United States v. Abraham Ntreh

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1215
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UNITED STATES OF AMERICA
v.
ABRAHAM NEE NTREH,
Appellant
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On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 1-02-cr-00007-001)
District Judge: Hon. Raymond L. Finch
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Submitted Pursuant to Third Circuit LAR 34.1(a)
December 10, 2013
BEFORE: FISHER, COWEN AND NYGAARD, Circuit Judges
(Filed: February 11, 2014)
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OPINION
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COWEN, Circuit Judge.
The appellant, Abraham Nee Ntreh, has been the subject of prosecution for illegal
reentry into the United States since early 2000. See Crim. Compl., United States v. Ntreh,
Crim. No. 00-45 (D.V.I. May 25, 2000), ECF No. 1. (See also JA 43-45 (the indictment
filed in D.V.I. Crim. No. 02-07, charging violations of 8 U.S.C. § 1326 (illegal reentry
into the United States) and 18 U.S.C. § 1001 (false statements).) Since then, he has been
no stranger to this Court.1
Ntreh now appeals the order of the District Court of the Virgin Islands that denied
his motion to dismiss the indictment (“the Motion”), which was filed pursuant to Federal
Rule of Criminal Procedure (“Criminal Rule”) 12(b)(3)(B). We note with displeasure
that Ntreh, despite the frequency with which he has appeared before this Court, has failed
to include the relevant order in the appendix, in violation of Federal Rule of Appellate
Procedure (“Appellate Rule”) 30(a)(1)(C). That failure appears to warrant dismissal of
the appeal. Marcinak v. W. Indies Inv. Co., 299 F.2d 821, 823 (3d Cir. 1962); see also
Abner v. Scott Mem’l Hosp., 634 F.3d 962, 964-65 (7th Cir. 2011) (surveying sanctions
for violations of Appellate Rule 30); United States v. Kush, 579 F.2d 394, 397 (6th Cir.
1
See United States v. Ntreh, 279 F.3d 255 (3d Cir. 2002) (on Government appeal,
reversing District Court order dismissing an information against Ntreh); United States v.
Ntreh, 142 F. App’x 106 (3d Cir. 2005) [hereinafter “Ntreh II ”] (affirming convictions
for illegal reentry into the United States and making false statements to Immigration and
Naturalization Service agents, but, pursuant to United States v. Booker, 543 U.S. 220
(2005), vacating sentence and remanding for resentencing); see also In re Ntreh, 401 F.
App’x 686 (3d Cir. 2010) (denying petition for mandamus relief related to resentencing);
In re Ntreh, 487 F. App’x 49 (3d Cir. 2012) (denying second petition for mandamus relief
relating to resentencing). Further, as evidenced in District Court docket entry numbers
203, 238, 254, and 297, this Court has dismissed four other appeals lodged by Ntreh
either as untimely or for lack of jurisdiction.
2
1978). Such a dismissal would fall within the exercise of this Court’s sound discretion.
See Horner Equip. Int’l, Inc. v. Seascape Pool Ctr., Inc., 884 F.2d 89, 93 (3d Cir. 1989).2
Nevertheless, we have considered the merits of the appeal and have concluded that
the District Court properly denied the Motion. Our conclusion rests on three grounds.
First, the District Court properly denied the Motion insofar as Ntreh sought relief
under Criminal Rule 12(b)(3)(B). That rule allows a defendant to attack an indictment on
the grounds that it facially fails state a valid offense. See FED. R. CRIM. P. 12(b)(3)(B);
United States v. Stock, 728 F.3d 287, 290 & n.2 (3d Cir. 2013); United States v. Huet, 665
F.3d 588, 594-96 (3d Cir. 2012). Here, the District Court correctly concluded that the
indictment was facially sufficient.
Second, insofar as Ntreh might have filed the Motion to challenge the sufficiency
of the evidence produced at trial, the District Court properly denied the Motion. Criminal
Rule 12(b)(3)(B) is “‘not a permissible vehicle for addressing the sufficiency of the
government’s evidence.’” United States v. Gillette, 738 F.3d 63, 74 (3d Cir. 2013)
(emphasis omitted) (quoting Huet, 665 F.3d at 595). Instead, a defendant may test the
sufficiency of the evidence through a motion for acquittal pursuant to Criminal Rule 29.
See id.
2
Ntreh included the District Court’s August 17, 2011 order, which denied his
motion for reconsideration of order denying the Motion. Because Ntreh has not put either
the reconsideration motion or related order at issue on appeal (see Br. at 11 (framing the
only issue on appeal as “the district court denial of his motion to dismiss the indictment”),
we will not discuss them.
3
Here, Ntreh filed a motion for acquittal pursuant to Criminal Rule 29 that was
denied by the District Court. On appeal, we affirmed the denial of the Criminal Rule 29
motion and, for reasons not relevant here, remanded for resentencing. See Ntreh II, 142
F. App’x at 110-11. Following remand, Ntreh filed the Motion. The District Court
characterized the Motion as yet another challenge to the sufficiency of the evidence and,
after considering the merits of Ntreh’s arguments, correctly denied the Motion on those
grounds. See Order at 3, United States v. Ntreh, Crim. No. 02-07 (D.V.I. Feb. 27, 2011),
ECF No. 282.
Finally, third, we note that the Government has characterized the Motion as a
collateral attack on the immigration (i.e., deportation) proceedings that underlie Ntreh’s
conviction for illegal reentry. We do not believe that Ntreh intended that either the
District Court or this Court consider the Motion to be an attack those proceedings.
Nevertheless, if we construed the Motion as such, then we would nevertheless affirm the
District Court’s ruling upon it. The immigration proceedings that underlie Ntreh’s
conviction were reviewed and affirmed by the United States Court of Appeals for the
Fifth Circuit, see generally Witter v. Immigr. & Naturalization Serv., 113 F.3d 549 (5th
Cir. 1997), and we will not call its judgment into question.
For the forgoing reasons, we will affirm.
4