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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

STERIC PAUL MITCHELL (1),

Defendant.

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§ Criminal Action No. 3:13-CR-128-L
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MEMORANDUM OPINION AND ORDER

Before the court is Defendant Steric Paul Mitchell’s (“Mitchell” or “Defendant”) (1) Motion

to Strike Surplusage, (2) Motion to Sever Count Four of the Indictment, (3) Motion to Dismiss

Counts One and Three of the Indictment, all filed on August 9, 2013, and the United States of

America’s (“the government”) Response to Defendant’s Motion to Dismiss, Motion to Strike

Surplusage, and Motion to Suppress Statement (“Response”), filed August 23, 2013. After careful

consideration of the motions, response, record, and applicable law, the court denies the Motion to

Strike Surplusage, grants the Motion to Sever Count Four of the Indictment, and denies the Motion

to Dismiss Counts One and Three of the Indictment.

I.

Background

On April 10, 2013, Defendant was named in a four-count indictment (“Indictment”) charging

him with (1) Conspiracy to Commit Kidnapping, in violation of 18 U.S.C. § 1201(a); (2) Using,

Carrying, and Brandishing a Firearm During and in Relation to a Crime of Violence, in violation of

18 U.S.C. §§ 924(c)(1)(A)(ii) and (2); (3) Kidnapping, in violation of 18 U.S.C. §§ 1201(a)(1) and

(2); and (4) Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(e)(1).

Memorandum Opinion and Order - Page 1

The Indictment alleges that beginning on or about May 6, 2012, Defendant did knowingly,

intentionally, and unlawfully combine, conspire, confederate, and agree together, with other persons

both known and unknown to the Grand Jury, to commit certain offenses against the United States,

to-wit: kidnapping; that on or about that same date, Defendant did knowingly use, carry, and

brandish a firearm, to wit: a Kimber, Model Custom II, .45 caliber pistol, during and in relation to

a crime of violence, namely conspiracy to commit kidnapping; that on or about that same date,

Defendant, did willfully and unlawfully seize, confine, inveigle, kidnap, abduct, carry away, and hold

K.R., the victim, for some purpose and benefit, and the defendants did use instrumentalities of

interstate and foreign commerce, to wit: (1) a firearm, (2) motor vehicles, and (3) cellular telephones,

in committing and in furtherance of the commission of this offense; and that from on or about May

5, 2012, through on or about May 7, 2012, Defendant, having being convicted of a crime punishable

by imprisonment for a term exceeding one year, did knowingly and unlawfully possess in and

affecting interstate and foreign commerce, a firearm, to wit: a Ruger, Model 10/22, .22 caliber rifle,

a Kimber, Model Custom II, .45 caliber pistol, a Soviet Union Military Style, Model M44, 7.62x54

millimeter caliber rifle, and a Bushmaster, Model XM15-E2S, .223 caliber rifle. This case is

scheduled for trial on October 29, 2013.

On August 9, 2013, Defendant filed the Motion to Strike Surplusage, requesting that the court

strike the language mentioning “sexual assault,” “rape,” and “sale into sex slavery” in Count One.

Defendant argues that this language is highly prejudicial and is not necessary to prove conspiracy

to commit kidnapping, the offense asserted in Count One. The government opposes the motion.

Memorandum Opinion and Order - Page 2

On August 9, 2013, Defendant also filed the Motion to Sever Count Four of the Indictment,

asserting that the three rifles referred to in Count Four are unrelated to the other counts of the

Indictment and will therefore require proof of different facts. The government opposes the motion.

Finally, on August 9, 2013, Defendant also filed the Motion to Dismiss Counts One and

Three of the Indictment, arguing that the statute criminalizing the conduct should be void for

vagueness and that the statute enables discriminatory or arbitrary enforcement. The government

opposes the motion.

II.

