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United States v. Skaggs

United States District Court, S.D. Ohio, Western Division

July 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGER T. SKAGGS, Defendant.

          ORDER

          HON. MICHAEL R. BARRETT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's: (1) Motion to Dismiss for Lack of Jurisdiction (“Motion to Dismiss”) (Doc. 41); and (2) Motion to Compel Brady Material (“Motion to Compel”) (Doc. 58). Both motions are fully briefed, with the Parties recently offering supplemental briefing on the Motion to Dismiss. The Motions are now ripe for disposition.

         I. BACKGROUND

         On June 21, 2017, Defendant Roger Skaggs was indicted on one count of sexual abuse of an incapacitated person. (Doc. 1). The events that are the subject of the indictment occurred on October 13, 2013 in Wiesbaden, Germany, where the alleged victim was serving as a military police soldier. Defendant had accompanied the alleged victim, the alleged victim's wife, and their family to Germany, residing with them as a “dependent” family member. After allegedly non-consensual sexual contact between Defendant and the alleged victim, a physical altercation ensued, and Defendant was treated for his injuries in a German hospital. Trial was scheduled to begin on June 18, 2018, but on June 13, 2018 the undersigned declared the Defendant incompetent to stand trial. The trial date will be reset once the Defendant is restored to competency.

         In the weeks leading up to the now vacated trial, the Parties finished briefing the Motion to Dismiss and Motion to Compel.

         A. Background Relating to the Motion to Dismiss

         The government asserts that the Court has jurisdiction under the Military Extraterritorial Jurisdiction Act (“MEJA”), 18 U.S.C. §3261(a)(1). However, Defendant contends that the foregoing statute is unconstitutional on its face, and “as applied” to him. Regarding the latter challenge, Defendant argues that there are material fact witnesses (e.g., medical professionals who treated Defendant) beyond the subpoena power of the Court who reside in Germany, the unavailability of which compromises his Sixth Amendment right to present his defense. The Defendant has not fully disclosed how such witnesses are material to his defense, arguing that he is not required to reveal defense strategy in advance of trial. Over the objection of the government, Defendant asks that the Court entertain his arguments ex parte.

         B. Background Relating to the Motion to Compel

         Defendant also contends that the government has withheld documents from him in violation of Rule 16 of the Federal Rules of Criminal Procedure, Brady v. Maryland, 373 U.S. 83 (1963), or both. For example, Defendant asserts that he intends to rely on certain medical records during trial to identify and quantify the toxins in the alleged victim's system, which medical records allegedly bear on the alleged victim's reliability as a historian, and his biases and motives to lie about what he ingested on or around October 13, 2013. Defendant argues, however, that there are gaps in the records produced by the government, and seeks an order compelling:

1. Records pertaining to the alleged victim's psychiatric treatment in Germany prior to and at the time of the alleged offense, and his current medical/psychiatric care.
2. The alleged victim's Official Military Personnel File (“OMPF”), including his “NARSUM and the rebuttal submitted by [the alleged victim] related to his disability rating and separation from the military.”
3. Exculpatory information provided to the government by potential witnesses.

         Defendant attributes gaps in the records to the government's failure to produce certain documents in its possession or control, while the government contends that it has produced everything in its “possession.” The government also argues that Defendant's Motion to Compel is untimely.

         II. ANALYSIS

         A. Motion to Dismiss

         Pursuant to Fed. R. Crim. P. 12(b), “[a] motion that the court lacks jurisdiction may be made at any time while the case is pending.” Here, the Court is exercising jurisdiction over Defendant based on the MEJA, which states in relevant part:

a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States--
(1) while employed by or accompanying the Armed Forces outside the United States; or
(2) while a member of the Armed Forces subject to chapter 47 of title 10 [10 USCS §§ 801 et seq.] (the Uniform Code of Military Justice), shall be punished as provided for that offense.

18 U.S.C. § 3261 (emphasis added). Defendant argues, however, that: (1) Congress enacted the MEJA without authority; and (2) as applied to him, the MEJA violates his Sixth Amendment right to compulsory process under the United States Constitution. Defendant contends that, because the MEJA is unconstitutional, the Court lacks jurisdiction and must therefore dismiss this case.

         1. Facial Challenge

         “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, [because] the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100 (1987). In an attempt to make such a showing, Defendant argues that Congress' enactment of the MEJA falls outside its powers enumerated in Article I, specifically Congress' power to: (1) regulate commerce with foreign nations; (2) define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; or (3) make rules to regulate the land and naval forces - as accomplished through the Necessary and Proper Clause. According to Defendant, the MEJA is thus unconstitutional. The Court disagrees.

         Other courts have rejected Defendant's argument, reasoning that an analysis of Congress' powers enumerated in Article I is misplaced in the context of the MEJA. See, e.g., United States v. Williams, 722 F.Supp.2d 1313, 1317 (M.D. Ga. 2010)(citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-16, 57 S.Ct. 216, 81 L.Ed. 255 (1936)). In Curtiss-Wright, the Supreme Court clarified that while Congress may only legislate pursuant to its powers enumerated in the Constitution, this “broad statement... is categorically true only in respect of our internal affairs." 299 U.S. at 315-16. Relying on Curtiss-Wright, the Williams court found that the MEJA was properly promulgated pursuant to Congress' “expansive extraterritorial” authority. Williams, 722 F.Supp. at 1318. Furthermore, even if this Court were required to perform an “enumerated powers analysis, ” at least one other court has found the MEJA properly promulgated under Article I's provision granting Congress express authority “to raise and support Armies.” See, e.g., United States v. Brehm, 691 F.3d 547, 551 (4th Cir. 2012) (concluding that Congress' express authority ...


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