United States v. Nathan Craigue

2020 DNH 031

• Court: District Court, D. New Hampshire
• Decided: March 3, 2020
• Docket: 19-cr-142-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States

v. Criminal No. 19-cr-142-LM Opinion No. 2020 DNH 031 Nathan Craigue

O R D E R

The defendant, Nathan Craigue, is charged with two counts

of making a false statement to a federal agent in violation of

18 U.S.C. § 1001(a)(2). Craigue moves to dismiss the indictment

under Federal Rule of Criminal Procedure 12(b)(3)(B). The

government objects. The court heard argument on the motion at a

hearing on February 20, 2020.

STANDARD OF REVIEW

Federal Rule of Criminal Procedure 12(b)(1) provides that

“[a] party may raise by pretrial motion any defense, objection,

or request that the court can determine without a trial on the

merits.” Fed. R. Crim. P. 12(b)(1). Specifically, a motion

claiming a defect in the indictment, such as lack of specificity

or the failure to state an offense, must be raised in a pretrial

motion when the basis for the motion is “reasonably available”

and the motion can be determined without a trial on the merits. Fed. R. Crim. P. 12(b)(3)(B); see also United States v.

Rodriguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019). When

considering a motion to dismiss under Rule 12(b), the court must

accept the factual allegations in the indictment as true. See

United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011); United

States v. Bohai Trading Co., 45 F.3d 577, 578 n.1 (1st Cir.

1995).

BACKGROUND1

Craigue is the owner and operator of Craigue & Sons Home

Exteriors, which is a siding and home exterior company. In the

summer of 2018, the company was hired to perform work on a

property located in Concord, New Hampshire. Craigue tasked two

individuals, Kenneth McKenna and Nicholas Ford, with the

project. On August 28, 2018, McKenna had an accident at the job

site. He later died from his injuries.

The day of the accident, an officer from the Occupational

Safety and Health Administration (“OSHA”) visited the job site

and questioned Craigue. In response to the OSHA officer’s

1 To the extent the following facts are not alleged in the indictment, the court has drawn them from the parties’ pleadings. These facts are not dispositive of the pending motion and are recited only to provide context.

2 questioning, Craigue stated that McKenna and Ford were

subcontractors, not employees.

In October 2018, the OSHA officer interviewed Craigue again

about the accident. The officer asked Craigue whether McKenna

and Ford were employees. Craigue replied “I’ve always treated

them—they would come and go as they please, so I would always

treat them as not employees.” Doc. no. 1 at 2.

In 2019, a grand jury indicted Craigue on two counts of

making a false statement to a federal agent in violation of 18

U.S.C. § 1001(a)(2). Count one alleges that Craigue knowingly

and willfully made a materially false statement to the OSHA

officer on the day of the accident by stating that McKenna was a

subcontractor, not an employee. Count two alleges that Craigue

knowingly and willfully made a second materially false statement

to the OSHA officer when he stated in October 2018 that “I’ve

always treated them—they would come and go as they please, so I

would always treat them as not employees.” Doc. no. 1 at 2.

In essence, both counts allege that Craigue lied to the OSHA

officer by representing that McKenna was not his employee.

DISCUSSION

Craigue moves to dismiss the indictment on three grounds:

(1) both counts in the indictment lack specificity because they

3 do not inform him of the applicable definition of “employee”;

(2) count two fails to state an offense; and (3) 18 U.S.C. §

1001(a)(2) is void for vagueness as applied to him. The court

will address each argument in turn.

I. Lack of Specificity

Craigue first argues that the court should dismiss the

indictment because it lacks specificity. The Constitution

states that a defendant cannot “be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury” and that he has the right “to be

informed of the nature of the cause of the accusation.” United

States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (quoting

U.S. Const. amend. V, VI). Consistent with these constitutional

mandates, Federal Rule of Criminal Procedure 7(c)(1), requires

that an indictment contain a “plain, concise, and definite

written statement of the essential facts constituting the

offense charged.” Fed. R. Crim. P. 7(c)(1).

