United States v. Del Valle-Fuentes

• Decision Date: 09 November 2015
• Docket Number: Criminal No. 15–347 (FAB).
• Citation: 143 F.Supp.3d 24
• Parties: UNITED STATES of America, Plaintiff, v. Brayan DEL VALLE–FUENTES, Defendant.
• Court: U.S. District Court — District of Puerto Rico

143 F.Supp.3d 24

UNITED STATES of America, Plaintiff,

v.Brayan DEL VALLE–FUENTES, Defendant.

Criminal No. 15–347 (FAB).

United States District Court, D. Puerto Rico.

Signed Nov. 9, 2015.

Alexander L. Alum, United States Attorney's Office, San Juan, PR, for Plaintiff.

Eric A. Vos, Leonardo M. Aldridge, Federal Public Defender's Office, Hato Rey, PR, for Defendant.

MEMORANDUM AND ORDER

BESOSA

, District Judge.

Before the Court is defendant Brayan del Valle–Fuentes' motion to dismiss the indictment. (Docket No. 26.) The United States opposed the motion, (Docket No. 31), and the Court referred the matter to Magistrate Judge Bruce J. McGiverin, (Docket Nos. 35–36).

The magistrate judge issued a Report and Recommendation ("R & R"), recommending that the Court deny defendant Del Valle's motion as premature. (Docket No. 37.) The United States and defendant Del Valle objected to the R & R. (Docket Nos. 39–40.)

For the reasons explained below, the Court modifies in part and rejects in part the magistrate judge's R & R, (Docket No. 37), and GRANTS defendant Del Valle's motion to dismiss the indictment, (Docket No. 26).

I. STANDARD OF REVIEW

A district court may refer a pending dispositive motion to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B)

; Fed.R.Civ.P. 72(b) ; Loc. R. 72(a). Any party may file written objections to the report and recommendation, and a party that files a timely objection is entitled to a de novo determination of those portions of the report to which specific objection is made. 28 U.S.C. § 636(b)(1) ; Loc. R. 72(d). In conducting its review, the Court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; accord Loc. R. 72(d).

Here, the United States and defendant Del Valle filed specific objections to all portions of the magistrate judge's R & R. (Docket Nos. 39, 40.) Accordingly, the Court conducts a de novo review.

II. DISCUSSION

A federal grand jury indicted defendant Del Valle on a single count of violating 18 U.S.C. § 922(g)(1)

. (Docket No. 9.) Section 922(g)(1) makes it unlawful for any person "who has been convicted in any court of, [comma in original] a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm or ammunition[.]" 18 U.S.C. § 922(g)(1). Defendant Del Valle moves to dismiss the indictment on the ground that he had not previously been convicted of a felony at the time he allegedly possessed a firearm and ammunition. (Docket No. 26.)

The dispute over whether Del Valle had been convicted of a felony stems from the parties' diverging interpretations of Article 404(b) of the Puerto Rico Controlled Substances Act ("Article 404(b)"), P.R. Laws Ann. tit. 24, § 2404(b)(1)

. Defendant Del Valle pled guilty to a violation of Article 404(b) on August 19, 2014, and was serving a term of probation stemming from this guilty plea when he allegedly possessed a firearm and ammunition on May 7, 2015. (Docket No. 31 at p. 2.) The United States maintains that this guilty plea and subsequent probation constitute a conviction for purposes of 18 U.S.C. § 922(g)(1)

, and defendant Del Valle contends that the Puerto Rico court stayed the proceedings against him during the probationary period and never convicted him of the crime.

The magistrate judge sided with defendant Del Valle on the merits, finding that, as a matter of law, the Puerto Rico court's placement of Del Valle on probation pursuant to Article 404(b) did not make him a convicted felon. (Docket No. 37 at p. 6.) The magistrate judge ultimately recommended denying defendant Del Valle's motion to dismiss the indictment on procedural grounds, however, concluding that the correct procedure is for Del Valle to object to the United States' evidence of his alleged predicate felony at trial and to challenge the United States' case in a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29

. Id. at p. 7.

The Court first addresses whether defendant Del Valle's argument is properly raised in a motion to dismiss the indictment, and concludes by rejecting the magistrate judge's finding that Del Valle's motion is premature. The Court then proceeds to analyze the merits of Del Valle's argument, and, after modifying the magistrate judge's analysis, agrees that the Puerto Rico court's placement of Del Valle on probation pursuant to Article 404(b) did not make him a convicted felon.

