MEMORANDUM OPINION
BRUCE BLACK, District Judge
This matter comes before the Court on the Defendant Robert Warren's motion to dismiss portions of the indictment as multiplicitous under the Double Jeopardy Clause of the Fifth Amendment (Doc. 31). For the following reasons, Mr. Warren's motion is held in abeyance.
Factual and Procedural Background
Mr. Warren has been charged with child-pornography-related offenses as the result of the FBI's execution of a search warrant at his home on July 18, 2008. During the search, the FBI seized evidence from two of Mr. Warren's hard drives. The Government alleges that each hard drive contained prohibited pornographic images. Based on this evidence, the Government filed an indictment charging Mr. Warren with seven counts under 18 U.S.C. § 2252. Counts One through Five allege that he received child pornography in violation of 18 U.S.C. § 2252(a)(2). Counts Six and Seven allege that he possessed child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
In the interest of concision, the Court uses "child pornography" to denote the visual depiction of a minor engaging in sexually explicit conduct, as prohibited by 18 U.S.C. § 2252. The Court is aware that 18 U.S.C. § 2256(8) defines the term "child pornography," but the Court's usage should not be read to adhere to that definition. Rather, the Court simply uses the term "child pornography" here because it is much shorter than saying "the visual depiction of a minor engaging in sexually explicit conduct."
In response to the Indictment, Mr. Warren makes three arguments. First, he argues that Double Jeopardy prohibits convictions for both "receiving" and "possessing" child pornography. The crux of this argument is that possession is a lesser-included offense of receipt and that — because lesser- and wholly-included offenses are considered to be part of the including-offense — Mr. Warren is being charged twice for the same act. Thus, according to Mr. Warren, punishment for both receipt (Counts One through Five) and possession (Counts Six and Seven) would violate Double Jeopardy.
Next, Mr. Warren argues that one of the two possession counts (Counts Six and Seven) should be dismissed because, under the statutory language, only one count of possession can arise from an individual's possession of "one or more" prohibited images, regardless of how many hard drives were involved.
Finally, Mr. Warren argues that Counts Two and Four and Three and Five are multiplicitous — meaning, in essence, that they charge a defendant twice for relatively contemporaneous conduct that forms parts of the same act. Because the Double Jeopardy Clause prohibits multiplicitous charges, see, e.g., United States v. McCullough, 457 F.3d 1150, 1162 (10th Cir. 2006), Mr. Warren asks this Court to dismiss one of each pair of counts — either Count Two or Four and either Count Three or Five.
Mr. Warren asks that his requested dismissals take place before trial.
Analysis
Found in the Fifth Amendment, the Double Jeopardy clause provides, "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Double Jeopardy has been read to prohibit both "successive prosecutions for the same offense after acquittal or conviction" and the imposition of "multiple criminal punishments for the same offense." Monge v. California, 524 U.S. 721, 727-28 (1998).
Mr. Warren's concerns revolve around the latter — namely that he may receive multiple criminal punishments for the same offense or, at least, the same conduct. But the imposition of punishment is not afoot for Mr. Warren and, because he is innocent unless and until proven otherwise, he may never be subjected to any punishment at all. Given, inter alia, the possibility that the defendant will be acquitted on one or more counts, district courts have the discretion to hold off on deciding Double-Jeopardy questions until it becomes necessary. See, e.g., United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir. 1997) ("A decision of whether to require the prosecution to elect between multiplicitous counts before trial is within the discretion of the trial court."); U.S. v. Patterson, 2009 WL 1255448, *4 (D.N.M. 3/3/09) ("When confronted with a multiplicitous indictment, a trial court has the discretion to dismiss the multiplicitous counts or to require the government to elect between the multiplicitous counts before trial, or to vacate one of the multiplicitous convictions after trial.").
