. That statute contains a jurisdictional provision virtually identical to the jurisdictional provision in the statutes here. See 18 U.S.C. § 1791(d)(4) (defining “prison” to include “any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General”).
*9 In Comstock , applying these principles, the Supreme Court upheld a federal civil-commitment statute authorizing the continued detention of “a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released.” Id. at 129 (citing 18 U.S.C. § 4248). The Court concluded the statute was “a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.” Id. at 149. In reaching this conclusion, the Court considered five factors: “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest . . . , (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” Id. Mujahid argues these factors cut in the direction of unconstitutionality in this case. We disagree.
First, as we have explained, the Necessary and Proper Clause grants Congress broad power to enact legislation, including legislation designed to facilitate appropriate enforcement of federal criminal laws enacted in furtherance of Congress’ enumerated powers. See id. at 133–37.
Second, Congress has long been involved in legislating
the terms of federal imprisonment.
See Ex parte
Until the 1900s, there were no federal prisons, so all federal prisoners
were housed in state facilities.
See Howe v. Smith
,
Third, the statutes here, like the civil commitment statute
in
Comstock
, are “‘reasonably adapted’ to Congress’ power
to act as a responsible federal custodian.”
Id.
at 143 (quoting
United States v. Darby
,
do anything less would risk denying prisoners their Eighth Amendment rights. See id. (explaining sexual assault within prisons “involves actual and potential violations of the United States Constitution”); Farmer v. Brennan , 511 U.S. 825, 832–34 (1994) (prison official’s deliberate indifference to substantial risk of serious harm violates prisoners’ right to be free from cruel and unusual punishment). Mujahid argues the statutes are unnecessary because all fifty states criminalize sex offenses. But even if this is true, there is no guarantee a state will choose to prosecute an offense committed by or against a federal prisoner that occurs in a state prison, and at any rate, Congress’ power is not dependent on state inaction. See Comstock , 560 U.S. at 134 (Congress may enact laws “rationally related to the implementation of a constitutionally enumerated power”).
Fourth, although the statutes at issue do not expressly accommodate state interests, the government correctly observes that they “do not supplant State legislation addressing the same topic; rather, like many federal criminal statutes, they create concurrent and complementary jurisdiction.”
Finally, the links between the statutes and an enumerated
Article I power “are not too attenuated.”
See id.
at 146. As
*11
we have explained, Congress may enact criminal laws to
implement its enumerated powers, as well as other laws to
ensure the just punishment of those convicted under federal
criminal laws. Mujahid points out that the statutes “cover
offenses committed by state inmates, state employees, and
persons who visit inmates in state custody at any institution
where federal inmates are held” pursuant to a contract with a
federal agency. But this case involves a crime committed by
a federal inmate, not a crime committed by one state inmate
against another. Even assuming Congress could not authorize
federal jurisdiction over the latter scenario,
[7]
the statutes are
not so overbroad as to completely exceed Congress’ power
under the Necessary and Proper Clause.
See Salerno
Like the civil commitment statute in
Comstock
, 18 U.S.C.
§§ 2241, 2242, and 2244 are not facially unconstitutional;
they are “a ‘necessary and proper’ means of exercising the
federal authority that permits Congress to create federal
criminal laws, to punish their violation, to imprison violators,
to provide appropriately for those imprisoned, and to
maintain the security of those who are not imprisoned but
who may be affected by the federal imprisonment of others.”
[8]
See Comstock
,
B. Mujahid has not shown the statutes are unconstitutional as applied to him.
In his opening brief on appeal, Mujahid argues the statutes of conviction may be unconstitutional as applied to him because “the State of Alaska may have had primary custody and jurisdiction over him since his initial arrest.” He seeks remand to the district court for this determination. In response, the government correctly points out that although Mujahid’s motion to dismiss the indictment nominally challenged the constitutionality of the statutes “facially and as applied,” it did not indicate that Mujahid might be in state We emphasize that we do not decide this question. Because we decide the statutes are constitutional under the Necessary and Proper Clause, we need not consider the government’s alternative Spending Clause argument.
U NITED S TATES V . M UJAHID 15 custody or otherwise articulate any facts that would support an as-applied challenge to the statutes. Mujahid replies that the “as-applied” challenge raised in the motion to dismiss is based on his status as “a federal pre-trial detainee being held with mostly state inmates at the Anchorage Correctional Complex pursuant to a contract with the U.S. Marshals Service.” He contends this is a “separate and distinct” argument from his post-trial, pro se claim that the state had primary custody over him.
Mujahid thus effectively concedes that the motion to dismiss the indictment did not articulate an as-applied challenge; it was premised on the assumption that Mujahid was a federal detainee. For the reasons set forth in the previous section, 18 U.S.C. §§ 2241, 2242, and 2244 are plainly constitutional as applied to an individual in federal custody who is being held in a state facility pursuant to a contract with a federal agency.
