USA v. Mujahid
Initial Report and Recommendation
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
INITIAL REPORT AND
DEFENDANT’S MOTION TO DISMISS
SABIL MUMIN MUJAHID,
I. MOTIONS PRESENTED
Defendant Sabil Mujahid (Mujahid) is charged in a twelve-count indictment (Docket 2).
The indictment charges him with four counts of aggravated sexual abuse in violation of 18
U.S.C. § 2241(a)(1), four counts of sexual abuse in violation of 18 U.S.C. § 2242(1), two counts
of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1), and two different counts of
abusive sexual contact in violation of 18 U.S.C. § 2244(a)(2). All three of these statutes—18
U.S.C. §§ 2241(a)(1), 2242(1), and 2244(a)—make it a crime to commit a specified type of
sexual abuse in federal prison or “or in any prison, institution, or facility in which persons are
held in custody by direction of or pursuant to a contract or agreement with the head of any
Federal department or agency.” At the time of the alleged offense, Mujahid was a federal
prisoner housed by the Alaska Department of Corrections at the Anchorage Correctional Center,
pursuant to a contract between the Alaska Department of Corrections and the federal
government. (Doc. 25 at 5). Mujahid argues that these statutes are unconstitutional on their face
and as applied because Congress does not have the power to suppress violent crime that occurs in
state jails and that these three statutes contravene the Tenth Amendment. He therefore requests
that this Court dismiss the indictment against him.
The Government opposes the motion. The Government argues that while Mujahid
declares that he is challenging the statutes both facially and as applied, the supporting
memorandum only puts forth a facial challenge and does not present an alternative argument
explaining how the statute, if constitutional on its face, would nonetheless be unconstitutional as
applied to Mujahid. The Government argues that based upon a recent Supreme Court case,
United States v. Comstock, 130 S.Ct. 1949 (2010), the Necessary and Proper Clause provides
Congress with the authority to enact statutes that address prison administration and safety, such
as the three statutes at issue in the indictment.
A. Comstock – Necessary and Proper Clause
The Government asserts that the Supreme Court’s recent decision in Comstock contains
reasoning and analysis that precludes Mujahid’s argument about the validity of 18 U.S.C. §§
2241(a), 2242(1), and 2244(a). In Comstock, the Court examined the constitutionality of 18
U.S.C. § 4248, which authorizes the Department of Justice to use a civil commitment procedure
to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would
otherwise be released. The specific constitutional issue in Comstock was whether Congress has
the authority under Article I of the Constitution to enact such a civil commitment program or
whether such an enactment falls beyond the reach of Congress’s enumerated powers. The Court
made clear that the opinion did not address whether a civil commitment under the statute would
violate other provisions under the Constitution, such as Due Process. Comstock, 130 S.Ct. at
The Supreme Court held that 18 U.S.C. § 4248 was constitutional under the Necessary
and Proper Clause, Art. I, § 8, cl. 18. The Court based its decision on five considerations: “(1)
the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in
this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s
custodial interest in safeguarding the public from dangers posed by those in federal custody, (4)
the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” Comstock,
130 S.Ct. at 1965. While the holding of Comstock does not address the statutes at issue in this
case, the Court’s discussion of the Necessary and Proper Clause and its discussion of the federal
Government’s custodial interest in safeguarding the public from dangers posed by those in
federal custody are relevant to this Court’s analysis.
When determining whether the Necessary and Proper Clause provides Congress with the
power to enact a statute, courts must “look to see whether the statute constitutes a means that is
rationally related to the implementation of a constitutionally enumerated power.” Comstock, 30
S.Ct. at 1956. In order to enforce its specific enumerated powers—such as the power to regulate
interstate commerce, to establish post offices, to enforce civil rights, to regulate naturalization, to
spend funds for the general welfare— Congress may enact criminal laws pursuant to the
Necessary and Proper Clause. Id. at 1957. So while nowhere in the Constitution is there
mention of Congress’s powers to create federal crimes beyond a specific few, the Supreme Court
has recognized that the Constitution grants Congress broad authority under the Necessary and
Proper Clause to create such crimes. Id.
The Court in Comstock rejected the respondent’s argument that in order for the statute to
be rationally related to the implementation of a constitutionally enumerated power and thus
proper under the Necessary and Proper Clause, there cannot be more than a single step between
an enumerated power and that statute. Id. at 1964. It reasoned that Congress, in order to enforce
the federal criminal laws that are enacted in furtherance of its enumerated powers, has multiple
levels of implied powers under the Necessary and Proper Clause. Congress can build prisons to
house those sentenced under federal law and, in turn, “can enact laws that seek to ensure that
system’s safe and responsible administration,” and “can also ensure the safety of the prisoners,
prison workers and visitors, and those in the surrounding communities by, for example, creating
further criminal laws governing entry, exit, and smuggling, and by employing prison guards to
ensure discipline and security.” Id. at 1958. In other words, even though not explicitly mentioned
in the Constitution, Congress has the implied power to criminalize conduct pursuant to the
Necessary and Proper Clause and from that implied power it has the additional power to imprison
individuals who engage in that conduct and the power to enact laws governing prisons and
prisoners. Id. at 1958, 1963-64.