Motion to Strike Surplusage

Under Federal Rule of Criminal Procedure 7(c)(1), an indictment “must be a plain, concise,

and definite written statement of the essential facts constituting the offense charged . . . .” Fed. R.

Crim. P. 7(c)(1). Federal Rule of Criminal Procedure 7(d) states that “[u]pon the defendant’s

motion, the court may strike surplusage from the indictment or information.” Fed. R. Crim. P. 7(d).

A court can strike surplusage if the language is “irrelevant, inflammatory, and prejudicial.” United

States v. Graves, 5 F. 3d 1546, 1550 (5th Cir. 1993) (citing United States v. Bullock, 451 F.2d 884,

888 (5th Cir. 1971)). The court should not strike allegations that are relevant, regardless of how

prejudicial or inflammatory they may be to the defendant. See, e.g., United States v. Vogel, 2010 WL

2465359 (E.D. Tex. May 21, 2010). If “the charge is not materially broadened and the accused is

not misled,” the surplusage should not be stricken. See United States v. Quintero, 872 F.2d 107,

111 (5th Cir. 1989) (citing United States v. Trice, 823 F.2d 80, 89 n.8 (5th Cir. 1987)). This is a

strict standard, and surplusage is therefore rarely stricken. United States v. Bullock, 451 F.2d 884,

888 (5th Cir. 1971).

Memorandum Opinion and Order - Page 3

Defendant first argues that any reference to conduct beyond what is necessary to prove the

charges in the Indictment and any reference to conduct that is not inextricably intertwined with the

offense conduct should be stricken. Def.’s Mot. to Strike Surplusage 1. Defendant specifically seeks

to strike the language referring to sexual assault and the selling of the alleged victim. Id. Mitchell

contends that references to sexual assault, rape of the victim, and selling the victim into sex slavery

are not part of the statute’s definition of kidnapping. Mitchell states that these references are not a

part of the alleged commission of the offense, and they are their own criminal offenses. Id. at 4.

Finally, Defendant argues that these references are highly prejudicial. Id. at 5.

In response, the government argues that it must prove that Defendant kidnapped a person for

some benefit. Resp. 7. The government states that, since it must prove this “benefit,” any language

regarding the purpose of committing the offense is necessary to prove an essential element of the

crime. Id. at 8. Additionally, the government asserts that since kidnapping involves a person being

held against her will, the allegations of “rape” and “sex slavery” demonstrate that the victim was in

fact held against her will. Id. at 8.

While the allegations of sexual assault, rape, and the sale of a woman into sex slavery will

be prejudicial towards Defendant, these allegations are relevant to the charged offense of kidnapping.

That Defendant allegedly raped the victim and attempted to sell her into sex slavery is highly

probative in proving that the victim was held against her will and in proving that Defendant

kidnapped her so that he could sexually assault her and receive the proceeds from any possible sale.

The federal kidnapping statute punishes anyone who “unlawfully seizes, confines, inveigles,

decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person

. . . .” 18 U.S.C. 1201(a) (2006) (emphasis added). The Fifth Circuit has clearly held that “sexual

Memorandum Opinion and Order - Page 4

gratification” is “sufficient to satisfy the requirement that the person be held for ransom or reward

or otherwise.” United States v. McBryar, 553 F.2d 433, 434 (5th Cir. 1977); see also United States

v. Williams, 998 F.2d 258, 286 (5th Cir. 1993) (citing McBryar for the fact that under 18 U.S.C. §

1201(a)(1) “establishing motive of sexual gratification will suffice” as the “benefit alleged to be

sought by kidnapper”). Therefore, the court determines that the language referring to “sexual

assault,” “rape,” and “sex slavery” is relevant and will deny Defendant’s motion to strike the

surplusage in Count One.

III. Motion to Sever Count Four of the Indictment

Federal Rule of Criminal Procedure 8(a) states that the indictment “may charge a defendant

in separate counts with 2 or more offenses if the offenses charged whether felonies or

misdemeanors or both

are of the same or similar character, or are based on the same act or

transactions, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim.

