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United States of America v. Gary Raymond Harvey

October 17, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
GARY RAYMOND HARVEY, DEFENDANT.



The opinion of the court was delivered by: B. Lynn WinmillChief Judge United States District Court

MEMORANDUM DECISION AND ORDER

Before the Court are Defendant Gary Raymond Harvey's motions to dismiss (Dkts. 92 & 93). The Court finds that a response from the government or oral argument will not assist the decisional process. Based on the pleadings and record before it, the Court will deny the Motions, as more fully expressed below.

INTRODUCTION

Defendant Gary Raymond Harvey was indicted on August 23, 2011, with ten counts of false claims for refund, in violation of 18 U.S.C. § 287. Harvey was represented for a time by Federal Defender Robert Fischer, who moved to withdraw citing irreconcilable differences. The Court granted the motion and appointed substitute counsel from the CJA panel, John Miller, who currently represents Defendant. At a June 12, 2012 status conference, in which Mr. Miller, Harvey, and AUSA Cook participated, the Court advised the parties it would allow hybrid representation. The Court allowed Harvey to file pre-trial motions on his own behalf when such motions were against the advice of his counsel.

The deadline for filing all pretrial motions was August 8, 2012. Harvey previously filed four motions to dismiss by this deadline, which were denied. He now files two additional motions to dismiss. The August 8, 2012 deadline has passed.

DISCUSSION

1.First Motion to Dismiss -- Mandatory Judicial and Administrative Notice; in the Nature of a Writ of Error, Coram Nobis, and a Demand for Dismissal for Failure to State the Proper Jurisdiction and Venue.

Harvey's first motion to dismiss cobbles together a series of apparently inter- related arguments. However, the motion fails for a number of reasons. First, the deadline for filing pretrial motions has passed, and therefore Harvey's motions are untimely.

Second, Harvey has failed to meet the elements for coram nobis relief, which requires a petitioner to establish: (1) that a more usual remedy is unavailable; (2) a valid basis for failing to challenge the conviction earlier; (3) adverse consequences arising from the conviction; and (4) that the error is "of the most fundamental character."

McKinney v. U.S., 71 F.3d 779, 781 (9th Cir. 1995). Harvey has not yet been convicted, so this type of relief has no application to his circumstances.

Third, Harvey's demand for dismissal for failure to state the proper jurisdiction and venue has no basis in law or fact. Although Harvey's arguments are unclear, he seems to challenge the Court's jurisdiction under the Foreign Sovereign Immunities Act (FSIA) and the Eleventh Amendment. At one point he cites FSIA as the basis of his jurisdictional challenge:

This Court is defined under FRCP Rule 40) as a FOREIGN STATE as defined under 28 USC, CHAPTER 97-JURIDICTIONAL IMMUNITIES OF FOREIGN STATES, Sec. 1602-1611, THE FOREIGN SOVERIGN IMMUNITIES ACT (FISA) allowing the petitioner to challenge jurisdiction, therefore full disclosure of the true jurisdiction of this Court is now being demanded.

Def.'s Motion at 2, Dkt. 92.

At another point, Harvey states that this Court does not have jurisdiction because of ...


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