UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 4, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
ROSS CHARLES HACK, DEFENDANT.
The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT ON VAGUENESS GROUNDS [Motion filed on December 8, 2008]
This matter came before the Court on Defendant Ross Hack's Motion to Dismiss the Indictment. Hack faces a single-count indictment for a violation of 18 U.S.C. § 1542, willfully and knowingly making a false statement in an application for a passport with the intent to induce the issuance of a passport. Hack argues that § 1542 is void for vagueness as applied to this case. After reviewing the materials submitted by the parties, the Court denies the Motion to Dismiss.
A. Factual and Procedural Background
On July 30, 1998, police investigating Hack's involvement in a double-homicide executed a warrant on Hack's Las Vegas, Nevada home; in connection with that search, police seized Hack's passport.
On or about August 3, 1998, Hack went in person to the U.S. Passport Office in Los Angeles, California and executed a "Will Call" application for a passport (also known as a "DSP-11"). Opp., Ex. B. The Will Call process allows an applicant who reports in person to the U.S. Passport Office to obtain a passport on the same day that he submits his application. On the DS-11, Hack responded that he had been issued a U.S. passport in January of 1996. Id. (Box No. 18). Hack checked a box that designated the 1996 passport as "lost." Id.
Hack also submitted a DSP-64, Statement Regarding Lost or Stolen Passport, dated August 5, 1998. Opp., Ex. C.*fn1 The substantive part of the DSP-64 directs an applicant to "answer all questions. Be specific." Id. In response to a question that asked how the passport was lost or stolen, Hack responded: "Unknown, last seen in my home about 1 week ago." Id. Additionally, Hack noted that the loss was discovered on July 30, 2008. Id. Hack was issued a Will-Call passport, and thereafter traveled to Europe.
In March 2008, Hack was indicted on a single count of violating 18 U.S.C. § 1542 in applying for that Will-Call passport. The First Superseding Indictment was filed on June 24, 2008. The First Superseding Indictment charges:
On or about August 4, 1998, in Los Angeles County, within the Central District of California, defendant Ross Charles Hack willfully and knowingly made a false statement in an application for a passport, with intent to induce and secure for his own use the issuance of a passport under the authority of the United States, contrary to the laws regulating the issuance of such passports and the rules prescribed pursuant to such laws, in that in connection with such application, defendant stated that his previously issued passport was lost and stated that it was unknown to him how his passport was lost or stolen, whereas, in truth and fact, as the defendant then knew, the Las Vegas Metropolitan Police Department had seized the passport on July 30, 1998, during the execution of a search warrant at defendant's home.
First Superseding Indictment (Docket Entry No. 31) at 1-2 (June 24, 2008).
B. 18 U.S.C. § 1542
As relevant here, § 1542 provides that it is a federal offense for a person to: willfully and knowingly make any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws[.]
18 U.S.C. § 1542.
Hack moves to dismiss the indictment on the ground that § 1542 is void for vagueness as applied to his 1998 application documents. Hack argues that the application of the statute to this case is unconstitutionally vague for three reasons. First, Hack contends that the statute speaks to misrepresentations, but this prosecution rests on an omission. Second, Hack contends that the omission here was of no legal consequence, and "there is nothing in the statute that places a citizen on notice" that such an omission is subject to prosecution. Finally, Hack contends that, because there is no specific form for this type of lost passport, § 1542 failed to put Hack on notice that he would be subject to prosecution because he submitted the DSP-64 form in a situation where the prior passport had been previously seized by law enforcement. These contentions are unavailing.
A. Legal Standard: As-Applied Void for Vagueness Challenges
The void-for-vagueness doctrine is rooted in the basic guarantees of due process. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The doctrine requires that a penal statute 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 and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357 (1983); accord U.S. v. Williams, 128 S.Ct. 1830, 1845 (2008); Smith v. Goguen, 415 U.S. 566, 572-73 (1974). The void-for-vagueness doctrine is premised on the notion that "[v]ague laws offend several important values": (1) they risk punishing individuals who were not provided a fair warning that their conduct was illegal; (2) they encourage arbitrary and discriminatory enforcement of the law; and (3) where First Amendment values are involved, vague laws discourage the exercise of free speech, a "delicate and vulnerable" right. Grayned, 408 U.S. at 108-09; NAACP v. Button, 371 U.S. 415, 433 (1963). "To pass the vagueness test, statutes and regulations must be sufficiently clear so that ordinary people can understand what conduct is being prohibited and written in a manner that does not encourage arbitrary and discriminatory enforcement." Ninety-Five Firearms, 28 F.3d at 941-42 (internal quotation marks omitted).