P. 8(a). “Joinder of charges is the rule rather than the exception and Rule 8 is construed liberally in

favor of initial joinder.” United States v. Bullock, 71 F.3d 171, 174 (5th Cir. 1995) (citing United

States v. Park, 531 F.2d 754, 761 (5th Cir. 1976)). Additionally, Federal Rule of Criminal Procedure

14(a) states that “[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice

a defendant or the government, the court may order separate trials of counts, sever the defendants’

trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a).

Defendant argues that the majority of firearms in this count is not related to the kidnapping

count or to the 924(c) count. Def. Mot. to Sever Count Four 1. According to Defendant, three of

the firearms mentioned in Count Four are not at all similar to the firearm allegedly used in the

kidnapping. Id. at 3. Defendant also asserts that the proof of possession of these weapons is

Memorandum Opinion and Order - Page 5

different from the proof needed to prove the elements of the other counts. Id. Defendant also

expresses his concern that, if this count is not severed, the jury will be told that he is a convicted

felon and may be inclined to convict him because he is a “bad person.” Id. at 1, 5.

In response, the government states that the kidnapping and the felon in possession of a

firearm occurred in the same act or transaction and they are both connected to a common scheme or

plan, since Defendant allegedly used one of the firearms referred to in Count Four in the kidnapping.

Resp. 23. According to the government, therefore, the joinder of all four counts is proper. Id. at 24.

The government further contends that the same witnesses who are testifying about the other counts

will also be testifying about Count Four. Id. Because many of the same witnesses will be testifying

about all four counts, the government explains that most of the evidence will be presented in support

of the conviction for both kidnapping and felon in possession of a firearm, and that there will

therefore be no prejudice against Defendant. Id. at 25. The government also asserts that all four

firearms mentioned in Count Four were used in the same act or transaction of the kidnapping because

one gun was allegedly used in furtherance of the kidnapping and the other three firearms were found

at the same location of the victim. Id. at 22. Additionally, the government states that there will be

witnesses who will testify that they saw the guns over a three-day period surrounding the kidnapping.

Id. at 24.

Here, it is clear, at a minimum, that Count Four is related to the kidnapping and brandishing

counts (Counts 2 and 3) in the Indictment, to the extent that one of the firearms was used in the

kidnapping and brandishing. Defendant allegedly used one of the firearms (the Kimber, Model

Custom II, .45 caliber pistol) in kidnapping the victim. Given that Defendant is a prior felon, his

Memorandum Opinion and Order - Page 6

possession of this firearm during this alleged criminal act is clearly related to the kidnapping and

brandishing charges.*

The crux of the issue, however, is whether the felon-in-possession-of-a-firearm charge

presents a special prejudice that would justify its severance. The court holds that it does. The Fifth

Circuit has explained its overall approach to joinder of this type of charge:

To prosecute these charges, the Government must introduce evidence of the
defendant’s prior felonies, evidence that would otherwise be inadmissible in most
cases. We have noted that, sometimes, not even a limiting jury instruction can cure
the prejudice inherent in joining a charge of this nature. But such a charge need not
always be severed. We have permitted joinder when the weapon was found during
the investigation of the other offenses charged, when the weapon might have been
available for use during the other offenses, and a limiting instruction was given. We
have been less inclined toward joinder when the firearm was less relevant to the other
offenses, such as when it was found at the time of arrest, months after the other
indicted crimes; when the possibility of prejudice seemed especially problematic,
such as when the evidence for the other crimes was “thin,” though legally sufficient;
or when the prosecutor’s motives for adding the charge seemed suspect or was
merely a technique to introduce evidence of the defendant’s bad character into
evidence.

United States v. Turner, 674 F.3d 420, 430 (5th Cir. 2012) (footnotes omitted).

