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United States v. Ellis

United States District Court, D. Minnesota

March 17, 2014

UNITED STATES OF AMERICA,
v.
Albert Terrell Ellis, a/k/a

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon Defendant's Motion to Dismiss Indictment, [Docket No. 30]; as well as, his Motions to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 18], and for Suppression of Evidence, [Docket No. 31] (together, "Motions to Suppress Evidence").[1] The case has been referred to the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a hearing on February 28, 2014, regarding the Defendant's motions for discovery, [2] suppression, and dismissal. For reasons outlined below, the Court recommends that Defendant's Motion to Dismiss Indictment, [Docket No. 30], and his Motions to Suppress Evidence, [Docket Nos. 18, 31], be DENIED.

I. BACKGROUND

Albert Terrell Ellis ("Defendant") is charged in the present case with one count each of (1) being an armed career criminal in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); (2) being an armed career criminal in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); (3) possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (4) use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). (Indictment [Docket No. 1] at 1-3). Defendant was indicted on October 23, 2013, and made the present Motions on December 2, 2013, and on February 24, 2014. Trial is scheduled before the Hon. Ann D. Montgomery for April 21, 2014. (Text Only Entry: Trial Notice [Docket No. 28]).

II. MOTION TO DISMISS INDICTMENT [Docket No. 30]

Defendant asks this Court to dismiss the Indictment on the grounds that "[t]here was no competent evidence presented to the Grand Jury tying the Defendant to criminal activity." (Mot. Dismiss Indictment [Docket No. 30], at 1).

A. Standard of Review

Defendant's motion to dismiss is made pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, which governs motions alleging sufficiency defects in the indictment. The Eighth Circuit has repeatedly held that:

An indictment adequately states an offense if: it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.

United States v. Hayes , 574 F.3d 460, 472 (8th Cir. 2009) (quoting United States v. Sewell , 513 F.3d 820, 821 (8th Cir. 2008) (quotation omitted)). "An indictment is normally sufficient if its language tracks the statutory language." Sewell , 513 F.3d at 821 (citing Hamling v. United States , 418 U.S. 87, 117 (1974)).

Similarly, the District of Minnesota has held that, in order to survive a criminal defendant's Rule 12 motion to dismiss:

an Indictment must allege that the defendant performed acts which, if proven, would constitute a violation of the law under which he has been charged. See United States v. Polychron , 841 F.2d 833, 834 (8th Cir. 1988). As a result, if the acts, that are alleged in the Indictment, do not constitute a criminal offense, then the Indictment should be dismissed. See, e.g., United States v. Coia , 719 F.2d 1120, 1123 (11th Cir. 1983), cert. denied, 466 U.S. 973 (1984). In reviewing the sufficiency of an Indictment, or of any of its Counts, we are to determine whether the Indictment sufficiently sets forth the elements of the offenses alleged, as to the offenses that are said to have occurred, in order to place the defendant on fair notice of the charges against him, and to enable him to raise an acquittal, or conviction, so as to prevent his double jeopardy for a single offense. See Hamling v. United States , 418 U.S. 87, 117 (1974); United States v. Hall , 20 F.3d 1084, 1087 (10th Cir. 1994).

United States v. Hughson , 488 F.Supp.2d 835, 840 (D. Minn. 2007) (Erickson, C.M.J.), adopted by 488 F.Supp.2d 835 (D. Minn. 2007) (Doty, J.).

B. Discussion

Initially, the Court observes that Defendant does not argue that the Indictment itself is insufficient;[3] rather, he argues that the evidence presented to the grand jury was insufficient to support the Indictment. (Mot. Dismiss Indictment [Docket No. 30]). In particular, Defendant advances two arguments why the evidence before the grand jury was insufficient: (1) that no witness before the grand jury identified Defendant by name in connection with any criminal conduct, (Id. at 1); and (2) that "[t]he primary government witness... lacked the mental competence" to testify before the grand jury, (Id. at 2). In support of these arguments, Defendant asks the Court to consider evidence outside the four corners of the Indictment in the form of two exhibits: (1) the docket sheet for a Minnesota state court case concerning guardianship of J.C., a witness who testified before the grand jury, (Mot. Dismiss, Ex. 1 [Docket No. 30-1]; and (2) transcripts of the October 23, 2013, grand jury testimony of J.C., and of Nicolas Garlie ("SA Garlie"), a special agent with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, (Def.'s Ex. 1).[4]

