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United States v. Trinh

United States District Court, D. Kansas

August 25, 2017



          Kenneth G. Gale United States Magistrate Judge

         Before the Court is Defendant's Motion to Dimiss for Lack of Venue (Doc. 15).[1] The Court has reviewed the Defendant's motion and memorandum, the Government's response, and has considered oral argument from counsel[2]. The motion is DENIED.

         The Defendant is charged under the Assimilated Crimes Act, 18 U.S.C. Section 13, incorporating Kansas law codified in K.S.A. 21-6401(a)(1), with recklessly transmitting obscene material. The Information alleges that the Defendant “at Fort Riley, a military reservation within the exclusive jurisdiction of the United States, in the District Kansas . . . did recklessly transmit obscene material.” (Information, Doc. 1). In reviewing a challenge to venue, the Court must view the evidence in the light most favorable to the government, which must prove venue by a preponderance of the evidence. United States v. Wiles, 102 F.3d 1043, 1064 (10th Cir. 1996)(en banc) vacated on other grounds by United States v. Schleibaum, 522 U.S. 945 (1997). For the purpose of the present motion, the important facts are not substantially in dispute.

         The Defendant lived in Texas. Her boyfriend was a soldier in the U.S. Army stationed at Fort Riley, Kansas. He sent her an e-mail containing a picture of his genitals. She was angry at him, and without his permission logged onto his internet account with “Google” and, through his gmail account, transmitted an e-mail, with the picture attached, to at least three Fort Riley employees at their work e-mail addresses. These were sent to Fort Riley employees who worked on the military installation in the Army's Soldier for Life- Transition Assistance Program. They opened the pictures on their work computers on Fort Riley. The Defendant was located in Texas at the time of the alleged transmission. There is no allegation that she was physically in Kansas during any of the charged events.

         The Defendant is charged under the Assimilated Crimes Act, which provides that a person who commits an offense at a place within the exclusive jurisdiction of the United States not otherwise made punishable under federal law, but which would be punishable under the law of the State where the federal enclave is located, is guilty under Federal law of “a like offense and subject to a like punishment.” 18 U.S.C. § 13(a). “The ACA's basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves.” Lewis v. United States, 523 U.S. 155, 160 (1998). The Information in this case incorporates a Kansas statute which proscribes as a class A misdemeanor “promoting obscenity, ” defined to include “transmitting . . . any obscene material.” K.S.A. 21-6401(a)(1).

         Defendant's motion presents two distinct but intertwined questions. The first is whether the offense proscribed by K.S.A. 21-6401(a)(1) was intended to apply to the transmission of obscene material to a location within Kansas from a location outside the state. This is important because the ACA only applies if the incorporated state statute would be applicable if the offense occurred in the state (Kansas) off of the Federal enclave. If the state statute, applied by Kansas state courts, would not apply to this event, the statute cannot be incorporated by the ACA.

         The second question is whether, if the state statute is intended to apply to the present act, venue may be constitutionally placed in the District of Kansas. The Constitution requires that crimes be prosecuted where the crime was committed.[3] So even if the state law applies to the offense, and may be incorporated under the ACA, venue must be placed where the crime was committed.

         There is apparently no case law in Kansas interpreting this statue in a case where the claimed transmission of obscene material occurred from a location outside Kansas. However, Kansas law does provide some guidance. In State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007), the Kansas Supreme Court considered charges under the State's criminal threat statute. That provision prohibited “any threat . . . to [c]ommit violence communicated with an intent to terrorize another . . . .” 284 Kan. at 68, 159 P.3d at 992. In that case the threat was communicated by telephone from out-of-state. The Court, in upholding jurisdiction over the crime, reasoned that the verb “communicate” in the statute requires a “declarant and a receiver, ” and that both events were “constituent and material elements of the offense.” Id. at 70.

         The Court in Wolverton also relied on a Kansas statute (K.S.A. 21-3104, repealed in 2010) which defined subject matter jurisdiction for a criminal prosecution. This statute has been replaced by K.S.A. 21-5106. That similar statute provides in pertinent part:

         A person is subject to prosecution and punishment under the law of this state if:

(a)(1) The person commits a crime wholly or partly within this state;
(b) A crime is committed partly within this state if:
(1) An act which is a constituent and material element of the ...

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