U.S. v. ADAMS

02-404(JRT/RLE)

2004 | Cited 0 times | D. Minnesota | May 14, 2004

MEMORANDUM OPINION AND ORDER

Defendant Robert Clarence Adams ("defendant") is charged with one countof possession with intent to distribute in excess of 50 grams of amixture or substance containing a detectable amount of cocaine base inviolation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). Defendant brought anumber of pretrial motions, which were addressed at a hearing beforeUnited States Magistrate Judge Raymond L. Erickson on February 23, 2004.Currently before the Court are defendant's objections to the MagistrateJudge's Report and Recommendation dated March 19, 2004 and defendant'sappeal of the Magistrate Judge's Order of the same date.1 The Court has conducted ade novo review of the defendant's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). The Court has also reviewed theMagistrate Judge's Order to determine whether it is clearly erroneous orcontrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D.Minn. LR 72.1(b)(2). For the reasons set forth below, the Court overrulesthe defendant's objections and adopts the Report and Recommendation ofthe Magistrate Judge, and affirms the Magistrate Judge's Order.

BACKGROUND

Beginning in May 2002, Duluth police became aware of defendant'spresence in Duluth and suspected his involvement in drug activity. Duringthat month, Duluth police employed a confidential informant ("CI") tomake three separate controlled purchases of crack cocaine from defendant.These purchases totaled between .6 and 1.2 grams of crack cocaine. Additionally, police learned that defendant had twooutstanding arrest warrants, one for a controlled substance crime inHennepin County and one for a parole violation. It was also learned thatdefendant resided at 326 North Tenth Avenue East in Duluth.

Sometime in mid to late September 2002, Duluth police received reportsfrom several CIs that defendant was selling crack cocaine in Duluth, andthat he was cooking and storing the crack in his residence. Police hadanother CI attempt a controlled purchase of crack from defendant. OnOctober 7, Officer James Jungers was informed by a CI that defendant wasin Duluth and could be found at a particular location. The CI identifieddefendant in a photograph. Jungers and other officers traveled to thelocation given by the CI, observed defendant walking down the street, andarrested him. Defendant was arrested on the basis of his two outstandingwarrants as well as probable cause for sale of narcotics in the threecontrolled substance purchases in May. A search of defendant incident tohis arrest turned up approximately 258 grams of crack cocaine packagedfor sale, approximately 29 grams of marijuana packaged for sale, over$500 cash, "pay and owe" sheets, postal receipts for packages mailed inthe previous few months, and blank "Money Gram" forms.

Upon returning to the police station, Jungers was advised by severalCIs that word was out that defendant had been arrested. Jungers decidedto secure defendant's residence. After doing so, Jungers returned to thepolice station and prepared a search warrant for the residence. Thesearch warrant was signed by a judge at 1:00 a.m. and executed the nextmorning. Defendant was indicted on December 17, 2002 and initially pled guilty.However, defendant later moved and was permitted to withdraw his plea. Atthe same time, defendant moved for substitution of counsel, which wasalso granted. Defendant's current attorney was appointed to represent himshortly thereafter. Through his current counsel, defendant broughtpretrial motions for discovery, for a change of venue, for a hearingpursuant to Franks v. Delaware, 438 U.S. 154 (1978), for disclosure of thegrand jury transcripts, to dismiss the indictment, to suppress searches,statements, admissions and answers, and to suppress evidence obtained asa result of search and seizure. In an order dated March 19, 2004, theMagistrate Judge granted the motion for discovery, and denied the motionsfor a change of venue, and for a Franks hearing.2 In a separate orderdated March 25, 2004, the Magistrate Judge denied the motion fordisclosure of grand jury transcripts. Finally, the Magistrate Judgeissued a Report and Recommendation, recommending denial of defendant's remaining motions. Defendant appealsthe orders and objects to the recommendation.

ANALYSIS

I. ORDER OF MARCH 19, 2004

A. Standard of Review

An order of a Magistrate Judge on nondispositive pretrial matters maybe reversed only if it is clearly erroneous or contrary to law. See28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2).Defendant appeals the Magistrate Judge's order denying his motions forchange of venue, for disclosure of Grand Jury transcripts, and for aFranks hearing. However, he has provided the Court with no reason tooverrule the Magistrate Judge's order. Rather, he merely makes theconclusory statements that "the Magistrate should have granteddefendant's motion for a change of venue," "should have granteddefendant's motion for a Franks hearing," and "should have granteddefendant's requested relief," namely to order disclosure of transcriptsor review the transcripts in camera to determine whether the Grand Jurywas mislead by hearsay or false information. Upon review of thedefendant's submission and the files, records and proceedings, the Courtfinds nothing in the record that suggests the Magistrate Judge's rulingsare either clearly erroneous or contrary to law. Rather, the MagistrateJudge exhaustively set forth the applicable standards, and applied themcarefully and accurately. Therefore, defendant's appeal of the MagistrateJudge's order denying a change of venue, denying a Franks hearing, anddenying disclosure of the grand jury transcripts is denied. II. REPORT AND RECOMMENDATION OF MARCH 19, 2004

A. Motions to Dismiss the Indictment

Defendant moved to dismiss the indictment on the following grounds: (1)the indictment is facially insufficient, (2) the Court lacks jurisdictionover this matter under United States v. Lopez, 514 U.S. 549 (1995), (3)21 U.S.C. § 841 is null and void, (4) the Grand Jury was mislead by theadmission of hearsay and false information, and (5) his rights wereviolated due to the ineffective assistance of his first appointedattorney. The Magistrate Judge recommended denial on each of thesegrounds, and defendant objects.

1. Sufficiency of the indictment

"[A]n indictment is sufficient if it, first, contains the elements ofthe offense charged and fairly informs a defendant of the charge againstwhich he must defend, and, second, enables him to plead an acquittal orconviction in bar of future prosecutions for the same offense." UnitedStates v. Cuervo, 354 F.3d 969, 983 (8th Cir. 2004) (quoting Hamling v.United States, 418 U.S. 87, 117 (1974)). "Typically an indictment is notsufficient only if an essential element of the offense is omitted fromit." Id. (citation omitted). "An indictment will ordinarily be heldsufficient unless it is so defective that it cannot be said, by anyreasonable construction, to charge the offense for which the defendantwas convicted." United States v. Hernandez, 299 F.3d 984, 992 (8th Cir.2002) (internal quotation omitted).