1. The Court is not persuaded that it should now review evidence beyond the four corners of the Indictment.

For more than a century, the U.S. Supreme Court has repeatedly rejected the argument that a grand jury indictment can be challenged on the basis of the sufficiency of the underlying evidence. See United States v. Williams , 504 U.S. 36, 53-55 (1992);[5] see also United States v. Nelson , 165 F.3d 1180, 1182 (8th Cir. 1999) ("It has long been settled that an indictment is not open to challenge on the ground that there was inadequate or insufficient evidence before the grand jury."); United States v. Augustine Med., Inc., No. 03-cr-321(1-8) (ADM/AJB), 2004 U.S. Dist. LEXIS 1980, at *7 (D. Minn. Feb. 10, 2004) (Montgomery, J.) ("In reviewing a 12(b) motion to dismiss the indictment, the Court does not entertain an evidentiary inquiry, but rather accepts the allegations of the Indictment as true" (citing United States v. Ferro , 252 F.3d 964, 968 (8th Cir. 2001) (internal citation omitted))); Hughson , 488 F.Supp.2d at 841 (citing Hall , 20 F.3d at 1087) (when considering a motion to dismiss an indictment as insufficient, "[o]rdinarily, the Court's assessment is limited to the four corners' of the Indictment, and the Court should studiously avoid the consideration of evidence from sources beyond the Indictment"). In the present case, Defendant asks this Court to engage in just such a disfavored evidentiary inquiry.[6]

In the present case, Defendant asks this Court to rule on the weight of the underlying evidence presented before the grand jury. By his first argument, that Defendant asks that the Court find that the failure of a particular witness to identify him by name means that the grand jury was not presented with credible evidence that he had engaged in criminal activity. By his second argument, Defendant asks that the Court find that all testimony by the witness J.C. should be stricken because she was at one time under guardianship. Neither of these arguments would support the Court's consideration of evidence outside the four corners of the Indictment.

2. Even if this Court was to consider the evidence outside the four corners of the Indictment presented by Defendant, that evidence would not be sufficient to undermine the Indictment.

Out of an abundance of caution, and in the interest of completeness, the Court has reviewed the evidence outside the four corners of the Indictment that was submitted by Defendant. Upon review, the Court finds that Defendant's evidence, by itself, would not warrant dismissal of the Indictment.

Defendant first argues that no witness before the grand jury connected Defendant to any criminal activity. (Mot. Dismiss Indictment [Docket No. 30], at 1-2). However, the evidence he presents indicates only that J.C. did not identify Defendant by name, but rather, referred to him as "Medicine Man." (See Def.'s Ex. 1 (tr. of J.C. testimony)). By itself, the fact that J.C. did not remember Defendant's proper name, without any other indication of what other evidence was presented to the grand jury, is not sufficient to warrant dismissal of the Indictment.

Defendant's second argument is that J.C. was not competent to testify. (Mot. Dismiss Indictment [Docket No. 30], at 2). In support of that argument, Defendant submits the docket of a Minnesota State court case showing that a guardian was appointed for J.C. on February 6, 2006; that her guardian petitioned for discharge on April 19, 2012; and that the State court terminated the guardianship on March 1, 2013. (Mot Dismiss, Ex. 1 [Docket No. 30-1]). On that basis, Defendant argues generally that, because the witness was at one time under guardianship, she was not competent to testify before the grand jury. (Mot. Dismiss Indictment [Docket No. 30], at 2).

The Court is not persuaded.

Defendant asserts that J.C. was under guardianship "[a]t the time of the events in this case, and at the time of her testimony before the grand jury. " (Mot. Dismiss [Docket No. 30], at 2). However, as previously noted, the docket sheet submitted by Defendant appears to show that J.C.'s guardianship was terminated on March 1, 2013, and therefore, that she was not subject to guardianship when she testified before the grand jury on October 23, 2013. Additionally, even if J.C. was still subject to the State court's guardianship order when she testified, and even if that alone was sufficient to render her testimony a nullity, this Court is not persuaded that striking J.C.'s testimony would warrant dismissing the Indictment, particularly when the Court is required to consider that question without knowing what other evidence was presented to the grand jury.

As previously noted, Defendant's arguments are, at their core, challenges to the ultimate weight of the Government's evidence. Consequently, "[t]hese are factual arguments for the jury." United States v. Hunter, No. 12-cr-185(3) (ADM/FLN), 2013 U.S. Dist. LEXIS 21522, at *4 (D. Minn. Feb. 14, 2013) (Montgomery, J.) (denying motion to dismiss certain counts of the indictment upon finding "that the superseding indictment is legally sufficient on its face), and at *7 (denying motion "to suppress all Counts that aren't supported by substantial evidence... [because] the sufficiency of the evidence against the Defendant is a factual issue for the jury").

3. Summary

The facts alleged within the four corners of the Indictment itself are sufficient to charge the counts alleged therein. Additionally, it would be inappropriate at the present time and in the present case to consider evidence outside the four corners of the indictment; and even if the Court believed it to be appropriate to consider such evidence, the evidence that Defendant has provided is not by itself sufficient to undermine the decision of the grand jury to ...


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