United States v. Parker

Citation36 F.Supp.3d 550
Decision Date01 August 2014
Docket NumberCase Nos. 2:13–CR–15–MR–DLH, 2:13–CR–16–MR–DLH.
CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
PartiesUNITED STATES of America v. Jerome Brock PARKER (1), Jerry Francis Parker (2). United States Of America v. David Chadwick Crisp (1), David Frank Crisp (2), Robert Willie Bumgarner (5).

36 F.Supp.3d 550

UNITED STATES of America
v.
Jerome Brock PARKER (1), Jerry Francis Parker (2).

United States Of America
v.
David Chadwick Crisp (1), David Frank Crisp (2), Robert Willie Bumgarner (5).

Case Nos. 2:13–CR–15–MR–DLH, 2:13–CR–16–MR–DLH.

United States District Court, W.D. North Carolina, Bryson City Division.

Signed Aug. 1, 2014


Motions denied.

[36 F.Supp.3d 553]

Richard Lee Edwards, United States Attorney, Asheville, NC, for United States of America.

MEMORANDUM DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THESE MATTERS are before the Court on the above-named defendants' motions to dismiss the Indictments in their respective cases for lack of subject matter jurisdiction [CR–15 Docs. 77, 80; CR–16 Docs. 77, 78, 86, 99, 100, and 103].1 Further, the defendants have filed motions to dismiss the Indictments due to constitutional due process violations [CR–1592, 93; CR–16 Docs. 98, 102, 104], and four 2 defendants have moved the Court to dismiss the Indictments based on entrapment. [CR–15 Docs. 92, 93; CR–16 Docs. 98, 102]. Even though these cases were indicted independently, they originate from the same undercover investigation. More importantly, however, the legal analysis necessary to resolve the motions pending in both cases overlaps to such an extent that the Court finds it more efficient to set forth its reasoning in this comprehensive memorandum, filed in both cases.

PROCEDURAL BACKGROUND IN CR–15

Defendants Jerome Brock Parker (“Jerome Parker”) and Jerry Francis Parker (“Jerry Parker”), together with Carl Wesley Junaluska II,3 Walter Henry Stancil,4 and Walter Cale Stancil,5 were named in a two-count Indictment returned by the grand jury in this District on June 4, 2013. [CR–15 Doc. 1]. Jerome Parker, Jerry Parker, and the three other men were charged in Count One with a two-object conspiracy to violate wildlife laws and regulations in derogation of 18 U.S.C. § 371. The grand jury alleged that from October 24, 2011, to October 28, 2011, in two separate incidents, the defendants conspired to sell, acquire, receive, and transport American black bear, with a market value in excess of $350, by providing guiding services for money and other consideration, knowing the bear to have been taken, possessed, transported, and sold in violation of federal law, and of state law by assimilation. [ Id. at 1–5]. Count Two alleged the

[36 F.Supp.3d 554]

defendants should be punished federally, pursuant to 16 U.S.C. § 3372(a)(1),6 for illegally taking wildlife on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [ Id. at 5–6].

Defendants were arraigned on June 17, 2013, and entered pleas of not guilty to both counts. Following their arraignments, defendants were released under pretrial supervision upon stated conditions. [CR–15 Docs. 8; 10]. On December 4, 2013, in nearly identical motions and memoranda, the Parkers moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [CR–15 Docs. 77–81]. The Government responded by filing its Memorandum in Opposition together with exhibits. [CR–15 Docs. 82; 83]. The Court heard arguments from counsel for all parties on March 24, 2014, regarding defendants' dismissal motions. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant Jerry Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [CR–15 Doc. 92] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR–15 Doc. 92–1]. On that same day, Defendant Jerome Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [CR–15 Doc. 93] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR–15 Doc. 94]. The Government responded with separate memoranda filed April 3, 2014, and April 18, 2014. [CR–15 Docs. 95; 96]. The Court conducted a second hearing on the defendants' motions on May 29, 2014.

