Kelly

ORDER DENYING DEFENDANT’S MOTIONS TO DISMISS THE INDICTMENTS AND GRANTING HIS MOTION TO SEVER THE INDICTMENTS

I. Overview

Peter Alexander Kelly (“Defendant”) is charged in two consolidated indictments with reentry of a deported alien, in violation of 8 U.S.C. § 1326 , and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). Defendant has filed motions to dismiss the indictments or, alternatively, to sever the indictments. For the reasons set forth below, the Court denies Defendant’s motions to dismiss and grants his motion to sever the indictments.

II. Background

There is no material dispute between the parties with regard to the pertinent facts. Defendant was arrested in early August, 1999, for possession of marijuana for sale, in violation of Cal. Health and Safety Code § 11359. Defendant describes in detail the facts of that arrest, which are uncontradicted by the government. Defendant asserts that federal agents stopped him to question his citizenship. After Defendant produced what the agents believed to be false documentation, the agents followed Defendant to his residence and conducted a search that lead to the seizure of marijuana…