The Court exercises its discretion to do so here. The indictment, in its present form, is unlikely to confuse the jury and presents little danger that the jury will find Mr. Warren guilty of some charges simply because of the volume of counts leveled. Each count will require the Government to prove specific facts. For each of Counts One through Five the Government will endeavor to prove, inter alia, that Mr. Warren received a specific file on a specific date; for each of Counts Six and Seven, the Government will endeavor to prove that Mr. Warren possessed at least one specific file on a specific drive on June 18, 2009 (the date on which the warrant was executed). Given the factual dependency of each Count charged, proof of one is unlikely to satisfy the jury with regard to another.
Moreover, the Court will be aided in its consideration of Mr. Warren's Double-Jeopardy arguments by the presentation of evidence. If, for instance, the Government's case relies on the same conduct for more than one Count, some of Mr. Warren's Double-Jeopardy arguments will carry more weight. Conversely, if each Count rests on separate and distinct activity, some will be less convincing. Regardless, the Court will be better positioned to evaluate any possible risks to Mr. Warren's rights after the presentation of evidence.
Finally, this Court emphasizes its reticence to reach Mr. Warren's constitutional arguments before it has to. Courts should not "anticipate a question of constitutional law in advance of the necessity of deciding it." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J. concurring) (citing Liverpool, N.Y. Phila. Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39 (1885)). Where, as here, no party is prejudiced by the tabling of a constitutional issue and the delay may well alleviate the need to reach it, courts are well-advised to take a wait-and-see approach. This Court does so here.
Conclusion
Accordingly, Mr. Warren's motion to dismiss is held in abeyance until such time as it is necessary to decide it.
tated it would be applied on a case-by-case basis. SGM likewise "did not affect the rights of a `broad class' of people, and so no notice and comment was required," as it was not rulemaking.
See MacLean v. Dep't of Homeland Security, 543 F.3d 1145, 1152 (9th Cir. 2008). It was applied to "specific individuals in specific cases," namely each of the Hospitals, and involved the "concrete dispute[]" of the calculation of a PRA for hospitals with less than three comparable hospitals in the area.
See Yesler Terrace, 37 F.3d at 448.
The effect was immediate; once the Hospitals received the letter, they knew their PRA and therefore their subsequent DGME reimbursement. See id.; see also RLC Indus. Co. v. Commissioner, 58 F.3d 413, 417 (9th Cir. 1995) ("Rulemaking, the quasi-legislative power, is intended to add substance to the Acts of Congress, to complete absent but necessary details . . . Adjudication, the quasi-judicial power, is intended to provide for the enforcement of agency . . . regulations on a case-by-case basis.") (citations omitted); Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1540 (9th Cir. 1993) ("Where an agency's task is to adjudicate disputed facts in particular cases, an administrative determination is quasi-judicial. By contrast, rulemaking concerns policy judgments to be applied generally in cases that may arise in the future.") (citations omitted).
"Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all . . . lack the force of law" Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). The PRRB, therefore, had the authority to decide the question at issue because it did not involve a question of law or regulations. See § 1395oo(f)(1). The Board incorrectly determined that it lacked authority to decide the issue, and, as a result, incorrectly granted EJR. Therefore, the district court lacked jurisdiction over the validity of SGM. We vacate the district court's invalidation of SGM, and remand to the district court with instructions to dismiss the Hospitals' challenge and further remand to the agency for it to determine the validity of the methodology.
Because we find the district court lacked subject matter jurisdiction, and remand to the agency to consider the validity of SGM, we do not address the Hospitals' appeal of the district court's exclusion of evidence of comparable programs in its remedy determination following its invalidation of SGM, and the Hospitals' challenge to the district court's failure to specify that its remedy was based on the 1989 regulation itself.
