United States District Court, N.D. West Virginia
REPORT & RECOMMENDATION/OPINION RECOMMENDING THAT
DEFENDANT'S MOTION TO DISMISS BE DENIED
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
September 6, 2017, Defendant was indicted on four counts of a
nineteen count indictment, specifically charging Defendant
Carla Jones with one count of Conspiracy to Possess Stolen
Firearms, one count of Possession of Stolen Firearm -Aiding
and Abetting, and two counts of Unlawful Possession of
Firearm, in violation of Title 18, United States Code,
Sections 2, 371, 922(g)(3), 922(j) and 924(a)(2). Thereafter,
Defendant was arraigned and released on certain conditions.
On January 21, 2018, Defendant filed the pending
“Combined Motion and Memorandum of Law to Dismiss Count
Sixteen.” (ECF No. 274). The United States of America
filed its response on January 22, 2018. (ECF No. 277). The
undersigned held a hearing on the matter on January 26, 2018.
(ECF No. 290).
Defendant's Motion to Dismiss
pending motion to dismiss, Defendant seeks dismissal of Count
Sixteen of the indictment, Unlawful Possession of Firearm,
arguing that “neither allegedly being a prohibited
person nor possessing non-stolen firearms”, as alleged
in Count Sixteen, ties Defendant to the conspiracy alleged in
Count One of the indictment. (ECF No. 274 at 2). Several
defendants in this case were accused of stealing over 100
guns from a hunting cabin. Id. at 1. Defendant
asserts that because the guns identified in Count Sixteen
were not stolen, Count Sixteen “is inappropriate at
best and should be dismissed as irrelevant.” ECF No 274
at 2. In short, Defendant argues that the firearms in Count
Sixteen is not a part of the conspiracy, as they were not of
the same transaction as the guns stolen from the hunting
cabin and therefore have nothing to do with this indictment
and as a result, Count Sixteen should be dismissed.
The United States' Response
response, the United States objected to Defendant's
motion, asserting that Defendant failed to state any legal
basis to dismiss Count Sixteen. (ECF No. 277 at 1). The
United States argues that Rule 8 of the Federal Rules of
Criminal Procedure permits joining offenses “of the
same or similar character” in the same indictment.
Id. The United States asserts that because the
offense charged against Defendant in Count Sixteen (drug user
in possession of non-stolen guns) and Count Nine (drug user
in possession of the stolen guns identified in count one),
occurred during the same time period-at Defendant's
house- both fall under the same statute, and because the
United States obtained evidence of Defendant's drug use
including Defendant's confession of using methamphetamine
and marijuana, all of her alleged offenses are included in a
single indictment and consequently Count Sixteen should not
be dismissed. Id. at 2, 3.
8(a) of the Federal Rules of Criminal Procedure permits the
joinder of offenses in an indictment. Specifically, the Rule
provides that “[t]he indictment may charge a defendant
in separate counts with 2 or more offenses if the offenses
charged . . . are of the same or similar character, or are
based on the same act or transaction, or are connected with
or constitute parts of a common scheme or plan.” Fed.
R. Crim. P. 8.
Defendant argues dismissal of Count Sixteen is appropriate
because the guns identified in Count Sixteen are not tied to
the conspiracy to possess the stolen firearms as charged in
Count One of the Indictment. The undersigned however,
disagrees. The fact that the guns identified in Count Sixteen
are not tied to the stolen guns identified in Count One is
irrelevant. The threshold question before the undersigned is
whether the offenses charged in the indictment are “of
the same or similar character.” The undersigned finds
that they are. Defendant is charged with two counts of
Unlawful Possession of Firearms (Count Nine and Count
Sixteen). Both counts allege Defendant is an unlawful user of
and addicted to methamphetamine and marijuana, a Schedule I
and Schedule II controlled substance. Count Nine alleges
Defendant possessed stolen firearms while Count Sixteen
alleges Defendant possessed firearms that were not stolen.
Both alleged offenses are in violation of Title 18, United
States Code, Sections 922(g)(3) and 924(a). The undersigned
finds both alleged offenses are similar in character and
permitted to be joined in the same indictment pursuant to
Rule 8 of the Federal Rules of Criminal Procedure.
foregoing reasons, the undersigned recommends
“Defendants' Combined Motion and Memorandum of Law
to Dismiss Count Sixteen” (ECF No. 274), be DENIED.
party within fourteen (14) days after being served with a
copy of this Report and Recommendation, file with the Clerk
of the Court written objections identifying the portions of
the Report and Recommendation to which objection is made, and
the basis for such objection. A copy of such objections
should also be submitted to the Honorable Joh Preston Bailey,
United States District Judge. Failure to timely file
objections to the Report and Recommendation set forth above
will result in waiver of the right to appeal from a judgment
of this Court based upon such report and recommendation. 28
U.S.C. §636(b)(1). United States v. Schronce, 727 F.2d
91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984);
Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v.
Arn, 474 U.S. 140 (1985).
Clerk of the Court is directed to forward a copy of the this
Report and ...