United States’ Response in Opposition to Defendant’s Motion to Dismiss for Lack of Jurisdiction — No. 1:23-cr-00095 (Dkt. 39, W.D. Mich.)

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United States' Response in Opposition to Defendant's Motion to Dismiss for Lack of Jurisdiction, ECF No. 39 in No. 1:23-cr-95 before U.S. District Judge Robert J. Jonker in the Western District of Michigan, Southern Division, filed 01/09/24. The defendant, charged under the federal kidnapping statute, 18 U.S.C. 1201(a)(1), over the July 2, 2023 abduction and killing of a two-year-old child, argued that the statute is unconstitutional under the Commerce Clause as applied to purely intrastate conduct. The government responds that the statute permissibly regulates instrumentalities of interstate commerce under United States v. Lopez, 514 U.S. 549, 558 (1995), that binding Sixth Circuit precedent so holds, and that location and video evidence showed travel on Interstates 496, 96 and 696 and internet use on July 3, 2023. It asks that the motion be denied.

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“United States’ Response in Opposition to Defendant’s Motion to Dismiss for Lack of Jurisdiction — No. 1:23-cr-00095 (Dkt. 39, W.D. Mich.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/united-states-response-in-opposition-to-defendant-s-motion-to-dismiss-64fea9b3ea/, SHA-256 bfdf0dab9a3d1b0f5106d0d1a0e4eac08af37399f6a5ab321c0c91aafafaf6e8.

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Case 1:23-cr-00095-RJJ ECF No. 39, PageID.174 Filed 01/09/24 Page 1 of 14

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, No. 1:23-cr-95

v. Hon. ROBERT J. JONKER
U.S. District Judge
RASHAD MALEEK TRICE,

Defendant.
/

UNITED STATES’ RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS FOR LACK OF
JURISDICTION

Defendant kidnapped and killed the two-year-old victim, strangling her with

a cell phone cord. Defendant moves this Court to dismiss the indictment, arguing

that the kidnapping statute is unconstitutional under the Commerce Clause when

Defendant’s conduct was purely intrastate. The kidnapping statute, however, is a

permissible regulation of “instrumentalities of interstate commerce . . . even though

the threat may come only from intrastate activities.” United States v. Lopez, 514

U.S. 549, 558 (1995). Defendant concedes that this is consistent with binding Sixth

Circuit precedent. The motion should be denied.

Statement of Facts

On July 2, 2023, Defendant broke into his ex-girlfriend’s apartment and

assaulted her. She stabbed him in self-defense, then Defendant stabbed and

sexually assaulted her. Defendant’s ex-girlfriend fled the apartment, leaving

behind her two minor children, including the two-year-old victim (“MV1”).
Case 1:23-cr-00095-RJJ ECF No. 39, PageID.175 Filed 01/09/24 Page 2 of 14

Police responded to the residence around 11:19 pm but could not find MV1.

Investigators searched MV1’s mother’s home, MV1’s grandmother’s home, and the

surrounding area, but still did not find MV1. An AMBER alert was issued.

On July 3, 2023, at 4:50 am, a police officer in St. Clair Shores saw Defendant

driving a car that Defendant stole from his ex-girlfriend’s mother in Lansing.

(PageID.4.) The officer attempted to stop Defendant, but Defendant fled and

crashed with another patrol car. (Id.) Police arrested Defendant; MV1 was not

present. (Id.)

Police searched the stolen car and found pieces of a pink cell phone charging

cord. (PageID.5.) Investigators obtained cell site location data, license plate reader

data, and video surveillance footage, which indicated that Defendant traveled east

via Interstates 496, 96, and 696. (PageID.8-9.) The location data led investigators

to search an alley between Olympia Street and Edgewood Avenue in Detroit, where

they found MV1’s deceased body. MV1 had been strangled with a pink cell phone

cord, which matched the piece of cord police found in the stolen car Defendant was

driving.

Investigators also found Defendant’s cell phone in the stolen car and obtained

a warrant to extract and review the contents. At 12:49 am on July 3, Defendant

used the internet browser on his phone to play a “Baby Shark” video repeatedly on

YouTube.com. This was MV1’s favorite song and investigators believe Defendant

used the video to pacify MV1 after kidnapping her. Defendant also exchanged

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messages, through his phone and social media, about the AMBER alert and the

police search for him.

