United States District Court, E.D. North Carolina, Western Division
ORDER
LOUISE
W. FLANAGAN UNITED STATES DISTRICT JUDGE
This
matter is before the court on defendant's motion to
dismiss (DE 40). On July 18, 2018, defendant was indicted on
two drug counts: 1) conspiracy to knowingly and intentionally
distribute and possess with intent to distribute heroin in or
about 2017 and continuing up to and until May 31, 2018; and
2) knowingly and intentionally possess with the intent to
distribute one-hundred grams or more of heroin on or about
May 31, 2018.
Defendant
moves to dismiss with arguments largely based upon his
religious practices including that the criminal charges which
he faces violate his constitutional right to free exercise of
his Moorish religion, and that the government's
prosecution is illegal on account of his religion because he
is somehow protected from it according to Moorish precepts.
He notes adherents to the Moorish faith rode alongside
General George Washington, and that fact, too, somehow
inoculates him from prosecution. Defendant seeks dismissal
due to “Fraud and Denationalization.” The Moorish
faith does not factor into this case unless defendant's
defense is somehow built on mistaken identity and defendant
can show he was at other places and times espousing his
beliefs, and not dealing drugs as alleged. Defendant is
charged under 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846. These neutral, generally applicable statutes, which
regulate controlled substances by imposing criminal
penalties, do not offend anyone's free exercise of
religion. See United States v. Meyers, 95 F.3d 1475,
1481 (10th Cir. 1996). If a Moorish adherent rode alongside
General George Washington, that fact offers defendant no
special protection from prosecution.
“To
establish prosecutorial vindictiveness, a defendant must show
through objective evidence that ‘(1) the prosecutor
acted with genuine animus toward the defendant and (2) the
defendant would not have been prosecuted but for that
animus.'” United States v. Johnson, 325
F.3d 205, 210 (4th Cir. 2003) (quoting United States v.
Wilson, 262 F.3d 305, 314 (4th Cir. 2001)). Defendant
offers no objective evidence of animus towards him and,
equally, he does not show animus was the but for cause of his
prosecution.
To the
extent defendant contends that he cannot be prosecuted
because a crime requires an injured party, this argument also
is without merit, as criminal laws may hold a person
accountable for “the actual harm caused to his victim
or to society by his conduct.” Graham v.
Fla., 560 U.S. 48, 88 (2010) (emphasis added); see
Harmelin v. Michigan, 501 U.S. 957, 1002 (1991)
(Kennedy, J., concurring) (“Possession, use, and
distribution of illegal drugs represent one of the greatest
problems affecting the health and welfare of our
population.”); United States v. Cobler, 748
F.3d 570, 576 (4th Cir. 2014).
There
being no basis in fact or in law, defendant's motion to
dismiss is denied. The court reminds defendant of the risks
of proceeding in this matter without counsel. Even though he
has elected to proceed pro se, defendant remains responsible
for understanding the law, including but not limited to the
United States Constitution, pertinent provisions of the
United States Code, Federal Rules of Evidence, Federal Rules
of Criminal Procedure, and significant bodies of case law
associated with each. Even a properly educated and licensed
attorney must exercise considerable diligence to master these
authorities. However, defendant is not an attorney, and the
arguments raised in his motion to dismiss concern the court
regarding whether defendant will be able to advocate
effectively.
The
case is a serious one. The potential penalties defendant
faces are severe. That he is more concerned, as his latest
motion to wear a fez in court demonstrates, with his
courtroom garb at such a critical juncture in this
prosecution similarly concerns the court.
Because
the developing record could be said to call into question
whether this defendant knows what he is doing and has eyes
wide open in making the choice to represent himself, see
Faretta v. California, 422 U.S. 806, 835 (1975), the
court remands the case to the magistrate judge for conduct of
further Faretta hearing at time of
arraignment.[1]
CONCLUSION
Based
on the foregoing, defendant's motion to dismiss (DE 40)
is DENIED. Defendant's waiver of his right to counsel
shall be further developed in accordance with this order at
time of arraignment.
SO
ORDERED
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Notes:
[1]Defendant recites in motion the honor
he feels towards President Abraham Lincoln. He may wish to
consider too that Lincoln, also an attorney, is credited with
having said “[h]e who represents ...