United States v. Aossey

• Decision Date: 01 July 2015
• Docket Number: No. 14-CR-116-LRR,14-CR-116-LRR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM B. AOSSEY, JR., Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM B. AOSSEY, JR., Defendant.

No. 14-CR-116-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

July 1, 2015

ORDER

I. INTRODUCTION

The matter before the court is Defendant William B. Aossey, Jr.'s "Motion to Dismiss" ("Motion") (docket no. 58).

II. RELEVANT PROCEDURAL HISTORY

On December 5, 2014, a grand jury returned a nineteen-count Superseding Indictment ("Indictment") (docket no. 15). Count I of the Indictment charges Defendant with conspiring to make and use materially false statements and documents; sell misbranded meat; and commit mail and wire fraud in violation of 18 U.S.C. § 371. Counts II through VIII of the Indictment charge Defendant with seven counts of making a false statement on an official export certificate provided for in regulations prescribed by the Secretary of Agriculture in violation of 21 U.S.C. § 611. Counts IX through XV of the Indictment charge Defendant with seven counts of wire fraud in violation of 18 U.S.C. § 1343. Counts XVI through XVIII charge Defendant with three counts of money laundering in violation of 18 U.S.C. § 1957(a). Count XIX charges Defendant with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1956(h). Counts I and IX-XVIII contain forfeiture allegations.

On June 22, 2015, Defendant filed the Motion. On June 23, 2015, the government filed a Resistance (docket no. 59). Defendant asked for oral argument. The courtdetermined that oral argument was unnecessary, however the court gave Defendant time to argue the Motion at the Final Pretrial Conference.¹ On June 23, 2015, the court held a Final Pretrial Conference, at which it heard argument on the Motion. See June 23, 2015 Minute Entry (docket no. 60). The Motion is fully submitted and ready for decision.

III. ANALYSIS

A. Parties' Arguments

Defendant argues that the court should dismiss the Indictment because: (1) Congress has expressly conferred jurisdiction over the alleged statutory violations on the Secretary of Agriculture; and (2) the government "failed to provide . . . Defendant with proper notice of the alleged violations identified in the Indictment" contrary to 9 C.F.R. § 335.40. Brief in Support of the Motion (docket no. 58-1) at 23. Defendant also argues that the government should not be able to present "evidence relating to any and all allegedly overt acts outside the applicable statute of limitations." Id. at 24.

The government argues that 21 U.S.C. § 674 does not divest the United States district courts of jurisdiction to adjudicate violations of 21 U.S.C. § 610, that the Secretary of Agriculture did not need to provide notice to Defendant before criminally prosecuting him and that the government is entitled to present evidence of acts that occurred outside the statute of limitations. The government also argues that the court should deny the Motion in its entirety because it is untimely.

B. Applicable Law

Federal Rule of Criminal Procedure 12(b) provides that a defendant may move before trial to allege "a defect in the indictment." Fed. R. Crim. P. 12(b)(3)(B). "[T]o be valid, an indictment must allege that the defendant performed acts which, if proven, constitute the violation of law for which he [or she] is charged. If the acts alleged in theindictment do not constitute a violation of law, the indictment is properly dismissed." United States v. Polychron, 841 F.2d 833, 834 (8th Cir. 1988).

C. Application

1. Timeliness

The court agrees with the government that the Motion is untimely. Pursuant to the Trial Management Order (docket no. 26), "[a]ll motions . . . , including motions . . . to dismiss indictment, must be served and filed within 30 days after the date of the first arraignment." Trial Management Order at 2 (emphasis omitted). Defendant was charged by indictment and was first arraigned October 30, 2014. Therefore, a timely motion to dismiss would have to be filed before November 29, 2014.