Argument

The federal kidnapping statute, 18 U.S.C. § 1201(a)(1), is a valid exercise of

Congress’ power to regulate criminal conduct, both on its face and as applied to

incidents of intrastate kidnapping where its jurisdictional criteria are met.

Title 18, United States Code, Section 1201(a)(1) provides that “[w]hoever

unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and

holds for ransom or reward or otherwise any person, except in the case of a minor by

the parent thereof” when “the offender travels in interstate or foreign commerce or

uses . . . any means, facility, or instrumentality of interstate or foreign commerce in

committing or in furtherance of the commission of the offense . . . shall be punished

by imprisonment for any term of years or life.”

I. The federal kidnapping statute, on its face, is a valid exercise of Congress’s
power under the Commerce Clause.

“Every law enacted by Congress must be based on one or more of its powers

enumerated in the Constitution.” United States v. Morrison, 529 U.S. 598, 607

(2000). Statutes are presumed to be constitutional, which can only be overcome

“upon a plain showing that Congress has exceeded its constitutional bounds.” Id.

Congress enacted the federal kidnapping statute pursuant to its Commerce

Clause power, which grants it authority to “regulate Commerce . . . among the

several States.” U.S. Const. art. I, § 8, cl. 3. “[I]t is now well established that

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Case 1:23-cr-00095-RJJ ECF No. 39, PageID.177 Filed 01/09/24 Page 4 of 14

Congress has broad authority under the Clause.” NFIB v. Sebelius, 567 U.S. 519,

549 (2012) (opinion of Roberts, C.J.).

There are “three broad categories of activity that Congress may regulate

under its commerce power.” United States v. Lopez, 514 U.S. 549, 558-59 (1995).

“First, Congress may regulate the use of the channels of interstate commerce.” Id.

“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.” Id. “Finally, Congress’ commerce

authority includes the power to regulate those activities having a substantial

relation to interstate commerce, i.e., those activities that substantially affect

interstate commerce.” Id. (internal citations omitted).

Congress enacted the first iteration of the federal kidnapping statute against

the backdrop of organized crime and a growing epidemic of interstate kidnapping,

including ransom demands. Chatwin v. United States, 326 U.S. 455, 463 (1946).

Congress expanded the statute’s scope in 2006 to reach kidnappings that were

committed or furthered using any “means, facility, or instrumentality of interstate

or foreign commerce[.]” 18 U.S.C. § 1201. This aspect of the statute is tailored to fit

in the second category of Commerce Clause power, above. “[U]nlike the statute

invalidated in Lopez, the kidnapping statute contains an express jurisdictional

element that ensures that the statute only reaches kidnapping furthered by the

instrumentalities of interstate commerce.” United States v. McKinley, 647 F. App’x

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957, 962-63 (11th Cir. 2016). “The federal kidnapping statute, therefore is not

facially unconstitutional.” Id.

The Tenth Circuit similarly held that the federal kidnapping statute falls

into Lopez’s “second category, which includes regulation aimed at local, in-state

activity involving instrumentalities of commerce.” United States v. Morgan, 748

F.3d 1024, 1031 (10th Cir. 2014). “Nowhere in Lopez or any other case has the

Supreme Court limited Congress’s regulatory authority to prevent the harmful use

of an instrumentality of interstate commerce.” Id. at 1032. “Here we have a federal

law that prohibits the use of an instrumentality to engage in kidnapping.” Id.

Defendant identifies no contrary authority, and indeed concedes that the

binding case law requires the denial of his motion, but argues that those cases were

wrongly decided. Defendant hinges his facial challenge on his claim that “the text

and legislative history make it clear that the statute’s entire concern is with

kidnapping, not commerce in any form,” and that it “merely mentions the

instrumentalities of interstate commerce as a means to securing federal jurisdiction

over intrastate violence.” (PageID.159-60.) Even taking this claim as true, it does

not change the analysis. What matters is whether the statute protects or regulates

instrumentalities of interstate commerce, not what the lawmakers’ intent was in

enacting the statute. See, e.g., Lopez, 514 U.S. at 558-59; McKinley, 647 F. App’x at

962-63; United States v. Windham, 53 F.4th 1006, 1011-12 (6th Cir. 2022) (“[T]his

Court has repeatedly found that Congress may regulate crimes that occur entirely

intrastate if the offender uses an instrumentality of interstate commerce ‘in

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committing or in furtherance of the commission of the offense.’”); United States v.

