U.S.A v. Pitter
| Decision Date | 03 December 2010 |
| Docket Number | Case No. 09-20133 |
| Court | U.S. District Court — District of Kansas |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GLADSTONE McDOWELL & CURTIS PITTER, Defendants. |
This matter is before the Court on defendant Gladstone McDowell and Curtis Pitter's ("Michael Francois") joint motion for dismissal of indictment and charges due to lack of subject matter jurisdiction (doc. 481) filed on October 27, 2010. Mr. Pitter previously filed a motion for dismissal of indictment (doc. 347) on September 7, 2010, which raised issues identical to those addressed in the motion now before the Court, and is thereby incorporated into the present motion. On November 4, 2010, the government filed a response to the joint motion to dismiss (doc. 496). The Court held a hearing on November 19, 2010 and took the matter under advisement. After thoroughly considering the parties' submissions and arguments, for the reasons set forth below, the Court denies Mr. Pitter and Mr. McDowell's joint motion.
Mr. Pitter and Mr. McDowell first argue that because they were not permitted to attend or participate in the selection of the grand jury, they were denied their due process rights, and as a result, the case should be dismissed for lack of subject matter jurisdiction. Mr. Pitter and Mr. McDowell allege they ought to have been allowed to be present for the selection of the grand jury for the opportunity to object, as permitted by the Federal Rules of Criminal Procedure, to any part of the process conducted in violation of 28 U.S.C. § 1861 et seq. The government contends, on the other hand, that Mr. Pitter and Mr. McDowell misapprehend the appropriate timing for challenging the composition of the grand jury. Because business of the grand jury is secret and selection of the grand jury oftentimes takes place before a crime is even committed, the government submits that it would be irrational for a defendant to be able to challenge the grand jury at the time of selection.
According to Mr. Pitter and Mr. McDowell, Rule 6 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 1867 guarantee a party the opportunity to object to the grand jury or an individual grand juror at the time of the selection process. Rule 6 provides:
Fed. R. Crim. P. 6(b)(1)-(2). The rule does not explicitly state, nor does it suggest, that a defendant has the right to be present during the grand jury selection or to challenge the selection process at that time.
The Jury Selection and Service Act, 28 U.S.C. § 1861 et seq., governs the selection of grand and petit juries in federal court, and section 1867 provides the exclusive means by which a party may challenge grand jury selection procedures. United States v. Contreras, 108 F.3d 1255, 1267 (10th Cir. 1997). The procedural requirements are designed to give the district court an opportunity to evaluate the alleged noncompliance and to correct such noncompliance before judicial resources are invested in a trial. Id. at 1266 (citing United States v. Kennedy, 548 F.2d 608, 612-14 (5th Cir. 1997)). Section 1867(a) articulates that challenges to procedures under the Act must be made before voir dire examination begins or within seven days after the defendant discovered or could have discovered the grounds therefore. 28 U.S.C. § 1867(a). It does not state, however, that such challenges may be made during the selection process itself. Mr. Pitter and Mr. McDowell have not provided, nor has the Court's independent research revealed, any case law that recognizes the power of a party to challenge the grand jury at the time of its selection.
Furthermore, the Court has already ordered that Mr. McDowell, through counsel, be allowed to inspect the master jury wheel and completed jury qualification forms used to determine the jury wheel, to determine whether a challenge to the composition of the grand jury or to a particular grand juror's qualifications is appropriate (doc. 411). Should Mr. Pitter and Mr. McDowell wish to object to the grand jury selection process or qualifications of individual grand jurors, they must do so in accordance with 28 U.S.C. § 1867 and only after reviewing the relevant materials made available as ordered by the Court.
