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United States v. Smith

December 8, 2006

UNITED STATES OF AMERICA,
v.
DEREK W. SMITH, DEFENDANT.



The opinion of the court was delivered by: John E. Jones III United States District Judge

ORDER

Judge Jones

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court are two Motions filed by Defendant Derek Smith ("Defendant" or "Smith"). On July 6, 2006, Defendant filed a Motion to Dismiss the Indictment for Failure to Afford Defendant an Opportunity to Testify in Front of the Grand Jury ("Motion to Dismiss for Failure to Afford"). (Rec. Doc. 127). On July 13, 2006, Defendant filed a Motion to Dismiss for Lack of Federal Jurisdiction ("Motion to Dismiss for Lack of Jurisdiction"). (Rec. Doc. 133). For the reasons that follow, the Motions will be denied.

FACTUAL BACKGROUND/PROCEDURAL HISTORY

On January 13, 2005, the grand jury returned a four-count Indictment against co-defendants Derek Smith and Jessica Heddings ("Heddings"). (Rec. Doc. 24).

The Indictment charged both Defendants with one Count of Conspiracy to Possess with Intent to Distribute and to Distribute More Than Five Hundred (500) Grams of Cocaine, in violation of 21 U.S.C. § 846, and three Counts of Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

On June 21, 2006, the Grand Jury returned a six-count Superceding Indictment against Smith. (Rec. Doc. 111). The Superceding Indictment charges Smith with the same four Counts enumerated above. However, the Superceding Indictment also contains two additional counts. Count 5 charges Smith with Knowingly Using Communications Facilities, Namely a Telephone, to Commit the Commission of Acts Constituting Felonies, Namely Distribution and Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Count 6 charges Smith with Knowingly Opening, Leasing, Renting, Using, and Maintaining a Space for the Purpose of Distributing Cocaine, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2.

On July 6, 2006, Defendant filed the instant Motion to Dismiss for Failure to Afford. (Rec. Doc. 127). On July 13, 2006, Defendant filed the instant Motion to Dismiss for Lack of Jurisdiction. (Rec. Doc. 133).

On October 3, 2006, Defendant entered into a plea agreement with the Government whereby he agreed to enter a conditional guilty plea to Count 5 of the Superceding Indictment, but he retained the right to await this Court's disposition on the two instant Motions and to appeal this Court's rulings on said Motions, as well as one other previously disposed of Motion. (Rec. Doc. 153). On October 10, 2006, Defendant pleaded guilty to Count 5 of the Superceding Indictment and orally motioned to withdraw two other Motions that had been pending before this Court, his Motion to Strike Alias in Caption and Body of Indictment (doc. 124) and his Motion to Suppress Certain Recorded Telephone Conversations (doc. 134). (Rec. Doc. 159). On same date, this Court granted Defendant's oral motions. (Rec. Doc. 161).

Accordingly, Defendant's Motion to Dismiss for Failure to Afford (doc. 127) and Motion to Dismiss for Lack of Jurisdiction (doc. 133) remain before this Court. As they have been fully briefed by the parties, they are therefore ripe for our review.

DISCUSSION

A. Defendant's Motion to Dismiss for Lack of Jurisdiction (doc. 133)

We begin with Defendant's Motion to Dismiss for Lack of Jurisdiction (doc. 133) as our disposition of it may impact our disposition of his Motion to Dismiss for Failure to Afford (doc. 127). Pursuant to FED. R. CRIM. P. 12(b)(3), a court may hear a claim that the Indictment fails to invoke the court's jurisdiction at any point in time while the case is pending. Accordingly, ...


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