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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case No: 3:96cr76-001/RV

LEONARD THOMAS WALKER

ORDER and

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s motion for judgment

pursuant to Rule 6(b)(1)(2) governed by 28 USCS § 1863(b)(4) (doc. 226), motion for

relief from judgment pursuant to Rule 6(b)(1)(2) governed by28 U.S.C. § 1867(e) (doc.

227), application to proceed without prepayment of fees (doc. 228), and the

government’s response to these motions. (Doc. 229).1

Defendant has already extensively litigated the alleged illegality of his

convictions. This procedural background was set forth in the government’s

memorandum and need not be repeated here. (See doc. 229 at 2-4).

In the instant motions defendant seeks to reargue issues that he has

previously raised regarding alleged improprieties in the grand jury selection and

indictment process. In defendant’s motion for relief from judgment pursuant to Rule

6(b)(1)(2) governed by 28 U.S.C. § 1867(e) (doc. 227), he asserts that his Fifth

Amendment rights were violated because there was never a legally procured

The governm ent’s response addresses a m otion for recusal, which, at the tim e of this

1

recom m endation, had not been docketed by the clerk. The court concurs that there is no legal basis

under 28 U.S.C. § 455 for recusing either Senior Judge Lacey A. Collier or Senior Judge Roger Vinson.
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indictment and the district court did not have jurisdiction to hear his case. 

Fed.R.Crim.P. 6 governs the Grand Jury process. Rule 6(b)(2) provides that

a party may move to dismiss an indictment based on an objection to the grand jury

as provided in 28 U.S.C. § 1867(e). Title 28 U.S.C. section 1867(a) provides in turn

that a challenge to compliance with the grand jury’s selection procedures should be

brought “before the voir dire examination begins or within seven days after the

defendant discovered or could have discovered, by the exercise of diligence, the

grounds therefor, whichever is earlier.” Title 28 U.S.C. § 1867(e) provides that the

procedures prescribed by this section are the “exclusive means by which a person

accused of a Federal crime . . . may challenge any jury on the ground that such jury

was not selected in conformity with the provisions of this title.” Thus, defendant’s

challenge, fourteen years after the fact, is facially untimely and therefore

procedurally barred. It is also factually unsupported by the record.

Defendant contends in his motion that he appeared in court on October 16,

1996 with his attorney Ted Stokes, but that when court was convened the Judge

“could not find an indictment” against him. At the court’s direction, the clerk went

to the Grand Jury room to get the indictment forms and discovered that there was

no signature on defendant’s indictment, and in fact that there was no place on the

form for a signature. The clerk left the courtroom to type a signature block on the

form and located Robert W. Nance, one of the Grand Jurors, in the elevator. When

Mr. Nance told the court that he was not the foreperson, the court directed the U.S.

Attorney to swear him in as the foreperson, at which point both Mr. Nance and the

U.S. Attorney signed the indictment. Defendant claims that the endorsement on the

indictment was fraudulent and deceptive, and that it was filed in open court without

a Grand Jury being seated in the Grand Jury room, which was improper. He also

attacks the substance of the indictment, claiming that it did not charge all the

elements of each offense and the drug quantitywas omitted from the indictment and

thus not proven beyond a reasonable doubt, and that the Double Jeopardy clause

Case No: 3:96cr76/RV
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was violated.

The defendant set forth the same factual background in case 3:09cv337/MCR,

which he brought as a FOIA claim. After review of the criminal record, on March 1,

2010 this court found as follows:

Plaintiff’s repeated assertion that he was at a hearing before Judge

Collier on October 16, 1996 is simply unsupported by court records. 

The docket sheet in plaintiff’s criminal case reflects that the indictment

and an “information sheet” were filed on October 16, 1996. Magistrate

Judge Susan M. Novotny signed an order for issuance of an arrest

warrant for Walker on that same date, but the warrant was no returned

executed until November 14, 1996. (Case 3:96cr76/RV, doc. 3 & 5). 

