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United States of America v. Joe Hester

May 10, 2012

UNITED STATES OF AMERICA,
v.
JOE HESTER,



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Defendant Joe Hester has filed two post-trial motions: a Motion for Judgment N.O.V. [230] and a Motion to Dismiss Based on Unconstitutional Title 18 [235]. For the reasons set forth below, the motions [230 and 235] are denied.

I. Background

On October 21, 2008, Hester was arrested on a criminal complaint charging him with a violation of 18 U.S.C. §922(g). On November 20, 2008, the government filed a motion for extension of time [10] in which to return an indictment pursuant to 18 U.S.C. §3161(h)(8)(A).*fn1

The motion indicated that Hester's attorney did not object to the motion. Id. On November 20, 2008, Chief Judge Holderman granted the government's motion for an extension of time [11] to and including December 22, 2008. On December 22, 2008, the government filed a second motion for extension of time [14] in which to return an indictment pursuant to 18 U.S.C. §3161(h)(8)(A). The motion again represented that Hester's attorney did not object to the motion. Id. On December 22, 2008, Chief Judge Holderman granted the government's second motion for an extension of time [16] to and including January 22, 2009. Then, on January 22, 2009, the government filed a third motion for extension of time [20] in which to return an indictment pursuant to 18 U.S.C. §3161(h)(8)(A). The motion stated that government counsel had not yet heard from Hester's attorney as to whether there was an objection to the motion. Id. On January 22, 2009, Chief Judge Holderman granted the government's third motion for an extension of time [21] to and including February 23, 2009. On February 17, 2009, the grand jury returned a three-count indictment charging Hester with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of possession of narcotics with intent to distribute [24].*fn2 On December 9, 2009, a grand jury returned a superseding indictment based on substantially the same charges [89].

After a lengthy pre-trial process and substantial motion practice, a jury trial commenced on October 24, 2011. On October 27, 2011, the jury returned a verdict of guilty as to all three counts.

II. Motion to Dismiss

Defendant Joe Hester moves to dismiss the indictment in this case based on "unconstitutional Title 18." Hester first sets forth a series of "facts" which reiterate claims and contentions that he previously made in his many motions litigating suppression issues as well as in his motions to dismiss this case, all of which have been previously rejected by this Court and need not be revisited. Hester then contends that "18 U.S.C. 3231 is not based on a constitutionally passed bill, namely the lack of Quorum during the 1947 and 1948 Congress." Motion at 3. Hester claims that "No One and No Court has addressed the simple argument of this petition, namely no Quorum existed during the presentation of the bill 3190, not be amended;" Hester is mistaken. To the contrary, many litigants and courts have addressed this issue.

Most recently, n United States v. Levy, --- F. Supp. 2d ----, 2012 WL 1032484 (S.D. Fla. Mar. 13, 2012), a district court recently considered and rejected what appears to be an identical challenge to the constitutionality of Title 18. In Levy, the defendant argued that Public Law 80-- 772, which became Title 18 of the United States Code (including § 3231), was enacted in violation of the Constitution because the Quorum Clause of the Constitution was violated when the House of Representatives voted on May 12, 1947, to pass H.R. 3190, which later became Public Law 80--772, and the Quorum Clause was violated a second time when the Speaker of the House and the President pro tempore of the Senate signed Public Law 80--772 on June 23, 1948, four days after Congress adjourned. Id. at *1. The Levy court rejected the argument, finding that the challenge was prohibited by the "enrolled bill rule" as argued in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892) (if the Speaker of the House and the President pro tempore of the Senate attest that a bill has been duly passed, the enrolled-bill rule prevents going behind the bill to evaluate whether the bill satisfied the constitutional requirement that it pass both houses of Congress.).

The Levy court also examined the legislative record for the bills at issue and determined that they were in fact properly passed:

* * * contrary to any contention that Public Law 80--772 was signed without the proper authority of Congress, the House Journal indicates that the Speaker of the House and the President pro tempore of the Senate were pursuant to House Concurrent Resolution 219. See H. JOURNAL, 80th Cong., 2d Sess. 771 (1948) (" Resolved, That notwithstanding the adjournment of the two Houses until December 31, 1948, the Speaker of the House of Representatives and the President pro tempore of the Senate be, and they are hereby, authorized to sign enrolled bills and joint resolutions duly passed by the two Houses and found truly enrolled."). See also S. JOURNAL, 80th Cong., 2d Sess. 578--79 (1948) (stating that the President pro tempore of the Senate, pursuant to the authority of House Concurrent Resolution 219, signed H.R. 3190 after the adjournment of the Senate on June 20, 1948). In sum, § 3231 is valid. See Wolford v. United States, 362 Fed. Appx. 231, 232 (3d Cir.2010) ("Section 3231 was properly enacted and is binding. The 1948 amendment to that statute, Public Law 80--772, passed both houses of Congress and was signed into law by President Truman[.]").

Id. at *2-3. Finally, the Levy court observed that "arguments identical or similar to those made by Mr. Levy have been squarely rejected by all the federal courts to have considered them." Id. (collecting cases).

The logic of Levy is persuasive and does in fact appear to be in line with every federal court that has considered this sort of claim. See Cardenas-Celestino v. United States, 552 F. Supp. 2d 962, 966-67 (W.D. Mo. 2008) (list of decisions rejecting jurisdictional challenge to 18 U.S.C. § 3231). For example, in Cardenas-Celestino, the petitioner argued that Public Law 80-772, under which 18 U.S.C. § 3231 had been ratified, had not been properly passed because a different bill was passed by the Senate than that passed by the House of Representatives, the bill signed into law was never ratified, and Congress was adjourned when the bill was purportedly passed. The petitioner argued that because Title 18 of the United States Code was void ab initio, his conviction also was void. Id. The district court for the Western District of Missouri was not persuaded:

"This claim is part of a new rash of frivolous claims raised by prisoners across the country, many of whom have copied the arguments directly from Internet Websites which propound the argument developed by a Texas firm, International Legal Services. All of these allegations concerning the supposed irregular adoption of Public Law 80-772 have been firmly denied by every court to address them. The Supreme Court denied all the petitions presented by International Legal Services and those associated with them. See In re Von Kahl, --- U.S. ----, 128 S. Ct. 520, 169 L. Ed. 2d 369 (2007) (denying writ of habeas corpus raising these same arguments); In re Miles, --- U.S. ----, 128 S. Ct. 689, 169 L. Ed. 2d 540 (2007) (same).

Id.

The Cardenas-Celestino court further explained that the Third andSeventh Circuit Courts of Appeals have rejected similar arguments concerningthe constitutionality of the manner in which Public Law 80-772 had been enacted. Id.*fn3 In United States v. Collins, 510 F.3d 697, 698 (7th Cir. ...


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