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United States v. Hawes

United States District Court, N.D. Alabama, Northeastern Division

July 1, 2015

UNITED STATES OF AMERICA,
v.
GARY LEE HAWES, Defendant.

CORRECTED MEMORANDUM OPINION AND ORDER

R. DAVID PROCTOR, District Judge.

This case is before the court on Defendant Gary Lee Hawes's Motion to Dismiss Charges. (Doc. 11). After careful review, the court concludes the motion is due to be denied.

I. RELEVANT FACTS

On December 17, 2014, a grand jury of the Northern District of Alabama returned a two-count indictment charging Defendant Gary Lee Hawes with conspiring to possess with intent to distribute and to distribute 100 kilograms or more of marijuana from December 2008 to on or about February 23, 2010, in violation of 21 U.S.C. § 846 ("Count One") and possessing marijuana with the intent to distribute it on or about December 29, 2009, in violation of 21 U.S.C. § 841(a)(1) ("Count Two"). (Doc. 1).

The charges reportedly arise from a joint investigation conducted by federal, state, and local law enforcement in the Northern District of Alabama and surrounding jurisdictions. That investigation resulted in the seizure, on or about December 29, 2009, of marijuana that is the subject of Count Two. The investigation also uncovered evidence of the conspiracy charged in Count One.

Hawes was arrested on state charges in late 2009 in connection with the joint investigation. Those charges were subsequently nol-prossed by the State of Alabama.

After the instant federal Indictment was returned by the grand jury on December 17, 2014 (Doc. 1), on motion of the United States, the Indictment was sealed pending the arrest of Defendant Hawes. (Docs. 2, 3). Hawes was arrested on or about June 1, 2015, in the Eastern District of Tennessee. On motion of the United States, the Indictment was unsealed. (Doc. 4). On June 8, 2015, Hawes made his initial appearance in this court on these charges and was arraigned before the Honorable Harwell G. Davis. Hawes filed this motion to dismiss on June 5, 2015. In his motion, he seeks to have the Indictment dismissed for violation of the statute of limitations and his right to a speedy trial.

II. LAW AND DISCUSSION

Defendant argues that the charges in the Indictment are due to be dismissed because (1) they were filed outside the statute of limitations, and (2) indicting him nearly five years after the substantive charge violates his rights under the U.S. Constitution and his right to a speedy trial. Defendant's arguments miss the mark.

A. Statute of Limitations

The statute of limitations applicable to the charges in Counts One and Two of the Indictment is five years. See 18 U.S.C. §3282(a). The limitations period for a substantive crime begins at the completion of the crime. Id. ("Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed."). Conspiracy statutes - such as a violation of 21 U.S.C. § 846, as charged in Count One - do not require proof of an overt act. An indictment satisfies the requirement of the statute of limitations if the conspiracy is alleged to have continued into the limitations period. United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997); United States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003); United States v. Gonzalez, 921 F.2d 1530 (11th Cir. 1991); United States v. Butler, 792 F.2d 1528 (11th Cir. 1986). Generally, the statute of limitations is tolled by the timely filing of an indictment. United States v. Edwards, 777 F.2d 644 (11th Cir. 1985).

An indictment may be sealed by a court until the defendant is in custody. Fed. R. Crim. P. 6(e)(4). A sealed indictment filed within a statute of limitations is timely even if it is not unsealed until after that statute of limitations has expired. Edwards, 777 F.2d at 647; United States v. Mitchell, 769 F.2d 1544 (11th Cir. 1985).

Here, both Counts One and Two of the Indictment were filed within the statute of limitations period. The Indictment was returned on December 17, 2014, within five years of the marijuana possession alleged in Count Two and within five years of the date the conspiracy alleged in Count One ended. That the Indictment was not unsealed until Hawes's arrest, and after the statute had run, does not bar this ...


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