A. Motion to Dismiss the Indictment

Defendant Del Valle moves to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)

("Rule 12(b)"). (Docket No. 26 at pp. 2–3.) Del Valle specifically invokes Rule 12(b)(3)(B), which requires that a defendant raise by pretrial motion any defect in the indictment, including the indictment's failure to state an offense. See id. at pp. 2–4, 7; Fed.R.Crim.P. 12(b)(3)(B). To state an offense sufficiently, an indictment must "sketch[ ] out the elements of the crime and the nature of the charge so that the defendant can prepare a defense and plead double jeopardy in any future prosecution for the same offense." United States v. Guerrier, 669 F.3d 1, 3 (1st Cir.2011). Because Del Valle does not allege that the indictment fails to set out the elements of the crime or the nature of the charge, Rule 12(b)(3)(B) is not the proper procedural vehicle for Del Valle's motion.

Instead of challenging the facial sufficiency of indictment, defendant Del Valle challenges the legal sufficiency of the United States' undisputed evidence supporting the indictment's single charge. (Docket No. 26 at pp. 2–7.) The United States agrees that the facts are undisputed and that the Court should resolve the purely legal question of whether an Article 404(b) guilty plea and subsequent probation constitute a felony conviction. (Docket No. 31 at p. 3; Docket No. 39 at pp. 2–3.)

Pursuant to Rule 12(b)(1)

, which defendant Del Valle invokes as an alternative procedural vehicle for his motion, a party "may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." See Docket No. 40 at pp. 2–3; Fed.R.Crim.P. 12(b)(1). The First Circuit Court of Appeals has not addressed the issue of whether a trial court may dismiss an indictment pursuant to Rule 12(b)(1) based on a purely legal determination when the facts are undisputed, but several other circuit courts of appeals have addressed this issue.

Seven circuit courts of appeals have squarely held that district courts may properly rule on a motion to dismiss an indictment when the facts are undisputed, the government does not object to the procedure, and the only question is a legal one. See United States v. Weaver, 659 F.3d 353, 355 (4th Cir.2011)

("[A] district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts."); United States v. Todd, 446 F.3d 1062, 1067–69 (10th Cir.2006) (district court may dismiss charges before trial where "undisputed evidence shows that, as a matter of law, the Defendant could not have committed the offense for which he was indicted"); United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005) ; United States v. Yakou, 428 F.3d 241, 246–47 (D.C.Cir.2005) ; United States v. Phillips, 367 F.3d 846, 854–56 (9th Cir.2004) ; United States v. Levin, 973 F.2d 463, 467 (6th Cir.1992) ; United States v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988) (where "the government's own facts proffered to the defendant and the district court simply did not conform to the allegations in the indictment," the district court "correctly dismissed the indictment, not because the government could not prove its case, but because there was no case to prove").

Similarly, two circuit courts of appeals stated in dicta that a district court may consider a motion to dismiss an indictment based on sufficiency of the evidence where the facts are stipulated. United States v. DeLaurentis, 230 F.3d 659, 660–61 (3d Cir.2000)

("Unless there is a stipulated record ... a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence."); United States v. Alfonso, 143 F.3d 772, 776–77 (2d Cir.1998) ("Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial to satisfy the jurisdictional element of the offense, the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment.").

Conversely, only the Eleventh Circuit Court of Appeals has held that Rule 12(b)(1)

does not allow a district court to look beyond the face of the indictment to rule on motions to dismiss, even where the facts are undisputed. See United States v. Salman, 378 F.3d 1266, 1267–69 (11th Cir.2004). That court did recognize, however, that this approach "may result in legally meritless cases being sent to trial." Id. at 1269.

Here, the United States agrees with defendant Del Valle that the facts are undisputed and encourages the Court to rule on his motion to dismiss the indictment. (Docket No. 31 at p. 3; Docket No. 39 at pp. 2–3.) The issue of whether an Article 404(b) guilty plea and subsequent probation constitute a felony conviction for purposes of section 922(g)(1)

is a purely legal question that the Court can answer without a trial on the merits. See United States v. Bartelho, 71 F.3d 436, 440 (1st Cir.1995) ("[T]he trial judge bears the responsibility of determining as a matter of law whether a prior conviction is admissible in a § 922(g)(1) case."). The Court therefore follows the vast majority of circuit courts of appeals and holds that, under these circumstances, it may rule on defendant Del Valle's motion to dismiss the indictment pursuant to Rule 12(b)(1). This conclusion is in...