USA v. Notah

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Joseph Nicholas Notah,
Defendant.
No. CR-24-01939-001-PHX-SMB
ORDER
Pending before the Court is Defendant Joseph Nicholas Notah’s Motion to Dismiss
the Indictment. (Doc. 68.) The Court dismisses the Motion for the reasons below.
I. BACKGROUND
On the early morning of June 1, 2024, Defendant and his juvenile brother (“John
Doe”) were present at a large outdoor party located on the Gila River Indian Community.
(Doc. 68 at 1.) Police arrived at the event around 2:00am in response to a noise complaint.
(Doc. 71 at 2.) Soon after, a fight broke out amongst partygoers. (Doc. 68 at 1.) At some
point, officers saw Defendant holding a firearm while reaching into his vehicle. (Id. at 3.)
Allegedly, the officers ordered Defendant to drop the weapon, but Defendant refused to
comply. (Doc. 71 at 2.) An officer then tased and shot Defendant. (Id. at 2.)
After Defendant was shot, John Doe picked up the firearm from the other side of
the vehicle and opened fire on the nearby officers, reloaded, and continued firing. (Id.)
John Doe killed two officers and critically injured another. (Id.) Partygoers eventually
subdued John Doe. (Id. at 3.)
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On November 26, 2024, a federal grand jury indicted Defendant with two federal
crimes: (1) assault with a dangerous weapon in Indian Country, in violation of 18 U.S.C.
§§ 1153 and 113(a)(3); and (2) using, carrying, and brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (Doc. 68 at 1.)
Defendant now moves to dismiss these counts as a matter of law.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure (“Rule”) 12(b)(3)(B)(v) permits a defendant to
file a pretrial motion to request dismissal of a count for failure to state an offense. “An
indictment is sufficient if it contains the elements of the charged crime in adequate detail
to inform the defendant of the charge and to enable him to plead double jeopardy.” United
States v. Buckley, 689 F.2d 893, 896 (9th Cir. 1982). When determining the sufficiency of
an indictment, the Court “must look at the indictment as a whole, include facts which are
necessarily implied, and construe it according to common sense.” United States v. Kaplan,
836 F.3d 1199, 1216 (9th Cir. 2016) (quoting Buckley, 689 F.2d at 897). Additionally, the
Court “must accept the truth of the allegations in the indictment.” United States v. Boren,
278 F.3d 911, 914 (9th Cir. 2022).
Importantly, a motion to dismiss “cannot be used as a device for a summary trial of
the evidence.” United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (citation modified).
Thus, a defendant “may not properly challenge an indictment, sufficient on its face, on the
ground that the allegations are not supported by adequate evidence.” Id. (citation
modified). At bottom, “[t]he indictment either states an offense or it doesn’t. There is no
reason to conduct an evidentiary hearing.” Boren, 278 F.3d at 914.
III. DISCUSSION
Defendant challenges the first two counts of the Indictment. Additionally,
Defendant argues the Government engaged in outrageous conduct necessitating dismissal
of the Indictment. The Court addresses each argument in turn.
A. Count I: Assault with a Dangerous Weapon
Count I of the indictment charges Defendant with assault with a dangerous weapon
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in violation of 18 U.S.C. §§ 11531 and 113(a)(3). (Doc. 1 at 1–2.) Section 113(a)(3)
prohibits “[a]ssault with a dangerous weapon, with intent to do bodily harm” and punishes
anyone guilty of such conduct with a fine or “imprisonment for not more than ten years, or
both.”
Defendant argues that “the government’s evidence shows no act that qualifies as an
assault” because there is no evidence Defendant intended or knowingly assaulted an
officer. (Doc. 68 at 6–7.) This is not an appropriate argument for a Rule 12(b)(3)(B)
Motion. Defendant may attack the sufficiency of the indictment, but he may not attack the
adequacy of the evidence. See Jensen, 93 F.3d at 669. Defendant attempts to do the latter.
Defendant asks the Court to consider the body camera footage of the events “to
determine whether the indictment alleges a cognizable crime.” (Doc. 68 at 4.) The Court
will not do so. Boren, 278 F.3d at 914 (“The Court should not consider evidence not
appearing on the face of the indictment.” (quoting Jensen, 93 F.3d at 669)). Defendant
does not otherwise challenge the sufficiency of the allegations in the Indictment.
Accordingly, the Court denies Defendant’s Motion as to Count I.
B. Count II: Using and Brandishing a Firearm During, in Relation to, and In
Furtherance of a Crime of Violence
Count II of the Indictment alleges Defendant “did knowingly use, carry, and
brandish a firearm during and in relation to a crime of violence, and did knowingly possess
and brandish a firearm in furtherance of a crime of violence” in violation of U.S.C.
