United States v. Horse

• Decision Date: 21 July 2021
• Docket Number: 5:20-CR-50035-JLV-01
• Court: U.S. District Court — District of South Dakota
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH FLYING HORSE, Defendant.

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH FLYING HORSE, Defendant.

No. 5:20-CR-50035-JLV-01

United States District Court, D. South Dakota, Western Division

July 21, 2021

REPORT AND RECOMMENDATION

DANETA WOLLMANN United States Magistrate Judge

Pending are Defendant's First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Motions to Dismiss (Docs. 51, 97, 147, 148, 179, 187, 201, 218, 250). Based on a careful consideration of all the evidence, and counsel's written arguments, the Court respectfully makes the following:

RECOMMENDATION

It is respectfully recommended that Defendant's Motions to Dismiss be denied.

JURISDICTION

Defendant is charged in an Indictment with Possession of a Stolen Firearm in violation of 18 U.S.C. §§ 922(i) and 924(a)(2) and Possession of a 1 Firearm While Under Indictment in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D). The pending Motions were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L. Viken's Standing Order dated April 1, 2018.

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FACTUAL BACKGROUND

The defendant has filed nine different motions to dismiss. The facts of each individual motion will be addressed in its respective section below.

DISCUSSION

1. First Motion to Dismiss (Doc. 51)

The defendant's First Motion to Dismiss was filed July 2, 2020. The defendant argues the United States, as Plaintiff in this action, does not have personal jurisdiction over him because "the United States has acquiesced to its lack of personal-matter jurisdiction" by failing to respond to the defendant's letter of June 22, 2020.^[1] (Doc. 51, 51-1). In this letter, which the defendant attached to this motion, the defendant argues both the prosecution and this Court lack personal jurisdiction because he is not a U.S. citizen and is instead a sovereign citizen. (Doc. 51-1).

The Government argues the defendant is a U.S. citizen under 8 U.S.C. § 1401(b) and subject to the jurisdiction thereof. The government also argues any contention by the defendant that he is a sovereign citizen and not subject to the laws of the United States is without merit and "patently frivolous." (Doc., 62).

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The issue is whether the defendant should be considered a sovereign citizen and, if so, whether that would deprive this Court of personal jurisdiction. Sovereign citizen arguraents have routinely been rejected in the Eighth Circuit. See, e.g., Meyer v. Schroeder, 2018 WL 3651354 (D.S.D. 2018) (rejecting Defendant's claim of sovereign citizenship as frivolous), United States V. Hart, 701 F.2d 749, 750 (8th Cir. 1983) (rejecting sovereign citizen as a constitutionally relevant status). United States v. Jagim. 978 F, 2d 1032, 1036 (8th Cir. 1992) (calling sovereign citizen claim "completely without merit, patently frivolous, and...rejected without expending any more of this Court's resources...")

Additionally, even if the Court were to accept the fact that the defendant were a sovereign citizen or a non-U.S. citizen, that fact would still not deprive this Court of personal jurisdiction over the defendant. "[T]here is no question that every person present in the United States is generally subject to the laws of the United States." United States v. Workman, 2009 WL 1649197 (D. Neb. 2009) (quoting United States v. Szilagyi, 1989 WL 68592 (6th Cir. 1989)). "The district courts of the United States shall have original jurisdiction, exclusive of the courts of the State, of all offenses against the laws of the United States." 18 U.S.C. § 3231. "[T]he governra.ent must prosecute an offense in a district where the offense was committed." FED. R. Crim, P. 18.

Here, the defendant is charged with committing crimes in violation of the laws of the United States, to wit, Possession of a Stolen Firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a Firearm While Under

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Indictment in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D). Additionally, the offenses occurred within the state of South Dakota. This Court clearly has personal jurisdiction over the Defendant.

Therefore, the Court recommends the Defendant's First Motion to Dismiss (Doc. 51) be denied, 2. Second Motion to Dismiss (Doc. 97)

The defendant's Second Motion to Dismiss was filed August 21, 2020. The defendant argues Counts I and V should be dismissed because the Government has failed to prosecute the case because they have not "resisted, responded to, nor opposed any of the defendant's filings since July 27, 2020." (Doc. 97).

The Government filed a response to this Motion on August 25, 2020. The Government argues the Defendant relies solely on cases applying the Fed. R. Civ. p. and that both the cases and Fed.R.Civ.P. are inapplicable in a criminal case. (Doc. 113).