B. The 1989 Regulation
The remaining issue before us, from the Hospitals' cross appeal, is whether the district court erred in concluding the 1989 regulation was both substantively and procedurally valid on its face. The Hospitals argue the district court erred in failing to invalidate, under Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778, the portion of the 1989 regulation applicable to hospitals in geographic wage areas with less than three teaching hospitals, because the regulation deviated from the mandate of 42 U.S.C. § 1395ww(h)(2) by "impermissibly differentiat[ing] a subset of new teaching programs from all others." They also argue the 1989 regulation was arbitrary and capricious under 5 U.S.C. § 706(2)(A) due to the Secretary's failure to provide notice of or rationale of the methodology to be applied by the HCFA with respect to Hospitals in a geographic wage area with less than three hospitals.
The Hospitals do not otherwise challenge the substance of the 1989 regulation.
The district court did not err in upholding the validity of the regulation under Chevron, nor did it err in declining to find the 1989 regulation arbitrary and capricious. 1. Chevron step one
The district court's reasoning for declining to reach the § 706(2)(A) analysis was, however, incorrect. The replacement of the 1989 regulation by the 1997 regulation did not render the Hospitals' claim moot. Despite the replacement regulation, the Hospitals suffered losses to their allotted DGME payments under the calculation of their PRAs during the 1990s under the carveout provision of the 1989 regulation.
We ask first "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. Here, the statute is ambiguous with respect to the Secretary's responsibility of establishing PRAs for post-1984 DGME programs. The plain language of the statute is based in the ambiguous term "comparable programs": "the Secretary shall . . . provide for such approved FTE [full-time equivalent] resident amounts as the Secretary determines to be appropriate, based on approved FTE resident amounts for comparable programs." 42 U.S.C. § 1395ww(h)(2). Congress, however, provided no criteria to determine program compatibility.
The Hospitals cite to the Federal Register, and the Secretary's "inten[t] to establish reasonable base-year DGME costs in a manner that would not disadvantage new programs." However, in that same text of the regulation, the Secretary also notes, "If there are fewer than three amounts in the wage area, we are proposing that the intermediary write HCFA Central Office for a determination of the per resident amount to use. The per resident amount used for the first year would be updated in future years without regard to actual costs." 53 Fed.Reg. at 36595 (emphasis added). Simply indicating that the Secretary did not want hospitals to be disadvantaged is not an indication of the meaning of "comparable," and certainly does not preclude this portion of the 1989 regulation, particularly when the Secretary notes that updates in future years will be without regard to actual costs.
The Hospitals also contend the "comparable programs" requirement is rendered superfluous by the portion of the Secretary's regulation here, and that the Secretary's interpretation "adds new language to the statute not contained therein," thereby creating two different classes of new teaching programs. Nothing in the statute, however, attempts to define "comparable programs," or exclude any possible definitions; the regulation merely defines what is ambiguous within the statute.
2. Chevron step two
Under Chevron step two, if congressional intent is ambiguous, a reviewing court must defer to the agency's interpretation of the statute unless it is "contrary to clear congressional intent or frustrates the policy Congress sought to implement." Schneider v. Chertoff, 450 F.3d 944, 960 (9th Cir. 2006). The Hospitals argue nothing in the statute implies the Secretary may treat hospitals in wage areas with less than three teaching hospitals different from all other new programs. However, nowhere does the statute itself forbid the Secretary from making such an exception. The district court correctly noted that "[g]iven the absence of clear congressional intent to the contrary, it was permissible for the Secretary to provide for the exceptional situation presented by hospitals with new GME programs located in areas where a meaningful average could not be calculated." Therefore, the challenged regulation was correctly deemed valid and accorded Chevron deference.
3. Arbitrary and capricious challenge
The 1989 regulation was promulgated via informal rulemaking under 5 U.S.C. § 553, and such action may be set aside if found "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An arbitrary and capricious challenge requires us to adhere to a narrow scope of review, wherein we are "not to substitute[our] judgment for that of the agency." State Farm, 463 U.S. at 43, 103 S.Ct. 2856. The agency, however, is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made," id. (internal quotation marks and citation omitted), and we in turn must review that explanation, considering "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (internal quotation marks and citation omitted). A rule is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.
