United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Timothy Stewart, indicted for three counts of being a felon
in possession of a firearm, doc. 28, moves to dismiss all
three counts of the superseding indictment due to
insufficient evidence to support the respective charges. Doc.
40 (citing DNA evidence that allegedly excludes defendant as
a possessor of the weapon); doc. 44 (citing the affidavit of
a gun owner, who swears defendant never had possession of the
pistol in question). The Government opposes. Doc. 46.
whether Stewart's motion is timely, see S.D. Ga.
L. Crim. R. 12.1 (requiring pretrial motions be filed within
10 days of arraignment),  the relief he seeks is not available. A
federal court may not assess the sufficiency of the evidence
supporting an indictment obtained from an unbiased grand
jury. United States v. Calandra, 414 U.S. 338,
344-45 (1974) (“an indictment valid on its face is not
subject to challenge on the ground that the grand jury acted
on the basis of inadequate or incompetent evidence”);
Costello v. United States, 350 U.S. 359, 362-63
(1956); United States v. Sharpe, 438 F.3d 1257, 1263
(11th Cir. 2006) (“[i]t is well-settled that ‘a
court may not dismiss an indictment . . . on a determination
of facts that should have been developed at trial'”
(quoting United States v. Torkington, 812 F.2d 1347,
1354 (11th Cir. 1987))); United States v. Brown, 574
F.2d 1274, 1277 (5th Cir. 1978); United States v.
Mann, 517 F.2d 259, 267 (5th Cir. 1975). The Federal
Rules of Criminal Procedure permit a defendant to raise prior
to trial only those defenses or objections which “the
court can determine without a trial on the merits.”
Fed. R. Crim. P. 12(b)(1). “It follows that a pretrial
motion to dismiss the indictment cannot be based on a
sufficiency of the evidence argument because such an argument
raises factual questions embraced in the general
issue.” United States v. Ayarza-Garcia, 819
F.2d 1043, 1048 (11th Cir. 1987), superseded by statute
on other grounds as recognized in United States v.
Tinoco, 304 F.3d 1088, 1104-06 (11th Cir. 2002); see
United States v. Salman, 378 F.3d 1266, 1268-69 (11th
Cir. 2004) (“It is not for the courts to filter which
criminal cases may reach the trial stage by reviewing the
proffered evidence in advance.”); United States v.
Critzer, 951 F.2d 306, 307 (11th Cir 1992) (per curiam)
(“[t]here is no summary judgment procedure in criminal
cases”); see also United States v. Wilkerson,
2017 WL 2983889 at * 5 n. 2 (11th Cir. July 13, 2017)
(quoting Salman, 378 F.3d at 1268). While this Court
may review the legal sufficiency of the indictment,
it may not (at this stage) review the sufficiency of the
proof that will be offered in support of the indictment's
allegations or second-guess the grand jury's probable
legal sufficiency of an indictment is determined from its
face. Critzer, 951 F.2d at 307. The indictment in
this case alleges that defendant “did unlawfully and
knowingly possess . . . a firearm” as a felon. Doc. 28.
This allegation is sufficient to call for a trial. Indeed,
Stewart challenges only the factual, but not the
legal, sufficiency of those charges. See docs 40
& 44. Whether it is based upon sufficient evidentiary
support may not be determined through a pretrial motion.
Critzer, 951 F.2d at 307 (Federal Rules of Criminal
Procedure do not “provide for a pre-trial determination
of sufficiency of the evidence.”). Accordingly,
Stewart's motions (docs. 40 & 44) should be
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 The Court previously found that
defendant's first motion to dismiss (doc. 40) was moot,
per a communication from defense counsel to the Clerk. Doc.
43. It will resurrect it here just to emphasize the
insubstantiality of defendant's theory.
 The Court entered a new Scheduling
Order on July 20, 2017, the date of Stewart's arraignment
on the superseding indictment. See doc. 35
(Scheduling Order requiring pretrial motions be filed
“within 10 days of the date of arraignment, as provided
by Local Rule 12.1.”); doc. 34 (Minute Entry for
Arraignment held on July 20, 2017). Pretrial motions were
thus due by July 30, 2017. On August 29, 2017, the Court
entered an Order memorializing the parties'
representation that “all pretrial motions have been
complied with and/or that all matters raised in the
parties' motions have been resolved by agreement.”
Doc. 42 (Notice to Counsel response); doc. 43 (Order finding
hearing unnecessary). Despite that representation, defendant
filed a second motion to dismiss on September 19, 2017. Doc.
44. Thus, the second motion is clearly untimely, and that
untimeliness provides an independent basis for its denial.
See United States v. Smith, 918 F.2d 1501, 1509
(11th Cir. 1990) (“By failing to file his motion within
the deadline set by the court a ...