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United States v. Adames

United States District Court, W.D. North Carolina, Asheville Division

November 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY G. ADAMES and JUAN C. VASQUEZ, Defendants.

          ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE.

         THIS 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].

         I. PROCEDURAL BACKGROUND

         On June 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.

         On 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.[1] [Doc. 39]. The Government opposes this motion. [Doc. 43].

         II. ANALYSIS

         Defendants' 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.

         Count 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. § 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. § 20-140(a), (b).

         Section 20-141.5(b) provides:

(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 ...

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