USA v. Braswell

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. )
)
CYRUS D.A. BRASWELL, )
) No. 3:97-cr-0068-HRH
Defendant. )
_______________________________________)
O R D E R
Motion to Dismiss1
Defendant moves for an order dismissing the 1997 indictment returned against him
by the Federal Grand Jury. The motion is opposed by plaintiff.2 Defendant requests an
evidentiary hearing.3
There 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.
1Docket No. 514.
2Docket No. 530.
3Docket No. 528.
Order – Motion to Dismiss - 1 -
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Due to 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affirmed in an unpublished memorandum disposition.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.
A 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 Cir. 2007).
Order – Motion to Dismiss - 2 -
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The 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 B.
Defendant 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.
After a 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.
Order – Motion to Dismiss - 3 -
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Defendant’s 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.
DATED at Anchorage, Alaska, this 9th day of May, 2019.
/s/ H. Russel Holland
Senior United States District Judge
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