United States District Court, W.D. Louisiana, Alexandria Division
PEREZ-MONTES, MAG. JUDGE
the court is a motion to dismiss indictment filed pro
se by the defendant, Theron Delawence Johnson
February 18, 2016, Johnson was arrested and detained for
violating the terms of his supervised release. Johnson admitted
to the six violations charged in the Petition for Revocation,
none of which appeared as offenses and/or charges set forth
in the indictment giving rise to this matter. On March 8,
2016, Johnson was sentenced to eight months in federal
custody and an additional 1 year of supervised release.
(Id. at Doc. 97). Johnson completed that sentence on
or about October 19, 2016.
25, 2016, Johnson was indicted by a federal grand jury for
narcotics offenses committed August 27, 2015 through November
27, 2015. The indictment remained sealed until June 8, 2016.
Johnson received notice from his attorney of the indictment
the following day.
6, 2016, the U.S. Marshal served Johnson with an arrest
warrant, in compliance with Fed.R.Crim.P 4(c), and Johnson
was formally arraigned.
filed the instant motion on February 28, 2017 alleging the
indictment should be dismissed as it was not filed in
compliance with the Speedy Trial Act, was not signed by the
appropriate Government attorney at the time of his initial
appearance and arraignment, and was improperly served. The
United States filed an opposition to the motion and the
matter is ripe for consideration and ruling.
alleges the indictment should be dismissed because it does
not comply with the terms of the Speedy Trial Act, 18U.S.C.
§§3161, etseq. Johnson contends the
indictment was not filed within 30 days of his arrest as
required by 18 U.S.C. §3161(b). Johnson misinterprets
the applicability of this section of the statute. Section
3161(b) applies to those instances where an indictment or
charge was not issued prior to the defendant's arrest.
United States v. Perez, 845 F.2d 100, 101
(5th Cir.1988). Additionally, Johnson fails to
understand that his arrest for supervised release violations
is separate and distinct from the indictment which led to
this case. As explained by the Second Circuit in United
States v. Patterson, 135 Fed.Appx. 469, 473-74
(2ndCir.2005), speedy trial delays do not commence
to run until an indictment is filed. Even when the charges in
the indictment stem from the same facts which led to an
arrest for supervised release violations, the offenses are
considered separate and the delays set forth in 18 U.S.C.
§3161 have no application. Accordingly, there is no
speedy trial violation.
argument that his Fifth Amendment rights were somehow
violated because Assistant U.S. Attorney Allison D. Bushnell
wasn't present at arraignment, and, therefore, could not
have signed the indictment is also misplaced. While
Fed.R.Crim.P. 7(c)(1) requires an indictment be signed by
"an attorney for the Government", there is no
requirement that it be signed by the attorney who handles the
matter much less that it be signed at the time a defendant
appears for initial appearance and/or arraignment. As noted
by the Government, the purpose of the signature by "an
attorney for the Government" is to ensure the United
States joins with the Grand Jury in issuing an indictment.
United States v. Cox, 342 F.2d 167, 172
we address Johnson's allegation that service of the
indictment was improper because notice was mailed to his
attorney. This allegations also lacks merit. Johnson was
properly served on July 6, 2016 by the United States
Marshal's Service with the arrest warrant issued by
United States Magistrate Judge Hornsby on the date the
indictment was filed, May 25, 2016. See Fed.R.Crim.P. 4(c).
For all of the foregoing reasons, it is hereby
that Johnson's Motion to Dismiss Indictment (Doc. 112) is
DENIED. Trial of this matter will commence as ...