IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. :
: CRIMINAL NO. xx-290(EGS)
xxxxxxxxx xxxxxxx, :
:
Defendant. :
______________________________:
MOTION TO DISMISS THE INDICTMENT AND
INCORPORATED MEMORANDUM OF SUPPORTING POINTS AND AUTHORITIES
Defendant, xxxxxxxxxxxxxx, respectfully moves this Court pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure to dismiss the indictment on grounds that this Court relinquish its jurisdiction over Ms. xxxxx case.
Ms. xxxxxx states:
1. She was arrested on June 14, 1997, and charged by indictment with violations of the District of Columbia Code, sections 3204(a) carrying a pistol without a license, and 2311(a) and 2361(3) possession of an unregistered firearm and ammunition.
2. Ms. xxxxxxis not charged with any federal offense.
3. The codefendant in this case, Mr. xxxxxxx, was charged with two counts of violating Title 18 Section 922(g)(1) unlawful possession of a firearm and unlawful possession of ammunition by a convicted felon.
4. Mr. xxxx, pled guilty on , 1997, to the federal charges, and his federal charges are no longer before this court.
5. Ms. xxxxxx requests that this court relinquish jurisdiction over the local charges pursuant to United States v. Koritko, 870 F.2d 738 (D.C. Cir. 1989). See also, U.S. v. Kember,(Kember II), 685 F.2d 451, 454 (D.C. Cir. 1982), cert. denied, 459 U.S. 832 (1982), and U.S. v. Kember,(Kember I), 648 F.2d 1354,1359 (D.C. Cir.1980).
LEGAL PRINCIPLES IN SUPPORT OF MOTION
In United States v. Koritko, 870 F.2d 738 (D.C. Cir. 1989), this Circuit explained that
Congress has circumscribed the federal courts' ability to try defendants accused of committing offenses defined by the law of the District of Columbia. The United States District Court for this district possesses jurisdiction over charges of local offenses only if the "offense is joined in the same information or indictment with any Federal offense." Id. at 739 (quoting 11 D.C. Code Ann. § 502(3) (1981)). The language of the D.C. Code provision is "clear and unequivocal." United States v. Jackson, 562 F.2d 789, 799 (D.C. Cir. 1977); see United States v. Shepard, 515 F.2d 1324, 1329 (D.C. Cir. 1975).
Further, it is not enough that local charges be "joined in the same information or indictment with any federal charge"; the federal and local charges must be properly joined. See United States v. Jackson, 562 F.2d at 793 ("The word 'joined' in [11 D.C. Code Ann. § 502(3)] must be construed to mean 'properly joined under Fed. R. Crim. P. 8.'"). In Jackson, the Court ruled that a local robbery charge had been improperly joined with firearms and assault offenses in one indictment. Because the joinder of offenses was improper, the federal court lacked jurisdiction to try the robbery charge and Jackson's robbery conviction was reversed. Id. at 797, 800. The Circuit declared that [t]he responsibilities of the District Court with respect to matters of federal concern are great and growing. A central purpose and policy of D.C. court reorganization was to assure that the prompt and effective discharge of those responsibilities would not be impeded by the necessity of trying local criminal offenses, for which a forum was provided in an enlarged and strengthened local court system. The authority conferred by 11 D.C. Code § 502(3) should not be extended by either prosecutor or judge beyond its precise limits.
Id. at 800; see also United States v. Koritko, 870 F.2d at 740-41 (indictment must be dismissed where no proper joinder of federal and local offenses in same indictment under Fed. R. Crim. P. 8); United States v. Davis, 755 F. Supp. 16, 16 n.2 (D.D.C. 1991) (JHG) (proper joinder of federal and local offenses is "necessary prerequisite" for district court to exercise jurisdiction over local charges) (quoting Koritko, 870 F.2d at 739). See, also, United States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995)(the federal court has jurisdiction to hear cases involving local law when the local counts are joined with federal ones.) The propriety of joinder of defendants provides that two or more defendants may be charged in the same indictment if they are alleged to have participated in the same act or series of acts constituting an offense or offenses. Fed.R. Crim.P. 8(b). Joinder is proper, where the government presents evidence before trial that the defendants' offenses arose out of the same scheme. United States v. Halliman, 923 F.2d 873, 883(D.C. Cir. 1991). Ms. xxxxxxx, however, does not argue that her charges were not properly joined with the federal offense charged against her codefendant Mr. xxxxx. Her argument, instead, is buttressed by the Koritko court's recognition that, although the statute can guide the inquiry as to whether there is proper joinder in the case, a second inquiry arises, that is, whether following proper joinder the District Court must relinquish jurisdiction over the local charges once the federal charges are dismissed (or otherwise do not remain before the court.) Koritko at 740. This circuit held, in Koritko, that the Rule allows the district court a measure of discretion as to whether it will retain or relinquish jurisdiction over the local charges. Koritko at 740.
