Judicial Notice of Non-Governmental Websites — Procedure — Judicial Notice of Fact That Assertions Are Made vs. Judicial Notice of Content of Those Assertions — Right to Be Heard

United States v. Kane, 2013 U.S. Dist. LEXIS 154248 (D. Nev. Oct. 28, 2013):

Before the court is Defendant Steven Carr's motion to dismiss the Government's indictment for lack of jurisdiction (#60). ***

This matter involves the alleged extortion and beating of L.T. (hereinafter "the victim") and the prosecution of Robert Kane, William Congero, Steven Carr, Robert Coleman, Eric Panter, and Thomas McNamara under the Hobbs Act, 18 U.S.C. § 1951(a), for conspiracy to interfere with interstate commerce by extortion. (See Indictment (#1) at 2--3).

***

On August 23, 2013, Carr filed the instant motion to dismiss (#60). Carr contends that the Government's indictment fails to invoke federal jurisdiction because the underlying crime involved the intrastate robbery of the victim's Harley-Davidson, which had no direct or indirect effect on interstate commerce. (Def.'s Mot. Dismiss (#60) at 4--8). In response, the Government asserts that the victim's robbery invokes federal jurisdiction because: (1) the robbery was predicated on club activities and the payment of motorcycle club dues, which customarily cross state lines; and, (2)  the loss of the victim's motorcycle depleted Harley-Davidson, Inc.'s assets in Chicago, Illinois. (See generally Gov't's Opp'n (#74) at 4--12).

***

I.Federal Jurisdiction under the Hobbs Act, 18 U.S.C. § 1951(a)

The Hobbs Act provides for federal jurisdiction over crimes that were traditionally state-law matters. See United States v. Culbert, 435 U.S. 371, 379, 98 S. Ct. 1112, 55 L. Ed. 2d 349 (1978) ("[T]here is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law"). In pertinent part, the Act states:

   Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). The Hobbs Act was conceived as part of a legislative scheme to deter "professional gangsterism" and free interstate commerce from the destructive burdens of organized extortion and robbery. See S. REP. NO. 73--1440, 73d Congress, 2d Session (quoted in Carbo v. United States, 314 F.2d 718, 732 n. 10 (9th Cir. 1963)). Congress, therefore, drafted the Act to extend as far as the Constitution's Commerce Clause permits. U.S. v. Pascucci, 943 F.2d 1032, 1035 (9th Cir. 1991). Consequently, the court's jurisdictional inquiry under the Hobbs Act requires the court to decide whether the Commerce Clause permits the Government to exercise jurisdiction over Carr and his cohorts.

To establish the interstate commerce element of a Hobbs Act violation, the Government only needs to establish that a defendant's alleged crime had a de minimis effect on interstate commerce. United States v. Lynch, 437 F.3d 902, 909 (9th Cir. 2006);   Atcheson, 94 F.3d at 1241. Any effect on interstate commerce, whether direct or indirect, invokes federal jurisdiction. Wickard v. Filburn, 317 U.S. 111, 120, 63 S. Ct. 82, 87 L. Ed. 122 (1942); see also United States v. Kuta, 518 F.2d 947 (7th Cir. 1975), cert. denied 423 U.S. 1014, 96 S. Ct. 446, 46 L. Ed. 2d 385 (1975) (stating that even a beneficial effect on interstate commerce, e.g. facilitating the flow of building materials across state lines, invokes federal jurisdiction). The interstate nexus requirement may be satisfied "by proof of a probable or potential impact" on interstate commerce. United States v. Huynh, 60 F.3d 1386, 1389 (9th Cir. 1995). That is, the Government is not required to show, as McNamara contends, that a defendant's crime actually affected interstate commerce. (See Def.'s Joinder (#64) at 2) ("Rumors or reports of [Defendants'] alleged criminal actions did not raise the price of soy beans or cause the Dow Jones average to rise or fall one-one hundredth of a point").

The Ninth Circuit has consistently upheld convictions under the Hobbs Act where the effect on interstate commerce was "slight."

***

A. The Government's Proffers Vagos's Website as Evidence

One of the salient allegations on the face of the Government's indictment that relates to jurisdiction states that the victim was a "member of the Vagos Motorcycle Club." (Indictment (#1) at 2). Standing alone, this fact does not trigger federal jurisdiction because it is unclear what the Vagos Motorcycle Club is. Accordingly, the court must admit evidence and make a preliminary finding of fact regarding Vagos in order to determine whether the victim's affiliation with Vagos triggers federal jurisdictional under the Hobbs Act and the Commerce Clause.

As discussed above, the parties' motion and papers state that the Vagos Motorcycle Club is a national and international organization that merged with (or subsumed) the victim's Las Vegas chapter of American Cruisers Motorcycle Club. *** The parties' motions and papers also state that American Cruisers is a national and international organization. *** To support these claims, the Government proffers, inter alia, two exhibits, which are hard copies of Vagos's official website. (See Gov't's Opp'n (#74) Exhibits 2--3) (attaching images from OFFICIAL VAGOS MC WORLD SITE, http://vagosmcworld.com/ (last visited Oct. 22, 2013).

