United States v. Greene
| Decision Date | 30 September 2013 |
| Docket Number | Case No. 4:05-cr-15,Case No. 4:10-cv-15 |
| Parties | UNITED STATES OF AMERICA v. JERRY GLENN GREENE Defendant. JERRY GLENN GREENE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | United States District Courts. 6th Circuit. Eastern District of Tennessee |
MEMORANDUM AND ORDER
Jerry Glenn Greene ("Greene") moves for post-conviction relief under 28 U.S.C. § 2255. [Court Doc. 124]. He also makes an amended (second) motion to disqualify District Judge R. Allan Edgar pursuant to 28 U.S.C. §§ 144 and 455 [Court Doc. 133], and a motion for a new trial under Fed. R. Crim. P. Rule 33. [Court Doc. 135]. After reviewing the record, the Court concludes that these motions are without merit and must be denied. The record conclusively shows that Greene is not entitled to any relief. There is no need for an evidentiary hearing.
On February 11, 2005, two deputy sheriffs employed by the Warren County Sheriff's Department, Danice Taylor and John Black, were on patrol flying in a police helicopter over rural farmland in Warren County, Tennessee searching for clandestine methamphetamine laboratories andseveral all-terrain vehicles (four-wheelers) that had recently been reported as stolen. They happened to fly the helicopter over the farm where Greene resided in a mobile home or trailer. The deputies did not have any information indicating that Greene and his farm were involved in methamphetamine laboratories or stolen motor vehicles.
Flying at an altitude of approximately 200 - 250 feet, the deputies observed a dead cow lying on the ground near a creek on Greene's farm. As the deputies circled around in the helicopter to get a closer look at the cow carcass, they observed Greene driving his pickup truck at a high rate of speed toward the helicopter. Greene abruptly stopped his pickup truck with the driver's side facing the helicopter. Greene jumped out of his pickup truck, raised a rifle to his shoulder, and aimed the rifle toward the helicopter. Greene used the rifle to "lead" the flying helicopter in the same way that a hunter follows the flight path of a bird he intends to shoot.
The two deputies were not sure whether Greene fired a shot from the rifle. After observing Greene aim and brandish the rifle, the helicopter pilot performed emergency evasive maneuvers which posed a substantial risk and danger to the helicopter and its occupants. The helicopter pilot, Deputy Black, sent out a radio message requesting backup assistance from other police officers.
The officers in the helicopter remained airborne in a position where they could maintain visual surveillance of Greene. They observed Greene drive his pickup truck back to his trailer. Greene exited the truck with the rifle in his hand. Greene went behind his trailer for a short time where he was briefly out of sight and his actions could not be observed by the two deputies in the helicopter. When Greene returned to view and walked back around his trailer, the two deputies in the helicopter observed that Greene was no longer carrying the rifle.
Several police officers responded to the radio call for assistance and went to Greene's farm. One of the responding officers was Jackie Matheny, Jr. ("Matheny") who was employed by theWarren County Sheriff's Department. The police officers initially stopped at a barbed wire fence on the borderline of Greene's farm. After the officers arrived at the fence, Greene drove his pickup truck across a farm field at a high rate of speed toward them. When Greene approached the police officers, he was ordered to stop, get out of the truck, and lie down on the ground. Greene complied with this order. The officers secured Greene with handcuffs, escorted him across the fence line, and placed him in a police car.
Police officers searched Greene's pickup truck but did not find a rifle or other firearm. The officers found a gun belt containing ammunition, a box of .22 caliber ammunition, and a box of 12-gauge shotgun shells in the truck. The presence of the ammunition indicated that Greene probably possessed a rifle and shotgun, but the police found no firearms on Greene's person and in his truck.
The officers entered further onto Greene's farm and went down a road leading to his trailer. The officers searched inside and outside of the trailer for about 30 minutes without a search warrant and without Greene's permission. While searching the area immediately outside of the trailer, officer Matheny noticed some black plastic on the ground that was raised up. When Matheny lifted up the black plastic, he found a loaded .22 caliber rifle. The clean rifle was not rusted or dirty. An officer unloaded the rifle and it was seized as evidence. It is reasonable to infer that Greene deliberately placed the rifle underneath the black plastic to conceal and hide it from the police after Greene had aimed and brandished the rifle at the police helicopter.
