United States District Court, D. Kansas
MEMORANDUM AND ORDER
HONORABLE J. THOMAS MARTEN UNITED STATES DISTRICT COURT
August 21, 2018, the Court entered a Memorandum and Order
(Dkt. 322) denying Defendant Dominic Pearson's Motion for
Judicial Notice Pursuant to Rule 201 (Dkt. 321). This matter
is again before the court on defendant's Motion to
Reconsider(Dkt. 323), filed September 7, 2018.
Defendant argues that the court's prior order was legally
incorrect and based on an improper bias in favor of counsel
for the United States of America.
Federal Rules of Criminal Procedure do not contemplate
motions for reconsideration. But, the Supreme Court does,
recognizing in criminal proceedings the “‘wisdom
of giving district courts the opportunity promptly to correct
their own alleged errors.” U.S. v. Randall,
666 F.3d 1238, 1241-42 (10th Cir. 2011) (quoting
U.S. v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50
L.Ed.2nd 8 (1976)). The Tenth Circuit has
recognized that criminal defendants can move for
reconsideration. Id. at 1242 (citing U.S. v.
Miller, 869 F.2d 1418, 1421 (10th Cir.
1989)). District of Kansas Local Rule 7.3(b) allows a party
to file a motion asking a judge to reconsider a
non-dispositive order, provided that the motion is based on
“(1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct
clear error or prevent manifest injustice.” D. Kan.
court exercises its discretion to construe defendant's
motion as a motion for reconsideration of a non-dispositive
order pursuant to D. Kan. Rule 7.3(b). See Been v. O.K.
Indus., 495 F.3d 1217, 1225 (10th Cir. 2007)
(“[D]istrict courts generally remain free to reconsider
their earlier interlocutory orders.”). District of
Kansas Local Rule 7.3(b) sets forth the standard for this
court's consideration of defendant's motion, and
mirrors the standard set forth in Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000) (“Grounds warranting a motion to reconsider
include (1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to
correct clear error or prevent manifest injustice.”).
Consequently, defendant may be entitled to relief if he shows
an intervening change in the law regarding his motion for
judicial notice, new evidence previously unavailable to him
when he filed his motion for judicial notice, or a need to
correct a clear error or prevent manifest injustice.
does not claim that any change in law or newly discovered
evidence supports his Motion for Reconsideration. Rather, he
argues that this court erred in its conclusion that his Rule
201 motion was “time-barred.” (See Dkt.
323 at 1). Defendant argues that a motion based upon
subject-matter jurisdiction cannot be time-barred.
Defendant's original position, however, was that the
United States Attorneys who prosecuted his case were not
properly appointed. As this court noted in its Memorandum and
Order (Dkt. 322 at 3), he complains of a defect in the
prosecution of the case, which must be raised by pretrial
motion “if the basis for the motion is then reasonably
available and the motion can be determined without a trial on
the merits.” Fed. R. Crim. P. 12(b)(3)(A)-(B).
only did defendant waive his argument by failing to present
it before trial, his claim does not affect the court's
subject-matter jurisdiction over the case. The improper
appointment of a United States Attorney under the
Appointments Clause affects neither the government's
power to prosecute nor the court's jurisdiction over the
the case. See U.S. v. Suescun, 237 F.3d 1284, 1287
(11th Cir. 2001) (the “appointment of a
United States Attorney that is not made as provided by the
Appointments Clause does not affect the government's
power to prosecute.”); U.S. v. Fitzhugh, 73
F.3d 1326, 1330 (8th Cir. 1996) (“the
court's power to regulate the attorneys who appear before
it does not affect the court's jurisdiction over the
has not offered any contrary authority. Although defendant
cites Lucia v. Securities and Exchange Commission,
__ U.S. __, 138 S.Ct. 2044 (2018), Lucia dealt with
the appointment of administrative law judges within the SEC,
not the appointment of assistant United States Attorneys. 138
S.Ct. at 2049 (“[t]his case requires us to decide
whether administrative law judges … of the Securities
and Exchange Commission … qualify as [“Officers
of the United States”].”). The Supreme Court held
that administrative law judges are “Officers of the
United States, ” such that their appointment must be
made by the President, the courts, or the head of a
department. Id. at 2051, 2055. In contrast, not only
did Lucia fail to address the appointment of United
States Attorneys, but the only evidence defendant offered in
support of his original Rule 201 Motion was a copy of an
Appointment Affidavit showing that Lanny D. Welch, United
States Attorney, was appointed to that position on September
4, 2009 by United States District Judge Eric F. Melgren.
(Dkt. 321, at 9).
has not demonstrated that the court committed a clear error
of law when it denied his motion. Nor has defendant
demonstrated any manifest injustice in this court's
decision. Defendant contends that the court engaged in a
“quest to ‘protect' the Government's
attorneys” and “denied the Movant his right to
due process of law” by failing to address the
court's subject-matter jurisdiction. (Dkt. 323, at 2). As
indicated above, however, even if defendant's argument
concerning the invalid appointment of the prosecutors on his
case were true, precedent dictates those appointments would
not have affected either the government's power to
prosecute or this court's jurisdiction over the case.
Ultimately, defendant offers nothing to show an improper bias
on the part of this court other than the fact that the court
did not rule in his favor.
Court recognizes defendant's right to seek
reconsideration of the Court's prior order, but defendant
has failed to meet the standard necessary for this court to
revisit its prior decision. Defendant's Motion for
Reconsideration is therefore DENIED.
Defendant has alternately styled his
Motion as a Notice of Appeal, which has been docketed by the
10th Circuit Court of Appeals as Appeal No.
18-3191. The 10th Circuit has abated the appeal
pending this Court's ruling on the instant Motion for