United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO DISMISS
Brock Hornby United States District Judge
federal grand jury sitting in Portland, Maine, indicted this
defendant for conspiring to distribute and possess with
intent to distribute cocaine base and heroin in violation of
21 U.S.C. §§ 841(a)(1) & 846. Indictment (ECF
No. 3). His former lawyer filed on the defendant's behalf
a pro se motion to dismiss the indictment (ECF No. 55).
Ordinarily I would not entertain a defendant's pro se
motion while he was represented by a lawyer. A defendant has
a Sixth Amendment right to a lawyer, or to proceed on his own
behalf (pro se), Faretta v. California, 422 U.S.
806, 835 (1975), but not both simultaneously. United
States v. Betancourt-Arretuche, 933 F.2d 89, 94-95 (1st
Cir. 1991) (characterizing “hybrid
representation”-i.e., proceeding both pro se
and with a lawyer-as an option within the sound discretion of
the trial court, but not a right). In this case, however, the
defendant's lawyer filed the pro se motion at a time when
the defendant was seeking court appointment of a new lawyer
(ECF No. 58), and the previous lawyer was seeking to withdraw
because of a breakdown in communications between lawyer and
client (ECF No. 56). The defendant now has a new lawyer, but
the motion to dismiss has not been withdrawn, and I will
therefore to proceed to rule on it. The motion is Denied,
along with the government's motion for an extension of
time to respond to it.
defendant correctly recognizes that the Portland grand jury
is drawn from the Counties of Androscoggin, Cumberland, Knox,
Lincoln, Oxford, Sagadahoc, and York. Plan for the Random
Selection of Grand and Petit Jurors for Service in the
District of Maine at 3 (Nov. 2, 2016). He asserts that
the government must “produce the title(s) and deed(s)
listing the United States as the owner of all of the counties
in Maine used to create the qualified wheel which ultimately
produced the grand jury which indicted Mr. Eley.”
Def.'s Mot. at 2 (ECF No. 55). He says that the
government must also “produce the document signed by
the Governor of Maine ceding those same Maine counties,
whether exclusive, concurrent, or partial over to the United
States prior to the date of the indictment.”
the defendant tries to frame his argument in the conventional
language that “the grand jury was not selected from a
fair cross section of the community, ” id. at
1, his argument is actually much different: he is challenging
jurisdiction. He says:
The defendant is now challenging the jurisdiction of the
judicial district used to select the jurors who issued Mr.
Eley's indictment. . . . The requested documents listing
the United States as land owners of all aforementioned
counties in Maine is necessary to prove that the grand jury
was selected from a fair cross section of the community
within the Judicial District.
Id. at 3.
If it is determined that the United States did not have
jurisdiction of every county in Maine used to create the
Qualifying Wheel which produced the grand jury which indicted
Mr. Eley, the defendant respectfully requests that the court
dismiss the indictment against him . . . .
Id. at 5.
support of his argument challenging jurisdiction, the
defendant cites 40 U.S.C. § 3112(b); Title 1, section 8
of the Maine Revised Statutes; and two Supreme Court
decisions, Adams v. United States, 319 U.S. 312
(1943), and Mayor of New Orleans v. United States,
35 U.S. (10 Pet.) 662 (1836).
defendant is simply and unmistakably wrong. There is no
requirement that the federal government be the landowner of
all the Maine counties from which the grand jury was drawn.
federal statute to which the defendant refers, 40 U.S.C.
§ 3112, is concerned with the acceptance of federal
jurisdiction over land the federal government has acquired.
The drug conspiracy charge against this defendant has nothing
to do with federal land.
Maine statute to which he refers, Title 1, section 8 of the
Maine Revised Statutes, is concerned with federal
jurisdiction over land acquired by the federal government
under Article 1, section 8, clause 17, of the United States
Constitution. That federal constitutional provision deals
with acquisition of and jurisdiction over any places
purchased from States “for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful
Buildings.” U.S. Const. art. 1, § 8, cl. 17;
see State v. Larson, 577 A.2d 767, 771-72 (Me.
1990); Brooks Hardware Co. v. Greer, 111 Me. 78
(1913). The drug conspiracy charge against this defendant has
nothing to do with any such place purchased from the State of
is a case where the defendants were charged with rape within
a federal government military camp in Louisiana under
then-existing statutory provisions (formerly codified at 18
U.S.C. §§ 451 & 457) requiring that the rape
occur “within the special maritime and territorial
jurisdiction of the United States.” Adams, 319
U.S. at 312-13. At the time of the rape, the United States
had not yet accepted jurisdiction of the military camp in
question, and the Supreme Court held therefore that a federal
court had no authority to try and sentence the defendants on
a charge that required that the crime be committed within the
special maritime and territorial jurisdiction. Id.
at 314-15. The drug conspiracy charge against this defendant
does not depend on its being committed on a federal
of New Orleans is a case arising from the Louisiana
Purchase. The Supreme Court decided that neither the treaty
with France nor Article 1, section 8, clause 17, of the U.S.
Constitution gave the United States government any rights
over certain New Orleans lands in question. 35 U.S. (10 Pet.)