United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Dismiss Count 3 of the Indictment, filed on July 14, 2017.
(Doc. 27.) Having considered the submissions of the parties
and relevant law, the Court will DENY the
Government filed a Criminal Complaint against Mr. Matthew
Lyons on April 10, 2017, under 17 U.S.C. §§
111(a)(1) and 758, “which make it a crime for any
person to Impede, Resist, and Assault a Federal Officer and
to flee at a high speed from an immigration
checkpoint.” (Doc. 1 ¶ 2.) Lyons now moves to
dismiss Count 3 of the Indictment, which charges him with
fleeing and evading the checkpoint. (See Docs. 27;
19.) Lyons alleges that the statute is unconstitutionally
The Facts as Alleged in the Complaint
facts underlying the Complaint are as follows: on April 6,
2017, Lyons entered a United States Border Patrol (USBP)
checkpoint on Highway 54. (Doc. 1 ¶ 4.) The USBP agent
asked Lyons and his front seat passenger if they were
citizens, and they both responded “yes.”
(Id. ¶ 5.) The agent noticed a back seat
passenger and asked Lyons to roll down the rear window.
(Id.) Lyons stated that the passenger was his minor
son and refused to roll down the window. (Id.)
asked the agent if he was being detained; the agent said he
was. (Id. ¶ 6.) The agent walked toward the
station to notify other agents, and Lyons fled the checkpoint
at a high rate of speed. (Id.) USBP agents pursued
Lyons with their lights and sirens activated. (Id.
¶ 7.) The agents caught up to Lyons' vehicle about
half a mile beyond the checkpoint, and the two vehicles
reached speeds of approximately 90 miles per hour for 1.3
miles before Lyons stopped. (Id. ¶ 8.)
second USBP agent asked Lyons why he fled, “Lyons
responded that he knew his rights and . . . was not required
to stop.” (Id. ¶ 9.) Lyons refused to
provide identification or to step out of the vehicle.
(Id.) The agent, who was unable to see Lyons'
hands, decided to extract him from the vehicle.
(Id.) When the agent opened the door and reached for
Lyons' seatbelt release, Lyons slapped the agent's
“hand and attempted to strike [the agent] with his
elbow.” (Id.) A third agent arrived to assist,
and the agents “attempted to get Lyons to the ground in
order to handcuff him.” (Id. ¶ 10.) Lyons
put one of the agents in a headlock, and the other agent
struck Lyons in both legs with a baton, picked Lyons up,
“and forcefully took him to the ground.”
(Id.) Lyons continued to resist, the agent struck
him once more in the legs with a baton, and the agents were
finally able to get a handcuff on him. (Id. ¶
11.) At that point, Lyons complied, and the agents handcuffed
him, placed him under arrest, read him his rights, and
transported him to the USBP checkpoint station. (Id.
Government filed a three-count Indictment on June 21, 2017.
(Doc. 19.) Counts 1 and 2 charge Lyons with “forcibly
assault[ing], resist[ing], oppos[ing], imped[ing],
intimidat[ing], and interfer[ing] with” law enforcement
officers in violation of 18 U.S.C. § 111. (Id.
at 1.) Count 3 charges Lyons with “unlawfully,
knowingly and intentionally fle[eing] and evad[ing] a
checkpoint operated by United States Border Patrol and any
other Federal law enforcement agency, in a motor vehicle, . .
. in excess of the legal speed limit” in violation of
18 U.S.C. § 758. (Id. at 3.)
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). “On a motion
to dismiss an indictment, the question is not whether the
government has presented sufficient evidence to support the
charge, but solely whether the allegations in the indictment,
if true, are sufficient to establish a violation of the
charged offense.” United States v. Todd, 446
F.3d 1062, 1068 (10th Cir. 2006) (citations omitted).
statute is impermissibly vague ‘if it fails to provide
people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits.'” United
States v. Franklin-El, 554 F.3d 903, 910 (10th Cir.
2009) (quoting Ward v. Utah, 398 F.3d 1239, 1251
(10th Cir. 2005) (internal citation and quotation marks
omitted)). “Additionally, a statute that authorizes or
encourages arbitrary and discriminatory enforcement can be
impermissibly vague.” Id. (citing
Ward, 398 F.3d at 1251). Vague criminal statutes
violate due process. See Johnson v. United States,
135 S.Ct. 2551, 2556-57 (citations omitted).