Brika, 487 F.3d 450, 455 (6th Cir. 2007) (“Both of the [kidnapping] statute’s

Commerce-Clause-based jurisdictional elements, see United States v. Lopez, 514

U.S. 549, 562–63 [ ] (1995), are also satisfied here, although only one is required.”).

II. The kidnapping statute is constitutional as applied to the means of interstate
commerce alleged in the indictment.

The indictment alleges that “in committing and in furtherance of the

[kidnapping, Defendant] used a means, facility, and instrumentality of interstate

commerce, including, but not limited to, . . . Interstate Highways 496, 96 and 696; a

cellular phone and communication network; and a foreign-made vehicle.”

(PageID.119.) The Sixth Circuit, and other courts, have found that each of these,

even if used only intrastate, are a sufficient interstate nexus to satisfy the statute

and the Commerce Clause.

A. Cars

Citing the Commerce Clause and the Supreme Court’s decision in Lopez, the

Sixth Circuit noted in Windham that it “has held repeatedly and unambiguously

that cars . . . are instrumentalities of interstate commerce,” even when they are

used within one state. 53 F.4th 1006, 1013 (citing United States v. Weathers, 169

F.3d 336, 341 (6th Cir. 1999)). The Court also rejected the defendant’s argument

that Congress lacked authority to regulate kidnappings, like his, that occur entirely

intrastate. Id. at 1011-12. “When a car . . . is used ‘in committing or in furtherance

of’ a kidnapping for ransom, reward, or otherwise, the federal kidnapping statute

applies”—and is constitutional. Windham, 53 F.4th at 1013. Likewise in United

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Case 1:23-cr-00095-RJJ ECF No. 39, PageID.180 Filed 01/09/24 Page 7 of 14

States v. McHenry, 97 F.3d 125, 126 (6th Cir. 1996), the Sixth Circuit observed that

“cars are themselves instrumentalities of commerce”—and held that the federal

carjacking statute was a valid exercise of Congress’s Commerce Clause power.

The Seventh Circuit reached the same conclusion about cars in United States

v. Protho¸ 41 F.4th 812, 828-29 (7th Cir. 2022). Even though the car there was used

interstate, the court emphasized that “it’s the nature of the regulated object’s class

(here, automobiles) rather than the particular use of one member of that class

([defendant’s] Ford Explorer) that matters.” Id. (emphasis in original.) “[W]e do not

agree with [defendant’s] view that the Commerce Clause asks us to consider each

automobile’s specific use in interstate commerce.” Id. at 828.

The Third Circuit also concluded, in a case involving the carjacking statute,

“that motor vehicles are instrumentalities of interstate commerce. Thus, Congress

may criminalize activities affecting their use even though the wrongful conduct,

such as carjacking, occurs wholly intrastate.” United States v. Bishop, 66 F.3d 569,

590 (3d Cir. 1995). Because the carjacking statute, “section 2119[,] is such a

regulation[,] it is constitutional on that basis[.]” Id. The Third Circuit emphasized

that Lopez does not call “for federal courts to supplant Congressional judgments

with their own.” Bishop, 66 F.3d at 590. The Supreme Court, in Lopez, counseled

“‘great restraint’ before a court finds Congress to have overstepped its commerce

power, and believed the Court’s opinion to have been a ‘necessary though limited

holding.’” Bishop, 66 F.3d at 590.

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Case 1:23-cr-00095-RJJ ECF No. 39, PageID.181 Filed 01/09/24 Page 8 of 14

B. Interstate highways

Courts have uniformly found that interstate highways are instrumentalities

of interstate commerce, subject to regulation under the Commerce Clause, as well.

In United States v. Messer, 71 F.4th 452 (6th Cir. 2023), the Sixth Circuit

applied its reasoning from Windham to the use of an interstate highway within one

state as an instrumentality of interstate commerce. There, the defendants “traveled

north on Interstate 75 and then northeast on Kentucky Highway 80 until they

reached the trailer of [the victim’s] grandmother. At no time did the cars or their

occupants leave Kentucky.” Id. at 455. These highways were two of the charged

instrumentalities of interstate commerce. Id. The Court affirmed the convictions

and dismissed the defendants’ challenge to Congress’ ability to “regulate activity

that (1) uses, on an intrastate basis, instrumentalities of interstate commerce, and

(2) is not directed at those instrumentalities[,]” citing its prior ruling in Windham.

Id. at 457.