The first exhibit is a screenshot of Vagos's website that recalls the history of the club.... In pertinent part, the screenshot states that the club originated in San Bernardino, California and that Vagos means "traveling gypsy." ... The bottom on the page includes the inscription: "Vagos Motorcycle Club Official International Website." ... The second exhibit includes four screenshots of event posters from Vagos's website.... The posters advertise motorcycle rallies, runs, and events that Vagos and its local chapters sponsored in Canyon Country, California on June 8, 2013, Apple Valley, California on June 2, 2013, Mexico City, Mexico on June 7--9, 2013, and in San Bernardino, California on May 19, 2012. These screenshots also include an inscription on the bottom of the page that reads: "Vagos  Motorcycle Club Official International Website." *** The Government proffers these exhibits to demonstrate that Vagos "is an international association" that regularly conducts interstate business. (Gov't's Opp'n (#74) at 9:6--7, 9:13--17) (citing Exhibit 2--3).

B. The Admissibility of Websites under the Federal Rules of Evidence

Federal Rule of Criminal Procedure 12(b) and Federal Rule of Evidence 201 permit the court to take judicial notice of facts contained in websites. WRIGHT & LEIPOLD, FEDERAL PRACTICE & PROCEDURE: CRIMINAL 4TH § 194 (discussing Rule 12(b) and judicial notice of websites); O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) ("It is not uncommon for courts to take judicial notice of factual information found on the world wide web"); accord Daniels--Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998--99 (9th Cir. 2010).

Under Federal Rule of Evidence 201, the court may take judicial notice on its own; but the court must take judicial notice if a party requests it and the court is supplied with the necessary information. FED. R. EVID. 201(c). Facts that may be judicially noticed are limited to facts "generally known within the trial court's territorial jurisdiction" or facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b). When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true. Heliotrope Gen. Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 118 (9th Cir. 1999); accord Premier Growth Fund v. Alliance Capital Mgmt., 435 F.3d 396, 401 n. 15 (3d Cir. 2006).

Two related concerns, however, generally caution against taking judicial notice of websites. First, as the Seventh Circuit recognized, the internet contains an unlimited supply of information with varying degrees of reliability, permanence, and accessibility. See Pickett v. Sheridan Health Care Center, 664 F.3d 632, 648 (7th Cir. 2011). Corporate websites, in particular, are often marketing tools that contain more "puffery" than fact. Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3rd Cir. 2007). Before taking judicial notice of facts contained in websites, the Third and Seventh Circuits advise authenticating printouts of the webpage under Rule 901, supporting the printouts with affidavits, or holding a hearing on the facts to be noticed in order to give the opposing party an opportunity to respond. Id.; Pickett, 664 F.3d at 648. A frequently cited District Court case from the Western District of Michigan similarly recommends "verify[ing] the information found on . . . websites for accuracy or authenticity." Dingle v. Bioport, 270 F.Supp.2d 968, 973 (W.D. Mich. 2003).

Second, the internet is an open source. Anyone may purchase an internet address and create a website. See, e.g., Reno v. Am Civil Liberties Union, 521 U.S. 844, 849-853, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997) (discussing the development of the internet). Federal Rule of Evidence 201(b)(2), however, only permits judicial notice of facts from "sources whose accuracy cannot reasonably be questioned." Accordingly, courts in the Ninth Circuit have taken judicial notice of facts contained in governmental websites. See, e.g., Daniels--Hall, 629 F.3d at 998--99. A motorcycle gang's website, by contrast, does not instill a similar level of reliability. See, e.g., Blanks v. Cate, No. 11--cv--0171, 2013 U.S. Dist. LEXIS 11233, 013 WL 322881, at *2 n. 3 (E.D. Cal Jan. 28, 2013) (refusing to take judicial notice of a Wikipedia entry); but see United States v. Espinoza, No. 11--50350, 2013 U.S. App. LEXIS 12207, 2013 WL 2940512, at *3 (9th Cir. June 6, 2013)  (stating that the District Court did not err in taking judicial notice of a gang's website).

B. Analysis

In light of the Third and Seventh Circuits, the court is hesitant to take judicial notice of websites. The court, nonetheless, finds that the concerns raised by the Third and Seventh Circuit are not present here. Five facts support this conclusion.

First, it is not necessary to provide Carr with an evidentiary hearing. As articulated by the Seventh Circuit, the purpose of an evidentiary hearing in this context is to give the opposing party an opportunity to respond. See Pickett, 664 F.3d at 648 (citing FED. R. EVID. 201(e) and the advisory committee's note). Carr, however, had an opportunity to respond to the Government's submission in his rely brief. The purpose of a reply brief is to rebut the nonmovant's response. See, e.g., Local Rule 7-2(d); see also United States v. Campbell, 279 F.3d 392 (6th Cir. 2002). Rather than rebutting the Government's use of Vagos's website, Carr's reply brief concedes that American Cruisers and Vagos are national or international organizations. (See Def.'s Reply (#75) at 2: 13, 15, 19, 21) (making four references to the fact that the clubs are "national").

