United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Adames'
Motion to Dismiss and Memorandum of Law [Doc. 39] and
Defendant Vasquez' Motion to Join in and Adopt
Co-Defendant's Motion to Dismiss [Doc. 41]. The
Government opposes Defendants' motion. [Doc. 43].
6, 2017, Defendants Billy G. Adames and Juan C. Vasquez
("Defendants") were charged in a Bill of
Indictment. [Doc. 1]. In Count One, Defendant Adames was
charged with speeding and driving recklessly, in violation of
N.C. G.S. § 20-140, while fleeing and attempting to
elude a law enforcement officer by motor vehicle, all in
violation of N.C. G.S. § 20-141.5(b) and 18 U.S.C.
§ 13; and in Count Three with possession of marijuana in
violation of 21 U.S.C. § 844(a). [Id.].
Defendant Vasquez was charged in Count Two with speeding and
driving recklessly, in violation of N.C. G.S. § 20-140,
while fleeing and attempting to elude a law enforcement
officer by motor vehicle, all in violation of N.C. G.S.
§ 20-141.5(b) and 18 U.S.C. § 13. [Id].
Defendants' initial appearances and arraignments were
held on June 7, 2017.
August 1, 2017, the Defendants were charged in a Superseding
Bill of Indictment, which charged the same offenses and added
a Notice of Forfeiture by which the Government notified
Defendants that the motor vehicles driven by persons charged
with the offense of felony speeding to elude arrest are
subject to forfeiture. [Doc. 20]. On August 9, 2017,
arraignments on the Superseding Indictment were held. On
August 25, 2017, Defendant Adames moved to dismiss Count One
of the Superseding Indictment. [Doc. 39]. The Government opposes
this motion. [Doc. 43].
motion purports to seek dismissal of Count One of the
Superseding Indictment "pursuant to Fed.R.Crim.P.
12(b)(3)(B) ('[A]t 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.')...." (Emphasis added). [Doc. 39
at 1]. This language, which Defendants attribute to Rule
12(b)(3)(B), no longer exists. It was removed in the 2014
Amendments to Rule 12. Current Rule 12(b)(3)(B) sets forth
the five grounds on which a defendant may seek dismissal of
an indictment or information, including the failure to state
an offense. Rule 12(b)(2), on the other hand, was revised in
2014 to provide, "A motion that the court lacks
jurisdiction may be made at any time while the case is
pending." Given Defendants' failure to cite any
current, controlling provision of Rule 12, it is unclear if
Defendants are seeking relief for lack of jurisdiction or for
failure to state an offense. As explained below, however,
neither avenue offers Defendants any relief.
One of the Superseding Indictment alleges:
On or about June 2, 2017, within the special maritime and
territorial jurisdiction of the United States, that is, the
Great Smoky Mountains National Park, in Swain County, within
the Western District of North Carolina, and elsewhere, the
defendant, [ ] BILLY G. ADAMES, did willfully operate a
motor vehicle while fleeing and attempting to elude
a law enforcement officer who was in the lawful performance
of his duties, and, while doing so, sped in excess of 15
miles per hour over the legal speed limit, and drove
recklessly as proscribed by N.C. G.S. Â§ 20-140.
All in violation of North Carolina General Statute Section
20-141.5(b), and Title 18, United States Code, Section 13.
[Doc. 20 at 1-2 (emphasis added)]. Section 20-140 defines
reckless driving as driving any vehicle "carelessly and
heedlessly in willful or wanton disregard of the rights or
safety of others" or "without due caution and
circumspection and at a speed or in a manner so as to
endanger any person or property." N.C. Gen. Stat. §
(a) It shall be unlawful for any person to operate a motor
vehicle on a street, highway, or public vehicular area while
fleeing or attempting to elude a law enforcement who is in
the lawful performance of his duties. Except as provided in
subsection (b) of this section, violation of the section
shall be a Class 1 misdemeanor.
(b) If two or more of the following aggravating factors are
present at the time the violation occurs, violation of this