United States v. Johnson

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE

         This matter is before the court on pro se^[1] defendant Larry Johnson's Motion to Dismiss Indictment (Doc. 58). After considering the arguments asserted in Mr. Johnson's motion, the government's Response (Doc. 61), and Mr. Johnson's Reply (Doc. 67), the court concludes that it can decide Mr. Johnson's motion based on the parties' filings. None of the arguments can support Mr. Johnson's request to dismiss the Indictment. This Order addresses those issues and, below, explains why none of them support Mr. Johnson's motion for dismissal of the Indictment.^[2]

         The government has charged Mr. Johnson in a three count Second Superseding Indictment. Doc. 70. Count One charges Mr. Johnson with violating 21 U.S.C. § 841(a)(1) and (b)(1)(C), by knowingly and intentionally possessing cocaine with intent to distribute. Count Two charges Mr. Johnson with violating 18 U.S.C. §§ 924(c)(1)(A)(i), for knowingly possessing a firearm in furtherance of a drug trafficking crime. Count Three charges Mr. Johnson with violating 18 U.S.C. § 922(g)(1) and 924(a)(2), for knowingly possessing a firearm with knowledge he had previously been convicted of a crime punishable by more than one year in prison.

         Mr. Johnson moves to dismiss the Indictment, among other things, and argues his right to speedy trial has been impeded.

         I. Motion to Dismiss the Indictment

         Mr. Johnson moves to dismiss the Indictment. This motion appears to assert three primary arguments for dismissal. Mr. Johnson argues (1) his former appointed counsel, Robert Calbi, provided defective representation; (2) the court lacks subject matter and personal jurisdiction over Mr. Johnson; and (3) the Indictment is defective because he did not have notice of it, the prosecution committed Brady violations, and the Indictment cites 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which are unconstitutional. Doc. 58. The court addresses each argument below.

         A. Defective Representation

         Mr. Johnson asserts that his former appointed counsel and, later, standby counsel, Robert Calbi, “has conspired with the UNITED STATES ATTORNEY[ʼS] OFFICE (“USAO”) [and] violat[ed his] Sixth Amendment Right to assistance of counsel . . . .” Doc. 58 at 1. Mr. Johnson also asserts that Mr. Calbi violated his “procedural and substantive right to due process” and also conspired to violate his right to a speedy trial. Id. at 1-2. The court construes Mr. Johnson's statements to allege a conflict of interest existed between Mr. Calbi and Mr. Johnson. The court considers Mr. Johnson's conflict of interest arguments in a separate section, below. Nevertheless, the court considers, here, whether Mr. Johnson's claims separately warrant dismissal of the Indictment.

         First, the court construes Mr. Johnson's motion to assert an ineffective assistance of counsel argument. Doc. 58 at 1. He asserts, among other things, that his former counsel “violat[ed his] Sixth Amendment Right to assistance of counsel . . . .” Id. Mr. Johnson's argument for ineffective assistance of counsel is premature as he has not yet been convicted of a crime. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (establishing the test to challenge a conviction based on ineffective assistance of counsel). And, even if counsel's representation was defective in some way, it is not grounds to dismiss the Indictment. Whether Mr. Johnson received effective assistance of counsel does not affect the Indictment's validity. Indeed, all the behavior Mr. Johnson's motion alleges occurred after the grand jury returned the Indictment. Thus, the court denies his request to dismiss the Indictment based on ineffective assistance of counsel.

         B. Lack of Jurisdiction Second, Mr. Johnson's motion asserts the court lacks jurisdiction over him for three reasons. He asserts, first, that the U.S. Attorney's failure to provide him with a copy of the “complaint” against him under Federal Rule of Criminal Procedure 3 deprived him of the chance to pursue a meaningful defense. Doc. 58 at 1. Mr. Johnson did not receive a copy of a complaint under Rule 3 because the United States never filed a criminal complaint against him. Instead, the government elected to charge Mr. Johnson by securing an Indictment from a Grand Jury. See Doc. 1; Fed. R. Crim. P. 9(a) (“The court must issue a warrant . . . for each defendant named in an indictment . . . .”). Rule 3 is irrelevant to this case. The court thus denies Mr. Johnson's request to dismiss the Indictment for failure to comply with Federal Rule of Criminal Procedure 3.

         Next, Mr. Johnson's motion asserts that the court lacks jurisdiction over him because the Indictment does not allege jurisdiction. Doc. 58 at 2. This assertion is simply wrong. The Indictment, First Superseding Indictment, and Second Superseding Indictment all allege violations of federal criminal laws and that the relevant acts occurred “in the District of Kansas.” Doc. 1 at 1-2; Doc. 47 at 1-2; Doc. 70 at 1-2. See United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (“[A]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” (quoting United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)). Mr. Johnson's argument is without merit.

         Finally, Mr. Johnson's motion contends the court lacks jurisdiction over him because the Indictment does not reference 18 U.S.C. §§ 7 and 13. Mr. Johnson reasserted this argument in open court on October 4, 2019. The court denied Mr. Johnson's motion because the statutes he cites do not apply to this case. Both statutes apply to areas of the United States that are not officially part of the United States: 18 U.S.C. § 7 defines “special maritime and territorial jurisdiction of the United States” and 18 U.S.C. § 13 contains laws that apply to portions of land “not within the jurisdiction of any State, Commonwealth, territory, possession or district . . . .” The Indictment (and its successors) charge Mr. Johnson with committing crimes here in the state of Kansas. Neither § 7 nor § 13 applies.

         Mr. Johnson also cites United States v. Prentiss, 206 F.3d 960 (10th Cir. 2000) and 40 U.S.C. § 3112. Again, neither applies to this case. Prentiss interpreted the Indian Country Crimes Act and held that “the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152, ” and thus, the indictment must allege them. Prentiss, 206 F.3d at 966. The government doesn't contend that Mr. Johnson is of Indian ancestry and it doesn't charge him with violating § 1152. Section 3112 of Title 40 of the United States Code governs the “acquisition and acceptance of jurisdiction” over land. It does not govern criminal jurisdiction in the District of Kansas. The court thus concludes the authority Mr. Johnson cites is not relevant to this case.

         The charges in the Indictment allege Mr. Johnson acted in the District of Kansas. It will be the government's burden at trial to convince the jury beyond a reasonable doubt that Mr. Johnson committed requisite acts in Kansas. But the court cannot dismiss the Indictment because Mr. Johnson claims the allegations in the Indictment are untrue. United States v. Powell, 767 F.3d 1026, 1031 (10th Cir. 2014) (“[A] challenge to the indictment is not a vehicle for testing the government's evidence. Rather, an indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” (quoting United States v. Redcorn, 528 F.3d 727, 733 (10th Cir. 2008))). The court thus denies Mr. Johnson's Motion to Dismiss the Indictment for lack of jurisdiction.

         C. ...