In this case, the indictment asserts a violation of 21 U.S.C. § 841(a)(1)and 841(b)(1)(A). 21 U.S.C. § 841(a)(1) provides that "it shall beunlawful for any person knowingly or intentionally . . . to manufacture, distribute, ordispense, or possess with intent to manufacture, distribute or dispense,a controlled substance." 21 U.S.C. § 841(b)(1)(A) specifies sentences forvarying crimes included under § 841. Specifically, § 841(b)(1)(A)(iii)provides the sentence for a violation involving "50 grams or more of amixture or substance . . . which contains cocaine base." Count One of theIndictment alleges that "[o]n or about October 7, 2002, in the State andDistrict of Minnesota and elsewhere, the defendant, Robert ClarenceAdams, knowingly and intentionally possessed with intent to distribute inexcess of 50 grams of a mixture and substance containing a detectableamount of cocaine base ("crack"), a controlled substance."

The language of the indictment tracks the language of the two relevantstatutory provisions very closely. Further, the indictment includes eachof the elements of the crime charged. It clearly indicates the time andplace of the alleged criminal action, and the degree to which defendantis alleged to have violated the statute. From this information, defendantis adequately able to discern the charges against him and prepare andassert a defense. See Hernandez, 299 F.3d 992. The indictment isclearly sufficient and will not be dismissed on this ground.

2. Jurisdiction

Defendant asserts that the indictment should be dismissed because21 U.S.C. § 841 attempts to regulate wholly intrastate activity contraryto Article I, Section 8, Clause 3, the Commerce Clause, of the UnitedStates Constitution. It has long been established that the United StatesCongress may properly regulate entirely intrastate economic activity that substantially affects interstate commerce. See,e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (production and consumptionof homegrown wheat). However, in United States v. Lopez, 514 U.S. 549(1995), the Supreme Court struck down the Gun Free School Zones Actprohibiting possession of a firearm in a school zone, finding thatCongress had exceeded its power under the Commerce Clause. 514 U.S. at551. Specifically, the Court found that the Act "neither regulate[d] acommercial activity nor contain[ed] a requirement that the possession beconnected in any way to interstate commerce." Id.

Defendant argues that to the extent that 21 U.S.C. § 841 addresseswholly intrastate activity, it is in no way connected to interstatecommerce, and, like the Gun Free School Zones Act, must therefore fail.In United States v. Carter, 294 F.3d 978 (8th Cir. 2002) and UnitedStates v. Davis, 288 F.3d 359 (8th Cir. 2002), the Eighth Circuitaddressed and rejected precisely the argument raised by defendant."Congress may regulate intrastate drug trafficking under its CommerceClause authority "because of the effect that intrastate drug activity hasupon interstate commerce." Carter, 294 F.3d at 981 (citing Davis, 288 F.3dat 362). The court in Carter noted that every other circuit to addressthis issue is in agreement. Id. (citation omitted). Defendant's argumentis thus without merit, and the indictment will not be dismissed on thisground.

Defendant also argues that 21 U.S.C. § 841 is not published in theFederal Register, and is therefore not codified. Defendant cites44 U.S.C. § 1505, which is a section of the Federal Registry Act. TheFederal Registry Act, 44 U.S.C. § 1501 et seq., addresses publication ofadministrative and agency orders and guidelines in order to ensure that people are not held liable under unpublished regulations ofwhich they were not aware. See, e.g., Applied Innovations, Inc. v.Regents of the University of Minnesota, 876 F.2d 626, 633-34 (8th Cir.1989). It does not require the publication of the United States Code,which is published separately, in the Federal Registry. This argumentcannot provide a basis upon which to dismiss the indictment.

3. Continuing validity of 21 U.S.C. § 841

Defendant also alleges that 21 U.S.C. § 841(b)(1) is faciallyunconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000),because it does not explicitly require the government to prove the amountor type of drugs involved in the offense. Apprendi requires that anyfact, other than a prior conviction, that increases a defendant'ssentence beyond the statutory maximum be proven beyond a reasonable doubtto a jury. Apprendi, 530 U.S. at 490. Thus, a criminal statute thatrequired a judge to determine key sentencing factors, or requiredsentencing factors to be proven only by a preponderance of the evidencewould be facially invalid under Apprendi. Carter, 294 F.3d at 980-81.Apprendi does not require a criminal statute to explicitly identifysentencing factors, provide that sentencing factors must be found by ajury, and specify the requisite burden of proof. Id. The indictmentalleges that defendant possessed with intent to distribute more than 50grams of crack cocaine. Should the government fail to prove these facts,beyond a reasonable doubt, to a jury, then defendant may have anApprendi claim. However, he does not have one at this stage, and theindictment will not be dismissed on this ground. Defendant points to United States v. Vazquez, 271 F.3d 93 (3rd Cir.2001), in support of his argument. In Vazquez, the Third Circuitdetermined that the district court had violated Apprendi by determiningthe quantity of narcotics involved in the case itself rather thansubmitting it to a jury, but ultimately found the error harmless.Vazquez, 271 F.3d at 96. Vazquez therefore is not relevant or helpful todefendant's argument. Defendant also points to the concurrence inVazquez, in which Judge Becker, joined by Judge Ambro, expressed the viewthat Congress intended type and quantity of drugs to be elements of anoffense under § 841. 271 F.3d at 108. As elements of the offense, typeand quantity must always be submitted to the jury, not just when theyincrease the potential penalty beyond the statutory maximum. Id. Insupport of this opinion, the concurrence points out that although § 841discusses type and quantity under the subsection heading "Penalties,"these headings were added for administrative convenience but were neverofficially adopted by Congress. Id. at 111. Thus, the headings should notbe read as an indication of Congressional intent to have type andquantity considered sentencing factors rather than elements of theoffense. Id. According to defendant, the continued inclusion of theseheadings somehow renders the statute invalid.

Further, or perhaps in the alternative, defendant argues that in lightof the fact that type and quantity should be considered elements of anoffense under § 841(a), the continued relegation of any reference totype or quantity to § 841(b) means that subsection (a) "does notdefine a complete offense because it includes no punishment. A juryverdict finding only that the defendant had committed the acts describedin subsection (a), without more would not render the defendant guiltyof a crime requiring any ascertainable punishment." According todefendant, this separation constitutes a structural defect in the statutethat is per se prejudicial and clearly violates the right to a fairtrial.