§ 924(c)(1)(A)(ii). (Doc. 1 at 2.) The relevant crime of violence is assault with a dangerous
weapon as charged in Count I. (Id.)
Defendant argues that Count II fails to state an offense because assault with a
dangerous weapon is not a “crime of violence.” (Doc. 68 at 7–9.) This is not true. This
issue was directly resolved by the Ninth Circuit in United States v. Gobert, 943 F.3d 878
(9th Cir. 2019): “The sole question presented by this appeal is whether the offense of
assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence
1 Section 1153 prohibits any Indian from committing felony assault under § 113 within
Indian country.
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under 18 U.S.C. § 924(c)(3)(A). We hold that it is.” Id. at 879. Defendant claims that
Gobert is superseded by the Supreme Court’s decision in Borden v. United States, 593 U.S.
420 (2021). (Doc. 72 at 4–5.) Defendant is wrong.
Gobert held that a crime of violence—offenses requiring the “use, attempted use, or
threatened use of violent physical force”—included assault with a dangerous weapon
because such assaults necessarily involve a threat of physical force. 943 F.3d at 881
(citation modified). Borden did not upset this holding—it added an additional requirement
when categorizing crimes of violence. 593 U.S. at 423. It held that a violent felony (i.e.,
crime of violence) does not include offenses that criminalize recklessness mens rea because
the use (or threatened use) of physical force requires intentionality (i.e., a purposeful or
knowing mental state). See id. Although Gobert did not discuss the requisite mental state
for assault with dangerous weapon, such assaults satisfy Borden’s intentionality
requirement. See § 113(a)(3) (prohibiting “[a]ssault with a dangerous weapon, with intent
to do bodily harm” (emphasis added)); see also Zepeda v. United States, No.
CR-08-01329-PHX-ROS-1, 2022 WL 101197, at *12 (D. Ariz. Jan. 11, 2022) (examining
this same question and holding that “[t]he logic of Borden therefore does not remove
assault with a dangerous weapon from the reach of the ‘crime of violence’ definition in §
924(c)”). Therefore, this Court is bound by Gobert’s holding and rejects Defendant’s
argument.
Defendant also asks the Court to dismiss Count II due to inadequate evidence.
Defendant contends that the “undisputed video evidence” shows that Defendant “never
points, raises, or displays a firearm in a threatening manner.” (Doc. 68 at 9.) As noted
earlier, the Court will not consider evidence outside the Indictment at this stage of the
proceedings. See Boren, 278 F.3d at 914. Defendant does not otherwise challenge the
sufficiency of the allegations in the Indictment.
Accordingly, the Court denies Defendant’s Motion as to Count II.
C. Outrageous Government Conduct
Finally, Defendant argues the Government’s conduct here is so outrageous that
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Defendant’s due process right to fairness have been violated, necessitating a dismissal of
the Indictment. (Doc. 68 at 10.) Defendant argues: (1) the government used deadly force
against a non-threatening man; and (2) the body-camera recording does not contain audio.
(Id.) Defendant states that the Government’s prosecution of a “victim” under these
circumstances “violates fundamental fairness and due process.” (Id.)
“Outrageous government conduct is not a defense, but rather a claim that
government conduct in securing an indictment was so shocking to due process values that
the indictment must be dismissed.” United States v. Williams, 547 F.3d 1187, 1199 (9th
Cir. 2008) (citation modified). Such claims must meet a “high standard,” and show that
“the government’s conduct violates fundamental fairness and is shocking to the universal
sense of justice mandated by the Due Process Clause of the Fifth Amendment.” Id.
(citation modified). Defendant fails to meet this standard.
Taking the allegations in the Indictment as true, Defendant intentionally and
knowingly assaulted an officer with a rifle intending to do bodily harm. Deadly force is
justified under such circumstances. See Smith v. City of Hemet, 394 F.3d 689, 704 (9th
Cir. 2005), disapproved of in part on other grounds by, Lemos v. County of Sonoma, 40
F.4th 1002, 1008–09 (9th Cir. 2022) (“[W]here a suspect threatens an officer with a weapon
such as a gun or a knife, the officer is justified in using deadly force.”). Lastly, the alleged
absence of audio in the body-camera footage is not shocking to the universal sense of
justice. Defendant may address this alleged prejudice at a later stage.
The Court denies Defendant’s Motion as to his outrageous conduct claim.
IV. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED denying Defendant’s Motion to Dismiss the
Indictment (Doc. 68).
Dated this 18th day of February, 2026.
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