Second, the fact that the websites are offered to prove--(i.e., that Vagos and American Cruisers are national organizations involved in interstate travel and commerce)--is implicit in the facts that both parties have proffered. The parties are in agreement that: (1) American Cruiser, Vagos, and Confederation of Clubs members pay local membership dues that benefit a national organization, (Gov't's Opp'n (#74) Exhibit 1 at 1:3, 3:18) (accord Def.'s Mot. to Dismiss (#60) Exhibit A at 1:3, 3:18); (2) Vagos personnel travel to Hesperia, California to received their patch, (Gov't's Opp'n (#74) at 2:10) (accord Def.'s Reply (#75) at 2:17); (3) Vagos purported to control state boarders, (Gov't's Opp'n (#74) Exhibit 1 at 2:8) (accord Def.'s Mot. to Dismiss (#60) at 2:18--19); and (4) the victim, while affiliated with Vagos and American Cruisers, sent bikers from Nevada to Arizona to deal with the Hells Angels, (Gov't's Opp'n (#74) Exhibit 1 at 2:16) (accord Def.'s Mot. to Dismiss (#60) Exhibit A at 2:16).

Third, although Federal Rule of Evidence 201(b)(2) requires a "source whose accuracy cannot reasonably be questioned," the court again notes that Carr's reply brief does not contest the accuracy of the source. To the contrary, Carr corroborated the veracity and accuracy of the websites. See, e.g., Pickett, 664 F.3d at 648; Dingle, 270 F.Supp.2d at 973. As discussed in the preceding paragraph, Carr proffered facts that demonstrate that Vagos and American Cruisers are national organizations involved in interstate travel and commerce. (See, e.g., Def.'s Reply (#75) at 2: 13, 15, 19, 21).

Fourth, the statements in the website do not raise any hearsay concerns that would compromise their reliability because the statements are not offered for the truth of the matter asserted. The Government's proffer that Vagos "is an international association," (see Gov't's Opp'n (#74) at 9:6--7, 9:13--17) (citing Exhibit 2--3), and that Vagos sponsored events in Apple Valley, California, Canyon Country, California, and Mexico City, Mexico, (see Gov't's Opp'n (#74) at Exhibit 3), are not offered to prove that Vagos maintains chapters in Mexico, (see id. Exhibit 3 at 3), or that its members actually traveled to Apple Valley, California on June 2, 2013 at 11:00 a.m., (see id. Exhibit 3 at 2). Rather, the Government's purpose in proffering the websites is to demonstrate Vagos's effect on interstate commerce.

Accordingly, these statements are admissible under two well-settled exceptions to the hearsay rule. If the event posters were posted on Vagos's website before the events occurred, then the event posters demonstrate Vagos's intent to engage in interstate travel. Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892); FED. R. EVID. 803(3). As such, the statements are admissible because they are not hearsay, see id., and they are relevant because they make the fact that Vagos's had a "probable or potential" de minimis effect on interstate commerce through organized motorcycle activities more probable. FED. R. EVID. 401.

Alternatively, if the event posters were posted on Vagos's website after the events occurred, then the event posters are verbal acts with an independent legal significance under the Commerce Clause. See FED. R. EVID. 801. Vagos's statements that the national office and local chapters engaged in interstate travel concedes jurisdiction under the Commerce Clause because the statements demonstrate that Vagos had a "probable or potential" de minimis effect on interstate commerce. See United States v. Tyler, 281 F.3d 84, 98 (3rd Cir. 2002) (holding that a statement that the defendant traveled out of state was a verbal act offered to demonstrate federal jurisdiction and not the truth of the matter asserted).

Fifth, under Federal Rule of Evidence 201, the court does not take judicial notice of whether the contents of the websites are actually true. Heliotrope Gen. Inc., 189 F.3d at 981 n. 118 (taking judicial notice "that the market was aware of the information contained in news articles submitted by the defendants"). Rather, the court merely takes judicial notices of what is in the public realm. Id. The court does not, therefore, judicially notice that Vagos maintains chapters in Mexico City or that it travelled to Apple Valley, California. Under Rule 201 and the Ninth Circuit's decision in Heliotrope, the court merely takes judicial notice of the fact that Vagos held itself out as an organization affecting interstate commerce through organized motorcycle events.

Sixth, any possible prejudicial effect that the website may cause is negated by the court's limited evidentiary findings under Federal Rule of Criminal Procedure 12(b). As discussed above, if the court denies a criminal defendant's Rule 12(b) motion to dismiss, the court's preliminary findings of fact "may not be used against [the defendant] at the trial." WRIGHT & LEIPOLD, FEDERAL PRACTICE & PROCEDURE: CRIMINAL 4TH § 194. Rule 12(b), therefore, nullifies any prejudicial effect that the websites could have on Carr and his co-Defendants because the website is removed from evidence after the court has concluded its jurisdictional inquiry.

The court, therefore, admits the Government's proffered websites for the limited purpose of determining whether the indictment invokes federal jurisdiction under the Hobbs Act.

 

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