Similarly, in United States v. Jenkins, 909 F. Supp. 2d 758 (E.D. Ky. 2012),

the district court considered the sufficiency of the evidence to support federal

jurisdiction in a case charging kidnapping and a federal hate crime. Id. at 764.

Jurisdiction was based, in part, on traveling on U.S. Highway 119. Id. The district

court held that when the defendants traveled to the location of the assault along

U.S. Highway 119, “they did so via a channel of interstate commerce.” Id. at 771.

The court likewise held that use of the pickup truck also afforded federal

jurisdiction. Jenkins¸ 909 F. Supp. 2d at 771.

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Case 1:23-cr-00095-RJJ ECF No. 39, PageID.182 Filed 01/09/24 Page 9 of 14

In United States v. McPherson, 587 F. App’x 556, 563 (11th Cir. 2014), the

defendant was charged with producing child pornography. The interstate nexus

element was, in part, satisfied because the defendant “traveled with the DVDs from

his home in Daphne, Alabama, to his daughter’s house in Birmingham, Alabama,

where the filming occurred, and back again.” Id. at 563. “His intrastate travel

necessarily involved the use of roads and highways, which are channels

of interstate commerce.” Id. “[T]here was sufficient evidence in the record to satisfy

the jurisdictional component of the crime as charged beyond a reasonable doubt[.]”

Id.

The Supreme Court has also held that “a wholly intrastate bridge that

connected an island to a road that then connected to an interstate highway was an

instrumentality of interstate commerce despite the fact that goods, when they

traveled over the bridge, necessarily traveled in intrastate commerce.” United

States v. Bishop, 66 F.3d 569, 589 (3d Cir. 1995) (citing Overstreet v. North Shore

Corp., 318 U.S. 125 (1943)).

C. Cell phones

“Congress’s authority to legislate is plenary when, as here, the government’s

evidence establishes that [a] defendant[ ] used cellular telephones in the

commission of a kidnapping.” United States v. Dais, 559 F. App’x 438, 445 (6th Cir.

2014). Sixth Circuit “caselaw unequivocally holds that ‘cellular telephones, even in

the absence of evidence that they were used to make interstate calls, have been held

to be instrumentalities of interstate commerce.’” Dais, 559 F. App’x at 445 (quoting

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Case 1:23-cr-00095-RJJ ECF No. 39, PageID.183 Filed 01/09/24 Page 10 of 14

United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999)); see also Windham, 53

F.4th at 1013 (“When a car or a cell phone is used ‘in committing or in furtherance

of’ a kidnapping for ransom, reward, or otherwise, the federal kidnapping statute

applies.”).

The Second Circuit has also held that “even an intrastate telephone call

constitutes the use of a facility of interstate commerce, in connection with the

statute criminalizing murder-for-hire, 18 U.S.C. § 1958, which uses the same term

as the kidnapping statute.” United States v. Ramos, 622 F. App’x 29, 30 (2d Cir.

2015). Other Circuits that have considered the issue have similarly concluded that

cell phones are facilities of interstate commerce. See United States v. Taplet, 776

F.3d 875, 882 (D.C. Cir. 2015); United States v. Evans, 476 F.3d 1176, 1180–81

(11th Cir. 2007).

III. The kidnapping statute is not subject to “substantial effects” analysis under
Lopez.

As Defendant points out, in a recent Sixth Circuit opinion, United States v.

Allen, Judge Murphy wrote a concurring opinion expressing that he was “skeptical”

of Sixth Circuit precedent holding that Congress may regulate otherwise intrastate

activity under the Commerce Clause if such activity merely uses an instrumentality

of interstate commerce. 86 F.4th 295, 308 (6th Cir. 2023) (Murphy, J. concurring).

As a concurrence, this view is not binding, and Judge Murphy recognized that

Circuit precedent forecloses his argument. Id. at 311. The argument also goes

against the great weight of precedent from other circuits, as discussed above.

Moreover, the concurrence addresses only telephones and cars as instrumentalities

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of interstate commerce; it does not address Congress’s ability to regulate the use of

plainly interstate highway systems, as occurred in this case.

