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United States v. Yung

United States District Court, D. Delaware

January 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
HO KA TERENCE YUNG, Defendant.

          David C. Weiss, Acting U.S. Attorney, Shawn Weede, Assistant U.S. Attorney, and Elizabeth L. Van Pelt, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE Attorneys for Plaintiff.

          Edson A. Bostic, Federal Public Defender, and Eleni Kousoulis, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wilmington, DE Attorneys for Defendant.

          MEMORANDUM OPINION

          STARK, U.S. District Judge

         I. BACKGROUND

         Defendant Ho Ka Terence Yung ("Yung" or "Defendant") is charged with one count of cyberstalking, in violation of 18 U.S.C. § 2261A(2)(B). (See D.I. 3) Yung moves to dismiss the indictment, contending § 2261A(2)(B) violates the First Amendment of the United States Constitution. (See D.I. 37) The motion is fully briefed (see D.I. 38, 40, 43) and the Court heard argument on January 22, 2018. For the reasons discussed below, the Court will deny Yung's motion.

         II. LEGAL STANDARDS

         Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may move to dismiss an indictment for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). Accordingly, Rule 12(b)(3)(B) "allows a district court to review the sufficiency of the government's pleadings to ... ensur[e] that legally deficient charges do not go to a jury." United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012) (alteration in original; internal quotation marks omitted). "An indictment is defective if it alleges [a] violation of an unconstitutional statute." United States v. Dean, 670 F.Supp.2d 457, 458 (E.D. Va. 2009); see also United States v. Boffa, 513 F.Supp. 444, 459-64 (D. Del. 1980) (resolving motion to dismiss indictment where defendant alleged statute was unconstitutionally vague, overbroad, and unconstitutional as applied).

         III. DISCUSSION

         Yung seeks dismissal of the indictment based on his contention that § 2261A(2)(B) is facially invalid under the First Amendment. (See D.I. 38, 43) The First Amendment provides, "Congress shall make no law ... abridging the freedom of speech." U.S. Const, amend. I. "There are two quite different ways in which a statute or ordinance may be considered invalid 'on its face' [under the First Amendment] - either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally 'overbroad.'" Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). Here, Yung raises only the "second type of facial challenge, " arguing that § 2261A(2)(B) is facially overbroad. (See D.I. 38 at 1; see also United States v. Stevens, 559 U.S. 460, 473 (2010) (internal quotation marks omitted))[1]

         "The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." Ashcroft v. Free Speech Coal, 535 U.S. 234, 255 (2002). Under the "First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech." United States v. Williams, 553 U.S. 285, 292 (2008). When overbreadth is alleged, "[t]he overbreadth claimant bears the burden of demonstrating, from the text of [the law] and from actual fact, that substantial overbreadth exists." Virginia v. Hicks, 539 U.S. 113, 122 (2003) (second alteration in original; internal quotation marks omitted).[2]

         The overbreadth doctrine accords standing to an individual, like Yung, to challenge the constitutionality of a statute's application to individuals other than himself. However, as an exception to the traditional rules of standing, "the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted." New York v. Ferber, 458 U.S. 747, 769 (1982). The Supreme Court has stressed that such a consequence will be justified only when a statute's overbreadth is "substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Williams, 553 U.S. at 292 (emphasis in original). Moreover, "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Accordingly, the "strong medicine" of invalidation for overbreadth must be used "sparingly and only as a last resort." Id.

         "The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Williams, 553 U.S. at 293. The second step is for the Court to then determine "whether the statute, as we have construed it, criminalizes a substantial amount of protected expressive activity." Id. at 297.

         Here, the statute being challenged as unconstitutionally overbroad is § 2261A(2)(B), which prohibits ...


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