“An indictment need not say much to satisfy these

requirements—it need only outline the elements of the crime and

the nature of the charge so that the defendant can prepare a

defense and plead double jeopardy in any future prosecution for

the same offense.” Stepanets, 879 F.3d at 372 (internal

quotation marks omitted). This means that an indictment that

4 tracks the statute’s terms is legally sufficient if it is

accompanied by a statement of the facts and circumstances that

adequately informs the defendant of the specific offense with

which he is charged. See id.; United States v. Savarese, 686

F.3d 1, 6 (1st Cir. 2012).

Craigue argues that the indictment lacks specificity

because it does not advise him of the definition of “employee”

that will be used to evaluate whether his statements were true

or false. However, he has not cited, nor has the court found,

any authority requiring an indictment to define a term used in a

defendant’s allegedly false statement in order to provide the

defendant sufficient notice. Moreover, applying the standard

outlined above, the indictment is adequately specific.

Both counts one and two outline the elements of the crime

of making a false statement to a federal agent. “In order to

convict a defendant of making a false statement under 18 U.S.C.

§ 1001, the prosecution must prove that the defendant, in a

matter within the jurisdiction of the United States government,

knowingly made a material statement to the government which was

false.” United States v. Dwyer, 238 F. App’x 631, 649 (1st Cir.

2007); see also 18 U.S.C. § 1001(a)(2). Both counts one and two

satisfactorily allege each of these elements.

5 Both counts also identify enough factual context to notify

Craigue of the specific offense alleged in each count. Count

one explains that the false statement at issue is Craigue’s

statement to the OSHA officer on the day of the accident that

McKenna was a subcontractor, not an employee. Similarly, count

two clearly identifies the alleged false statement at issue as

Craigue’s October 2018 statement that he “always treated”

McKenna as “not an employee.” The indictment’s recitation of

the statutory elements and the factual context is sufficient to

put Craigue on notice of the nature of the charges against him

and enable him to prepare a defense. See United States v.

Guthartz, 573 F.2d 225, 227 (5th Cir. 1978) (holding indictment

charging violation of § 1001 sufficient when it set out elements

of the offense and advised defendant of the manner in which he

violated the statute); see also Rodriguez-Rivera, 918 F.3d at

34-35 (holding indictment for aggravated identity theft

sufficient when it tracked the statutory language and fairly

identified alleged criminal conduct).

II. Failure to State an Offense

Craigue next argues that count two fails to state an

offense because the statement identified in count two is not

false. Count two alleges that the following statement was

6 false: “I’ve always treated them—they would come and go as they

please, so I would always treat them as not employees.” Doc.

no. 1 at 2. Craigue asserts that, if a statement can be

interpreted in several ways, the government must prove beyond a

reasonable doubt that the statement is false under any

reasonable interpretation. He argues that one reasonable

interpretation of his statement is that it was not an assertion

of fact, but an expression of his subjective viewpoint, so it

cannot be false.

The court is not persuaded. In a prosecution for making a

false statement, the government bears the burden of negating

“any reasonable interpretation” of defendant’s statement that

would make it “factually correct.” United States v. Gatewood,

173 F.3d 983, 988 (6th Cir. 1999) (internal quotation marks

omitted); see also United States v. Diogo, 320 F.2d 898, 907 (2d

Cir. 1963). Importantly, this standard identifies the

government’s burden at trial—not at the motion to dismiss phase.

See Gatewood, 173 F.3d at 988 (finding insufficient evidence to

support verdict when, at trial, government failed to rebut

reasonable interpretation of defendant’s statement that would

make it factually correct). Thus, Craigue’s reliance on this

case law is inapposite at this stage of the proceedings.

7 Craigue also relies on United States v. Hatch, 434 F.3d 6

(1st Cir. 2006) in support of his argument that count two fails

to state an offense. Hatch stands for the proposition that when

the question that a defendant was asked is open to several

interpretations, the government must prove that the defendant’s

answer was false under any reasonable interpretation of the

question. See id. at 5-6. Craigue is not arguing that the

question he was asked in count two was ambiguous, but that his

answer was. His reliance on Hatch is therefore misplaced.

