United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING MOTION TO DISMISS WITHOUT PREJUDICE
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
Government charged Jamie Lynn Peneaux (Peneaux) with two
counts of child abuse. Doc. 1. Peneaux moved to dismiss both
counts on the basis that the charges are unconstitutionally
vague within the meaning of the Due Process Clause of the
Fourteenth Amendment. Doc. 29. On May 20, 2019, Judge Moreno
issued a Report and Recommendation recommending Peneaux's
motion be denied without prejudice, or alternatively, the
motion be denied in its entirety. Doc. 35. Peneaux has now
objected to that Report and Recommendation. Doc. 36.
Court reviews a report and recommendation pursuant to the
statutory standards found in 28 U.S.C. § 636(b)(1),
which provides in relevant part that "[a] judge of the
[district] court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). Having conducted a de novo review, this
Court adopts the Report and Recommendation to deny the motion
without prejudice to motion for judgment of acquittal under
Rule 29 at trial.
following facts have been conceded by Peneaux for the purpose
of his motion. Doc. 32. Peneaux is the mother of two
children, R.B., whose date of birth is November 10, 2012, and
R.P, who was born prematurely on December 5, 2013. On
December 23, 2014, Peneaux had several people at her
residence, including R.B., R.P., and her ex-boyfriend,
Richard Bordeaux (Bordeaux). Bordeaux had been abusive to
Peneaux throughout their relationship. A group of adults at
the residence were consuming alcoholic beverages and smoking
marijuana. After some of the adults left the home, Peneaux
and Bordeaux took R.B. and R.P. upstairs to go to bed. There
is some question as to where everyone was sleeping, but
Peneaux has stated that she was on one side of the bed and
R.B. was next to her. R.P. was next to R.B., and Bordeaux
slept on the other side of the bed, next to R.P.
about 3:00 a.m. on December 24, 2014, Bordeaux woke Peneaux
and said that R.P. was not breathing. Richard was holding
R.P. Peneaux called her mother and 911. Bordeaux grabbed the
remaining alcohol and left. R.P. was declared deceased by the
Todd County Coroner at 4:04 a.m. the same morning. At about
5:30 a.m., law enforcement took a preliminary breath test of
Peneaux with a reading of .046% by weight of alcohol. A
pathologist did an autopsy on R.P. In his post-mortem report,
the pathologist stated that the cause of death was
"[u]ndetermined, possible asphyxia related" and
that the manner of death was "[u]ndetermined."
12, 2018, Peneaux was charged in a two-count Indictment with
child abuse. The two counts relate to two different minor
victims, but contain virtually identical language: "On
or about the 24th day of December, 2014, at Mission, in
Indian country, in the District of South Dakota, Jamie Lynn
Peneaux, an Indian, did abuse, expose, torture, torment, and
cruelly punish [R.P. and R.B., respectively], a child who had
not attained the age of seven, in violation of 18 U.S.C.
§ 1153 and SDCL 26-10-1." Doc. 1.
argues that the South Dakota child abuse statute is
unconstitutionally vague because the criminal act to
"expose" a child is vague and unclear as to what
conduct in being proscribed. Voiding a statute for vagueness
is a recognition that "criminal responsibility should
not attach where one could not reasonably understand that
[her] contemplated conduct is proscribed." United
States v. Birbragher. 603 F.3d 478, 484-85 (8th Cir.
2010) (quoting United States v. Washam. 312 F.3d
478, 929 (8th Cir. 2010)). To determine whether a statue is
unconstitutionally vague, courts apply a two-part test.
Skilling v. United States, 561 U.S. 358, 412 (2010);
see also Kolender v. Lawson. 461 U.S. 352, 357
(1983). "A statute is void for vagueness if it: (1)
fails to provide a person of ordinary intelligence fair
notice of what 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.) (citation omitted), cert, denied, 139
S.Ct. 290 (2018).
Dakota Codified Law § 26-10-1 entitled "Abuse of or
cruelty to minor as felony" states, in part, "[a]ny
person who abuses, exposes, tortures, torments, or cruelly
punishes a minor in a manner which does not constitute
aggravated assault, is guilty of a Class 4 felony. If the
victim is less than seven years of age, the person is guilty
of a Class 3 felony." SDCL § 26-10-1.
challenges like the one Peneaux makes are evaluated in light
of the facts of the particular case. United States v.
Mazurie, 419 U.S. 544, 550 (1975). Peneaux acknowledges
that she must show that the statute is vague as applied to
her particular conduct to succeed by asking this Court to
determine the constitutionality of the word
"expose" in light of the "specific facts"
of this case. Doc. 32 at 5; United States v. Bramer,
832 F.3d 908, 909 (8th Cir. 2016) (per curiam); see also
United States v. Frison, 825 F.3d 437, 442 (8th Cir.
2016) ("We consider whether a statute is vague as
applied to the particular facts at issue, for a plaintiff who
engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the
conduct of others." (cleaned up) (citation omitted)).
an as-applied challenge, courts look "to whether the
statute gave adequate warning, under a specific set of facts,
that the defendant's behavior was a criminal
offense." United States v. Palmer, 917 F.3d
1035, 1038-39 (8th Cir. 2019) (citation omitted). Any ruling
on Peneaux's vagueness argument would be premature at
this stage of the 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 of a
motion to dismiss only when "trial of the facts
surrounding the commission of the alleged offense would be of
no assistance in determining the validity of the
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).
objected to the Report and Recommendation because she
believes that Judge Moreno inaccurately characterized facts
in her brief when coming to his recommendation, Doc. 36 at 2,
but Peneaux's argument illustrates why it makes sense to
deny Peneaux's motion without prejudice to making a
motion pursuant to Rule 29. Under Rule 12, courts are not to
make 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. See United States v.
Pope, 613 F.3d 1255, 1259 (10th Cir. 2010). Rather,
courts are to defer such matters for trial. 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.3d 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. 613 F.3d at 1261-62.
and Pope counsel against deciding Peneaux's
vagueness challenge before trial. First, Peneaux's motion
raises questions of fact that are intertwined with the merits
of the child abuse charge. See Turner, 842 F.3d 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)). And an as-applied challenge like Peneaux's
asks "whether the statute gave adequate warning,
under a specific set of facts, that the
defendant's behavior was a criminal offense."
Palmer, 917 F.3d at 1038-39 (emphasis added). To
rule on Peneaux's motion, then, this Court would need to
resolve facts that are bound up with the jury's decision
on the charge, namely what conduct Peneaux actually engaged
in on the morning of December 24, 2014. As fully explained by
Judge Moreno, deciding whether Peneaux's conduct meets
the definition of "expose," or alternatively
"torments," or "cruelly punish"
considering the disjunctive nature of the statute, will
require the jury to consider the facts presented at trial.
See SDCL § 26-10-1 (penalizing whomever "abuses,
exposes, tortures, torments, or cruelly punishes a
minor" (emphasis added)); United States v. Van
Nguyen. 602 F.3d 886, 900 (8th Cir. 2010) ("[W]here
a 'statute specifies two or more ways in which one
offense may be committed, all may be alleged in the
conjunctive in one count of the indictment, and proof of any
one of the methods will sustain a conviction.'"
(quoting United States v. Roy, 408 F.3d 484, 492 n.4
(8th Cir. 2005))), abrogated on other ...