UNITED STATES OF AMERICA vs. RICHARD POTTS a/k/a NASIR HAQQ a/k/a NASIR JONES a/k/a… v. Booker, 543 U.S. 220 2005 , in an appeal docketed at C.A. No. 03-3163. On remand,…

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HLD-7 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-3057
________________
UNITED STATES OF AMERICA
vs.
RICHARD POTTS a/k/a NASIR HAQQ
a/k/a NASIR JONES a/k/a NASIR a/k/a NAZ,
Richard Potts,
Appellant.
____________________________________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 01-cr-00457-3)
District Judge: Honorable James T. Giles
__________________________
Submitted Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 5, 2007
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Filed October 18, 2007)
_________________
OPINION
_________________
PER CURIAM.

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Appellant Richard Potts was found guilty by a jury of conspiracy to
distribute more
than 50 grams of cocaine base, or “crack,” in violation of 21 U.S.C. § 846, and murder in
furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A).
He was sentenced to two terms of life imprisonment. This case centered around a large
scale drug organization in Philadelphia known as “Do or Die” or “D.O.D.,” which was
operated by Daniel Coach. Potts was involved in various ways throughout the conspiracy,
including partnering with Coach in drug distribution and killing Rodney Trusty. We
affirmed on June 27, 2005, but vacated his sentence and remanded for resentencing
pursuant to United States v. Booker, 543 U.S. 220 (2005), in an appeal docketed at C.A.
No. 03-3163. On remand, Potts was again sentenced to life imprisonment. The judgment
of sentence was entered on October 21, 2005 and Potts appealed. His counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he stated that there
were no non-frivolous grounds for appeal. On September 26, 2007, we affirmed and
granted counsel’s motion to withdraw in an appeal docketed at C.A. No. 05-4744.
While the latter appeal was pending, Potts filed two items pro se in the
district court: a “motion for grand jury proceedings” on August 11, 2006, and a motion to
set aside the judgment for lack of jurisdiction pursuant to Federal Rule of Criminal
Procedure 12(b)(3)(B) on February 20, 2007. In an order entered on July 19, 2007, the
District Court denied the former motion without prejudice. The court wrote an opinion,

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explaining that, insofar as Potts appeared to be challenging his indictment, conviction and
sentence, he would need to resort to 28 U.S.C. § 2255 (or 28 U.S.C. § 2241 if in fact he
was only challenging the execution of his sentence). The court offered to re-characterize
the motion, United States v. Castro, 540 U.S. 375, 381 (2003), and warned Potts about the
short statute of limitations applicable to section 2255 motions, and the restrictions on
successive petitions, see United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). The
court gave Potts 60 days to respond and advised him that, if he filed the section 2255
forms, his motion would be deemed filed on the date of filing of the original motion.
In an order entered on June 29, 2007, the District Court denied the Rule
12(b)(3)(B) motion to void the judgment for lack of jurisdiction as frivolous. Potts has
appealed this order only. Our Clerk notified him that we might act summarily to dispose
of this appeal and invited him to respond in writing. He has done so.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6,
because it clearly appears that no substantial question is presented by this appeal. We
have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. United States v.
Thompson, 70 F.3d 279, 280-81 (3d Cir. 1995). Criminal Rule 12 provides in pertinent
part that “at any time while the case is pending, the court may hear a claim that the
indictment or information fails to invoke the court's jurisdiction or to state an offense.”
Fed. R. Crim. Pro. 12(b)(3)(B). In his motion, Potts contended that his criminal judgment
is void because the criminal jurisdiction statute, 18 U.S.C. § 3231, was never enacted into

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positive law and is unconstitutional.
This argument is frivolous. Section 3231 of title 18 provides: “The 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.” Therefore, where an indictment charges a
defendant with violating the laws of the United States, section 3231 provides the district
court with subject matter jurisdiction and empowers it to enter judgment on the
indictment. The 1948 amendment to that statute, Public Law 80-772, passed both houses
of Congress and was signed into law by President Truman on June 25, 1948. See United
States v. Risquet, 426 F. Supp.2d 310, 311 (E.D. Pa. 2006). Potts has provided no
authority for his argument that there was a sine die recess between the votes of the House
and Senate. Id. The cases he cited stand for the contrary proposition. The statute relied
upon for jurisdiction in this case was properly enacted and is binding. Section 3231
provides the district court with subject matter jurisdiction over drug distribution and
murder charges such as Potts’. See, e.g., United States v. Coles, 437 F.3d 362, 365 (3d
Cir. 2006). The Court of Appeals for the Seventh Circuit did not, as Potts states, grant
rehearing in United States v. Zambrana, No. 07-1169. On the contrary, the petition for
rehearing and rehearing en banc was denied on July 12, 2007.
We will summarily affirm the order of the District Court denying Potts’
Rule 12(b)(3)(B) motion to void the judgment for lack of jurisdiction.

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