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ORDER ON MOTION TO DISMISS FOR

LACK OF SUBJECT MATTER

JURISDICTION

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, 

Plaintiff,

v.

MARTIN L. GUITARD,

Defendant.

Case No. CR06-0069RSL

ORDER ON MOTION TO DISMISS

FOR LACK OF SUBJECT MATTER

JURISDICTION

I. Introduction

This matter comes before the Court on defendant Martin Guitard’s “Motion to Dismiss

for Lack of Subject Matter Juristiction [sic]” (Dkt. # 44). In the instant motion, Guitard argues

that this Court lacks subject matter over the alleged criminal act because it did not impact

interstate commerce. The government argues that the facts clearly establish that Guitard stole

from an interstate shipment of fuel in violation of a federal statute. At the hearing, the

government argued that Guitard’s motion for summary judgment on this factual question is

premature. Upon consideration of these arguments, the Court now denies the motion.

II. Background Facts

On March 3, 2006, Martin Guitard was charged with one count of conspiracy to steal

interstate shipments, 19 counts of theft of interstate shipments, and 44 counts of money

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ORDER ON MOTION TO DISMISS FOR

LACK OF SUBJECT MATTER

JURISDICTION

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laundering. The charges stemmed from a scheme in which Guitard allegedly stole fuel from the

Harbor Island depot. The fuel arrived at the fuel depot from maritime barges or the Olympic

Pipeline. It was stored temporarily at the depot and later dispatched to retail gas station in the

state of Washington.

III. Analysis

Congress has the power “[t]o regulate Commerce . . . among the several states.” U.S.

CONST. art. I, § 8, cl. 3. Guitard is alleged to have violated 18 U.S.C. § 659, which makes it a

crime to steal “from any tank or storage facility, station, station house, platform or depot . . .

with intent to convert to his own use any goods or chattels moving as or which are a part of or

which constitute an interstate or foreign shipment of freight, express, or other property . . . .” 18

U.S.C. § 659 (emphasis added). This Court has jurisdiction over “all offenses against the laws

of the United States.” 18 U.S.C. § 3231.

Guitard does not dispute that he is charged with a crime against the laws of the United

States, nor does he suggest that this law is unconstitutional. Instead, he asks the Court to

dismiss the action because his particular alleged criminal acts were purely intrastate. This

argument invokes two distinct inquires: (1) whether the indictment was properly supported by

the evidence; and (2) whether the government can present facts that will establish that Guitard’s

actions affected interstate commerce. This motion should have been brought under Rule 12 of

the Federal Rules of Criminal Procedure. FED. R. CRIM. P. 12(b)(3)(B) (“[A]t any time while the

case is pending, the court may hear a claim that the indictment or information fails to invoke the

court’s jurisdiction or to state an offense.”). 

The Court holds that Guitard’s indictment properly invokes the Court’s jurisdiction. 

Section 659 of title 18 of the United States Code criminalizes theft from a pipeline system or

storage facility that is part of interstate commerce. 18 U.S.C. § 659. Other courts have found a

violation of § 659 based on the theft of gas from a storage facility that was part of an interstate

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ORDER ON MOTION TO DISMISS FOR

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JURISDICTION

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pipeline system. United States v. Williams, 559 F.2d 1243, 1247–48 (4th Cir. 1977). The

government alleged that Guitard stole gas from an interstate pipeline system and the grand jury

returned an indictment for this crime. No further inquiry is needed. See Costello v. United

States, 350 U.S. 359, 409 (“An indictment returned by a legally constituted and unbiased grand

jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial

of the charge on the merits.”) (footnote omitted).

Although the indictment is proper, whether Guitard’s actions affected interstate

commerce remains an open question. While this inquiry invokes jurisdictional issues, it is a

question that must be resolved by the trier of fact. Where the Court’s subject matter jurisdiction

involves a mixed question of law and fact, “the issue should be determined at trial. . . . This is

clearly the case when the jurisdictional requirement is also a substantive element of the offense

charged.” United States v. Alfonso, 143 F.3d 772, 777 (2d Cir. 1998). The Court may resolve

such a motion without “‘invad[ing] the province of the’ jury” only if “neither party contest[s] the

facts.” United States v. Phillips, 367 F.3d 846, 855 n.25 (9th Cir. 2004) (citing United States v.

Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986)). It will be the province of the

jury to determine whether the facts presented by the government at trial prove an effect on

interstate commerce sufficient to satisfy the requisite element of the charged offense.

IV. Conclusion

For the foregoing reasons, Guitard’s motion to dismiss for lack of subject matter

jurisdiction (Dkt. # 44) is DENIED.

DATED this 15th day of June, 2006.

A

Robert S. Lasnik

United States District Judge

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