United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
matter is before the court on pro se 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
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.
Johnson moves to dismiss the Indictment, among other things,
and argues his right to speedy trial has been impeded.
Motion to Dismiss the Indictment
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.
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.
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.
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.
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
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.
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
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