The Court notes that the indictment in this case explicitly sets forththe type and quantity of narcotics involved in the offense with whichdefendant is charged. Presumably, the government will prove those factsat trial, rendering defendant's argument moot. Further, in United Statesv. Sprofera, 299 F.3d 725 (8th Cir. 2002), the Eighth Circuit joined theFirst, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, andEleventh Circuits in rejecting the argument that "because § 841(a)prescribes no penalty absent a determination of drug quantity and type,then § 841 cannot constitutionally serve as the basis for a criminalconviction." 299 F.3d at 728-29.

4. Grand Jury Proceeding

Defendant argues that the indictment should be dismissed because theGrand Jury was misled by the introduction of hearsay and falseinformation. Defendant requests disclosure of the Grand Jury transcriptsin order to look for evidence to support this argument.3 In thealternative, defendant requests the Court to review the transcripts incamera to determine whether they contain any information to support thisargument. The Court notes initially that hearsay is permissible in Grand Juryproceedings. Costello v. United States, 350 U.S. 359, 363 (1956); see alsoUnited States v. Rossbach, 701 F.2d 713, 716 (8th Cir. 1983) (refusing todismiss indictment based solely on hearsay). However, the government maynot engage in fundamentally unfair tactics, deliberately mislead thejury, introduce evidence that is known to be perjured, or concealsubstantial evidence negating guilt. United States v. Lame, 716 F.2d 515,518 (8th Cir. 1983).

While disclosure of grand jury proceedings is proper under certaincircumstances, see Fed.R.Crim.P. 6, a long-established policy in thefederal courts maintains the secrecy of these proceedings. United Statesv. Benson, 760 F.2d 862, 864 (8th Cir. 1985) (citing In Re Disclosure ofTestimony Before the Grand Jury, 580 F.2d 281, 285 (8th Cir. 1978)). Aparty seeking disclosure must show a "particularized need," and thedecision to permit disclosure lies within the sound discretion of thetrial judge. Benson, 760 F.2d at 864 (citing Douglas Oil Co. v. PetrolStops Northwest, 441 U.S. 211, 223, (1979)). "A criminal defendant mustpoint to specific evidence of prosecutorial overreaching in order to showparticularized need to consult grand jury transcripts. A defendant who hasnot pointed to anything in the record which might suggest that theprosecution engaged in improper conduct before the grand jury has notcarried his burden of persuasion." Lame, 716 F.2d at 518.

Defendant has not pointed the Court to any evidence, either in hismotion or in his objections to the Magistrate Judge's recommendation,indicating that the government's conduct before the grand jury violatedhis rights or was otherwise improper. Defendant has thus failed to carry his burden with respect to his motion forproduction of grand jury transcripts and his motion to dismiss theindictment due to misleading evidence presented to the grand jury. Bothmotions will therefore be denied.

5. Ineffective assistance of counsel

Finally, defendant seeks dismissal of the indictment due to theineffective assistance of his first counsel. Defendant did not providethe Court with any indication in his motion of how his first counsel wasineffective, and has not provided any new information in hisobjection.4 Further, any prejudice suffered by defendant due toactions of his first counsel has been adequately remedied by theappointment of new counsel and the opportunity to withdraw his plea andproceed to trial in this matter. The indictment will not be dismissed onthis grounds.

B. Motion to Suppress Searches, Statements, Admissions and Answers

It is axiomatic that in the case of an unlawful arrest, any statementsor other evidence obtained as a result of that arrest may be suppressed.United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001) (citing WongSun v. United States, 371 U.S. 471, 484-88, (1963)). Defendant assertsthat his arrest was unlawful and that, consequently, any searches, statements, admissions, answers, or other evidence obtained asa result of his arrest must be suppressed. The Court disagrees.

A police officer may properly conduct a warrantless arrest when he hasprobable cause to believe that the person has committed a felony. UnitedStates v. Travis, 993 F.2d 1316, 1323 (8th Cir. 1993). "Probable cause toconduct a warrantless arrest exists when at the moment of arrest policehave knowledge of facts and circumstances grounded in reasonablytrustworthy information sufficient to warrant a belief by a prudentperson that an offense has been or is being committed by the person to bearrested." United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001)(citing Beck v. Ohio, 379 U.S. 89, 91, (1964)). In this case, police knewthat defendant had sold crack to a CI on three separate occasions inMay. In the two weeks prior to defendant's arrest, police learned fromseveral CIs that defendant was again, or still, selling crack in Duluth,and was using the residence at 326 North Tenth Avenue East as a stashhouse and a place to cook the drugs. Further, on the night of defendant'sarrest a CI identified defendant in a photograph and correctly directedpolice to where defendant could be found.

Information provided by confidential informants can, alone, provide thebasis for probable cause. United States v. Wright, 145 F.3d 972, 975 (8thCir. 1998). This is particularly true where details of the informationcan be corroborated or where the informant(s) has a track record ofproviding reliable information. See United States v. Carpenter,341 F.3d 666, 669 (8th Cir. 2003) (corroboration of details); UnitedStates v. Koons, 300 F.3d 985, 993 (8th Cir. 2002) (track record).Jungers testified that the CIs involved had previously provided reliableinformation, that the information provided by the various CIs was internally consistent, and that much of theinformation was capable of corroboration and turned out to be accurate.

Taken together, the information available to police was reliable andsufficient to establish probable cause that defendant had committed afelony. Initially, defendant committed three separate felonies during thecontrolled buys in May. Further, the three controlled buys in May coupledwith the more recent information that defendant was selling drugsreasonably indicates that defendant was likely engaged in the ongoingsale of narcotics. See United States v. Smith, 266 F.3d 902, 904-5 (8thCir. 2001) (discussing investigations of ongoing narcotic operations).Duluth police had more than adequate probable cause to believe thatdefendant had committed or was committing a felony and his arrest wastherefore valid.5 Consequently, any evidence obtained as a result ofdefendant's arrest, including as a result of the pat-down searchconducted incident to the arrest, is also admissible and will not besuppressed. United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999);Conrod v. Davis, 120 F.3d 92, 96 (8th Cir. 1997) (citing United Statesv. Robinson, 414 U.S. 218, 235 (1973)). C. Motion to Suppress Evidence Obtained as a Result of Search andSeizure

Finally, defendant challenges the search of his residence. Defendantcomplains that the warrant was not based on probable cause.6 A validsearch warrant must be supported probable cause that evidence of a crimewill be found in the place to be searched, that is, by informationindicating "a fair probability that contraband or evidence of a crimewill be found in a particular place." United States v. Koons, 300 F.3d 985,990 (8th Cir. 2002); United States v. Etheridge, 165 F.3d 655, 657 (8thCir. 1999) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Anyevidence obtained through an unlawful search may be excluded. Wong Sun,371 U.S. at 484.