The issue is whether Defendant's Motion to Dismiss for Failure to Prosecute is appropriate in this case. "The Federal Rules of Civil Procedure apply to civil cases in federal district courts, FED. R. Civ. P. 1, but have no applicability in a criminal case such as this one." United States v. Fay, 2014 WL 129555, *3 (D.S.D. Jan. 13, 2014) felting United States v. McCalister. 601 F.3d 1086, 1087-88 (10th Cir. 2010) (noting that the Federal Rules of Civil Procedure are not available in criminal proceedings)).

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Here, the Defendant provides no support for his Motion to Dismiss for Failure to Prosecute other than vague citations to Jumping Eagle v. Yantis, 2020 U.S. Dist. LEXIS 25324 *7 (D.S.D. 2020) and Roofing v. Travelers Cas. Co. of Am., 2020 U.S. Dist. LEXIS 27657 *2 (D. Neb. 2020). Both cases rely solely on Fed.R.Civ.P. 41(b), which allows a court to dismiss a civil action with prejudice "only in the face of a clear record of delay or contumacious conduct by the plaintiff." Navarro v. Chief of Police, Des Moines, Iowa. 523 F.2d 214, 217 (1975). This mechanism does not apply in criminal cases.

The Defendant argues his motion should not be rejected on "mere technical grounds" and that his filings should be construed liberally. While it is true pro se motions are to be construed more liberally than those filed through an attorney (See, Haines v. Kerner, 404 U.S. 519, 520 (1972)}, that does not entitle a pro se litigant to forms of relief unavailable to defendants represented by counsel. Since a Dismissal for Failure to Prosecute is unavailable in a criminal case, the Court will not consider the merits of such a motion.

Therefore, the Court recommends the Defendant's Second Motion to Dismiss (Doc. 97) be denied.

3. Third Motion to Dismiss (Doc. 147)

The defendant's Third Motion to Dismiss was filed October 13, 2020, The defendant argues Count V should be dismissed because he was not "under indictment" between the dates of April 19 and April 21, as alleged by the Indictment in this case.

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Specifically, the Indictment alleges that the defendant was charged in Pennington County, South Dakota, case no. CRI 20-001236, with Possession of a Controlled Substance, Schedule I or II, which carries a potential prison sentence exceeding one year. (Doc. 26). The defendant was initially charged by complaint on March 10, 2020, and appeared for his initial appearance on March 13, 2020. Doc. 147-1. The defendant was not charged by indictment until May 7, 2020. Id.

The issue is whether a complaint is considered an "indictment" for purposes of 18 U.S.C. 922(n). The term "indictment" is defined as "an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted." 18 U.S.C. § 921(a)(14}. To determine whether the defendant was under indictment for purposes of § 922(n), the court is to look at South Dakota law. U.S. v. Hill, 210 F.3d 881 (8th cir. 2000) (applying Missouri law because the defendant was charged in state court in Missouri).

The Court is unable to find, and neither party points to, any controlling case law on this point. However, the Eighth Circuit case of U.S. v. Brede is quite instructive. 477 F.3d 642 (8th Cir. 2007). In this case, the court held

Under Minnesota law, a 'complaint is a written signed statement of the essential facts constituting the offense charged.' Minn. R, Crim. P. 2.01. Consequently, Brede became subject to the prohibitions of § 922(n) when the state of Minnesota filed the felony complaints against Brede. The district court did not err in determining an indictment, and information, and a Minnesota complaint are functionally equivalent....

Brede. 477 F.3d at 643-44.

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The Brede court goes on to interpret the Congressional intent of 18 U.S.C. § 922(n) as being "to protect the public by proscribing [acts involving firearms by] ... those charged with felonies without attaching any significance to the procedural vehicle forming the basis of the charge. Id. at 643-44 fquoting Schook v. United States, 337 F.2d 563, 567 (8th Cir.1964)), The definition of a "complaint" under South Dakota is nearly identical to the Minnesota definition in Brede. "A complaint is a written statement of the essential facts constituting an offense charged. It must be signed under oath before a person authorized to administer oaths in the State of South Dakota." SDCL § 23A-2-1 (2019). This Court, like the court in Brede, finds no meaningful difference between an information, which is contained in the definition of "indictment," and a complaint.

Therefore, the court finds that a complaint under South Dakota law falls under the definition of "indictment" for purposes of 18 U.S.C. § 922(n). The issue of whether the defendant was "under indictment" therefore remains to be determined and is a factual question to be decided by a jury.

Therefore, the Court recommends the Defendant's Third Motion to Dismiss (Doc. 147) be denied.

4. Fourth Motion to Dismiss (Doc. 148)

The defendant's Fourth Motion to Dismiss was filed October 13, 2020. The defendant argues Count T of the...