Therefore, if and only if--federal and local charges are properly joined in the same indictment, the district court does retain a "measure of discretion" to retain jurisdiction over local charges once federal charges have been removed from a case. United States v. Koritko, 870 F.2d at 740.
Ms. xxxxx codefendant in this case, Mr. xxxxxx, has pled guilty to the federal charges against him. The question that this court must answer is whether, granting that there is proper joinder, and presuming that there is no longer a federal charge remaining before this court, the court has discretion to relinquish jurisdiction over the local charges against Ms. xxxxx.
This court has held that a district court may exercise jurisdiction over remaining local charges only if "retention of the case is warranted by remaining matters of legitimate federal concern." United States v. Kember, 685 F.2d 451, 454 (D.C. Cir.) ("Kember II"), cert. denied, 459 U.S. 832 (1982).
In Kember II, for example, the district court properly exercised its discretion to retain jurisdiction where the case was "of unique concern" to the federal government; the defendants were "two of the highest officials of [the Church of] Scientology" and participated in a plot "to steal documents of interest to Scientology, including litigation files of government attorneys, from various offices of the United States government." Id. at 453. The defendants pursued Scientology's goal "to get every shred of evidence that the United States Government ha[d] on the Church of Scientology" by burglarizing United States government offices. Id.(1)
Absent the federal concern present in Kember II, the Circuit has cautioned that the U.S. District Court for the District of Columbia should decline to try local offenses when those offenses have been disassociated from any federal charges prior to trial and retention of the case would not comport with "[t]he responsibilities of the District Court with respect to matters of federal concern."
United States v. Kember, 648 F.2d 1354, 1360 (D.C. Cir. 1980) ("Kember I") (emphasis added). Thus, in United States v. Smith, 729 F. Supp. 1380 (D.D.C. 1990), Judge Hogan dismissed remaining local charges (tampering with evidence and theft) after the federal claim disappeared from a case in which a law enforcement officer was accused of retaining illegal narcotics taken from a drug dealer in a "sting" operation. Similarly, in United States v. Davis, 755 F. Supp. 16 (D.D.C. 1991), Judge Joyce Hens Green dismissed remaining local charges against a D.C. government employee, after the employee was acquitted of a federal bribery charge. In short, once federal charges have faded from a case, the district court cannot maintain jurisdiction over properly joined local charges unless "retention of the case is warranted by remaining matters of legitimate federal concern." Kember II, 685 F.2d at 454 (emphasis added).
In the instant case, there remains no matter of legitimate federal concern since Mr. Bey has already pled guilty to the federal charges and, in effect, the federal charges have "faded" from the case. All that remains are the two local charges against Ms. Davis.
WHEREFORE, Ms. xxxxx, through undersigned counsel, respectfully requests that this court relinquish its jurisdiction, and dismiss the charges against her in the United States District Court.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
___________________________
Valencia Rainey
Counsel for xxxxxxxxxxxxxxx
Assistant Federal Public Defender
625 Indiana Ave. N.W. Suite 550
Washington, D.C. 20004
(202)208-7500
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Motion To Dismiss the Indictment and Incorporated Memorandum of Supporting Points and Authorities, has been personally service upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001, this day of November 1997, for Assistant United States Attorney Sima F. Sarrafan, Esq., by leaving a copy in the box designated for the United States Attorney's Office in the clerk's office of the United States District Court for the District of Columbia.
______________________________
Valencia Rainey
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. :
: CRIMINAL NO. xx-290(EGS)
xxxxxxxxxxxxxxxx, :
:
Defendant. :
______________________________:
O R D E R
This matter having come before the Court on a Motion To Dismiss the Indictment and the
Incorporated Memorandum of Points and Authorities In Support Thereof, and good cause
having been shown, it is this day of ,1997, HEREBY ORDERED that the
motion is granted and charges dismissed with prejudice.
Emmet G. Sullivan
District Court Judge
Valencia Rainey, Esq.
Office of the Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
Sima Sarrafan, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001
1. The federal charges has been properly joined in the indictment with D.C. code charges, but international treaty provisions under which the defendants were extradited from the United Kingdom prevented them from being tried on the federal charges. See Kember II, 685 F.2d at 452; Kember I, 648 F.2d at 1356.