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Case 4:24-cr-40137-RAL Document 62 Filed 05/20/25 Page 1 of 5 PageID #: 290
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, 4:24-CR-40I37-RAL
Plaintiff,
OPINION AND ORDER DENYING
vs. MOTION TO DISMISS INDICTMENT
LAMONT VICTOR GARRETT,
Defendant.
Lamont Victor Garrett is charged with possession of ammunition by a prohibited person.
Doc. I. Garrett moves to dismiss the indictment for failure to state a criminal offense and for
vagueness. Doc. 55. The United States responded opposing the motion, Doc. 56, and thereafter
filed a superseding indictment. Doc.59. The superseding indictment charges Garrett with the same
offense but includes more detail about the ammunition by noting the brand, caliber, and other
identifying characteristics. Id For the reasons explained below,the Motion to Dismiss Indictment
for Failure to State a Criminal Offense and for Vagueness, Doc. 55, is denied.
1. Background^
Law enforcement executed a search warrant at Garrett's purported residence on August 21,
2024. Doc. 40 at 5-6. Garrett contends that Marvell T. Cannon leased the apartment. Doc. 55-1
at 1, and that Garrett and at least three other individuals would stay at Cannon's apartment
'This Court makes no factual findings but merely provides the context by which Garrett frames
his argument. The burden is on the United States to convince a trier of fact beyond a reasonable
doubt ofthe existence of every element ofthe charged offense.
1
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occasionally. Doc. 55 at 1. During the search ofthe apartment,law enforcement seized 17 rounds
of.22 Long Rifle caliber ammunition and three rounds of9x19mm Luger caliber ammunition. Id.
at 2;^Doc. 1. No firearms were found at the residence. Garrett was arrested and later indicted
on November 7, 2024.
II. Legal Standard
An indictment "must be a plain, concise, and definite written statement of the essential
facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). The test ofthe sufficiency of an
indictment is "whether it contains the elements of the offense charged, and sufficiently apprises
the defendant of what he must be prepared to meet." United States v. Prelogar. 996 F.3d 526, 531
(8th Cir. 2021). "An indictment which tracks the statutory language is ordinarily sufficient." Id.:
see also United States v. Suhl. 885 F.3d 1106, 1112(8th Cir. 2018)("[W]e will reverse only if the
indictment is 'so defective that it cannot be said, by any reasonable construction, to charge the
offense for which the defendant was convicted.'"(quoting United States v. Sewell. 513 F.3d 820,
821 (8th Cir. 2008))).
III. Discussion
A. Sufficiency of the Indictment
The indictment charges Garrett with unlawful possession of ammunition by a prohibited
person in violation of 18 U.S.C. §§ 922(g)(1),(3). Under § 922(g), the term "'knowingly' applies
both to the defendant's conduct and to the defendant's status." Rehaif v. United States, 588 U.S.
225, 227 (2019). The United States therefore must prove that the Garrett knew he possessed
ammunition and that he knew he had the relevant prohibited status when he possessed it. S^ id.
The indictment alleges;
On or about August 21, 2024, in the District of South Dakota, the defendant,
Lamont Victor Garrett, having been convicted of a crime punishable by
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imprisonment for a term exceeding one year, and then knowing he had been
convicted of a crime punishable by imprisonment for a term exceeding one year,
and being an unlawful user of a controlled substance, and knowing be was an
unlawful user ofa controlled substance, did knowingly possess ammunition,to wit:
17 rounds of.22 Long Rifle caliber ammunition and 3 rounds of a 9x19mm Luger
caliber ammunition, all of which bad been shipped and transported in interstate
commerce, all in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(8).
Doc. 1-1 at 1. The language of the indictment mirrors the language of § 922(g) and alleges both
the necessary knowledge-of-status and knowledge-of-conduct requirements under Rebaif. The
indictment is sufficient because it apprises Garrett ofthe crime be faces and contains the elements
of the offense charged. Prelogar, 996 F.3d at 531; see also United States v. Dvorak. 617 F.3d
1017, 1027(8tb Cir. 2010)(finding the language of an indictment sufficient even where it did not
include an essential knowledge element).