A void-for-vagueness challenge has two parts: whether a defendant can bring a vagueness challenge and whether that challenge will succeed. If a defendant's behavior as charged "clearly come[s] within the statute, he cannot make a void for vagueness challenge." U.S. v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006). This is a "threshold inquiry, weeding out those defendants who cannot make an as-applied vagueness challenge at all. If . . . the defendant's conduct does not fall squarely and obviously within the statute, he can make an as-applied vagueness challenge." Id.
In considering the substantive merits of the vagueness challenge, a court must determine whether the statute's application was unconstitutionally vague because the statute did not put the defendant on notice that the charged conduct was prohibited. Id.; see also U.S. v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001). The statute will meet the level of "certainty required by the Constitution if its language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Panther v. Hames, 991 F.2d 576, 578 (9th Cir. 1993) (internal quotation marks and citations omitted). Put another way, "[a] defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the law in question." U.S. v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989); see U.S. v. Naghani, 361 F.3d 1255, 1259-60 (9th Cir. 2004)(quoting Fitzgerald, 882 F.2d at 398). Terms with a well-settled common law meaning will not violate due process. Hames, 991 F.2d at 578. Additionally, the inclusion of scienter as an element of the offense "'may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.'" Jae Gab Kim, 449 F.3d at 943 (quoting Vill. of Hoffman Estates, 455 U.S. at 499). For example, such a requirement allows a person of ordinary intelligence to "base his behavior on his factual knowledge of the situation at hand and thereby avoid violating the law." Id.
Whether a statute is unconstitutionally vague is a question of law. United States v. Ninety-Five Firearms, 28 F.3d 940, 941 (9th Cir. 1994).
B. Indictment Charges with Misstatements, Not Omissions
Hack first argues that the statute is vague as applied to him because the language of § 1542 prohibits "mak[ing] a false statement" -- and therefore explicitly proscribes only affirmative misrepresentations -- while he is charged with "omitting" information. Hack's argument, which appears to rely on the affidavit submitted in support of the Criminal Complaint, mischaracterizes the plain language of the First Superseding Indictment, which charges Hack with affirmative misrepresentations. According to the First Superseding Indictment, Hack violated § 1542 in two ways: by marking that his passport was "lost" on the DSP-11 and by stating that the way it was lost was "unknown."*fn2 In fact, charges the First Superseding Indictment, the passport was not lost, but rather had been seized; additionally, charges the Indictment, Hack knew that the passport had been seized, and therefore Hack made an affirmative misrepresentation in stating that it was "unknown" how the passport had been lost. Because Hack's first vagueness contention rests on the faulty assumption that he is charged with an omission, the Court need not address the substance of his vagueness challenge.
C. 22 C.F.R. § 51.20 Is Not Vague
Second, Hack argues that § 1542 is unconstitutionally vague because it failed to give Hack notice as to whether he had to disclose on the forms the fact that his passport had been seized by police. Hack points to 22 C.F.R. § 51.20, the general regulation regarding passport applications. Section 51.20 requires that a passport applicant "truthfully answer all questions" and "state every material matter of fact pertaining to his or her eligibility for a passport." 22 C.F.R. § 51.20(b).*fn3 Hack argues that the seizure of the passport by police did not pertain to his eligibility for a passport. See 22 C.F.R. § 51.60. In light of 22 C.F.R. §§ 51.20 and 51.60, Hack argues, the statute's applicability to Hack is unconstitutionally vague.
This second argument appears to rest on the same mischaracterization of the First Superseding Indictment as Hack's first contention. While § 51.20 requires that an applicant "truthfully answer all questions" and that an applicant "state every material matter of fact pertaining to his or her eligibility for a passport," Hack appears to focus only on the latter requirement. Mot. at 16-18. As discussed above, however, the Indictment alleges that Hack made an affirmative misrepresentation when he stated that it was "unknown" how the passport was lost. Both the language of § 1542 and the first part of 22 C.F.R. § 51.20(b) plainly require that an applicant answer questions truthfully.
To the extent Hack argues that § 51.20 makes unclear whether affirmative statements regarding non-material facts must also be truthful, this argument is without merit. Nothing in the statute or regulation suggests that non-material statements may be false. Section 1542 does not provide an exception for non-material information, and does not limit a violation of the statute to material information. U.S. v. Hart, 291 F.3d 1084, 1085 (9th Cir. 2002)(per curiam) ("proof of materiality is not required for this 'false statement' offense"); see U.S. v. Youssef, 547 F.3d 1090, 1094 (9th Cir. 2008). Section 51.20 requires first of all that answers to questions be truthful, and also requires that material specifics be provided. It would be absurd to read that section as suggesting that any affirmative statement -- material or immaterial -- may be untruthful. Thus, the Court also rejects Hack's second argument.