As discussed above, following defendant's arrest, Jungers secured thataddress and then prepared an application for a search warrant, which wasreviewed and signed by a judge. The search warrant detailed the threecontrolled buys and the more recent information received from CIs. Thisinformation included that defendant had brought a large amount of crackto Duluth from Michigan, that he was selling crack in Duluth, frequentlyat the location where defendant was eventually arrested, that he residedat 326 North Tenth Avenue East in Duluth, that he was using the apartmentas a stash house and place to cook the drugs. The warrant also indicatedthat the CIs providing the information had identified defendant in aphotograph. Finally, the warrant described the events of the night — namely that police had arrested defendant based ona CI's tip and had found crack cocaine, narcotics, substantial cash, drugwritings, and a cell phone.

This information clearly provides a reasonable basis upon which toconclude that there was a fair probability that contraband or evidence ofa crime would be found at 326 North Tenth Avenue East in Duluth. SeeEtheridge, 165 F.3d at 657; see also Willis, 967 F.2d at 1224. Neitherthe warrant to search defendant's residence, nor any evidence obtained asa result of the search of defendant's residence will be excluded.

ORDER

Based on the foregoing, all the records, files, and proceedingsherein, the Court OVERRULES defendant's objections [Docket No. 60] andADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 51].Further, the Court AFFIRMS the Magistrate Judge's Orders [Docket Nos.52, 59]. Accordingly, IT IS HEREBY ORDERED that:

1. Defendant's motion to dismiss the indictment [Docket Nos. 34, 35,38, 46] are DENIED;

2. Defendant's motion to suppress searches, statements, admissions andanswers [Docket No. 39] is DENIED;

3. Defendant's motion to suppress evidence [Docket No. 37] is DENIED;

4. Defendant's motions in limine [Docket Nos. 53, 54, 55, 56, 57] areDENIED; 5. Defendant's pro se motions [Docket Nos. 18, 19, 27, 28, 29, 61, 65]are DISMISSED.

1. Defendant filed a document entitled Motions in Limine [Docket Nos.53, 54, 55, 56, 57] challenging portions of the Magistrate Judge's Orderand Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1)(A) andLocal Rule 72.1, the Magistrate Judge may hear and determine anynondispositive pretrial motion, and may issue a report and recommendation("R&R") regarding potentially dispositive pretrial motions. A party wishing to challenge any portion of a Magistrate Judge's orderregarding nondispositive issues must do so by filing an appeal within 10days of service of the order. Where no appeal is filed, the MagistrateJudge's order stands. A party may similarly challenge any portion of aMagistrate Judge's recommendation by filing objections within 10 days ofservice of the Report and Recommendation. Defendant's Motions in Limine pertain directly to the MagistrateJudge's order and Report and Recommendation and were filed within 10 daysof service of the Magistrate Judge's order. Further, the governmentaddressed each of the defendant's point in the government's Answer to theDefendant's Objections to Magistrate's R&R [Docket No. 62]. Therefore,the Court will construe defendant's Motions in Limine as an appeal of theMagistrate Judge's order or, where appropriate, as objections to theMagistrate Judge's R&R.

2. Defendant has filed numerous pro se motions in addition to themotions filed by his counsel. The Magistrate Judge declined to considerthe pro se motions submitted to that point, noting that "[i]t is wellsettled that `[t]here is no constitutional or statutory right tosimultaneously proceed pro se and with the benefit of counsel.'" CitingUnited States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994), Brasier v.Jeary, 256 F.2d 474, 478 (8th Cir. 1958). Thus, "[a] district court hasno obligation to entertain pro se motions filed by a represented party."Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001). This isparticularly true where the issues raised in the pro se briefing have beenbrought to the attention of counsel. Id. The Court notes that defendant's pro se motions were forwarded tocounsel. (See Letter from the Court to defendant dated April 9, 2004[Docket No. 64].) The Court agrees with the Magistrate Judge's conclusionthat in light of defendant's continuous representation by counsel, it isunnecessary for the Court to consider defendant's pro se motions.Therefore, the Court declines to consider any of defendant's pro semotions, including the several filed since the Magistrate Judge's ordersand recommendation were issued, and will accordingly dismiss them. The Court notes that in the event that defendant is convicted at trialand determines that trial counsel was ineffective in representingdefendant, defendant may raise that issue on appeal from hisconviction.

3. Defendants request for transcripts is a nondispositive matterthat could properly have been resolved by order of the Magistrate Judge.D. Minn. L.R. 72.1(b(1). However, because it is closely related todefendant's potentially dispositive motion to dismiss the indictment, theMagistrate Judge chose to address it in the Report and Recommendationalong with the motion to dismiss.

4. In his pro se motions, defendant appears to assert that his firstcounsel was ineffective because although he initially indicated todefendant that the government would not seek to sentence defendant as acareer offender, and that defendant might be eligible for a challengeprogram, those indications were apparently wrong. The Court notes thateven if making ultimately untenable promises to a client amounted toineffective assistance, any prejudice to defendant was eliminated when hewas allowed to withdraw his plea and proceed to trial with new counsel.

5. In addition to the foregoing reasoning, the Court notes that, asthere is not evidence that defendant's outstanding warrants wereinvalid, police likely could have arrested defendant based solely ontheir knowledge of the two outstanding warrants. See United States v.Willis, 967 F.2d 1220, 1224 (8th Cir. 1992). A subsequent search incidentto that arrest would also have been permissible. Id.

6. Defendant also complains that the warrant was executed improperly.However, the Court is not aware of any evidence that police somehow actedimproperly in executing a valid search warrant and therefore cannotcredit that complaint.

