MEMORANDUM

JAMES M. MUNLEY, District Judge.

In the instant criminal matter, the United States of America charges Defendant Jemel Laquan King (hereinafter "King") with crimes arising from an armed bank robbery on November 26, 2014, in Lackawanna County, Pennsylvania. Before the court for disposition is King's motion to dismiss Count 3—aiding and abetting the use, carrying and brandishing of a firearm in violation of 18 U.S.C. §§ 924(c) and 2, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). (Doc. 59). Because the government's indictment is facially sufficient, the court will deny King's motion.

Background

A Grand Jury in the Middle District of Pennsylvania indicted King on May 12, 2015. (Doc. 1, Indictment). The indictment charges King with: Count 1—conspiracy to commit armed bank robbery, 18 U.S.C. § 371; Count 2—armed bank robbery, aid and abet, 18 U.S.C. §§ 2113(d) and 2; Count 3—the using, carrying and brandishing a firearm in relation to a crime of violence, aid and abet, 18 U.S.C. §§ 924(c) and 2.

On March 30, 2016, King filed a motion to dismiss Count 3 of the indictment under Federal Rule of Criminal Procedure 12(b), arguing the recent Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015), requires this count's dismissal.1 The parties then briefed the issues, bringing the case to its present posture.

Legal Standard

King filed a motion to dismiss Count 3 of the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v).2 The court tests the sufficiency of the indictment's allegations when considering a Rule 12(b)(3) motion. Specifically, the Third Circuit Court of Appeals has determined that a pretrial motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b)(3) "allows a district court to review the sufficiency of the government's pleadings," but it is "not a permissible vehicle for addressing the sufficiency of the government's evidence." United States v. Huet, 665 F.3d 588, 594-95 (3d Cir. 2012) (emphasis added) (citation omitted).

Indeed, a district court is prohibited from examining the sufficiency of the government's evidence in a pretrial motion to dismiss because "[t]he government is entitled to marshal and present its evidence at trial, and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29." Id. Thus, a district court considering a pretrial motion to dismiss is "limited to determining whether, assuming all of [the facts alleged in the indictment] as true, a jury could find that the defendant committed the offense for which he was charged." Id. at 596.

Discussion

Count 3 of the Indictment charges King with aiding and abetting the use, carrying and brandishing of a firearm in relation to a crime of violence in contravention of 18 U.S.C. §§ 924(c) and 2.3 King moves to dismiss Count 3, contending that the Government cannot demonstrate that bank robbery is a crime of violence. Specifically, King argues bank robbery may be committed by intimidation, not by the use force and violence. The government opposes King's motion, asserting King has been charged with armed bank robbery, which alleges that King intentionally assaulted or placed the lives of victims in jeopardy by the use of a dangerous weapon. As such, armed bank robbery is a crime of violence according to the government. At this stage of the litigation, we agree with the government.

King's motion challenges the legal sufficiency of the indictment. Federal Rule of Criminal Procedure 7(c)(1) requires only that an indictment "be a plain, concise, and definite written statement of the essential facts constituting the offense charged. . . ." FED. R. CRIM. P. 7(c)(1). "It is well-established that `[a]n indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits.'" United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007) (quoting Costello v. United States, 350 U.S. 359, 363 (1956)). An indictment is facially sufficient if it:

Huet, 665 F.3d at 595 (quoting United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007)). The Third Circuit Court of Appeals has explained that, in general, "an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred." Id.

Assuming all of the facts alleged in the indictment are true, the indictment meets each of these three requirements pertaining to the firearms charge stated in Count 3: it charged King with aiding and abetting the use or carrying of a firearm, it listed the elements of that statute, including committing a crime of violence,4 armed bank robbery,5 and set forth a time period during which the alleged violations occurred. (Doc. 1, Indictment). Thus, under Huet, the indictment is facially valid and King's motion to dismiss Count 3 will be denied.

Conclusion

For the above-stated reasons, the court will deny King's motion to dismiss Count 3 from the indictment. An appropriate order follows.