As part of their argument regarding the grand jury selection process, Mr. Pitter and Mr. McDowell claim that the case should be dismissed because the indictment was not returned in open court as required by Rule 6(f) of the Federal Rules of Criminal Procedure. Rule 6(f) states in relevant part that "the grand jury-or its foreperson or deputy foreperson-must return the indictment to a magistrate judge in open court." Fed. R. Crim. P. 6(f). The government points out that indictments are, as part of typical procedure, presented in open court to a district or magistrate judge by the foreperson after the grand jury has finished its business for the month. It clear from the transcript of the grand jury's return of the indictment to Judge Lungstrum on November 5, 2009 (doc. 563, att. 1) and superseding indictment to Judge Murguia on November 4, 2010 (doc. 563, att. 2) that Rule 6(f) procedures were properly followed in this case.
The indictment against Mr. Pitter and Mr. McDowell was filed on November 5, 2009 (doc. 1), and Defendants were subsequently arrested on December 2, 2009. Mr. Pitter and Mr. McDowell claim that the indictment was prematurely filed, as it was not filed within thirty days after arrest as described in 18 U.S.C. § 3161(b). As a result, Mr. Pitter and Mr. McDowell suggest that the case be dismissed for lack of subject matter jurisdiction.
Mr. Pitter and Mr. McDowell misconstrue the purpose of 18 U.S.C. § 3161(b). Section 3161(b) is part of the Speedy Trial Act, the purpose of which is to provide a defendant with prompt judicial resolution of the charges against him and to prevent prejudice caused by extended pretrial incarceration. See United States v. Seltzer, 595 F.3d 1170, 1180 (10th Cir. 2010). The relevant provision of the Speedy Trial Act requires that the government file an information or indictment within thirty days of a defendant being arrested or served a summons. United States v. Cone, 310 F. App'x 212, 215 (10th Cir. 2008) (citing18 U.S.C. § 3161(b)). Section 3161(b) is related to a defendant's right to a speedy trial, within 70 days from the filing of the indictment or from the date the defendant appeared before a judge, whichever is later, subject to certain exclusions. 18 U.S.C. § 3161(c)(1). The government correctly points out that section 3161(b) does not require that a defendant be arrested prior to presenting the case to a grand jury or filing an indictment. See United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982) (). Rather, section 3161(b) is meant to ensure that the government presents the case to a grand jury for indictment within 30 days of a defendant's arrest. In the case at hand, this requirement was satisfied.
Rule 3 of the Federal Rules of Criminal Procedure states that a complaint Fed. R. Crim. P. 3. Mr. Pitter and Mr. McDowell contend that this rule necessitates that the government present a complaint to a judge prior to arresting a defendant, and because in this case the government failed to file a complaint, the case should be dismissed for lack of subject matter jurisdiction. The government counters that while Rule 3 allows the government to charge a defendant via complaint and then obtain an arrest warrant, a complaint is not the only mechanism by which charges can be brought. Charging by complaint, according to the government, is in fact only a temporary procedure that allows a magistrate judge to issue a warrant effective only until an indictment can be presented to a grand jury.
While it is true that an arrest warrant may be issued only after the reviewing judge determines that there is probable cause present to support the detention of a person, it does not follow that probable cause may only be ascertained from a complaint. For an arrest warrant to be valid, there must be facts or information affording sufficient basis for a finding of probable cause to believe an offense has been committed. See Hollingsworth v. United States, 321 F.2d 342, 348 (10th Cir. 1963). An arrest warrant can be based upon an indictment, because the grand jury's determination that probable cause existed for the indictment also establishes that element of probable cause for the purpose of issuing a warrant for the apprehension of the person so charged. Giordenello v. United States, 357 U.S. 480, 485 (1958). In the absence of an indictment, however, the issue of probable cause must be determined by the magistrate, and an adequate basis for such a finding must appear on the face of the complaint. Id.
In this case, the grand jury made its probable cause finding based on evidence presented during grand jury proceedings, and therefore no complaint was necessary. Rule 6(f) assumes the nonessential status of a complaint in the criminal context:
A grand jury may indict only if at least 12 jurors concur. The...
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