The federal grand jury returned an indictment against Greene. Greene privately retained attorney Michael D. Galligan ("Galligan") to represent him. Galligan was assisted by co-counsel John P. Partin ("Partin"). Attorneys Galligan and Partin made a motion to suppress evidence of the rifle found by the police underneath Greene's trailer. [Court Doc. 24]. The government opposed the motion and District Judge Edgar held a suppression hearing. Attorneys Galligan and Partin weresuccessful in their efforts. On November 17, 2005, District Judge Edgar issued a memorandum and order granting the motion to suppress the rifle as evidence. [Court Doc. 36].
Attorneys Galligan and Partin won a significant victory for Greene by prevailing on the motion to suppress the rifle as evidence. The trial was set to commence on February 7, 2006. Greene became dissatisfied with Galligan and Partin because they could not obtain a dismissal of the indictment prior to trial. Greene wanted Galligan and Partin to present frivolous legal arguments challenging the authority and jurisdiction of the federal grand jury to return the indictment, and challenging the District Court's subject matter jurisdiction.
On January 12, 2006, Galligan and Partin moved to dismiss the first superseding indictment as deficient. [Court Doc. 42, 43]. It was argued that even if the conduct alleged in the first superseding indictment was true, it did not constitute a violation of the federal statutes charged.
Before this Court could rule on the motion to dismiss, Galligan and Partin moved to withdraw as counsel for Greene on January 12, 2006. Galligan and Partin submitted their sworn affidavits in support of the motion to withdraw. [Court Doc. 45, 46, 47]. The motion to withdraw and affidavits speak for themselves, and need not be repeated here. Greene chose to discharge attorneys Galligan and Partin. The record contains a copy of a letter that Greene wrote to Galligan dated January 23, 2006, notifying Galligan that Greene had terminated their attorney-client relationship and setting forth the reasons for Greene's decision. [Court Doc. 50-5]. In their motion to withdraw as counsel, Galligan and Partin also moved for a continuance of the trial so that Greene could have an opportunity to employ a new attorney, if he chose to do so.
On January 24, 2006, the federal grand jury returned a two-count second superseding indictment against Greene. [Court Doc. 48]. Count One charged that on February 11, 2005, Greene attempted to violate 18 U.S.C. § 32(a)(5) in that he attempted to perform an act of violence againstindividuals on an aircraft in the special aircraft jurisdiction of the United States, and such act was likely to endanger the safety of the aircraft, in violation of 18 U.S.C. § 32(a)(7). Count Two charged that on February 11, 2005, Greene knowingly brandished a firearm during and in relation to a crime of violence that may be prosecuted in a court of the United States, that is, the criminal offense charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
On January 27, 2006, Greene represented himself and filed a pro se document captioned "NOTICE, TO INVOKE THIS COURT'S JURISDICTION TO ACT IN ITS MINISTERIAL DUTY TO QUASH INDICTMENT FOR FRAUD AND LACK OF JURISDICTION." [Court Doc. 51]. Greene wanted the Court to quash and dismiss the indictment as being illegal and fraudulent. Greene argued that this District Court lacked subject matter jurisdiction over the incident involving the police helicopter flying over his farm. Greene contended that his farm was private property and the helicopter incident did not involve any property of the United States of America or any officials and employees of the United States government.
Greene further argued that the grand jury had illegally returned the indictment because there was no criminal complaint under Fed. R. Crim. P. 3 and no arrest warrant or summons issued under Fed. R. Crim. P. 4. Greene took the untenable position that, in the absence of a complaint under Fed. R. Crim. P. 3 and an arrest warrant or summons issued under Fed. R. Crim. P. 4, the grand jury was without any authority and jurisdiction to return the indictment pursuant to Fed. R. Crim. P. 7. This forms the basis for Greene's argument that the District Court lacked subject matter jurisdiction to proceed with the trial.
These arguments by Greene attacking the validity of the indictment and challenging the District Court's subject matter jurisdiction are entirely without merit. Despite Greene's persistent arguments to the contrary, the federal grand jury had the authority and jurisdiction to return thesecond superseding indictment - as well as the original and first superseding indictments - pursuant to Fed. R. Crim. P. 7. In order for the grand jury to return the indictment pursuant to Fed. R. Crim. P. 7, it was not necessary for there to first be a complaint under Fed. R. Crim. P. 3 and an arrest warrant or summons issued under Fed. R. Crim. P. 4, as argued by Greene. He is mistaken on this point of...
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