Defendant waived personal appearance on the Superseding Indictment on December 10, 2014. Even if the court were to calculate the date for filing a timely motion to dismiss from December 10, 2014, the deadline would have been January 9, 2015 to file a motion to dismiss. Full well knowing he had missed the deadline to file a motion to dismiss, he did not move the court to file the Motion out of time. Defendant did not request and did not receive an extension. Defendant filed the Motion June 22, 2015—months after the deadline to file such motions, and on the eve of trial. In addition, the deadline to file trial-related motions—including motions in limine—was June 8, 2015. Defendant filed the Motion well after the deadline for filing even trial-related motions. Because Defendant did not timely file the Motion and has not shown good cause, the court shall deny the Motion. See Fed. R. Crim. P. 12(c)(3) ("If a party does not meet the [pretrial motion] deadline . . . , the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause."); United States v. Rodriguez, 738 F.2d 13, 15-16 (1st Cir. 1984) ("Objections that are not raised in a timely fashion are deemed to be waived, unless the court chooses to grant relief from the waiver provision based on a showing of goodcause."). Despite the court's ruling, the court shall nonetheless address the merits of Defendant's arguments.

2. Jurisdiction

United States district courts have jurisdiction over all federal criminal offenses. See 18 U.S.C. § 3231 ("The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States."). Count I of the Indictment charges Defendant with, among other things, conspiracy to violate 21 U.S.C. § 610 (selling misbranded meat). Counts II-VIII of the Indictment charge violations of 21 U.S.C. § 611 (false statement on export certificates). Jurisdiction of the district courts relative to 21 U.S.C. §§ 610 and 611 is addressed in part in 21 U.S.C. § 674. 21 U.S.C. § 674 provides:

The United States district courts . . . are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of, this chapter, and shall have jurisdiction in all other kinds of cases arising under this chapter, except as provided in section 607(e) of this title.

21 U.S.C. § 674. 21 U.S.C. § 607(e) is titled "Use withholding directive respecting false or misleading marking, labeling, or container; modification of false or misleading matter; hearing; withholding use pending proceedings; finality of Secretary's action; judicial review; application of section 194 of Title 7." 21 U.S.C. § 607(e). This section continues and states:

If the Secretary has reason to believe that any marking or labeling or the size or form of any container in use or proposed for use with respect to any article subject to this subchapter is false or misleading in any particular, he may direct that such use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading. If the person, firm, or corporation using or proposing to use the marking, labeling or container does not accept the determination of the Secretary, such person, firm, or corporation may request ahearing, but the use of the marking, labeling, or container shall, if the Secretary so directs, be withheld pending hearing and final determination by the Secretary. Any such determination by the Secretary shall be conclusive unless, within thirty days after receipt of notice of such final determination, the person, firm, or corporation adversely affected thereby appeals to the United States court of appeals for the circuit in which such person, firm, or corporation has its principal place of business or to the United States Court of Appeals for the District of Columbia Circuit. The provisions of section 194 of Title 7 shall be applicable to appeals taken under this section.

Id.

The court finds that 21 U.S.C. §§ 674 and 607(e) do not divest this court of jurisdiction over alleged violations of 21 U.S.C. § 610. Significantly, Defendant cites to no authority for the proposition that 21 U.S.C. §§ 674 and 607(e) divest the district court of jurisdiction. And, as the government points out, federal courts of appeals have consistently upheld criminal convictions under 21 U.S.C. § 610. See, e.g., United States v. LaGrou Distr. Sys., Inc., 466 F.3d 585, 592 (7th Cir. 2006); United States v. Jorgensen, 144 F.3d 550, 561 (8th Cir. 1998); United States v. Agnew, 931 F.2d 1397, 1411 (10th Cir. 1991).

Despite the history of federal courts of appeals upholding convictions and implicitly holding that United States district courts have subject matter jurisdiction over 21 U.S.C. § 610 offenses, the court shall nonetheless satisfy itself that it has jurisdiction. First, 21 U.S.C. § 674 is ambiguous in its reference to 21 U.S.C. § 607(e). Pursuant to 21 U.S.C. § 674:

The United States district courts . . . are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of, this chapter, and shall have jurisdiction in all other kinds of cases arising under this chapter, except as provided in section 607(e) of this title.

21 U.S.C. § 674. The statute can be split up into two independent clauses. The first clause vests the United States district courts "with jurisdiction . . . to enforce, and to prevent violations of, this chapter." Id. The first clause appears to merely reiterate the district court's broad subject matter jurisdiction over federal criminal law violations contained in Chapter 12. The second clause vests the United States district courts with "jurisdiction in all other kinds of cases arising under this chapter." Id. The second clause thus vests United States district courts with jurisdiction over non-criminal, administrative cases under Chapter 12, except when § 607(e) applies. Section 607(e)...