USA v. Touche

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3:22-CR-30039-RAL
Plaintiff,
OPINION AND ORDER DENYING
vs. MOTION TO DISMISS COUNT II
WITHOUT PREJUDICE
AMBER TOUCHE,
Defendant.
A federal grand jury charged Amber Touche with one count of involuntary manslaughter
and one count ofchild abuse. Doc. 1-1. The involuntary manslaughter charge alleges that Touche
killed L.T. by asphyxiating him through overlaying on June 10,2021, while the child abuse charge
alleges that Touche "did abuse, expose, torture, torment, and cruelly punish" L.T. on that same
date. Doc. 1-1. Touche claims that the child abuse charge is based on the same overlaying conduct
alleged in the involuntary manslaughter charge. She now moves to dismiss the child aMse charge,
arguing that the child abuse statute, SDCL § 26-10-1, is unconstitutionally vague under the
Fourteenth Amendment's Due Process Clause. Doc. 41. Because a ruling on Touche's motion
would be premature at this stage of the case, this Court denies the motion without prejudice to
Touche renewing it once the Government has introduced its evidence at trial.
I. Analysis
South Dakota's child abuse statute creates a felony offense for "[a]ny person who abuses,
exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute
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aggravated assault. SDCL § 26-10-1. Touche contends that, given the overlaying allegation, her
child abuse charge must be based on the "expose" element of § 26-10-1. She argues that the child
abuse statute is unconstitutionally vague because the term "exposes" is standardless and unclear
about what conduct it proscribes. The Supreme Court of South Dakota rejected a vagueness
challenge to § 26-10-1 in State v. Mvers. holding that the term "expose" in the statute meant "to
subject to needless risk" and that "risk" meant "the possibility of suffering harm or loss; danger."
857 N.W.2d 597,600(S.D. 2014)(cleaned up and citation omitted). The Supreme Court of South
Dakota s construction of§ 26-10-1 binds this Court but its holding that the statute is constitutional
does not. Davis v. Nebraska, 958 F.2d 831, 833 (8th Cir. 1992); United States v. Gaudreau. 860
F.2d 357,361 (10th Cir. 1988).
A statute is void for vagueness if it:(1)fails to provide a person of ordinary intelligence
fair notice ofwhat is prohibited, or(2)it is so standardless that it authorizes or encourages seriously
discriminatory enforcement." United States v. Paul. 885 F.3d 1099,1105(8th Cir. 2018)(citation
omitted). Touche makes an as-applied challenge to § 26-10-1, asking this Court to declare the
statute unconstitutionally vague "in light ofthe specific facts at hand." Doc.42 at 6. Under an as-
applied challenge to the "notice" requirement of due process, courts look "to whether the statute
gave adequate warning, under a specific set offacts, that the defendant's behavior was a criminal
offense." United States v. Palmer. 917 F.3d 1035, 1038-39 (8th Cir. 2019)(citation omitted).
Courts considering an as-applied challenge under the discriminatory enforcement requirement of
due process "may determine either(1)that a statute as a general matter provides sufficiently clear
standards to eliminate the risk of arbitrary enforcement or (2) that, even in the absence of such
standards, the conduct at issue falls within the core of the statute's prohibition, so that the
enforcement before the court was not the result of the unfettered latitude that law enforcement
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officers and factfinders might have in other, hypothetical applications ofthe statute." United States
V. Wasylyshyn, 979 F.3d 165, 176 (2d Cir. 2020)(citation omitted); see also United States v.
Cpsica, 866 F.3d 782, 794 (7th Cir. 2017)(stating that a defendant could not claim that a vague
statute resulted in arbitrary enforcement when his conduct fell within the statute's prohibited
conduct); United States v. Burgee, 988 F.3d 1054, 1060 (8th Cir. 2021)("When reviewing for
vagueness, we first determine if a statute is vague as applied to the defendant's conduct, and only
if it is will we consider whether a statute is facially imconstitutional.").^
Any ruling on Touche's vagueness argument would be premature at this stage ofthe case.
Rule 12(b) of the Federal Rules of Criminal Procedure allows parties to "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). Courts must decide a Rule 12(b) motion before trial unless there is "good,
cause to defer a ruling" and deferring the ruling will not"adversely affect a party's right to appeal."
