United States v. Montgomery, Case No. 10-00187-01-CR-W-ODS

• Decision Date: 29 September 2011
• Docket Number: Case No. 10-00187-01-CR-W-ODS
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROBERT MONTGOMERY, Defendant.
• Court: U.S. District Court — Western District of Missouri

UNITED STATES OF AMERICA, Plaintiff,

v.ROBERT MONTGOMERY, Defendant.

Case No. 10-00187-01-CR-W-ODS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Dated: September 29, 2011

REPORT AND RECOMMENDATION

This matter is currently before the Court on the following pro se notices and motions to dismiss filed by defendant Montgomery:

1. Notice; Article II; Judicial Notice Rule 201; Judicial Notice of Adjudicative Facts (a)(b)(d)(e)(f) (doc #71);

2. Motion of Selective Prosecution Defense (doc #72);

3. Motion to Challenge the Jurisdiction of the United States District Court (doc #74);

4. Notice; Judicial Notice Rule 201; Judicial Notice to Dismiss for Lack of Territorial Jurisdiction (doc #76);

5. Article II; Judicial Notice of Adjudicative Facts; Rule 201(b)(c)(d)(e)(f), Federal Criminal Code and Rules (doc #78);

6. Ex Parte Memorandum; Judicial Notice By Way of Affidavit, or Formal Challenge of Federal Governments (the D.O.J.) Jurisdiction Pursuant to 40 U.S.C. § 255 (doc #84);

7. Ex Parte Memorandum (doc #89);

8. Ex Parte Memorandum (doc #90);

9. Ex Parte Memorandum (doc #93);

10. Ex Parte Motion to Amend and to Request Oral Argument and Request Court to Order Government to Produce Documentation of Proof of Purchase and Cession of Land Pursuant to Title 40 U.S.C. § 255, § 3112, and RSMo. § 12.010, § 12.020 (doc #95);

11. Notice and Demand to Dismiss for Lack of Territorial Jurisdiction (doc #96);

12. Judicial Notice as Notice to Dismiss Indictment as Evidence isUnconstitutional in Lack of Subject Matter Jurisdiction (doc #99);

13. Jurisdictional Challenge to the Prosecution and to the Court (doc #100); and

14. Motion to Take Judicial Notice of the Determination By the D.O.J. That Title 18 (1948) is Unconstitutional and of the Fair Warning Doctrine (doc #109).

For the reasons set forth below, it is recommended that these motions be denied.

I. INTRODUCTION

On June 21, 2010, a criminal complaint was filed against defendant Robert Montgomery. The complaint charged that on June 21, 2010, defendant Montgomery, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed a firearm, to wit: a Glock, Model 17, 9mm semi-automatic pistol, which had been transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). The affidavit given in support of the criminal complaint, signed by Task Force Officer Christopher A. Gilio, Bureau of Alcohol, Tobacco, Firearms and Explosives, provided in part:

2. On June 21, 2010, at 12:35 a.m., Kansas City, Missouri Police Sergeant Gregory Williams was in the area of 13th and Highland in Kansas City, Jackson County, Missouri, regarding an aggravated assault shooting that occurred in the area. Sergeant Williams received information that the shooting suspect was still in the area and was leaving in a red Dodge. Sergeant Williams immediately observed a red Dodge with a freshly broken window and bullet holes in the exterior of the vehicle. Sergeant Williams attempted to stop the vehicle on a car check and the driver refused to stop. The vehicle struck a parked vehicle near 13th and Garfield and the driver who was later identified as Robert MONTGOMERY, DOB: 08/13/1972, fled on foot. MONTGOMERY was taken into custody after a short foot pursuit. Sergeant Williams returned to the vehicle driven by MONTGOMERY and located a handgun on the passenger seat in plain view. The handgun was recovered and determined to be a Glock, Model 17, 9mm semi-automatic pistol, Serial Number GW530US.

3. On May 7 [sic], 2010, Detective Chris Toigo of the Kansas City, Missouri Police Department, Robbery Unit, advised Robert MONTGOMERY of his Miranda rights and questioned him regarding his arrest. During questioning, MONTGOMERY admitted that he ran from the pursuing police officers but denied knowledge of the firearm that was found inside of his vehicle.

4. On June 21, 2010, I reviewed the criminal history relating to the felony convictions of Robert MONTGOMERY. On August 12, 1998, in the Circuit Court of Jackson County, Missouri, Case Number CR199803805, MONTGOMERY was sentenced to five years of imprisonment relative to a felony conviction of Distribution of a Controlled Substance.

5. I know based on my experience and training that the previously described Glock pistol was not manufactured in Missouri. The pistol was most likely manufactured in Austria.