D. DSP-11 and DSP-64 Are Not Vague As Applied*fn4
Finally, Hack argues that the combination of (1) § 51.20's requirement that an applicant use a form provided by the State Department and (2) the options on the relevant form for individuals in Hack's situation renders the application of the statute vague. Essentially, Hack argues that a person whose passport has been seized by the police has no specific form to fill out; which form he should fill out is therefore unclear.
Section 51.20(a) requires that an applicant use the forms prescribed by the State Department. 22 C.F.R. § 51.20(a). DSP-11 is the first of the forms relevant here, the U.S. Passport Application. See Opp., Ex. B. Question 18 of that form asks whether the applicant has been issued a United States Passport, and also asks the applicant to mark the "Disposition" of that passport. The options under "Disposition" include "Lost," which Hack allegedly checked. Although DSP-11 does not provide a "Seized by Law Enforcement" box for an applicant to check, it does have an option titled "Other," and a blank line adjacent to that option.
With respect to the first misstatement charged by the indictment -- marking "lost" on the DSP-11 -- Hack's vagueness challenge essentially states that, with no specific box to check for his situation, charging him with checking the wrong box is an unconstitutional application of the statute.*fn5 The Court finds that the plain meaning of the word lost and the inclusion of a scienter requirement in § 1542 render this argument unavailing. First, a reasonable person of ordinary intelligence likely would understand that checking "lost" when in fact the passport was seized by law enforcement is prohibited. The parties have presented the Court with no statutes, regulations, or guidance suggesting the meaning of the term "lost" on the DSP-11 form. However, the ordinary meaning of "lost" as it would apply in this context suggests accidental or unexpected misplacement and unknown location. See "Lose," Merriam-Webster's Online Dictionary, http://www.merriam-webster.com/dictionary/lose (defining "lose" as "to miss from one's possession or from a customary or supposed place" or "to suffer deprivation of[,] part with especially in an unforeseen or accidental manner"). The inclusion of "stolen" as another option supports the conclusion that "lost" would take on this meaning. Where one knows his passport has been seized by law enforcement, the passport is not "missing" from a "supposed place"; rather, the individual knows why he does not have possession of the passport, and who does. More importantly, the statute's inclusion of a scienter requirement -- that a defendant "willfully and knowingly" make the false statement "with the intent to induce or secure the issuance of a passport" -- mitigates the potential vagueness in Hack's options by protecting Hack from violating the statute if the misstatement was simply the result of confusion.
Moreover, to the extent that the application of § 1542 to marking "lost" on the DSP-11 may be problematic standing alone, the Indictment suggests that the heart of the charge in this case is the statement on the DSP-64. The Indictment does not charge these representations as two alternative violations, but rather as part and parcel of the same fraud.
Hack's argument that the application of the statute to his DSP-64 is vague also fails. In part, Hack appears to argue that he is being prosecuted for filling out the wrong form. See Opp. at 20 ("The statute is clearly vague as applied to these facts in failing to put Mr. Hack on notice that by using the DSP-64 (Lost/Stolen) form, he could be subjecting himself to a criminal prosecution for making a false statement."). The Court notes that the indictment does not charge the defendant with using the DSP-64 (Lost/Stolen) form, but rather alleges that the statement that passport was lost by "unknown" means was false. In fact, the "Instructions" to the DSP-64 suggest that the DSP--64 is the correct form any time "a previous valid or potentially valid passport cannot be presented."
As a substantive matter, the DSP-64 form is not unconstitutionally vague as applied to Hack's case. Again, the indictment charges Hack with stating that it was "unknown" how the passport was lost, when in fact he knew why he could not present it. The DSP-64 form states at multiple points that the applicant should be specific in providing his explanations: in the "Instructions," the form states that the applicant should "set forth in detail why the previous passport cannot be presented," and at the beginning of the questions, the form requests that the applicant "answer all questions" and directs the applicant to "[b]e specific." A reasonable person of ordinary intelligence would understand that stating it was "unknown" how the passport was lost or stolen when in fact the applicant knew how it came to be out of his possession was a "false statement" proscribed by § 1542. The application of the statute to this case does not run afoul of the void-for-vagueness doctrine.
For the foregoing reasons, the Court denies the Motion to Dismiss. Section 1542 is not unconstitutionally vague as applied to this case.
IT IS SO ORDERED.