United States District Court, N.D. Iowa, Cedar Rapids Division
R. READE, UNITED STATES DISTRICT COURT JUDGE
matter before the court is Defendant David Tachay Heard's
pro se “Motion for Conviction to be Set Aside”
(“Motion”) (docket no. 183), which asks the court
to reconsider its July 19, 2018 Order (“Order”)
(docket no. 171) denying Defendant's pro se
“Missive to . . . Dismiss all Charges with
Prejudice” (“First Motion to Dismiss”)
(docket no. 110) and Defendant's pro se “Mission to
Dismiss all Charges with Prejudice” (“Second
Motion to Dismiss”) (docket no. 125) (collectively,
“Motions to Dismiss”).
RELEVANT PROCEDURAL HISTORY
November 15, 2017, a grand jury returned a four-count
Superseding Indictment (docket no. 27) charging Defendant
with: (1) possession of a firearm by a felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2); (2)
possession with intent to distribute a controlled substance,
in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(D) and 851; (3) possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. §§ 922(c)(1)(A) and 924(c)(1)(C)(i); and (4)
possession of a stolen firearm, in violation of 18 U.S.C.
§§ 922(j) and 924(a)(2). See Superseding
Indictment at 1-3. On January 22, 2018, a jury trial
commenced. See January 22, 2018 Minute Entry (docket
no. 76). On January 24, 2018, the jury found Defendant guilty
of all counts charged in the Superseding Indictment.
See Jury Verdict (docket no. 84).
April 16, 2018, Defendant filed the First Motion to Dismiss.
On April 24, 2018, Defendant filed the Second Motion to
Dismiss. On June 19, 2018, the court held a hearing on the
Motions to Dismiss. See June 19, 2018 Minute Entry
(docket no. 169). Defendant appeared in court pro se.
Defendant's standby counsel, Anne Laverty, was present at
counsel table with Defendant during the hearing. Assistant
United States Attorneys Timothy Vavricek and Lyndie Freeman
represented the government. On July 19, 2018, the court
issued the Order. On August 17, 2018, Defendant filed the
Motion. On August 28, 2018, the government filed a Resistance
(docket no. 184). The matter is fully submitted and ready for
Motion, Defendant argues that factual inaccuracies in the
Complaint (17-MJ-315-LRR docket no. 2) render his Arrest
Warrant (17-MJ-315-LRR docket no. 3) and his subsequent
prosecution and conviction invalid. See generally
Motion. Defendant made substantively the same argument in the
Motions to Dismiss. See First Motion to Dismiss at
3; Second Motion to Dismiss at 4-5. In the Order, the court
addressed this argument and found it to be without merit.
See Order at 3-6. Defendant makes no new argument
that would cause the court to reconsider its earlier
decision. The court will, however, address the additional
cases cited by Defendant.
cites United States v. Greenberg, 320 F.2d 467 (9th
Cir. 1963) in support of his argument that a defective
complaint can warrant dismissal of a case. See
Motion at 1-3. Defendant misunderstands the holding of
Greenberg. In Greenberg, the defendant
moved to dismiss the indictment against him because it was
filed after the statute of limitations had run. See
Greenberg, 320 F.2d at 468. The government argued that
the statute of limitations was extended because it had filed
a complaint within the statutory period. See id. The
Ninth Circuit Court of Appeals found that the complaint
lacked probable cause, and that an invalid complaint could
not be used to toll the statute of limitations. See
id. at 472. The defendant was, therefore, entitled to
dismissal. See id. These circumstances are
inapplicable to the present case. Defendant has never raised
a statute of limitations argument. As the court has previously
found, the validity of the Complaint is immaterial to
Defendant's case because any defect in the Complaint was
rendered harmless by the Superseding Indictment, and further
by his conviction. See Order at 5-6.
also cites Giordenello v. United States, 357 U.S.
480 (1958) and Di Bella v. United States, 284 F.2d
897 (2d Cir. 1960), vacated on other grounds, 369
U.S. 121 (1962) as cases addressing the validity of criminal
complaints. See Motion at 3-7. Neither
Giordenello nor Di Bella applies to
Defendant's case. In each case, the defendant was
challenging the validity of a criminal complaint because he
sought to suppress evidence recovered incident to an arrest
pursuant to that complaint. See Giordenello, 357
U.S. at 481; Di Bella, 284 F.2d at 897-98. In the
present case, no evidence was recovered upon Defendant's
arrest pursuant to the Complaint and Arrest Warrant.
Therefore, the validity of the Complaint has no bearing on
the evidence that was offered against Defendant at trial.
Accordingly, the additional cases that Defendant cites give
the court no reason to reconsider its previous ruling.
Defendant objects that the court treated the Motions to
Dismiss as motions for judgment of acquittal under Rule 29 of
the Federal Rules of Criminal Procedure. See Motion
at 15 (“For the [r]ecord, my previous
‘Motions' were Motions to Dismiss, [n]ot Judgements
[sic] of Acquittal!”). Defendant also states that the
Motion is “for conviction to be set
aside/reverse[d]” and is “not a Judgement [sic]
of Acquittal.” Id. As in the Motions to
Dismiss, Defendant cites no rule of procedure or other legal
authority that would authorize or prescribe the relief he
requests. The court treated the Motions to Dismiss as motions
for judgment of acquittal because “Rule 29 is the only
rule that would permit the court to vacate the jury's
verdicts and dismiss the Superseding Indictment.” Order
at 4. The court has treated the Motion as a motion for
reconsideration because that is what it most closely
Defendant is proceeding pro se, the court has endeavored to
liberally construe his filings despite their defects. See
United States v. Sellner, 773 F.3d 927, 932
(8th Cir. 2014) (“A document filed pro se is ‘to
be liberally construed.'” (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007))). However, “pro se
litigants are not excused from compliance with relevant rules
of . . . procedural and substantive law.” Schooley
v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983); see
also Faretta v. California, 422 U.S. 806, 834 n.46
(1975). Defendant has failed to comply with the Federal Rules
of Criminal Procedure in either the form or the timeliness of
his filings. See Fed. R. Crim. P 12(b)(3)(B)
(requiring a motion to dismiss indictment to be made before
trial); Fed. R. Crim. P. 29(c)(1) (requiring a motion for
judgment of acquittal to be made within fourteen days of
trial); Fed. R. Crim. P. 47(b) (requiring a motion to
“state the grounds on which it is based”).
Nevertheless, the court addressed the Motions to Dismiss on
their merits. Nothing in the Motion gives the court reason to
reconsider its prior ruling. Defendant is not entitled the
relief he seeks.