United States District Court, D. Maine
ORDER ON MOTION TO DISMISS INDICTMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Court rejects a defendant's motion to dismiss an
indictment because the defendant's theory of dismissal is
bottomed on the defendant's disagreement with the facts
underlying the indictment and only a jury may resolve a
November 2, 2018, a federal grand jury indicted James Hagar
for making a false statement in connection with his
acquisition of firearms, two 9mm pistols, from Coastal
Defense, a federally-licensed firearms dealer, an alleged
violation of 18 U.S.C. § 922(a)(6). Indictment
at 1 (ECF No. 1). The indictment alleges that Mr. Hagar made
a false statement when he represented that he was the actual
buyer of the firearms whereas in fact, according to the
indictment, he was purchasing the firearms for another
person. Id. The indictment also contains a
forfeiture allegation against the two pistols. Id.
December 13, 2018, Mr. Hagar filed a motion to dismiss the
indictment based on his assertion that he did not make a
false statement when he bought the firearms. Def.'s
Mot. to Dismiss (ECF No. 29) (Def.'s Mot.).
Mr. Hagar asserts that he intended to purchase the firearms
for himself and then resell them immediately to someone else.
Id. at 2. He emphasizes that he was not paid in
advance by the third party and that he had used his own money
to make the purchase. Id. at 1. Although he
acknowledges that the transaction has “many of the
attributes of a ‘straw' purchase, ” Mr. Hagar
says that “it does not have the necessary agency
relationship, or the necessary payment up front.”
Id. at 2. The Government objects, taking the
position that Mr. Hagar is attempting to challenge the facts
underlying the indictment and that a motion to dismiss the
indictment is not a proper vehicle to do so.
Gov't's Resp. to Def.'s Mot. to Dismiss
at 1-3 (ECF No. 36). Mr. Hagar declined to file a reply to
the Government's response.
civil actions, an indictment is not generally subject to
dispositive motion practice. United States v.
Poulin, 645 F.Supp.2d 17, 22 (D. Me. 2009); see also
United States v. Li, 206 F.3d 56, 62 (1st Cir. 2000).
“[D]ismissing an indictment is an extraordinary step,
” Li, 206 F.3d at 62 (quoting United
States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997)),
because, by returning an indictment, a grand jury is carrying
out a constitutionally sanctioned function. See U.S.
Const. amend. V (“No person shall be held to answer for
a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury . . ..”). In
the First Circuit's words, “[w]hen a federal court
uses its supervisory power to dismiss an indictment it
directly encroaches upon the fundamental role of the grand
jury.” Whitehouse v. U.S. Dist. Court, 53 F.3d
1349, 1360 (1st Cir. 1995). This power is
“appropriately reserved, therefore, for extremely
limited circumstances, ” id. (citing Bank
of Nova Scotia v. United States, 487 U.S. 250, 263
(1988)), and should be “exercised with caution.”
United States v. Cameron, 662 F.Supp.2d 177, 180 (D.
addressing a challenge to an indictment, a district court
must simply determine “whether the document sketches
out the elements of the crime and the nature of the charge so
that the defendant can prepare a defense and plead double
jeopardy in any future prosecution for the same
offense.” United States v. Guerrier, 669 F.3d
1, 3 (1st Cir. 2011) (citation omitted). The Court should not
inquire into the sufficiency of the evidence supporting the
indictment. United States v. Maceo, 873 F.2d 1, 2-3
(1st Cir. 1989) (citation omitted) (“an indictment
returned by a legally constituted and unbiased grand jury, .
. . if valid on its face, is enough to call for trial of the
charge on the merits”). Rather, at this stage, the
Court “must accept the allegations in the indictment as
true.” United States v. Young, 694 F.Supp.2d
25, 27 (D. Me. 2010) (citing Boyce Motor Lines, Inc. v.
United States, 342 U.S. 337, 343 n.16 (1952));
see Fed. R. Crim. P. 12(b)(1) (“A party may
raise by pretrial motion any defense, objection, or request
that the court can determine without a trial on the
merits”). In other words, a motion to dismiss is an
inappropriate way “to test the sufficiency of the
evidence behind the indictment's allegations.”
Guerrier, 669 F.3d at 4.
purposes of ruling on the motion to dismiss, the Court may
not credit Mr. Hagar's view of what he intended to do
when he purchased the firearms “without a trial on the
merits.” Fed. R. Crim. P. 12(b)(1); Guerrier,
669 F.3d at 3-4. Mr. Hagar may argue to a finder of fact, not
this Court, that the Government “does not have any real
evidence.” Def.'s Mot. at 1. A jury, not a
judge, must resolve his factual contentions and simply
because Mr. Hagar objects to the allegations in the
indictment, his disagreement, standing alone, does not
warrant dismissal. Whitehouse, 53 F.3d at 1360;
Cameron, 662 F.Supp.2d at 181. “What counts in
situations like this are the charging paper's
allegations, which we must assume are true, ”
Guerrier, 669 F.3d at 3-4 (citation omitted), and in
this case the indictment alleges that Mr. Hagar
“knowingly made a false statement in connection with
his acquisition of firearms” by responding, “Yes
to question 11(a) of the ATF Form 4473 and thereby claimed
that he was the actual buyer of the . . . firearms, when in
fact he was purchasing the firearms for another
individual.” Indictment at 1 (internal
quotation marks omitted). The indictment also alleges that
Mr. Hagar's “false statement was likely to deceive
Coastal Defense as to a material fact to the lawfulness of
the same of the above-described firearms to the defendant
under Chapter 44 of Title 18.” Id. The
indictment therefore properly alleges the elements of the
charge against Mr. Hagar in Count One.
the ordinary course of events, a technically sufficient
indictment handed down by a duly impaneled grand jury
‘is enough to call for trial of the charge on the
merits.'” Guerrier, 669 F.3d at 4 (quoting
Costello v. United States, 350 U.S. 359, 363
(1956)). As Count One of the indictment alleges the elements
of an alleged violation of criminal law under 18 U.S.C.
§ 922(a)(6), it is not subject to dismissal.
Court DENIES Defendant's Motion ...