In our analysis of whether an agency's action was arbitrary or capricious, we are required to be "highly deferential, presuming the agency action to be valid." J G Sales Ltd. v. Truscott, 473 F.3d 1043, 1051 (9th Cir. 2007) (citing Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 830-31 (9th Cir. 2002)). "Where [an] agency's line-drawing does not appear irrational and the party challenging the agency action has not shown that the consequences of the line-drawing are in any respect dire, courts will leave that line-drawing to the agency's discretion." Id. at 1052 (citing Leather Indus. of Am. v. EPA, 40 F.3d 392, 409 (D.C. Cir. 1994) (internal modifications and quotation marks omitted)). And while an agency should provide a reasoned basis for its actions, State Farm, 463 U.S. at 43, 103 S.Ct. 2856, we "will uphold a decision of less than ideal clarity if the agency's path may be reasonably discerned." McFarland v. Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008) (citing State Farm, 463 U.S. at 43, 103 S.Ct. 2856) (internal modifications and quotation marks omitted).
The Hospitals argue the 1989 regulation was arbitrary and capricious, first because the Secretary did not articulate any justification for treating a subset of new teaching programs differently from all others when she permitted HCFA to make the PRA determination of hospitals with fewer than three hospitals in a given wage area. The Secretary's assumption in creating this "carveout" exception appears to be that the resulting mean value of PRAs for hospitals with less than three hospitals in a given wage area is inaccurate. On its face, the assumption does not appear unreasonable or arbitrary; calculating a mean from a larger pool results in a more accurate number than an average of two numbers (two hospitals in a given wage area) or the reliance on one number alone. And while the failure to provide an explanation for the choice of the carveout is troubling, see State Farm, 463 U.S. at 50-51, 103 S.Ct. 2856, it does not appear to rise to the level of "rel[ying] on factors which Congress has not intended it to consider, entirely fail[ing] to consider an important aspect of the problem, offer[ing] an explanation for its decision that runs counter to the evidence before the agency, or [being] so implausible that it could not be ascribed to a difference in view or the product of agency expertise." See State Farm, 463 U.S. at 43, 103 S.Ct. 2856; cf. id. at 46, 103 S.Ct. 2856 (rescission of a regulatory provision by NHSTA arbitrary and capricious where the agency "gave no consideration whatever to modifying the standard" to require the use of airbag technology) (emphasis added); see also J G Sales Ltd., 473 F.3d at 1052 (agency's demand letter with reliance on absolute number of firearms traces was not arbitrary and capricious because "[t]he agency need not craft the perfect threshold in order to survive review, but merely demonstrate that its threshold stems from reasoned decision making . . . [which] the agency has done"). The carveout provision does not appear to be a product of irrational line-drawing, and the Hospitals, while they have shown a loss of funds from the provision, have not "shown that the consequences of the line-drawing are in any respect dire." See J G Sales Ltd., 473 F.3d at 1052 (internal quotation marks and citation omitted).
Alternatively, according to the Hospitals, the 1989 regulation was arbitrary and capricious because the Secretary "failed to consider key aspects of the issue, or to provide a plausible explanation for this decision" when she did not modify the final rule based on comments she received, and did not explain how criteria reported in the rule "would ensure that PRAs were set based on reasonable costs and truly comparable programs." However, the comments cited by the Hospitals do not address the perceived inappropriateness of treating hospitals with less than three in a wage area differently from other hospitals. The district court, therefore, did not err in failing to find the 1989 regulation arbitrary and capricious.
IV. CONCLUSION
The district court lacked subject matter jurisdiction to consider the validity of SGM. We vacate the district court's invalidation of SGM, and remand to the district court with instructions to dismiss the Hospitals' challenge and further remand to the agency for it to determine the validity of the methodology. We affirm the district court's determination that the 1989 regulation was substantively and procedurally valid.
VACATED AND REMANDED IN PART; AFFIRMED IN PART. Each party shall bear its own costs on appeal.