Until he filed his pro se motion for a new trial, Mujahid
did not raise the argument that he may have been in state
custody when the assaults took place. Because Mujahid was
represented by counsel, the district court acted within its
discretion by declining to seek a remand in order to consider
this argument.
See United States v. Bergman
,
Nordstrom, Inc. , 755 F.3d 1089, 1094 (9th Cir. 2014) (explaining federal appellate court will “not consider an issue not passed upon below” when record has not been fully developed (internal quotation marks omitted)). *13 II. The district court properly decided the jurisdictional
component of the statutes of conviction as a matter of law.
Mujahid argues the district court erred by deciding as a
matter of law that the Anchorage Correctional Complex is a
“facility in which persons are held in custody . . . pursuant to
a contract or agreement with the head of any Federal
department or agency,”
see
18 U.S.C. §§ 2241, 2242, 2244,
and instructing the jury that it need only determine whether
the crimes in fact occurred at the Anchorage Correctional
Complex. Mujahid relies primarily on
United States v.
Gaudin
,
In Gaudin , the defendant was convicted of making material false statements in a matter within the jurisdiction of a federal agency, in violation of 18 U.S.C. § 1001. Id. at 507. The district court concluded, based on testimony proffered by the government, that the alleged false statements were material, and it so instructed the jury. Id. at 508. The Supreme Court concluded the district court violated the defendant’s Fifth and Sixth Amendment right to have the jury determine each element of the crime beyond a reasonable doubt. Id. at 522–23. The Court rejected the government’s argument that the Constitution requires the jury to determine only the facts underlying the materiality determination. Id. at The district court remains free to reconsider this issue upon an appropriate motion.
514 (“[T]he jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.”).
After
Gaudin
, we have approved of the trial court
deciding the jurisdictional component of a crime to the extent
it presents a pure question of law with no disputed questions
of fact underlying it.
See, e.g.
,
United States v. Smith
282 F.3d 758, 767 (9th Cir. 2002) (“A district court may
determine as a matter of law the existence of federal
jurisdiction over [a] geographic area, but the locus of the
offense within that area is an issue for the trier of fact.”
(quoting
United States v. Warren
,
Similarly, we have held that the “existence of [a] contract
based on undisputed facts is a question of law.”
Chateau des
Charmes Wines Ltd. v. Sabate USA Inc.
,
Anchorage Correctional Complex. Mujahid’s opening brief does not point to any facts that would undermine the validity of the specific written contract introduced by the government at trial. We conclude, therefore, that the existence of this contract is a question of law, as there is no factual question for the jury to decide. Cf. id. (“[W]hether the parties agreed to a forum selection clause is a question of law[.]”).
Mujahid argues that it was error for the district court not
to let the jury make this determination because it involves a
mixed question of law and fact, as in
Gaudin
. He further
contends that the statutory language requires the government
to prove not only the existence of a contract or agreement, but
also that at least one federal inmate (and perhaps more,
depending on how “persons” is read) was
in fact
held in
custody at the facility at the time of the crime. We are
persuaded that the more natural reading is that the
government must simply prove there is an effective contract
or agreement to hold federal detainees in custody, and that
where, as here, the facts are undisputed, the trial court may
make this determination.
See id
In his reply brief, Mujahid speculates without any evidentiary support
that the agreement may not have been with the “head” of the U.S.
Marshals Service, and that it may not have been in effect when the crimes
occurred. We conclude Mujahid waived these arguments by failing to
raise them before the district court and in his opening brief on appeal.
See
Trigueros v. Adams
, 658 F.3d 983, 988 (9th Cir. 2011) (“Ordinarily,
arguments not raised before the district court are waived on appeal.”);
Smith v. Marsh
, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,
*15
arguments not raised by a party in its opening brief are deemed waived.”).
Mujahid would have us treat the question of the existence of a contract
like the requirement in a federal bank robbery prosecution that the
government prove the bank is FDIC-insured to the jury, even if the facts
are undisputed.
See United States v. James
,
In sum, we hold that in prosecutions under 18 U.S.C.
§§ 2241, 2242, and 2244, the district court may determine as
a matter of law whether the facility at which the alleged crime
took place is one “in which persons are held in custody by
direction of or pursuant to a contract or agreement with the
head of any Federal department or agency.” The question
1993) (whether a bank is FDIC-insured is a question of fact for the jury).
But we cannot treat the question here as one of fact in all instances,
because we have held that—at least when facts are undisputed—contract
formation is a question of law.
Chateau des Charmes Wines Ltd.
whether the crime occurred at the facility must be submitted to the jury, as it was here.
CONCLUSION
For the foregoing reasons, we AFFIRM Mujahid’s convictions.