MEMORANDUM OPINION AND ORDER

Defendant Robert Clarence Adams ("defendant") is charged with one countof possession with intent to distribute in excess of 50 grams of amixture or substance containing a detectable amount of cocaine base inviolation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). Defendant brought anumber of pretrial motions, which were addressed at a hearing beforeUnited States Magistrate Judge Raymond L. Erickson on February 23, 2004.Currently before the Court are defendant's objections to the MagistrateJudge's Report and Recommendation dated March 19, 2004 and defendant'sappeal of the Magistrate Judge's Order of the same date.1 The Court has conducted ade novo review of the defendant's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). The Court has also reviewed theMagistrate Judge's Order to determine whether it is clearly erroneous orcontrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D.Minn. LR 72.1(b)(2). For the reasons set forth below, the Court overrulesthe defendant's objections and adopts the Report and Recommendation ofthe Magistrate Judge, and affirms the Magistrate Judge's Order.

BACKGROUND

Beginning in May 2002, Duluth police became aware of defendant'spresence in Duluth and suspected his involvement in drug activity. Duringthat month, Duluth police employed a confidential informant ("CI") tomake three separate controlled purchases of crack cocaine from defendant.These purchases totaled between .6 and 1.2 grams of crack cocaine. Additionally, police learned that defendant had twooutstanding arrest warrants, one for a controlled substance crime inHennepin County and one for a parole violation. It was also learned thatdefendant resided at 326 North Tenth Avenue East in Duluth.

Sometime in mid to late September 2002, Duluth police received reportsfrom several CIs that defendant was selling crack cocaine in Duluth, andthat he was cooking and storing the crack in his residence. Police hadanother CI attempt a controlled purchase of crack from defendant. OnOctober 7, Officer James Jungers was informed by a CI that defendant wasin Duluth and could be found at a particular location. The CI identifieddefendant in a photograph. Jungers and other officers traveled to thelocation given by the CI, observed defendant walking down the street, andarrested him. Defendant was arrested on the basis of his two outstandingwarrants as well as probable cause for sale of narcotics in the threecontrolled substance purchases in May. A search of defendant incident tohis arrest turned up approximately 258 grams of crack cocaine packagedfor sale, approximately 29 grams of marijuana packaged for sale, over$500 cash, "pay and owe" sheets, postal receipts for packages mailed inthe previous few months, and blank "Money Gram" forms.

Upon returning to the police station, Jungers was advised by severalCIs that word was out that defendant had been arrested. Jungers decidedto secure defendant's residence. After doing so, Jungers returned to thepolice station and prepared a search warrant for the residence. Thesearch warrant was signed by a judge at 1:00 a.m. and executed the nextmorning. Defendant was indicted on December 17, 2002 and initially pled guilty.However, defendant later moved and was permitted to withdraw his plea. Atthe same time, defendant moved for substitution of counsel, which wasalso granted. Defendant's current attorney was appointed to represent himshortly thereafter. Through his current counsel, defendant broughtpretrial motions for discovery, for a change of venue, for a hearingpursuant to Franks v. Delaware, 438 U.S. 154 (1978), for disclosure of thegrand jury transcripts, to dismiss the indictment, to suppress searches,statements, admissions and answers, and to suppress evidence obtained asa result of search and seizure. In an order dated March 19, 2004, theMagistrate Judge granted the motion for discovery, and denied the motionsfor a change of venue, and for a Franks hearing.2 In a separate orderdated March 25, 2004, the Magistrate Judge denied the motion fordisclosure of grand jury transcripts. Finally, the Magistrate Judgeissued a Report and Recommendation, recommending denial of defendant's remaining motions. Defendant appealsthe orders and objects to the recommendation.

ANALYSIS

I. ORDER OF MARCH 19, 2004

A. Standard of Review

An order of a Magistrate Judge on nondispositive pretrial matters maybe reversed only if it is clearly erroneous or contrary to law. See28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2).Defendant appeals the Magistrate Judge's order denying his motions forchange of venue, for disclosure of Grand Jury transcripts, and for aFranks hearing. However, he has provided the Court with no reason tooverrule the Magistrate Judge's order. Rather, he merely makes theconclusory statements that "the Magistrate should have granteddefendant's motion for a change of venue," "should have granteddefendant's motion for a Franks hearing," and "should have granteddefendant's requested relief," namely to order disclosure of transcriptsor review the transcripts in camera to determine whether the Grand Jurywas mislead by hearsay or false information. Upon review of thedefendant's submission and the files, records and proceedings, the Courtfinds nothing in the record that suggests the Magistrate Judge's rulingsare either clearly erroneous or contrary to law. Rather, the MagistrateJudge exhaustively set forth the applicable standards, and applied themcarefully and accurately. Therefore, defendant's appeal of the MagistrateJudge's order denying a change of venue, denying a Franks hearing, anddenying disclosure of the grand jury transcripts is denied. II. REPORT AND RECOMMENDATION OF MARCH 19, 2004

A. Motions to Dismiss the Indictment

Defendant moved to dismiss the indictment on the following grounds: (1)the indictment is facially insufficient, (2) the Court lacks jurisdictionover this matter under United States v. Lopez, 514 U.S. 549 (1995), (3)21 U.S.C. § 841 is null and void, (4) the Grand Jury was mislead by theadmission of hearsay and false information, and (5) his rights wereviolated due to the ineffective assistance of his first appointedattorney. The Magistrate Judge recommended denial on each of thesegrounds, and defendant objects.

1. Sufficiency of the indictment

"[A]n indictment is sufficient if it, first, contains the elements ofthe offense charged and fairly informs a defendant of the charge againstwhich he must defend, and, second, enables him to plead an acquittal orconviction in bar of future prosecutions for the same offense." UnitedStates v. Cuervo, 354 F.3d 969, 983 (8th Cir. 2004) (quoting Hamling v.United States, 418 U.S. 87, 117 (1974)). "Typically an indictment is notsufficient only if an essential element of the offense is omitted fromit." Id. (citation omitted). "An indictment will ordinarily be heldsufficient unless it is so defective that it cannot be said, by anyreasonable construction, to charge the offense for which the defendantwas convicted." United States v. Hernandez, 299 F.3d 984, 992 (8th Cir.2002) (internal quotation omitted).