The court realizes that this case is not one in which the firearm is less relevant to the

kidnapping and brandishing charges, nor is it one in which the evidence for the other crimes is

*

Plaintiff cites two Fifth Circuit opinions for support of the requested severance: United States v. Singh, 261
F.3d 530 (5th Cir. 2001); and United States v. Holloway, 1 F.3d 309 (5th Cir. 1993). Singh can easily be distinguished
from the case at bar given that “there was no evidence that Singh’s alleged possession of the gun had any connection to
his [underlying crime].” Singh, F.3d at 533. In Defendant’s case, there is strong evidence that his possession of the gun
had a direct connection to the kidnapping. Additionally, in Holloway, the defendant was charged with felon-in-
possession “of the weapon found on him at the time of his arrest - some two months after the robberies had occurred.”
1 F.3d at 309. The court in Holloway stated that “this remote weapons charge should have never been joined with other
counts of Holloway’s indictment in the first place.” Id. at 311-12. For obvious reasons, this case can also be
distinguished from the case at bar. In Holloway, the government did not even contend that the weapon found when
Holloway was arrested was the weapon used in the robberies. Id. at 310-11. Here, the government does assert that
Defendant used at least one of the firearms during the kidnapping. Additionally, Defendant is charged with having the
firearm at the time of the kidnapping, not two months later. Unlike in Holloway, there is a substantial basis for the
conclusion that the possession of the firearm and the kidnapping were a part of a common scheme.

Memorandum Opinion and Order - Page 7

“thin.” Instead, this is a case in which the probative value that may be gained by joining the felon-in-

possession charge will be substantially outweighed by the danger of undue prejudice. As the Fifth

Circuit has clearly stated, there are “obvious dangers inherent in trying a felon-in-possession count

together with other charges, as it acts as a conduit through which the government may introduce

otherwise inadmissible evidence of the defendant’s prior convictions, thereby potentially tainting the

reliability of the verdict rendered by the jury on the other counts.” United States v. McCarter, 316

F.3d 536, 538 (5th Cir. 2002). “The grant or denial of a Rule 14 severance is within the sound

discretion of the trial court.” United States v. Scott, 659 F.2d 585, 589 (5th Cir. 1981). Therefore,

the court must evaluate the danger of joining this type of charge.

The government contends that the charge should be joined since the same witnesses who are

testifying about Counts One, Two, and Three will also be testifying about Count Four (the felon-in-

possession charge). Resp. 24. While it is true that joining the felon-in-possession charge would save

time and judicial resources, the paramount objective of the court is to provide a fair trial for the

litigants. That objective cannot be accomplished if Defendant is unfairly and unduly prejudiced by

evidence that would otherwise be inadmissible. If the proper predicate is laid, the court has no

concerns with the government introducing evidence of one firearm, the Kimber, Model Custom II,

.45 caliber pistol, and its relevance to the kidnapping and brandishing charges (Counts Two and

Three); however, introduction of this firearm is a far cry from taking the next step and allowing the

introduction of three additional firearms and evidence that Defendant has been previously convicted

of a felony. There can be a discussion of the firearm used in the kidnapping and brandishing without

a discussion of Defendant’s status as a prior felon.

Memorandum Opinion and Order - Page 8

A limiting jury instruction may help eliminate the undue prejudicial nature of particular

evidence; however, some evidence is so powerful that even the best worded and most well-

intentioned jury instruction cannot eliminate the undue prejudicial effect. As the Fifth Circuit has

aptly observed:

Although juries are generally presumed to have followed jury instructions, we
recognize that, oftentimes, “[t]o tell a jury to ignore the defendant’s prior convictions
in determining whether he . . . committed the offense being tried is to ask human
beings to act with a measure of dispassion and exactitude well beyond mortal
capabilities.”

McCarter, 316 F.3d at 539 (footnote omitted). A limiting instruction under these circumstances

would not ensure the desired effect that the jury not base its decision on consideration of evidence

that Defendant is a felon.

