United States District Court, E.D. Pennsylvania
CYNTHIA M. RUFE, J.
NOW, this 19th day of March 2018, upon consideration
of Defendant's pro se Motion to Dismiss the
Indictment [Doc. No. 77], and the response thereto, it is
hereby ORDERED that the Motion [Doc. No. 77]
 It is alleged that on three separate
occasions in April of 2015, Defendant Jerome Walker sold
crack cocaine to a confidential informant working with the
Philadelphia Police Department's Narcotics Field Unit.
The Indictment charges Defendant with: distribution of
cocaine base ("crack") in violation of 21 U.S.C.
§ 841(a) (Counts 1-3); possession with intent to
distribute crack and cocaine in violation of 21 U.S.C. §
841(a) (Counts 4-5); possession of a firearm in furtherance
of a drug trafficking crime in violation of 18 U.S.C. §
924(c) (Count 6); and being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) (Count
Defendant has filed a motion to dismiss the Indictment
pursuant to Federal Rules of Criminal Procedure 12(b)(2) and
12(b)(3). Under Rule 12(b)(2), Defendant alleges that the
Court lacks jurisdiction, and under Rule 12(b)(3) he alleges
that the Indictment is defective.
Rule 12(b)(2) allows a defendant to move to dismiss an
indictment for lack of jurisdiction. Fed. R. Crim. P.
12(b)(2). Section 3231 of Title 18 of the United States Code
states, however, that "[t]he district courts of the
United States shall have original jurisdiction, exclusive of
the courts of the States, of all offenses against the laws of
the United States." 18 U.S.C. § 3231. Here, the
Indictment against Defendant alleges that he violated laws of
the United States, over which this Court has jurisdiction.
See United States v. Spencer, 398 Fed.Appx. 845, 848
n.4 (3d Cir. 2010) ("[The defendant's] other
arguments also lack merit. He contends that the district
court lacks subject matter jurisdiction over criminal matters
but 18 U.S.C. § 3231 properly confers such
jurisdiction."). It is irrelevant that Defendant could
have been prosecuted under Pennsylvania law in state court.
Defendant's argument is without merit.
Rule 12(b)(3) establishes that a defendant may raise
by pretrial motion the defense of a defect in the indictment,
such as "failure to state an offense." Fed. R.
Crim. P. 12(b)(3)(B)(v). An indictment must contain only a
"plain, concise, and definite written statement of the
essential facts constituting the offense charged." Fed.
R. Crim. P. 7(c)(1). An indictment is sufficient so long as
it: "(1) contains the elements of the offense intended
to be charged, (2) sufficiently apprises the defendant of
what he must be prepared to meet, and (3) allows the
defendant to show with accuracy to what extent he may plead a
former acquittal or conviction in the event of a subsequent
prosecution." United States v. Kemp, 500 F.3d
257, 280 (3d Cir. 2007) (internal citation omitted). Further,
"no greater specificity than the statutory language is
required so long as there is sufficient factual orientation
to permit the defendant to prepare his defense and to invoke
double jeopardy in the event of a subsequent
prosecution." Id. (citing United States v.
Rankin, 870 F.2d 109, 112 (3d Cir. 1989)). In this case,
each count of the Indictment meets this standard, alleging
what crimes were committed and when, and Defendant's
motion to dismiss will be denied on this basis.
Defendant also argues that the Indictment is defective
because the felony drug counts each do not contain an element
of interstate commerce. Although 21 U.S.C. § 841(a) and
18 U.S.C. § 924(c) were enacted pursuant to
Congress' powers under the Commerce Clause, neither
provision contains an element requiring proof of an effect on
interstate commerce. See 21 U.S.C. § 841(a); 18
U.S.C. § 924(c); United States v. Hall, No.
11-473, 2015 WL 4644104, at *5 (E.D. Pa. Aug. 5, 2015).
Moreover, the United States Supreme Court has concluded that
Congress may regulate the intrastate production, possession,
and distribution of controlled substances based on the
aggregate effect such activity has on interstate commerce.
See Gonzales v. Raich,545 U.S. 1, 17, 22 (2005).
For example, the United States Court of Appeals for the Third
Circuit explained the interstate nature of illegal drug
trafficking under federal law in United States v.
Orozco, and stated that Congress "expressly found
that drug trafficking affected interstate commerce" and
that it "has the power to regulate that market just as
it has the power to regulate food and drugs in general."
98 F.3d 105, 107 (3d Cir. 1996). Other circuits have examined
this question and reached the same conclusion that such
statutes are constitutional because Congress has the power
under the Commerce Clause to regulate the illegal drug
market, regardless of whether the transactions at issue are
intrastate. See United States v. Edwards, 98 F.3d
1364, 1369 (D.C. Cir. 1996); United States v.
Lerebours,87 F.3d 582, 584-85 (1st Cir. 1996);
United States v. Genao,79 F.3d 1333, 1336-37 (2d
Cir. 1996); United States v. Leshuk,65 F.3d 1105,
1112 (4th Cir. 1995); United States v. Tucker, 90
F.3d 1135, 1140-41 (6th ...