In this case, the indictment asserts a violation of 21 U.S.C. § 841(a)(1)and 841(b)(1)(A). 21 U.S.C. § 841(a)(1) provides that "it shall beunlawful for any person knowingly or intentionally . . . to manufacture, distribute, ordispense, or possess with intent to manufacture, distribute or dispense,a controlled substance." 21 U.S.C. § 841(b)(1)(A) specifies sentences forvarying crimes included under § 841. Specifically, § 841(b)(1)(A)(iii)provides the sentence for a violation involving "50 grams or more of amixture or substance . . . which contains cocaine base." Count One of theIndictment alleges that "[o]n or about October 7, 2002, in the State andDistrict of Minnesota and elsewhere, the defendant, Robert ClarenceAdams, knowingly and intentionally possessed with intent to distribute inexcess of 50 grams of a mixture and substance containing a detectableamount of cocaine base ("crack"), a controlled substance."

The language of the indictment tracks the language of the two relevantstatutory provisions very closely. Further, the indictment includes eachof the elements of the crime charged. It clearly indicates the time andplace of the alleged criminal action, and the degree to which defendantis alleged to have violated the statute. From this information, defendantis adequately able to discern the charges against him and prepare andassert a defense. See Hernandez, 299 F.3d 992. The indictment isclearly sufficient and will not be dismissed on this ground.

2. Jurisdiction

Defendant asserts that the indictment should be dismissed because21 U.S.C. § 841 attempts to regulate wholly intrastate activity contraryto Article I, Section 8, Clause 3, the Commerce Clause, of the UnitedStates Constitution. It has long been established that the United StatesCongress may properly regulate entirely intrastate economic activity that substantially affects interstate commerce. See,e.g., Wickard v. Filburn, 317 U.S. 111 (1942) (production and consumptionof homegrown wheat). However, in United States v. Lopez, 514 U.S. 549(1995), the Supreme Court struck down the Gun Free School Zones Actprohibiting possession of a firearm in a school zone, finding thatCongress had exceeded its power under the Commerce Clause. 514 U.S. at551. Specifically, the Court found that the Act "neither regulate[d] acommercial activity nor contain[ed] a requirement that the possession beconnected in any way to interstate commerce." Id.

Defendant argues that to the extent that 21 U.S.C. § 841 addresseswholly intrastate activity, it is in no way connected to interstatecommerce, and, like the Gun Free School Zones Act, must therefore fail.In United States v. Carter, 294 F.3d 978 (8th Cir. 2002) and UnitedStates v. Davis, 288 F.3d 359 (8th Cir. 2002), the Eighth Circuitaddressed and rejected precisely the argument raised by defendant."Congress may regulate intrastate drug trafficking under its CommerceClause authority "because of the effect that intrastate drug activity hasupon interstate commerce." Carter, 294 F.3d at 981 (citing Davis, 288 F.3dat 362). The court in Carter noted that every other circuit to addressthis issue is in agreement. Id. (citation omitted). Defendant's argumentis thus without merit, and the indictment will not be dismissed on thisground.

Defendant also argues that 21 U.S.C. § 841 is not published in theFederal Register, and is therefore not codified. Defendant cites44 U.S.C. § 1505, which is a section of the Federal Registry Act. TheFederal Registry Act, 44 U.S.C. § 1501 et seq., addresses publication ofadministrative and agency orders and guidelines in order to ensure that people are not held liable under unpublished regulations ofwhich they were not aware. See, e.g., Applied Innovations, Inc. v.Regents of the University of Minnesota, 876 F.2d 626, 633-34 (8th Cir.1989). It does not require the publication of the United States Code,which is published separately, in the Federal Registry. This argumentcannot provide a basis upon which to dismiss the indictment.

3. Continuing validity of 21 U.S.C. § 841

Defendant also alleges that 21 U.S.C. § 841(b)(1) is faciallyunconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000),because it does not explicitly require the government to prove the amountor type of drugs involved in the offense. Apprendi requires that anyfact, other than a prior conviction, that increases a defendant'ssentence beyond the statutory maximum be proven beyond a reasonable doubtto a jury. Apprendi, 530 U.S. at 490. Thus, a criminal statute thatrequired a judge to determine key sentencing factors, or requiredsentencing factors to be proven only by a preponderance of the evidencewould be facially invalid under Apprendi. Carter, 294 F.3d at 980-81.Apprendi does not require a criminal statute to explicitly identifysentencing factors, provide that sentencing factors must be found by ajury, and specify the requisite burden of proof. Id. The indictmentalleges that defendant possessed with intent to distribute more than 50grams of crack cocaine. Should the government fail to prove these facts,beyond a reasonable doubt, to a jury, then defendant may have anApprendi claim. However, he does not have one at this stage, and theindictment will not be dismissed on this ground. Defendant points to United States v. Vazquez, 271 F.3d 93 (3rd Cir.2001), in support of his argument. In Vazquez, the Third Circuitdetermined that the district court had violated Apprendi by determiningthe quantity of narcotics involved in the case itself rather thansubmitting it to a jury, but ultimately found the error harmless.Vazquez, 271 F.3d at 96. Vazquez therefore is not relevant or helpful todefendant's argument. Defendant also points to the concurrence inVazquez, in which Judge Becker, joined by Judge Ambro, expressed the viewthat Congress intended type and quantity of drugs to be elements of anoffense under § 841. 271 F.3d at 108. As elements of the offense, typeand quantity must always be submitted to the jury, not just when theyincrease the potential penalty beyond the statutory maximum. Id. Insupport of this opinion, the concurrence points out that although § 841discusses type and quantity under the subsection heading "Penalties,"these headings were added for administrative convenience but were neverofficially adopted by Congress. Id. at 111. Thus, the headings should notbe read as an indication of Congressional intent to have type andquantity considered sentencing factors rather than elements of theoffense. Id. According to defendant, the continued inclusion of theseheadings somehow renders the statute invalid.

Further, or perhaps in the alternative, defendant argues that in lightof the fact that type and quantity should be considered elements of anoffense under § 841(a), the continued relegation of any reference totype or quantity to § 841(b) means that subsection (a) "does notdefine a complete offense because it includes no punishment. A juryverdict finding only that the defendant had committed the acts describedin subsection (a), without more would not render the defendant guiltyof a crime requiring any ascertainable punishment." According todefendant, this separation constitutes a structural defect in the statutethat is per se prejudicial and clearly violates the right to a fairtrial.