The bottom line is that the court does not want the jury to be unduly prejudiced by evidence

of a prior felony and use it as the basis for any convictions it may return against Defendant. If

Defendant is going to be convicted, such convictions must be based on proof beyond a reasonable

doubt that he committed the offenses alleged in the Indictment, and not because he is a previously

convicted felon. Moreover, evidence that Defendant is a felon is neither relevant nor necessary for

the government to obtain a conviction on Counts One, Two, and Three of the Indictment.

Accordingly, joining the felon-in-possession charge in this particular situation simply presents too

great a risk of undue prejudice and is fundamentally unfair to Defendant. For these reasons, the court

will grant the motion to sever Count Four of the Indictment.

IV. Motion to Dismiss Counts One and Three of the Indictment



A penal statute must “define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not encourage arbitrary

Memorandum Opinion and Order - Page 9

and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations omitted);

see also United States v. Brooks, 681 F.3d 678, 696 (5th Cir. 2012) (citation omitted). Additionally,

“a statute which either forbids or requires the doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its application violates the first

essential of due process of law.” Connally v. General Const. Co., 269 U.S. 385, 391 (1926)

(citations omitted).

Defendant contends that 18 U.S.C. § 1201(a), a statute that criminalizes the use of any

means, facility, or instrumentalities of interstate commerce to commit or further the commission of

the offense of kidnapping, should be void for vagueness. Def. Mot. to Dismiss Counts One and

Three of the Indictment at 3. As Defendant states, Count One charges Defendant with conspiring

to violate this statute, and Count Three charges Defendant with the substantive violation of this

statute. Id. at 4. Defendant argues that the statute “does not provide ordinary citizens with fair

notice of what conduct is prohibited.” Id. at 3. Defendant also states that the statute also “fails to

provide even minimal guidelines for its enforcement.” This deficiency, according to Defendant,

“enables arbitrary and discriminatory enforcement of the statute.” Id. More specifically, Defendant

argues that the phrase “any means, facility, or instrumentality of interstate or foreign commerce” is

neither defined by the statute nor definable by the ordinary citizen. Id. at 12. This vagueness,

according to Defendant, leads to the statute criminalizing federally “virtually every intrastate

kidnapping.” Id. at 14.

In response, the government contends that the language at issue (“any means, facility, or

instrumentality of interstate or foreign commerce”) is used throughout the United States Code and

within many criminal statutes. Resp. 10. Despite the frequent use of this phraseology, the codes and

Memorandum Opinion and Order - Page 10

statutes have survived void-for-vagueness challenges. Id. The government argues that a person of

ordinary intelligence can certainly understand what type of conduct the statute prohibits. Id. at 13.

Finally, the government asserts that the statute does not enable discriminatory or arbitrary

enforcement since it does not federalize all kidnappings. Id. 14-15. Additionally, the government

contends that the possibility of a statute being prosecuted at both the state and federal levels does not

make the statute unconstitutional. Id. at 15.

The court agrees with the government. The phrase at issue clearly includes the involvement

of a car and a telephone. A car and a telephone, both of which were allegedly used in the

kidnapping, can be classified as a means, facility, or instrumentality of interstate or foreign

commerce. An ordinary person can in fact determine what the statute criminalizes. Simply because

the statute is broad does not mean that it cannot put ordinary citizens on notice. As the government

notes, the phrase at issue has been reviewed by many courts for vagueness and has survived any

challenge on those grounds. See, e.g., United States v. Gilstrap, 389 F.2d 6, 8 (5th Cir. 1968)

(holding that 18 U.S.C. § 1952 (“[w]hoever travels in interstate or foreign commerce or uses the mail

or any facility in interstate or foreign commerce, with intent to . . . .”) was not unconstitutionally

vague and indefinite). The Fifth Circuit has held that a statute that used both “facility of interstate

commerce” and “facility in interstate commerce” was not vague and that “of” and “in” were

considered and used by Congress as synonyms in regards to that particular statute. United States v.