(doc #1-1)

On June 29, 2010, the Grand Jury returned a one count indictment against Robert Montgomery. The indictment charges that on June 21, 2010, defendant Montgomery, having been convicted of crimes punishable by imprisonment for terms exceeding one year, knowingly possessed a firearm, to wit, a Glock, Model 17, 9mm semi-automatic pistol, which had been transported in interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

On December 23, 2010, defendant Montgomery filed a pleading entitled Motion By Defendant Robert Montgomery Invokes the Right to Self-Representation With Advisory Counsel on Standby to Assist (doc #35). Defendant Montgomery was granted leave to proceed pro se on January 13, 2011.

On January 13, 2011, the government filed a Notice of Prior Convictions of the Defendant and Notice of the Government to Enhance the Defendant's Sentence Under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The notice lists the following prior convictions:

1. 1994 conviction for Assault in the Second Degree, in Case Number CR94-4073 in Jackson County, Missouri;

2. 1998 conviction for Sale of a Controlled Substance in Case Number 16CR98003805-01 in Jackson County, Missouri;

3. 2000 conviction for Felon in Possession of a Firearm, Case Number 00-00036-01-CR-W-2, in the Western District of Missouri; and

4. 2008 conviction for Domestic Assault in the Second Degree, in Case Number 076-CR06608 in Jackson County, Missouri.

(doc #38)

On February 22, 2011, the undersigned filed a Report and Recommendation which recommended that seven pro se motions to dismiss filed by defendant Montgomery be denied. On March 17, 2011, the district court adopted the undersigned's report and recommendation and denied defendant's motions to dismiss.

II. DISCUSSION

As with the previous motions to dismiss, the pending pro se notices and motions to dismiss contain a jumbled collection of quotations and citations. To the extent that defendant requested oral argument on any of the pending notices and motions, the Court did not feel that such argument would be beneficial to it in its ruling. The Court has attempted to decipher defendant's pleadings and pull out the arguments for dismissal that defendant is advancing. These arguments for dismissal include:

1. the Court does not have subject matter jurisdiction as it only has jurisdiction in civil matters;

2. the federal government has no jurisdiction over the exact geographical location where defendant's crime is alleged to have taken place;

3. the evidence and reports against defendant were obtained from the Kansas City, Missouri Police Department, rather than a federal agency;

4. the arrest warrant did not comply with Rules 4 and 9 of the Federal Rules of Criminal Procedure and the Fourth Amendment;

5. defendant was arrested prior to the issuance of the arrest warrant;

6. the indictment was not returned in open court;

7. defendant was subjected to selective prosecution as similarly situated parties have not been charged with the same offense;

8. defendant was deprived of rights under the Uniform Criminal Extradition Act;

9. a magistrate judge has no jurisdiction to preside over defendant's pretrial proceedings;

10. the grand jury was improperly impaneled;

11. 18 U.S.C. § 922(g)(1) is unconstitutional;

12. there was prosecutorial misconduct before the grand jury;

13. defendant was denied his due process rights because he was not permitted to participate in the selection of the grand jury; and

14. 18 U.S.C. § 3231 is unconstitutional and void because H.R. 3190 was never constitutionally passed by Congress.

The Court will address each of defendant's arguments listed above. To the extent that defendant'spleadings contain references to any other arguments, the Court finds these additional arguments frivolous.

A. Jurisdiction

As in the motions to dismiss which already have been denied, the major theme in defendant's filings is that the Court lacks jurisdiction. In its previous Report and Recommendation, the Court quoted the following excerpt from the case of United States v. McDowell, 2010 WL 5014445 (D. Kan. Dec. 3, 2010). The court wrote:

[Defendants] misconstrue the jurisdiction of federal district courts. Under the United States Code, district courts of the United States have original jurisdiction of all offenses against the laws of the United States. 18 U.S.C. § 3231. Criminal jurisdiction of courts of the United States is derived exclusively from acts of Congress. Hudspeth v. Melville, 127 F.2d 373, 375 (10th Cir. 1941)(citing Jones v. United States, 137 U.S. 202 (1890)). Thus, for the Court to have subject matter jurisdiction over a criminal defendant, Congress must have explicitly prescribed the criminal offense. See Jerome v. United States, 318 U.S. 101, 105 (1943). In this case, Mr. Pitter and Mr. McDowell have been charged in part with conspiracy to distribute and possess with the intent to distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a) and 846, continuing criminal enterprise, in violation of 21 U.S.C. § 848, and using a communication facility, a cellular telephone, in facilitating the offense, in violation of 21 U.S.C. § 843(b).

McDowell, 2010 WL 5014445 at *5. See also United States v. Trotter, 478 F.3d 918, 920 n.2 (8th Cir. 2007)("Because Trotter was charged with an offense against the laws of the United States, the court clearly had jurisdiction and his motion to dismiss was properly denied.")

In this case, defendant Montgomery has been charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1...