The Court notes that the indictment in this case explicitly sets forththe type and quantity of narcotics involved in the offense with whichdefendant is charged. Presumably, the government will prove those factsat trial, rendering defendant's argument moot. Further, in United Statesv. Sprofera, 299 F.3d 725 (8th Cir. 2002), the Eighth Circuit joined theFirst, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, andEleventh Circuits in rejecting the argument that "because § 841(a)prescribes no penalty absent a determination of drug quantity and type,then § 841 cannot constitutionally serve as the basis for a criminalconviction." 299 F.3d at 728-29.

4. Grand Jury Proceeding

Defendant argues that the indictment should be dismissed because theGrand Jury was misled by the introduction of hearsay and falseinformation. Defendant requests disclosure of the Grand Jury transcriptsin order to look for evidence to support this argument.3 In thealternative, defendant requests the Court to review the transcripts incamera to determine whether they contain any information to support thisargument. The Court notes initially that hearsay is permissible in Grand Juryproceedings. Costello v. United States, 350 U.S. 359, 363 (1956); see alsoUnited States v. Rossbach, 701 F.2d 713, 716 (8th Cir. 1983) (refusing todismiss indictment based solely on hearsay). However, the government maynot engage in fundamentally unfair tactics, deliberately mislead thejury, introduce evidence that is known to be perjured, or concealsubstantial evidence negating guilt. United States v. Lame, 716 F.2d 515,518 (8th Cir. 1983).

While disclosure of grand jury proceedings is proper under certaincircumstances, see Fed.R.Crim.P. 6, a long-established policy in thefederal courts maintains the secrecy of these proceedings. United Statesv. Benson, 760 F.2d 862, 864 (8th Cir. 1985) (citing In Re Disclosure ofTestimony Before the Grand Jury, 580 F.2d 281, 285 (8th Cir. 1978)). Aparty seeking disclosure must show a "particularized need," and thedecision to permit disclosure lies within the sound discretion of thetrial judge. Benson, 760 F.2d at 864 (citing Douglas Oil Co. v. PetrolStops Northwest, 441 U.S. 211, 223, (1979)). "A criminal defendant mustpoint to specific evidence of prosecutorial overreaching in order to showparticularized need to consult grand jury transcripts. A defendant who hasnot pointed to anything in the record which might suggest that theprosecution engaged in improper conduct before the grand jury has notcarried his burden of persuasion." Lame, 716 F.2d at 518.

Defendant has not pointed the Court to any evidence, either in hismotion or in his objections to the Magistrate Judge's recommendation,indicating that the government's conduct before the grand jury violatedhis rights or was otherwise improper. Defendant has thus failed to carry his burden with respect to his motion forproduction of grand jury transcripts and his motion to dismiss theindictment due to misleading evidence presented to the grand jury. Bothmotions will therefore be denied.

5. Ineffective assistance of counsel

Finally, defendant seeks dismissal of the indictment due to theineffective assistance of his first counsel. Defendant did not providethe Court with any indication in his motion of how his first counsel wasineffective, and has not provided any new information in hisobjection.4 Further, any prejudice suffered by defendant due toactions of his first counsel has been adequately remedied by theappointment of new counsel and the opportunity to withdraw his plea andproceed to trial in this matter. The indictment will not be dismissed onthis grounds.

B. Motion to Suppress Searches, Statements, Admissions and Answers

It is axiomatic that in the case of an unlawful arrest, any statementsor other evidence obtained as a result of that arrest may be suppressed.United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001) (citing WongSun v. United States, 371 U.S. 471, 484-88, (1963)). Defendant assertsthat his arrest was unlawful and that, consequently, any searches, statements, admissions, answers, or other evidence obtained asa result of his arrest must be suppressed. The Court disagrees.

A police officer may properly conduct a warrantless arrest when he hasprobable cause to believe that the person has committed a felony. UnitedStates v. Travis, 993 F.2d 1316, 1323 (8th Cir. 1993). "Probable cause toconduct a warrantless arrest exists when at the moment of arrest policehave knowledge of facts and circumstances grounded in reasonablytrustworthy information sufficient to warrant a belief by a prudentperson that an offense has been or is being committed by the person to bearrested." United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001)(citing Beck v. Ohio, 379 U.S. 89, 91, (1964)). In this case, police knewthat defendant had sold crack to a CI on three separate occasions inMay. In the two weeks prior to defendant's arrest, police learned fromseveral CIs that defendant was again, or still, selling crack in Duluth,and was using the residence at 326 North Tenth Avenue East as a stashhouse and a place to cook the drugs. Further, on the night of defendant'sarrest a CI identified defendant in a photograph and correctly directedpolice to where defendant could be found.

Information provided by confidential informants can, alone, provide thebasis for probable cause. United States v. Wright, 145 F.3d 972, 975 (8thCir. 1998). This is particularly true where details of the informationcan be corroborated or where the informant(s) has a track record ofproviding reliable information. See United States v. Carpenter,341 F.3d 666, 669 (8th Cir. 2003) (corroboration of details); UnitedStates v. Koons, 300 F.3d 985, 993 (8th Cir. 2002) (track record).Jungers testified that the CIs involved had previously provided reliableinformation, that the information provided by the various CIs was internally consistent, and that much of theinformation was capable of corroboration and turned out to be accurate.

Taken together, the information available to police was reliable andsufficient to establish probable cause that defendant had committed afelony. Initially, defendant committed three separate felonies during thecontrolled buys in May. Further, the three controlled buys in May coupledwith the more recent information that defendant was selling drugsreasonably indicates that defendant was likely engaged in the ongoingsale of narcotics. See United States v. Smith, 266 F.3d 902, 904-5 (8thCir. 2001) (discussing investigations of ongoing narcotic operations).Duluth police had more than adequate probable cause to believe thatdefendant had committed or was committing a felony and his arrest wastherefore valid.5 Consequently, any evidence obtained as a result ofdefendant's arrest, including as a result of the pat-down searchconducted incident to the arrest, is also admissible and will not besuppressed. United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999);Conrod v. Davis, 120 F.3d 92, 96 (8th Cir. 1997) (citing United Statesv. Robinson, 414 U.S. 218, 235 (1973)). C. Motion to Suppress Evidence Obtained as a Result of Search andSeizure

Finally, defendant challenges the search of his residence. Defendantcomplains that the warrant was not based on probable cause.6 A validsearch warrant must be supported probable cause that evidence of a crimewill be found in the place to be searched, that is, by informationindicating "a fair probability that contraband or evidence of a crimewill be found in a particular place." United States v. Koons, 300 F.3d 985,990 (8th Cir. 2002); United States v. Etheridge, 165 F.3d 655, 657 (8thCir. 1999) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Anyevidence obtained through an unlawful search may be excluded. Wong Sun,371 U.S. at 484.

