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United States v. Harvey

United States District Court, S.D. Mississippi, Northern Division

March 19, 2019

UNITED STATES OF AMERICA
v.
TOMMY JOE HARVEY

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE

         Defendant Tommy Joe Harvey asks the Court to dismiss the indictment entered against him “for failure to state an offense” under Federal Rule of Criminal Procedure 12(b)(3)(B)(v) “and for lack of jurisdiction” under Federal Rule of Criminal Procedure 12(b)(2). Mot. [33]. For the reasons that follow, Harvey's motion is denied.

         I. Facts and Procedural History

         On June 27, 2018, the federal grand jury returned an indictment charging Harvey under 18 U.S.C. § 242; a superseding indictment was returned on January 25, 2019. According to the Superseding Indictment, on April 28, 2017, Harvey, the Simpson County Chancery Clerk,

while acting under color of state law, . . . pepper sprayed A.R. in the face, while A.R. was in handcuffs, thereby willfully depriving A.R. of her right, secured and protected by the Constitution and laws of the United States, to be free from unreasonable seizures, which includes the right to be free from the use of unreasonable force.

         Superseding Indictment [37]. Harvey says the indictment should be dismissed because “a state actor, who has not been granted law enforcement authority, does not violate an individual's Fourth Amendment rights because the actor is not acting under ‘color of law.'” Def.'s Mem. [34] at 17.

         II. Analysis

         A. Federal Rule of Criminal Procedure 12(b)(2)

         Harvey invokes Federal Rule of Criminal Procedure 12(b)(2), under which a defendant may argue “that the court lacks jurisdiction.” Fed. R. Crim. P. 12(b)(2). But he fails to explain why or how jurisdiction is lacking. Under 18 U.S.C. § 3231, “[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” 18 U.S.C. § 3231. “The grand jury's issuance of an indictment is what gives federal courts jurisdiction to hear a criminal case and impose a sentence.” United States v. Longoria, 259 F.3d 363, 365 (5th Cir. 2001). Absent some analysis from Harvey explaining how his argument impacts the Court's jurisdiction, the Court denies the motion under Rule 12(b)(2) and moves on to Harvey's other basis for dismissal.

         B. Federal Rule of Criminal Procedure 12(b)(3)(B)(v)

         Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), Harvey asserts that the indictment “fail[s] to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). “[A] motion to dismiss an indictment for failure to state an offense is a challenge to the sufficiency of the indictment.” United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). In deciding such a motion, the Court “take[s] the allegations of the indictment as true and . . . determine[s] whether an offense has been stated.” Id. “To be legally sufficient, an indictment need only (1) enumerate each element of the charged offense, (2) fairly inform the defendant of the charges filed against him, and (3) provide the defendant with a double jeopardy defense against future prosecution.” United States v. Arshad, 325 F.Supp.3d 695, 699-700 (E.D. La. 2018) (citing United States v. Gaytan, 74 F.3d 545, 551 (5th Cir. 1996)).

         Harvey is charged with violating 18 U.S.C. § 242, which provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. § 242. The statute “mak[es] it criminal to act (1) ‘willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States.” ...


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