In any case, the rule stated in Hatch relates to the

government’s burden of proof at trial, not its burden of

pleading a sufficient indictment. See id. As such, this

argument would be better placed in a Rule 29 motion for judgment

of acquittal, not a motion to dismiss the indictment.

Ultimately, whether Craigue’s statement alleged in count two is

true or false is a question for the jury. See Guerrier, 669

F.3d at 4 (“[C]ourts routinely rebuff efforts to use a motion to

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

an indictment’s allegations.”).

III. Vagueness

Finally, Craigue argues that the court should dismiss the

indictment because 18 U.S.C. § 1001(a)(2) is void for vagueness

8 as applied to him. He asserts that whether someone is an

“employee” is a complex question of fact and law and therefore

the statute failed to provide him with adequate notice that his

statements were unlawful.

“The Fifth Amendment’s Due Process Clause requires that a

criminal statute provide adequate notice to a person of ordinary

intelligence that his contemplated conduct is illegal.” United

States v. Zhen Zhou Wu, 711 F.3d 1, 13 (1st Cir. 2013) (internal

quotation marks omitted). This “void for vagueness doctrine”

has two aims: (1) to ensure that “regulated parties . . . know

what is required of them so they may act accordingly;” and (2)

to prevent a lack of precision in the law that enables those

enforcing the law to apply it in an arbitrary or discriminatory

way. Id. (internal quotation marks omitted).

Outside the First Amendment context, the court must

consider “whether a statute is vague as applied to the

particular facts at issue.” Id. at 15 (internal quotation marks

and emphasis omitted). In other words, the court need only

determine whether Craigue “in fact had fair notice that the

statute . . . proscribed [his] conduct.” Id. (internal

quotation marks omitted). This is so because a defendant “who

engages in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the conduct

9 of others.” Id. (quoting Holder v. Humanitarian Law Project,

561 U.S. 1, 18-19 (2010)).

In the context of this case, the vagueness inquiry hinges

on whether Craigue in fact had fair notice of the relevant

definition of “employee” and notice that it would be unlawful

for him to make a false statement to a federal agent about

someone’s status as an employee or non-employee. Because this

vagueness inquiry depends on whether Craigue in fact had fair

notice that his conduct was prohibited, it would be premature

for the court to resolve it at this time. See United States v.

Harris, No. CR 09-10243-MLW, 2012 WL 2402788, at *3 (D. Mass.

June 26, 2012) (denying as premature defendant’s motion to

dismiss the indictment for unconstitutional vagueness); United

States v. Caputo, 288 F. Supp. 2d 912, 917 (N.D. Ill. 2003)

(same); see also United States v. Turner, 842 F.3d 602, 605 (8th

Cir. 2016) (holding that district court erred by ruling on

pretrial motion to dismiss indictment for unconstitutional

vagueness instead of deferring ruling until trial); United

States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997) (same).

Resolution of Craigue’s vagueness challenge will depend on the

facts adduced at trial. Accordingly, the court denies the

10 motion to dismiss on this theory without prejudice to Craigue’s

ability to raise the issue at the appropriate time.2

CONCLUSION

For the foregoing reasons, Craigue’s motion to dismiss the

indictment (doc. no. 15) is denied as to grounds (1) and (2) and

denied without prejudice as to ground (3).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 3, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal

2The court notes, however, that the fact that 18 U.S.C. § 1001(a)(2) prohibits only “willfully” made false statements minimizes the likelihood that the statute will be unconstitutionally vague as applied. See Zhen Zhou Wu, 711 F.3d at 15 (“Where a statute explicitly provides that a criminal violation of its terms must be willful, the void-for-vagueness doctrine is especially inapposite since the statute itself ensures that good-faith errors are not penalized.” (internal quotation marks, brackets, and citation omitted)).