United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
HONORABLE DAVID BRIONES SENIORUNITED STATES DISTRICT JUDGE.
day, the Court considered Defendant Daniel Winslow
Cline's ("Mr. Cline") "Motion to Dismiss
Indictment" ("Motion"), filed in the
above-captioned case on May 22, 2019. On May 28, 2019, the
United States of America ("the Government") filed
its "Response to Defendant's Motion to Dismiss"
("Response"). On June 3, 2019, Mr. Cline filed his
"Reply to Government's Response to Motion to Dismiss
Indictment" ("Reply"). On June 5, 2019, the
Government filed its "Surreply to Defendant's Motion
to Dismiss." After due consideration, the Court is of
the opinion that Mr. Cline's Motion should be denied.
April 3, 2019, a grand jury sitting in the Western District
of Texas returned a two-count Indictment
("Indictment"), which charges Mr. Cline with
alleged interstate violations of two protection orders in
violation of 18 U.S.C. § 2262(a)(1) & (b)(5).
Indictment 1-2, ECF No. 16. Specifically, the Indictment
alleges that on or about March 4, 2019, and March 9, 2019,
Mr. Cline traveled in interstate and foreign commerce with
the intent to engage in conduct that would violate a
protection order issued on August 27, 2018, in the District
Court for Arapahoe County, Colorado and another protection
order issued on September 17, 2018, in the County Court for
Douglas County, Colorado. Id. In the jurisdictions
in which the protection orders were issued, the protection
orders provided protection against violence, threats, and
harassment, as well as prohibited contact, communication, and
physical proximity with Mr. Cline's girlfriend
("G.H."). Id. The Indictment alleges that
Mr. Cline subsequently engaged in such prohibited contact
with G.H. in violation of 18 U.S.C. § 2262(a)(1) &
August 26, 2018, Colorado authorities charged Mr. Cline with
strangling G.H. while she was pregnant, forcibly imprisoning
her for more than 12 hours, harassing her by striking or
shoving or kicking, knowingly or recklessly assaulting her
while pregnant, and using a weapon during the commission of a
violent crime. Mot. Ex. B, ECF No. 27; Resp. Ex. 1, at 1- 2,
ECF. No. 31. The next day, on August 27, 2018, Mr. Cline and
his counsel appeared at a hearing in the Arapahoe County
District Court held before a judge who advised Mr. Cline of
his rights before Mr. Cline waived further advisement. Resp.
Ex. 1, at 2, ECF No. 31. The judge gave Mr. Cline a copy of
the complaint and information. Id.
the judge considered conditions of bond for Mr. Cline and
incorporated a mandatory protection order, along with a
domestic violence addendum, into the conditions of his bond
after advising Mr. Cline as to the contents of the mandatory
protection order. Id. at 2-3. Mr. Cline signed and
dated the mandatory protection order acknowledging receipt.
Resp. Ex. 2, at 1, ECF No. 31. The mandatory protection order
gave Mr. Cline notice that he could "apply at any time
for the modification or dismissal of this Protection
Order." Id. at 2.
August 28, 2018, Mr. Cline had a second hearing at which he
was represented by counsel who requested to address bond, but
the court ordered bond to remain unchanged. Id. at
3. On August 29, 2018, a third bond hearing was scheduled but
had to be reset due to Mr. Cline's refusal to be
transported to court. Id. On August 30, 2018, Mr.
Cline and his counsel appeared at his bond hearing where the
court set a $1, 000 corporate surety bond, which Mr. Cline
posted in September 2018. Resp. 2, ECF No. 31.
September 15, 2018, Mr. Cline was rearrested for domestic
violence and for violating the protection order issued by the
Arapahoe County District Court less than a month before. Mot.
Ex. C and Ex. D, ECF No. 27; Resp. Ex. 3, at 2, ECF No. 31. A
public parks officer was notified of a verbal disturbance
between Mr. Cline and G.H. Resp. Ex. 3, at 2, ECF No. 31. An
officer interviewed G.H. who told him that Mr. Cline had been
yelling at her for losing his drugs. Id. She also
told the officer that she was "currently a victim in a
different case with CLINE [sic] as is [sic] the protected
party on a [m]andatory [p]rotection [o]rder."
September 17, 2018, Mr. Cline appeared in the Douglas County
District Court represented by a public defender. Resp. Ex. 4,
ECF No. 31. Mr. Cline was "advised, asked, and
acknowledged [of his] [ ] understanding of the conditions of
the [mandatory protection order]." Id. This
second mandatory protection order contained the same
provision as the order from the Arapahoe County District
Court, including the notice that Mr. Cline could "apply
at any time for the modification or dismissal of this
Protection Order," however it did not include a domestic
violence addendum. Compare Resp. Ex. 2, ECF No. 31,
with Resp. Ex. 5, ECF No. 31.
March 4, 2019, Mr. Cline and G.H. were headed to a Douglas
County court hearing together when they changed course and
traveled south toward Mexico. Mot. 2, ECF No. 27 (citing
Complaint 2, ECF No. 2). On March 9, 2019, their multi-day
road trip ended at the Sierra Blanca checkpoint where Mr.
Cline was arrested for violating 18 U.S.C. § 2262, which
makes it a crime to travel in interstate commerce with the
intent to violate protection orders and to subsequently
engage in conduct that violates those orders. Id.;
Resp. 3, ECF No. 31 (citing Indictment, ECF No. 16).
to Federal Rule of Criminal Procedure 12, a defendant may
make a pretrial motion to dismiss based on a claimed defect
in the indictment, including failure to state an offense.
FED. R. Crim. P. 12(b)(3)(B)(v). To state an offense for
interstate violation of a protection order under 18 U.S.C.
§ 2262(a)(1), an indictment must state:
[a] person who travels in interstate or foreign commerce...
with the intent to engage in conduct that violated the
portion of a protection order that prohibits or provides
protection against violence, threats, or harassment against,
contact or communication with, or physical proximity to,
another person... or that would violate such a portion of a
protection order in the jurisdiction in which the order was
issued, and subsequently engages in such conduct, shall be
the Federal Rules of Criminal Procedure do not explicitly
sanction a defendant's ability to file a motion to
dismiss an indictment based on an alleged lack of due process
in the state procedures leadings to an underlying offense,
the Court will analyze and apply the due process clause of
the Fourteenth Amendment: "[n]o state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any