Marek, 238 F.3d 310, 321 (5th Cir. 2001). The only difference between the statute at issue in that

case and the statute here, 18 U.S.C. § 1201(a), is that the statute in Marek later defined a “facility

of interstate or foreign commerce” as including “means of transportation and communication.” 18

U.S.C. § 1958(b)(2) (2006).

Memorandum Opinion and Order - Page 11

The issue, however, is not whether the phrase itself is void for vagueness. The issue here is

instead whether a car or telephone’s intrastate use qualifies as a means, facility, or instrumentality

of interstate commerce. The court holds that it does. The Fifth Circuit addressed a similar issue

when it interpreted the federal “murder-for-hire” statute, 18 U.S.C. § 1958. See generally Marek,

238 F.3d 310 (5th Cir. 2001). The murder-for-hire statute criminalizes“[w]hoever travels in or

causes another (including the intended victim) to travel in interstate or foreign commerce, or uses

or causes another (including the intended victim) to use the mail or any facility of interstate or

foreign commerce . . . .” (18 U.S.C. § 1958(a) (2006)). As stated above, the statute further defines

“facility of interstate or foreign commerce” as including “means of transportation and

communication.” 18 U.S.C. § 1958(b)(2) (2006). When the Fifth Circuit addressed the

interpretation of this statute, it cited to the Supreme Court’s decision in United States v. Lopez.

Marek, 238 F.3d at 317 (citing United States v. Lopez, 514 U.S. 549 (1995)). “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.” 514 U.S.

at 558. Therefore, “[w]hen Congress regulates and protects under the second Lopez category . . .

federal jurisdiction is supplied by the nature of the instrumentality or facility used, not by separate

proof of interstate commerce.” Marek, 238 F.3d at 317. “Intrastate use of interstate facilities is

properly regulated under Congress’s second-category Lopez power.” Id. “Mail and delivery services

are not the only ‘means of transportation and communication’ amenable to congressional Commerce

Clause protection under Lopez during wholly intrastate use. Interstate commerce facilities that have

created a criminal federal jurisdictional nexus during intrastate use include telephones, automobiles,

Memorandum Opinion and Order - Page 12

and airplanes.” Id. at 318-19 (footnotes omitted). Therefore, the intrastate use of a telephone or

automobile does qualify as a “means, facility or instrumentality of interstate commerce.”

Finally, the statute at issue does not federalize every single instance of kidnapping. The

kidnapping must fall under the factors mentioned in the statute and therefore cannot be enforced in

a discriminatory manner. As the government correctly explains, that an instance of kidnapping could

be prosecuted at both the state and federal level does not make the statute unconstitutional. There

are many situations when a defendant can be prosecuted under both a state and federal statute, since

both statutes can criminalize the same conduct. In other words, that a defendant can be prosecuted

at both the state and federal level does not mean that the prosecution is arbitrarily executed. For

these reasons, the motion to dismiss Count One and Count Three will be denied.

V.

Conclusion

For the reasons herein stated, the court determines that the contested language in Count One

is relevant to the charged offense and therefore denies the Defendant’s Motion to Strike Surplusage.

The court also determines that Count Four should be severed since joinder of the felon-in-

possession charge would unduly prejudice Defendant and therefore grants Defendant’s Motion to

Sever Count Four. Accordingly, when this case is presented for trial, the government shall redact

all references to Count Four and all language in the forfeiture notice of the Indictment that pertains

to any firearm other than the Kimber, Model Custom II, .45 caliber pistol. Finally, the court

determines that 18 U.S.C. § 1201(a) as used in Counts One and Three is not void for vagueness and

does not promote discriminatory or arbitrary enforcement, and the court therefore denies

Defendant’s Motion to Dismiss Counts One and Three of the Indictment.

Memorandum Opinion and Order - Page 13

It is so ordered this 26th day of September, 2013.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order - Page 14