United States District Court, D. Alaska
Russel Holland, Senior United States District Judge.
moves for an order dismissing the 1997 indictment returned
against him by the Federal Grand Jury. The motion is opposed
by plaintiff. Defendant requests an evidentiary
is no need for an evidentiary hearing in connection with
defendant's motion to dismiss, for, as set out below,
there are no facts in dispute with respect to this matter.
Rather, defendant's motion raises legal issues which are
controlled by applicable statutes and court rules based upon
the official record in this case.
the age of this case, the paper record created in this case
prior to December of 2005 has been sent to archives.
Nevertheless, it is clear and undisputed that a Federal Grand
Jury indicted defendant in June of 1997. A superseding
indictment was returned July 15, 1997, charging: four counts
of distribution of a controlled substance; a fifth count of
possession with intent to distribute controlled substance;
counts six and seven, maintaining a place for drug
trafficking; and counts eight and nine, money laundering.
Defendant was tried and found guilty by the trial jury on
counts one through seven and count nine. Count eight was
dismissed by the Government. Defendant was sentenced and
judgment entered against him on June 16, 1998. A copy of the
judgment is attached as Exhibit A. A merits appeal was taken
and the judgment of the district court was affirmed in an
unpublished memorandum disposition. United States v.
Braswell, No. 98-30198, 2000 WL *335570 (9th Cir. Mar.
30, 2000). After motion practice not here relevant, defendant
filed a pro se motion pursuant to 28 U.S.C. §
2255 in this district court. In the course of those
proceedings, the issue that defendant raises here - namely,
the fact that the indictment did not identify the drugs in
question - was raised. The assigned magistrate and the
district judge both concluded that the indictment against
defendant was sufficient. The motion was denied.
further appeal was taken by defendant, and a motions panel
granted a certificate of appealability on the question of
whether the defendant's constitutional rights were
violated because the indictment failed to allege the kind of
drug involved in the offenses charged. By decision filed
September 4, 2007, the court of appeals held that
“Braswell's claim that his indictment was
constitutionally deficient is procedurally barred.”
United States v. Braswell, 501 F.3d 1147, 1150 (9th
focal point of defendant's motion to dismiss is the fact
that the indictment did not identify the specific drug
associated with each count of the indictment. Rather, the
several counts of the indictment simply made reference to
“a Schedule II controlled substance” or “a
Schedule I controlled substance.” A copy of the first
superseding indictment is attached to this order as Exhibit
bases his motion to dismiss upon Rule 47(a) and (d), Federal
Rules of Criminal Procedure, and Rule 12(b)(2), Federal Rules
of Criminal Procedure. Rule 47(b) sets out the form and
content of motions and subsection (d) requires an affidavit
supporting a motion. Defendant has complied with this rule.
Rule 12(b)(2) provides that “[a] motion that the court
lacks jurisdiction may be made at any time while the case is
pending.” There is no criminal case pending in this
court against defendant.
criminal case is concluded, this court's jurisdiction
over constitutional violations is found in 28 U.S.C. §
2255. Although what is before the court is characterized as a
motion pursuant to the Federal Rules of Civil Procedure, it
is in substance a second § 2255 motion that raises the
very same issue that was the subject of defendant's
earlier § 2255 motion. Thus the instant motion is
procedurally barred for the very same reasons that
defendant's first motion failed. Moreover, 28 U.S.C,
§ 2255(h) provides: “[a] second or successive
motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain”
newly discovered evidence or the existence of a new rule of
constitutional law. There is no record of defendant having
sought and obtained leave of the court of appeals for a
second § 2255 motion, nor does defendant's motion
contain any showing that there is new evidence or a new rule
of constitutional law applicable to his situation.
motion to dismiss the Federal Grand Jury indictment on the
theory that it failed to properly charge an offense is denied
for lack of a certificate of appealability from the Ninth
Circuit Court of Appeals. A certificate of appealability as
to this order is denied.
Docket No. 514.
Docket No. 530.