As discussed above, following defendant's arrest, Jungers secured thataddress and then prepared an application for a search warrant, which wasreviewed and signed by a judge. The search warrant detailed the threecontrolled buys and the more recent information received from CIs. Thisinformation included that defendant had brought a large amount of crackto Duluth from Michigan, that he was selling crack in Duluth, frequentlyat the location where defendant was eventually arrested, that he residedat 326 North Tenth Avenue East in Duluth, that he was using the apartmentas a stash house and place to cook the drugs. The warrant also indicatedthat the CIs providing the information had identified defendant in aphotograph. Finally, the warrant described the events of the night — namely that police had arrested defendant based ona CI's tip and had found crack cocaine, narcotics, substantial cash, drugwritings, and a cell phone.

This information clearly provides a reasonable basis upon which toconclude that there was a fair probability that contraband or evidence ofa crime would be found at 326 North Tenth Avenue East in Duluth. SeeEtheridge, 165 F.3d at 657; see also Willis, 967 F.2d at 1224. Neitherthe warrant to search defendant's residence, nor any evidence obtained asa result of the search of defendant's residence will be excluded.

ORDER

Based on the foregoing, all the records, files, and proceedingsherein, the Court OVERRULES defendant's objections [Docket No. 60] andADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 51].Further, the Court AFFIRMS the Magistrate Judge's Orders [Docket Nos.52, 59]. Accordingly, IT IS HEREBY ORDERED that:

1. Defendant's motion to dismiss the indictment [Docket Nos. 34, 35,38, 46] are DENIED;

2. Defendant's motion to suppress searches, statements, admissions andanswers [Docket No. 39] is DENIED;

3. Defendant's motion to suppress evidence [Docket No. 37] is DENIED;

4. Defendant's motions in limine [Docket Nos. 53, 54, 55, 56, 57] areDENIED; 5. Defendant's pro se motions [Docket Nos. 18, 19, 27, 28, 29, 61, 65]are DISMISSED.

1. Defendant filed a document entitled Motions in Limine [Docket Nos.53, 54, 55, 56, 57] challenging portions of the Magistrate Judge's Orderand Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1)(A) andLocal Rule 72.1, the Magistrate Judge may hear and determine anynondispositive pretrial motion, and may issue a report and recommendation("R&R") regarding potentially dispositive pretrial motions. A party wishing to challenge any portion of a Magistrate Judge's orderregarding nondispositive issues must do so by filing an appeal within 10days of service of the order. Where no appeal is filed, the MagistrateJudge's order stands. A party may similarly challenge any portion of aMagistrate Judge's recommendation by filing objections within 10 days ofservice of the Report and Recommendation. Defendant's Motions in Limine pertain directly to the MagistrateJudge's order and Report and Recommendation and were filed within 10 daysof service of the Magistrate Judge's order. Further, the governmentaddressed each of the defendant's point in the government's Answer to theDefendant's Objections to Magistrate's R&R [Docket No. 62]. Therefore,the Court will construe defendant's Motions in Limine as an appeal of theMagistrate Judge's order or, where appropriate, as objections to theMagistrate Judge's R&R.

2. Defendant has filed numerous pro se motions in addition to themotions filed by his counsel. The Magistrate Judge declined to considerthe pro se motions submitted to that point, noting that "[i]t is wellsettled that `[t]here is no constitutional or statutory right tosimultaneously proceed pro se and with the benefit of counsel.'" CitingUnited States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994), Brasier v.Jeary, 256 F.2d 474, 478 (8th Cir. 1958). Thus, "[a] district court hasno obligation to entertain pro se motions filed by a represented party."Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001). This isparticularly true where the issues raised in the pro se briefing have beenbrought to the attention of counsel. Id. The Court notes that defendant's pro se motions were forwarded tocounsel. (See Letter from the Court to defendant dated April 9, 2004[Docket No. 64].) The Court agrees with the Magistrate Judge's conclusionthat in light of defendant's continuous representation by counsel, it isunnecessary for the Court to consider defendant's pro se motions.Therefore, the Court declines to consider any of defendant's pro semotions, including the several filed since the Magistrate Judge's ordersand recommendation were issued, and will accordingly dismiss them. The Court notes that in the event that defendant is convicted at trialand determines that trial counsel was ineffective in representingdefendant, defendant may raise that issue on appeal from hisconviction.

3. Defendants request for transcripts is a nondispositive matterthat could properly have been resolved by order of the Magistrate Judge.D. Minn. L.R. 72.1(b(1). However, because it is closely related todefendant's potentially dispositive motion to dismiss the indictment, theMagistrate Judge chose to address it in the Report and Recommendationalong with the motion to dismiss.

4. In his pro se motions, defendant appears to assert that his firstcounsel was ineffective because although he initially indicated todefendant that the government would not seek to sentence defendant as acareer offender, and that defendant might be eligible for a challengeprogram, those indications were apparently wrong. The Court notes thateven if making ultimately untenable promises to a client amounted toineffective assistance, any prejudice to defendant was eliminated when hewas allowed to withdraw his plea and proceed to trial with new counsel.

5. In addition to the foregoing reasoning, the Court notes that, asthere is not evidence that defendant's outstanding warrants wereinvalid, police likely could have arrested defendant based solely ontheir knowledge of the two outstanding warrants. See United States v.Willis, 967 F.2d 1220, 1224 (8th Cir. 1992). A subsequent search incidentto that arrest would also have been permissible. Id.

6. Defendant also complains that the warrant was executed improperly.However, the Court is not aware of any evidence that police somehow actedimproperly in executing a valid search warrant and therefore cannotcredit that complaint.

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