Walker’s first appearance was held the following day, on November 15,

1996 and Judge Novotny entered an order of temporary detention and

appointed the Office of the Federal Public Defender to represent

defendant Walker. (Id., doc. 6, 7, 8). He was arraigned on November 19,

1996 represented by attorney James E. Taylor and ordered detained. 

(Id., doc. 10, 11, 14 & 15). Attorney Ted Stokes, who defendant alleges

was present with him on October 16, 1996 did not enter his notice of

appearance until December 6, 1996. (Id., doc. 17). Thus there is no

record support for plaintiff’s assertion that he appeared before Judge

Collier, or any judge, on October 16, 1996, or his suggestion that the

criminal docket contains wholly inaccurate information.

Case 3:09cv337/MCR (doc. 27). Defendant has offered no further information or

evidence to alter the conclusion reached in the prior civil case, and because there

is no support for defendant’s version of events, his claim fails.

Defendant’s assertion that the indictment did not protect him from double

jeopardy is also procedurally barred and factually unsupported. The two count

indictment charged him with conspiracy to possess cocaine during September of

1996 and possession of cocaine on September 3, 1996. To the extent that he claims

that the two charged offenses subjected him to a violation of the Double Jeopardy

clause, his argument fails. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct.

180, 76 L.Ed. 306 (1932), the Supreme Court explained that “where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is whether each

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provision requires proof of a fact which the other does not.” See Texas v. Cobb, 532

U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (citing Blockburger, 284 U.S. at 304,

52 S.Ct. 180); United States v. Hassoun, 476 F.3d 1181, 1185 (11 Cir. 2007). The th

Blockburger test is applied with a focus on the statutory elements of the offense. “If

each requires proof of a fact that the other does not, the Blockburger test is

satisfied, notwithstanding a substantial overlap in the proof offered to establish the

crimes.” Hassoun, 476 F.3d at 1185 (quoting Albernaz v. United States, 450 U.S. 333,

338, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981) (quoting Iannelli v. United States,

420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)). A

conspiracy requires proof of an agreement and does not necessarily require that the

defendant was caught “red-handed” with drugs, while the opposite is true for a

possession charge. Thus, defendant’s indictment charging him with two controlled

substance offenses did not subject him to a violation of the constitutional

prohibition on Double Jeopardy.

Finally, his claim that the quantity of drugs attributed to him was not tried to

the jury and proven beyond a reasonable doubt must also fail. First, of course, it is

procedurally barred. Second, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.

2348, 2362-63, 147 L.Ed.2d 435 (2000) the seminal case holding that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt” was not decided until June 26, 2000, well after defendant was

convicted, and thus was not applicable to his trial. Lastly, the life sentences he

received were not in excess of the prescribed statutory maximum. For the foregoing

reasons, defendant’s motion should be denied. 

In defendant’s motion for judgment pursuant to Rule 60(b)(1)(2) governed by

28 USCS § 1863(b)(4) (doc. 226), he requests that a subpoena be issued for Robert

W. Nance who served as a juror in his criminal case. His citation to 28 U.S.C. § 1863

in the title of his pleading is the only legal citation he offers in support of his request. 

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Title 28 U.S.C. § 1863 governs the district court’s plan for random jury selection. He

offers no argument in support of the issuance of the subpoena, and there is no

apparent legal basis for it. Mr. Nance’s alleged participation is outlined above. He

was not a petit juror but rather a grand juror. Any challenge to either the grand or

petit jury panel was procedurally defaulted, and additionally, defendant has failed to

show anything substantively that would give the Court reason to review either a

grand or petit jury selected fourteen years ago. The motion should be denied.

Accordingly it is ORDERED:

Defendant’s motion to proceed without prepayment of fees (doc. 229) is

DENIED as moot.

And, based on the foregoing, it is respectfully RECOMMENDED:

The motions for judgment pursuant to Fed.R.Crim.P. 6(b)(1)(2) (doc. 226

and 227) be DENIED.

 At Pensacola, Florida, this 12 day of July, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:96cr76/RV