Fed. R. Crim. P. 12(d). As the Supreme Court has explained, however. Rule 12(b) authorizes
pretrial resolution ofa motion to dismiss only when "trial ofthe facts surrounding the commission
ofthe alleged offense would be ofno assistance in determining the validity ofthe defense." United
States V. Covington. 395 U.S. 57, 60(1969); see also United States v. Turner. 842 F.3d 602, 605
(8th Cir. 2016).
^At least one district court in the Eighth Circuit has concluded that, in certain limited,
circumstances, a defendant may raise a facial vagueness challenge without first showing that the
law is unconstitutional as applied. United States v. Stupka. 418 F. Supp. 3d 402, 411-12(N.D.
Iowa 2019). The defendant in Burgee made both an as-applied and facial challenge to a statute.
United States v. Burgee. 3:18-CR-30164, 2019 WL 1332858, at *6 (D.S.D. Mar. 25, 2019);
Appellant Brief at 32-41, Burgee. 988 F.3d 1054 (No. 19-3034), 2019 WL 7494545, at *24-33,
but the Eighth Circuit said that it would only consider a facial challenge if the statute was vague
as applied to the defendant's conduct, 988 F.3d at 1060. The Eighth Circuit did not discuss any
circumstances where a defendant could mount a facial attack to a statute regardless of whether he
succeeded in his as-applied challenge. 988 F.3d at 1060. In any event, Touche is making only an
as-applied challenge here.
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The rationale for this Rule includes preventing courts from making factual findings on
issues that relate to the jury's decision on the merits, the need for a more accurate record, and
concerns about judicial economy. ^United States v. Pope. 613 F.Bd 1255, 1259 (10th Cir.
2010). Thus, for instance, the Eighth Circuit found good cause to defer ruling on the motion to
dismiss in Turner because the defendant's as-applied constitutional challenge required the district
court to resolve factual issues related to the defendant's alleged offense. 842 F.Bd at 605 (holding
that the district court should have waited until trial to resolve the motion to dismiss the indictment).
Similarly,the Tenth Circuit in Pope affirmed the pretrial denial of a motion to dismiss because the
defendant's as-applied constitutional challenge was intertwined with the question of guilt or
innocence and would have required the district court to resolve factual disputes. 61B F.Bd at 1261-
62.
Turner and Pope counsel against deciding Touche's vagueness challenge before trial. First,
Touche's motion raises questions of fact that are intertwined with the merits of the child abuse
charge. See Turner. 842 F.Bd at 605 (explaining that courts may not make factual findings "when
an issue is inevitably bound up with evidence about the alleged offense itself(citation and internal
marks omitted)). After all, Touche asks this Court to declare § 26-10-1 unconstitutionally vague
based on the specific facts of her case. Doc. 42 at 6. Resolving Touche's motion would require
this Court to determine what conduct Touche engaged in on June 10, 2021, and what it was that
she exposed L.M. to that day. These are the same facts a jury would need to decide when
considering whether Touche was guilty of child abuse. United States v. Peneaux. B:18-CR-
B0081-RAL, 2019 WL 248294B, at *B (D.S.D. Jime 14, 2019)(declining to decide a vagueness
challenge to the word "exposes" in § 26-10-1 because doing so would involve resolving facts that
were bound up with the jury's decision on the charge). Second, this Court needs a "more certain
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framework" to analyze Touche's vagueness challenge. The indictment does not provide any
specific facts about Touche's conduct and Touche has not provided any either. Given these
circumstances, a trial on "facts surrounding the commission of the alleged offense" would assist
this Court in ruling on Touche's challenge. Because good cause exists to defer ruling on Touche's
vagueness argument, this Court denies Touche's motion to dismiss without prejudice to Touche
renewing the motion or making the argument in the context of a Rule 29 motion once the
Government has introduced its evidence at trial.
II. Conclusion
For the reasons stated above, it is hereby
ORDERED that Touche's Motion to Dismiss Count II for Unconstitutional Vagueness and
Overbreadth, Doc. 41, is denied without prejudice to Touche making a motion for judgment of
acquittal at trial.
DATED this day of September, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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