The Court in Comstock also reasoned that 18 U.S.C. § 4248 is valid under the Necessary
and Proper Clause because the federal Government has a responsibility to act as the custodian of
federal prisoners. Again, while such power is not explicitly enumerated, the Court noted that this
custodial power stems from Congress’s power to enact criminal statutes that in turn implement
constitutionally enumerated powers. Id. at 1961. As a custodian, Congress has the constitutional
power to protect others from the danger federal prisoners may pose. Id. at 1961. The Court
concluded that § 4248 is reasonably adapted to Congress’s power to act as a custodian of its
B. Comstock’s application to 18 U.S.C. §§ 2241, 2242, and 2244
Comstock did not address the statutes challenged in this motion. Thus, the holding of
Comstock is not directly applicable to the motion in this case. But the rationale used by the
Supreme Court in upholding § 4248 under the Necessary and Proper Clause guides this Court’s
Based on the Court’s rationale in Comstock, this Court must conclude that the criminal
statutes in §§ 2241(a), 2242(1), and 2244(a)—all of which criminalize specific sexual conduct
that occurs in federal prisons or prisons where federal prisoners are held pursuant to contract with
a federal agency—are constitutionally enacted by Congress under the Necessary and Proper
Clause. These statutes criminalize certain conduct that occurs in a place where federal prisoners
are in custody. Federal prisoners are in custody because of convictions under federal criminal
statutes, which Congress clearly has the power to enact in order to implement its enumerated
powers. Because the federal government has custodial responsibilities in relation to these federal
prisoners and in order to ensure the enforcement of the underlying federal criminal code,
Congress has the further power to enact laws that govern prison administration and safety, such
as laws that prohibit certain sexual conduct in places where federal prisoners are housed.
Mujahid contends that while Congress has the power to criminalize and punish conduct in
order to effectuate an enumerated power, the statutes at issue—§§ 2241, 2242, and 2244—do not
directly effectuate an enumerated power. As discussed above, the Court in Comstock clearly
rejected the “respondents’ argument that the Necessary and Proper Clause permits no more than a
single step between an enumerated power and an Act of Congress.” Comstock, 130 S.Ct. at 1964.
It stated that, while removed from the enumerated powers by multiple steps, statutes that address
prison safety and prisoner behavior are also valid under the Necessary and Proper Clause because
they are still rationally related to the implementation of an enumerated power. It reasoned that
federal criminal statutes are valid under that clause because they implement Congress’s
enumerated powers, and it further reasoned that criminal statutes regulating prisoner conduct
and safety are also valid under the Necessary and Proper Clause because they help ensure the
enforcement of the federal criminal framework. Id. at 1958. After careful review of the
Comstock decision, it is clear that federal criminal statutes criminalizing abusive sexual conduct
that occurs in federal prisons or places where federal prisoners are housed should be upheld as
proper under the Necessary and Proper Clause.
While the allegations in this case stem from when Mujahid was housed at the jail in
federal custody, he further argues that these statutes could be applied to prosecute state workers
and inmates and other non-federal people and therefore the statutes are facially unconstitutional.
The fact that the statute could be applied to a state prisoner housed in a facility where there are
federal prisoners (which is not the situation in this case) does not alter this Court’s analysis
because the statutes are still a part of the larger federal prison management and safety framework.
The statutes apply so that any crime committed in a place where federal prisoners are housed can
be deterred and punished, protecting not only those near the federal prisoners but also protecting
the federal prisoners from illegal conduct by state prisoners or prison workers.
This Court agrees with the Government that Mujahid has not advanced an as-applied
constitutional argument in this case. As stated above, Mujahid was at the Anchorage jail as a
federal prisoner. He did not make the Court aware of any other particular facts that suggest these
statutes are unconstitutional as applied to him.
C. Tenth Amendment
Mujahid also contends that the three statutes at issue in this case violate the Tenth
Amendment because the power to punish violent conduct in state-owned jail facilities has been
reserved to the state. Under the Tenth Amendment, “powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people.” U.S. Const. amend. X. But this Court has concluded, based on Comstock, that the
statutes are valid under the Necessary and Proper Clause and thus are authorized by the
Constitution. Because the Constitution authorizes the federal Government to enact laws related
to federal prisoners, including laws that address violent conduct in facilities where federal
prisoners are held in custody, such power is not within the exclusive province of the state. See
Comstock, 130 S.Ct. at 1962.
Based on the foregoing analysis, this Court respectfully recommends that the Motion to
Dismiss the Indictment with Prejudice at Docket 24 be DENIED.
DATED this 17th day of December, 2010, at Anchorage, Alaska.
/s/ Deborah M. Smith
DEBORAH M. SMITH
United States Magistrate Judge
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and
recommendation shall file written objections with the Clerk of Court no later than CLOSE OF
BUSINESS, JANUARY 3, 2011. Failure to object to a magistrate judge’s findings of fact may
be treated as a procedural default and waiver of the right to contest those findings on appeal.
McCall v. Andrus, 628 F.2d 1185, 1187-89 (9th Cir. 1980), cert. denied, 450 U.S. 996 (1981).
The Ninth Circuit concludes that a district court is not required to consider evidence introduced
for the first time in a party’s objection to a magistrate judge’s recommendation. United States v.
Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages
in length, and shall not merely reargue positions presented in motion papers. Rather, objections
and responses shall specifically designate the findings or recommendations objected to, the basis
of the objection, and the points and authorities in support. Response(s) to the objections shall be
filed on or before CLOSE OF BUSINESS, JANUARY 10, 2011. The parties shall otherwise
comply with provisions of D.Ak.L.M.R. 6(a). The shortened objection and response deadlines
are necessary due to the looming trial date.
Reports and recommendations are not appealable orders. Any notice of appeal pursuant
to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court’s judgment. See
Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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