Regardless, as to all three instrumentalities (cars, phones, and highways),

Congress—as the regulator of interstate commerce—must have the authority to

prohibit illicit uses of these channels and instrumentalities. These channels and

instrumentalities are “the ingredients of interstate commerce itself,” making

Congress’s ability to regulate them “self-evident.” Gonzales v. Raich, 545 U.S. 1, 34

(2005) (Scalia, J., concurring). Indeed, as the Supreme Court recognized in Lopez,

Congress may regulate and protect these instrumentalities even from threats

coming from only intrastate activities. Lopez, 514 U.S. at 558. That is what

Congress has done with the kidnapping statute.

The case law in this circuit, other circuits, and the Supreme Court is clear

and uniform – cell phones, cars, and interstate highways are instrumentalities of

interstate commerce subject to regulation under the Commerce Clause.

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IV. Defendant’s challenge to the facts of this case is premature and not permitted
under Rule 12.

Finally, Defendant argues that the particular ways in which he used these

instrumentalities do not satisfy the elements of 18 U.S.C. § 1201(a)(1). While the

United States plans to introduce substantial and compelling evidence to the

contrary, it is also immaterial to the current motion. Once indicted, there is no

mechanism by which Defendant can move for dismissal of charges based on alleged

factual shortcomings. Factual disputes are decided by a jury.

Federal Rule of Criminal Procedure 12(b)(1) permits pretrial motions raising

“any defense objections or request that the court can determine without a trial on

the merits.” Fed. R. Crim. P. 12(b)(1). “Generally, motions are capable of

determination before trial if they raise questions of law rather than fact.” United

States v. Jones, 542 F.2d 661, 664 (6th Cir. 1976). “[C]ourts evaluating motions to

dismiss do not evaluate the evidence upon which the indictment is based.” United

States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001).

A motion to dismiss is generally limited to reviewing the four corners of the

indictment. See United States v. Ferguson, 681 F.3d 826, 831 (6th Cir. 2012) (citing

cases). “If an indictment is valid on its face, it may not be dismissed on the ground

that it is based on inadequate or insufficient evidence.” United States v. Walters, No.

3:15-CR-14-GFVT-REW, 2016 WL 1453069, at *3 (E.D. Ky. Apr. 12, 2016) (citing

Fed. R. Crim. P. 12(b)(2) n.2). Allegations in an indictment are assumed to be true

and are viewed in the light most favorable to the government. Boyce Motor Lines,

Inc. v. United States, 342 U.S. 337, 343 n.16 (1952). “[A]n indictment is sufficient if

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it, first, contains the elements of the offense charged and fairly informs a defendant

of the charge against which he must defend, and, second, enables him to plead an

acquittal or conviction in bar of future prosecutions for the same offense.” United

States v. Coss, 677 F.3d 278, 287 (6th Cir. 2012) (quoting United States v. Anderson,

605 F.3d 404, 411 (6th Cir. 2010)). The indictment need only include “the essential

facts constituting the offense charged” and need not refer to all facts and evidence

supporting the charge. Fed. R. Crim. P. 7(c). An indictment cannot be challenged on

the basis of insufficient or incompetent evidence presented in the grand jury.

Costello v. United States, 350 U.S. 359, 363 (1956).

“[I]f a defendant’s pretrial motion requires the court to find facts that make

up the elements of the case which would normally be reserved to the jury on trial of

the general issue, the motion should be denied.” United States v. Cumberland Wood

and Chair Corp., Nos. 91-6058-6060, 1992 WL 317175, at *3 (6th Cir. Oct. 27, 1992);

see also United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir. 1987). A

motion to dismiss must not seek to pre-try a case and it is not a device for a

summary trial of the evidence. Accordingly, “courts routinely rebuff efforts to use a

motion to dismiss as a way to test the sufficiency of the evidence behind an

indictment’s allegations.” United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011)

(collecting cases).

The indictment charges the necessary elements of kidnapping resulting in

death and kidnapping of a minor, in violation of 18 U.S.C. §§ 1201(a)(1) and (g)(1),

respectively. Defendant does not allege that there is anything lacking in the

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charging language. The proper mechanism to resolve this portion of Defendant’s

claim is a trial, not a pretrial motion for dismissal.

CONCLUSION

For the reasons set forth above, the United States respectfully requests that

this Court deny Defendant’s motion to dismiss.

Respectfully submitted,

MARK A. TOTTEN
United States Attorney

Dated: January 9, 2024 /s/ Jonathan Roth____________
DOAA AL-HOWAISHY
JONATHAN ROTH
Assistant United States Attorneys
United States Attorney=s Office
P.O. Box 208
Grand Rapids, MI 49501-0208
(616) 456-2404

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