United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge
ORDER DENYING MOTION TO DISMISS
L. LUDINGTON United States District Judge
21, 2013 an indictment was issued charging Petitioner Eugene
Henry Ives with one count of attempting to transfer obscene
material to a minor in violation of 18 U.S.C. § 1470.
See ECF No. 1. A superseding indictment was issued
that same day, adding two counts of sexual abuse of a minor
in violation of 18 U.S.C. §§ 2243(a), 1151 and
1153, and two counts of abusive sexual contact with a minor
in violation of 18 U.S.C. §§ 2244(a)(3), 1151 and
1153. See ECF No. 4. Both the original indictment
and the superseding indictment were signed by the grand jury
foreperson, as required by Federal Rule of Criminal Procedure
24, 2013 Ives filed an acknowledgement of the first
superseding indictment in which he represented that he had
read and understood the superseding indictment, and waived
its being read aloud in open court. See ECF No. 10.
Ives initially pled guilty to the two sexual abuse charges on
December 19, 2013, but after the presentence report disclosed
that the parties had made a mutual mistake in calculating the
guidelines, Ives was allowed to withdraw his guilty plea on
March 19, 2014. See ECF No. 33. On April 17, 2014
Ives pled guilty to one count of sexual abuse of a minor.
Ives was sentenced to 180 months' imprisonment on August
26, 2014, and judgement was entered on August 28, 2014.
See ECF No. 42.
January 24, 2016, after unsuccessfully petitioning to vacate
his sentence pursuant to 28 U.S.C. § 2255, Ives filed a
motion to dismiss his indictment for alleged noncompliance
with Federal Rules of Criminal Procedure 6(c) and (f).
See ECF No. 63. Federal Rule of Criminal Procedure
6(c) provides that “The foreperson - or another juror
designated by the foreperson - will record the number of
jurors concurring in every indictment and will file the
record with the clerk, but the record may not be made public
unless the court so orders.” Federal Rule of Criminal
Procedure 6(f) provides that “[a] grand jury may indict
only if at least 12 jurors concur. The grand jury …
must return the indictment to a magistrate judge in open
court.” Ives alleges that because the grand jury
procedures were not followed this Court was without
jurisdiction to prosecute him.
motion is without merit for a number of reasons. First, by
failing to challenge that Grand Jury Procedure during the
course of his prosecution he waived the right to challenge
the procedure on appeal or on collateral attack. Any alleged
errors in a grand jury proceeding “must be raised by
pretrial motion.” Fed. R. Crim. P. 12(b)(3)(A)(v);
see also United States v. Edmond, ___ F.3d ___, 2016
WL 832834, at *5 (6th Cir. Mar. 3, 2016). Because Ives'
case is no longer pending, his challenge to the grand jury
proceeding, and thus his challenge to this Court's
jurisdiction under Rule 12(b)(2), is untimely.
Barreto-Barreto v. United States, 551 F.3d 95, 100
(1st Cir. 2008) (holding that “[a]fter a final judgment
has been entered, and no direct appeal has been filed, a case
is no longer pending and Rule 12(b)(3)(B) cannot be invoked
to challenge jurisdiction”).
under the terms of his plea agreement Ives knowingly and
voluntarily waived the right to file any appeals or
post-conviction challenges. See Plea Agreement p. 9,
ECF No. 36.
the substance of Ives' motion is without merit. Ives
waived his right to have a jury return the superseding
indictment in open court. See ECF No. 10. He also
has no right to information he seeks regarding the grand
jury's deliberation and votes as such information is
secret pursuant to Federal Rule of Criminal Procedure 6(e).
See, e.g., United States v. Procter & Gamble
Co., 356 U.S. 677, 681 (1958) (noting that Rule 6(e)
embodies the “long-standing policy that maintains the
secrecy of the grand jury proceedings in federal
courts.”); In re Grand Jury Investigations,
903 F.2d 180, 182 (3d Cir. 1990) (holding that criminal
defendants “are not normally entitled to the names of
the members of the grand juries that indicted them.”).
Furthermore, the record regarding number of jurors concurring
in an indictment may not be made public absent a court order
under Federal Rule of Criminal Procedure 6(c).
also argues that the court lacks jurisdiction over him
because “the judicial district of Eastern Michigan,
where the criminal activity is alleged to have occurred, is
not owned by the Federal Government and jurisdiction has not
been ceded over that land as required by 40 U.S.C. §
3112….” This argument is wholly without merit.
Again, because Ives' case is no longer pending his
jurisdictional challenge is untimely under Rule 12(b)(2).
Even so, this Court properly had jurisdiction over Ives'
prosecution pursuant to 18 U.S.C. §§ 1151 and 1153.
pleaded guilty in this case and received the sentence he
bargained for. His belated attempt to challenge the validity
of his prosecution has no merit and is untimely.
it is ORDERED that Defendant Ives'
motion to ...