United States v. Patrick Zamor

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 1, 2020
• Docket: 20-11210
• Status: Unpublished

Opinion

Case: 20-11210 Date Filed: 06/01/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11210 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cr-20353-RNS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICK ZAMOR,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________ (June 1, 2020)

Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 20-11210 Date Filed: 06/01/2020 Page: 2 of 4

Patrick Zamor, proceeding pro se, appeals the district court’s denial of his

post-judgment motion to dismiss his indictment and vacate his conviction. The

government has moved for summary denial and to stay the briefing schedule.

Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).

A district court’s subject matter jurisdiction “is a question of law, and,

therefore, subject to de novo review.” United States v. Perez, 956 F.2d 1098, 1101

(11th Cir. 1992). Generally, a motion alleging a defect in an indictment must be

filed pre-trial, but “[a] motion that the court lacks jurisdiction may be made at any

time while the case is pending.” Fed. R. Crim. P. 12(b)(2). A defendant must raise

a motion alleging “a defect in instituting the prosecution, including . . . an error in

the grand-jury proceeding or preliminary hearing” before trial. Fed. R. Crim. P.

12(b)(3)(A)(v).

2 Case: 20-11210 Date Filed: 06/01/2020 Page: 3 of 4

A district court correctly denies a post-conviction motion to dismiss an

indictment where the defendant’s case that led to his conviction and sentence is no

longer pending. United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002).

Under Federal Rule of Criminal Procedure 6, “[t]he foreperson . . . will

record the number of jurors concurring in every indictment and will file the record

with the clerk, but the record may not be made public unless the court so orders.”

Fed. R. Crim. P. 6(c). “A grand jury may indict only if at least 12 jurors concur . .

. If a complaint or information is pending against the defendant and 12 jurors do

not concur in the indictment, the foreperson must promptly and in writing report

the lack of concurrence to the magistrate judge.” Fed. R. Crim. P. 6(f).

These rules are consistent with longstanding policies favoring grand jury

secrecy. See Douglas Oil Co. of Cal. V. Petrol Stops Nw., 441 U.S. 211, 218 n.9

(1979) (“Since the 17th century, grand jury proceedings have been closed to the

public, and records of such proceedings have been kept from the public eye.”).

Moreover, there is a “strong presumption of regularity accorded to the

deliberations and findings of grand juries.” United States v. Molinares,700 F.2d

647, 651 n.6 (11th Cir. 1983). “[T]he law presumes, absent a strong showing to

the contrary, that a grand jury acts within the legitimate scope of its authority.”

United States v. R. Enters., Inc., 498 U.S. 292, 300 (1991).

3 Case: 20-11210 Date Filed: 06/01/2020 Page: 4 of 4

Here, there is no substantial question that the district court lacked subject-

matter jurisdiction over Zamor’s post-judgment motion to dismiss his indictment

and even if we address the merits, there is no substantial question that the

indictment was valid. First, Zamor’s criminal case was no longer pending within

the meaning of Rule 12, as the judgment in his case had been entered; therefore,

the district court lacked subject-matter jurisdiction to consider his motion. See

Patton, 309 F.3d at 1094

Second, even if we considered the merits of his motion, Zamor’s claim that

his indictment was invalid because it failed to show the grand juror’s votes is

meritless because (1) there is no requirement that the breakdown of the grand jury

vote be made public under Rule 6(c), (2) if there had been fewer than 12 jurors

voting, the foreperson would have reported the lack of concurrences to the

magistrate judge as required under Rule 6(f), which did not happen in this case,

and (3) there is a strong presumption of regularity accorded to the deliberation and

findings of grand juries. See Molinares,700 F.3d at 651 n.6.

Therefore, because there is no substantial question that the district court

lacked subject-matter jurisdiction and that Zamor’s claim that his indictment was

invalid is meritless, we GRANT the government’s motion for summary

affirmance. See Groendyke Transp., Inc., 406 F.2d at 1162. Accordingly, we

DENY the accompanying motion to stay the briefing schedule as moot.