USA v. Stefanski

Filing 15

Order

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
JOHN STEFANSKI,
Defendants.

3:11-cr-012-JDR
ORDER
REGARDING
MOTION TO DISMISS,
MOTION TO DISQUALIFY
(Docket Nos. 7 and 8)

Defendant John Stefanski has filed a motion to dismiss and a motion
disqualify the judge at Docket 7 and 8. The government submitted a response and
opposition to the motions at Docket 11. The defendant has previously filed similar
motions that were ruled upon at Dockets 8 and 9 in case 10-po-044-JDR. The
present motions lack merit.
The defendant argues that this court lacks jurisdiction and venue under
Federal Civil Rule 12(b)(6). This is a criminal prosecution. Federal Civil Rule 12 is

inapplicable. The government has filed an Information which supersedes the
Violation Notice previous issued. The Information contains the signature of an
Assistant United States Attorney and no additional verification or signature is
required in order for the criminal charge to be valid.
The defendant cites Surowitz v. Hilton Hotels Corp., 383 U.S. 363 r'hg
denied 384 U.S. 915 (1966). That case was a shareholder's derivative action
wherein the district court dismissed a civil complaint and the shareholder appealed.
The Seventh Circuit Court of Appeals affirmed but the U.S. Supreme Court reversed
holding that the action was not subject to dismissal on the ground that the
shareholder in verifying his complaint had relied on explanations to her by her
son-in-law, a professional investment advisor, and did not herself understand the
complaint. That case lends no support to the defendant's request for dismissal of
this criminal action.
The defendant's continued arguments that this criminal matter belongs
in the Alaska State Court not federal court, and that the magistrate judge lacks
jurisdiction over Class A misdemeanors without the consent of the defendant have
previously been addressed by the court. The charges against Stefanski are Class
B misdemeanors not Class A misdemeanors and the prosecution is brought
pursuant to Federal Criminal law on behalf of the United States. Venue is proper in
Anchorage because the State of Alaska constitutes one federal judicial district,

11-cr-012-JDR STEFANSKI Order @7,8 Re MTN to Dismiss & Disqualify.wpd

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namely the District of Alaska. 28 U.S.C. § 81A. The offense is alleged to have
been committed near McCarthy, Alaska, and the defendant's residence of record is
at or near Chugiak, Alaska. No allegation has been made that the defendant cannot
receive a fair trial where the trial is scheduled to take place or that the magistrate
judge should be recused from deciding this case.

This case is properly assigned

to a United States Magistrate Judge pursuant to the Federal Criminal Rules of
Procedure and the Local Rules of this Court. The motions to dismiss and to
disqualify lack merit and are hereby denied.

DATED this 21st day of April, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

11-cr-012-JDR STEFANSKI Order @7,8 Re MTN to Dismiss & Disqualify.wpd

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