Garrett argues that be could not have possessed the necessary scienter requirement since
be was not aware that merely being in the same room as ammunition could lead to an indictment
under § 922(g). Doc. 55 at 5-6("A defendant who is unaware be could be criminally charged for
being in the same room as ammunition, lacks the guilty state of mind required under the language
and purposes of the federal statute . . . ."). This argument, however, does not demonstrate the
insufficiency of the indictment, which expressly charges Garrett with knowingly possessing the
ammunition. Ultimately, whether Garrett knowingly possessed ammunition is a question for the
jury,^ and it is the United States's burden to prove beyond a reasonable doubt that Garrett
knowingly possessed ammunition,in light of potential evidence that another individual leased the
property and other individuals often stayed at the property.
^ Ifthe evidence is insufficient to sustain a conviction at the close ofthe United States's case or at
the close of all testimony, this Court may enter judgment of acquittal under Rule 29(a) of the
Federal Rules of Criminal Procedure.
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Garrett also maintains that the indictment is insufficient because it lacks particularity
concerning ownership of the ammunition and how the ammunition was transported in interstate
commerce. Doc. 55 at 6-7. "[WJhile an indictment parroting the language of a federal criminal
statute is often sufficient, there are crimes that must be charged with greater specificity." United
States V. Resendiz-Ponce. 549 U.S. 102, 109,(2007).
Garrett cites Russell v. United States. 369 U.S. 749(1962), where the Supreme Court held
that indictments charging violations of2 U.S.C. § 192—^the statute making it a crime for a witness
summoned before a congressional committee to refuse to answer questions pertinent to the
inquiry—must do more than restate the language of the statute. The Court recognized that the
"pertinency to the subject under inquiry of the questions to which the defendant refused to answer"
was at the "very core ofcriminality." Russell. 369 U.S. at 764. Thus,an indictment under 2 U.S.C.
§ 192 must state the question or questions under congressional committee inquiry that prompted
the grand jury to indict. Id. at 771.
Such an indictment is the exception, and Garrett's indictment under 18 U.S.C.
§§ 922(g)(1),(3) is sufficient because it tracks the statutory language. See Prelogar. 996 F.3d at
531 ("An indictment which tracks the statutory language is ordinarily sufficient."). Questions of
who owned the ammunition or how it was transported in interstate commerce do not reach the core
ofthe alleged criminal conduct under § 922(g), which criminalizes possession of ammunition that
was in fact transported in interstate commerce. The indictment, mirroring the language of
§ 922(g), charges Garrett of knowingly possessing such ammunition and knowing his status
prohibited him from doing so. Doc. 1. Accordingly, the indictment is sufficient.
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B. Effect of Superseding Indictment
After Garrett filed the Motion to Dismiss the Indictment, Doc. 55, the United States filed
a superseding indictment,^ Doc.59. "It is well established, at least in this circuit, that'[a]n original
indictment remains pending prior to trial, even after the filing of a superseding indictment, unless
the original indictment is formally dismissed.'" United States v. Rupp. 994 F.3d 946, 949 (8th
Cir. 2021)(quoting United States v. Yielding.657 F.3d 688,703(8th Cir. 2011)): see United States
V. Roias-Contreras. 474 U.S. 231,237(1985)(Blackmun, J. concurring)("The term 'superseding
indictment' refers to a second indictment issued in the absence of a dismissal of the first."). The
indictment. Doc. I, has not been formally dismissed and thus remains pending notwithstanding the
filing ofthe superseding indictment. Doc. 59.
IV. Conclusion
For the above reasons, it is
ORDERED that the Motion to Dismiss Indictment for Failure to State a Criminal Offense
and for Vagueness, Doc. 55,is denied.
DATED this day of May,2025.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
^ The superseding indictment tracks the language of § 922(g) and adds further information about
the brands and headstamp markings ofthe ammunition Garrett allegedly illegally possessed. Doc.
59.