PROCEDURAL BACKGROUND IN CR–16

Defendants David Chadwick Crisp (“D.C. Crisp”) and David Frank Crisp (“D.F. Crisp”), Robert Willie Bumgarner (“Bumgarner”), together with Tommy Gene Queen,7 and Mitchell Allen Jenkins,8 were named in various counts of an Indictment returned by the grand jury in this District on June 4, 2013. [CR–16 Doc. 1]. D.C. Crisp, D.F. Crisp, Bumgarner, and the other two men were charged in Count One with an 18 U.S.C. § 371 conspiracy to violate wildlife laws and regulations. The grand jury alleged that from November 17, 2010, to December 13, 2011, the five defendants conspired to sell, acquire, receive, and transport American black bear and white tail deer, with a market value in excess of $350, knowing said wildlife was taken, possessed, and transported in violation of federal law, and of state law by assimilation. [ Id. at 1–2]. Count Two alleged a Lacey Act violation against D.C. Crisp, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on September 7, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [ Id. at 2–3]. Count Three alleged a Lacey Act violation against D.C. Crisp, Tommy Gene Queen, and Mitchell Allen Jenkins, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on

[36 F.Supp.3d 555]

October 20, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [ Id. at 3]. Count Four alleged a Lacey Act violation against D.C. Crisp, D.F. Crisp, Tommy Gene Queen, and Mitchell Allen Jenkins, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on October 26, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [ Id. at 4]. Count Five alleged a Lacey Act violation against all five defendants, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on November 9, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [ Id. at 4–5]. Count Six alleged a Lacey Act violation against all five defendants, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on November 9, 2011, (on an occasion separate from that charged in Count Five) on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [ Id. at 5–6]. Counts Seven and Eight each alleged D.C. Crisp, on December 13, 2011, and October 8, 2012, respectively, possessed different firearms while being an unlawful user of and addicted to a controlled substance in violation of 18 U.S.C. § 922(g)(3). [ Id. at 6].

Defendants were arraigned on June 17, 2013, and entered pleas of not guilty. Following their arraignments, defendants were released under pretrial supervision upon stated conditions. [CR–16 Docs. 8; 10; 17]. On December 4, 2013, in nearly identical motions and memoranda, the defendants moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [CR–16 Docs. 77–90]. The Government responded to these motions by filing its Memorandum in Opposition together with exhibits. [CR–16 Docs. 91; 91–1 to 91–17]. The Court heard arguments from counsel for all parties on March 24, 2014, regarding defendants' motions to dismiss for lack of subject matter jurisdiction. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant D.F. Crisp filed a Motion to Dismiss for Entrapment and Violation of Due Process [CR–16 Doc. 98], as well as a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR–16 Docs. 99; 101]. On that same day, Defendant Bumgarner filed a Motion to Dismiss for Entrapment and Violation of Due Process [CR–16 Doc. 102], as well as a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR–16 Docs. 100; 102–1]. Finally, Defendant D.C. Crisp, on March 28, 2014, filed a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction [CR–16 Docs. 103; 104]. His brief, however, contained an argument asserting the Indictment against him should be dismissed based upon law enforcement officers' alleged due process violations. [CR–16 Doc. 104 at 9]. The Government responded with separate memoranda filed April 11, 2014, and April 17, 2014. [CR–16 Docs. 105; 106]. All of the defendants' motions are now ripe for the Court's review.

STANDARD OF REVIEW 9

Federal subject matter jurisdiction in a criminal case—this Court's statutory

[36 F.Supp.3d 556]

or constitutional power to adjudicate cases—can never be forfeited or waived. Consequently, defects in subject matter jurisdiction require correction regardless of when the error is raised. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Hartwell, 448 F.3d 707, 715 (4th Cir.2006) (any action by a court without subject matter jurisdiction is ultra vires and therefore void).

In contrast, certain defects in an indictment are not fatal to a court's subject matter jurisdiction because the grand jury right can be waived. Cotton, 535 U.S. at 630, 122 S.Ct. 1781; United States v. Carr, 303 F.3d 539, 542–43 (4th Cir.2002). Cotton thus directs the Court to examine the nature of the error about which the defendants complain. The distinction between indictments containing a non-fatal defect versus those containing a defect depriving a court of subject matter jurisdiction lies with whether the grand jury failed to allege an essential element of the crime, which is a non-fatal defect, or whether it failed to allege behavior that was criminal, a fatal defect going to a court's power to adjudicate guilt...

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  • United States v. Parker
    • United States
    • U.S. District Court — Western District of North Carolina
    • August 1, 2014
    ...36 F.Supp.3d 550UNITED STATES of Americav.Jerome Brock PARKER (1), Jerry Francis Parker (2).United States Of Americav.David Chadwick Crisp (1), David Frank Crisp (2), Robert Willie Bumgarner (5).Case Nos. 2:13–CR–15–MR–DLH2:13–CR–16–MR–DLH.United States District Court, W.D. North Carolina, ......

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