United States District Court, Eastern District of Louisiana
ORDER AND REASONS
SARAH S. VANCE, UNITED STATES DISTRICT JUDGE.
Defendant Nemessis Bates moves to dismiss Counts One and Two of the Superseding Indictment for lack of jurisdiction. For the following reasons, the Court denies the motion.
On April 17, 2014, a federal grand jury in the Eastern District of Louisiana returned a four-count indictment charging defendant, Nemessis Bates, with solicitation to commit a crime of violence in violation of 18 U.S.C. §§ 1958(a) and 373; use of interstate commerce facilities in the commission of murder-for-hire in violation of 18 U.S.C. §§ 1958(a) and 2; causing death through use of a firearm in violation of 18 U.S.C. §§ 924(j)(1) and 2; and conspiracy to possess firearms in violations of 18 U.S.C. § 924(o).
Defendant now moves to dismiss Counts One and Two of the Superseding Indictment for lack of jurisdiction. Specifically, defendant asserts that there is no evidence that facilities of interstate commerce were used in connection with Counts One and Two.
II. LAW AND ANALYSIS
Federal Rule of Criminal Procedure Rule 12(b)(2) provides that "[a] motion that the court lacks jurisdiction may be made at any time while the case is pending." In considering whether an indictment fails to state an offense, the Court "is required to take the allegations of the indictment as true and to determine whether an offense has been stated." United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011) (citing United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)). In the Fifth Circuit, “[t]he propriety of granting a motion to dismiss an indictment under [Rule] 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.” United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005). “If a question of law is involved, then consideration of the motion is generally proper.” Id.
But "a defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not supported by adequate evidence, for an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for a trial of the charge on the merits." United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975) (citing Costello v. United States, 350 U.S. 359, 363 (1956)). Courts therefore lack authority to dismiss an indictment "on the basis of a 'sufficiency-of-the-evidence' defense which raises factual questions embraced in the general issue." Id. (citing United States v. Brown, 481 F.2d 1035, 1041 (8th Cir. 1973)). See also United States. v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir. 1987) ("[A] pretrial motion to dismiss the indictment cannot be based on a sufficiency of the evidence argument because such an argument raises factual questions embraced in the general issue."). A court, however, "may make preliminary findings of fact necessary to decide the question of law presented where such facts do not invade the province of the ultimate finder of fact or are undisputed." United States v. Kaluza, No. 12-265, 2013 WL 6490341, at *2 (E.D. La. 2013) (citing United States v. Flores, 404 F.3d 320, 324 n.6, 325 (5th Cir. 2006)).
“An indictment is sufficient if it contains the elements of the charged offense, fairly informs the defendant of the charges against him, and ensures that there is no risk of future prosecutions for the same offense.” United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (quoting United States v. Sims Bros. Constr., Inc., 277 F.3d 734, 741 (5th Cir. 2001), reh'g denied, 31 Fed.App'x 837 (5th Cir. 2002)). “The test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.” United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986). As a general rule, it is sufficient to set forth the offense “in the words of the statute itself as long as the statutory language unambiguously sets out all the elements necessary to constitute the offense.” Id.
A. Count One
Count One charges defendant with solicitation to commit a crime of violence, specifically use of interstate commerce facilities in the commission of murder-for-hire. The Superseding Indictment charges:
Beginning at a time unknown but prior to November 21, 2010, and continuing to on or about April 2011, in the Eastern District of Louisiana, the defendant . . . with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, and threatened use of physical force against the person and property of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, did solicit, command, induce, and endeavor to persuade such other person to engage in such conduct; that is, the use of interstate commerce facilities in the ...