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United States v. Lowe

United States District Court, District of Nevada

January 30, 2015


ORDER [DOCS. 113, 136, 137, 168]


Pro se defendant Lamalsikou Lowe, who will soon go to trial on gun and drug charges, objects to the Report and Recommendation issued by Magistrate Judge Cam Ferenbach on December 30, 2014, which denies Lowe’s motion for the appointment of a handwriting expert, strikes Lowe’s notice of violation, and recommends I deny two other of Lowe’s motions: (1) one that argues that I lack jurisdiction over Lowe’s alleged criminal activity, and (2) one that argues I should exclude various categories of evidence. Doc. 137. Having completed a de novo review of the record, all briefing, Judge Ferenbach’s report, and Lowe’s objections, I affirm Judge Ferenbach’s report, adopt his findings and recommendations, overrule Lowe’s objections, and deny Lowe’s motions.


1. Motion to Dismiss for Lack of Jurisdiction (#113)

Lowe is being prosecuted in federal court for violating both 18 U.S.C. 922(g)(1), which prohibits felons from possessing a firearm, and 21 U.S.C. 841(a)(1), which prohibits the possession of a controlled substance with an intent to distribute. Proceeding pro se, Lowe contends that the federal government does not have the jurisdictional authority to enforce these statutes—which is essentially an argument that the statutes themselves are unconstitutional.

Lowe’s jumping-off point for this argument is the Supreme Court’s decision in United States v. Lopez.[1] There, the Court struck down a statute that prohibited persons from possessing a gun while in a “school zone.”[2] The Court held that, in passing the statute, Congress exceeded its power under the Commerce Clause in an important way: the statute, as written, did not provide any “jurisdictional element [that] would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.”[3]

Following Lopez, similar constitutional challenges were made to the statutes Lowe now appears to be contesting. Each of these challenges failed, including one in the Ninth Circuit.[4] In other words, the argument that Lowe advances—that Congress is precluded from extending the reach of its authority to criminalize conduct involving guns or drugs—has been categorically rejected. Post-Lopez, circuit courts have instead consistently upheld the constitutionality of 18 U.S.C. 922(g)(1) and also consistently upheld the constitutionality of 21 U.S.C. 841(a)(1).

Lowe’s second argument is also unpersuasive. In his view, “Nevada laws are sufficient to prosecute weapons like [the one he is charged with illegally possessing], ”[5] so the federal government has no business intervening. But just because the Nevada legislature has adopted criminal laws that could punish Lowe for possessing a firearm does not mean the federal government, as a separate sovereign, cannot prosecute him as well. Under the dual-sovereignty doctrine outlined in Heath v. Alabama, “successive prosecutions by separate sovereigns for crimes arising out of the same acts are not barred by the Double Jeopardy Clause.”[6] The premise of the doctrine is that “[w]hen a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offenses.’”[7] The key question therefore is whether the two entities that seek to successively prosecute Lowe for the same conduct “draw their authority to punish [him] from distinct sources of power.”[8]

They do. The state of Nevada draws its authority to punish Lowe from one source of power, and the federal government draws its authority to punish Lowe from a distinctly different source of power. As Heath makes clear, “the [Supreme Court] has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State’s power to prosecute is derived from its own ‘inherent sovereignty, ’ not from the Federal Government.”[9] Accordingly, the federal government has the power to prosecute Lowe for the conduct he is charged with. Judge Ferenbach was therefore right to recommend I deny Lowe’s motion to dismiss for lack of territorial jurisdiction. I adopt his analysis and recommendation, overrule Lowe’s objections, and deny Lowe’s motion.

2. Motion to Appoint Handwriting Expert (#126)

Judge Ferenbach was also right to deny Lowe’s motion to appoint a handwriting expert. The Criminal Justice Act permits courts to furnish not just counsel but also “investigative, expert, and other services necessary for adequate representation” to defendants who are financially unable to obtain these services on their own.[10] But the burden is on defendants to show the services are necessary.[11] As Judge Ferenbach correctly concluded, Lowe has not met that burden.

To justify a handwriting expert, Lowe would need to show, with specificity, that the services of this expert are “necessary for an adequate defense.”[12] All he does in his objections, however, is assert that “The magistrate was put on notice that I was financially unable to obtain investigative and expert services but yet the magistrate still denied me this right.”[13] He makes no attempt to show why a handwriting expert is necessary. Nor are the arguments in his original motion, which consists largely of unsubstantiated accusations of government misconduct, persuasive. As Judge Ferenbach explained, “the court already adjudicated the issue Lowe now disputes: whether the Metropolitan Police Department violated his Fourth Amendment rights when they entered his home”; and there is no support in the record for Lowe’s claims that the government has committed “outrageous government conduct” or that the government’s witnesses have perjured themselves.[14] I affirm Judge Ferenbach’s denial of Lowe’s motion for appointment of a handwriting expert and overrule Lowe’s objections.

3. Notice of Violation (#129)

I similarly affirm Judge Ferenbach’s decision to strike Lowe’s notice of violation. Lowe states that the notice is intended to make “the government aware that I will be going after your bar license and filing a class action law suite [sic] for your repeated and consistent patterns of []negligence.”[15] This is improper, at least for a criminal proceeding. As Judge Ferenbach correctly pointed out, Lowe’s intention to file a civil action against the government has no bearing on his current prosecution, and filing an irrelevant notice only wastes judicial resources and interferes with the management of the ...

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