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Government responds to Rocky Houston motion to dismiss

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By Damon Lawrence

The government has responded to Rocky Houston’s motion that requests dismissal of his federal indictment on felon in possession of firearms charges.
Houston contends that’s an appropriate action because thanks to a pending appeal, he wasn’t prohibited from possessing guns when the indictment was filed on Jan. 15.
Not so, said Assistant U.S. Attorney David Jennings in the response filed last week.
“The defendant’s prior conviction for felony evading arrest is, in fact, a felony, and he is properly charged as alleged in the indictment,” Jennings said.
A jury found Houston guilty of felony evading arrest in Roane County Criminal Court on April 1, 2010. The judgment was entered on July 2, 2010.
Houston appealed to the Tennessee Court of Criminal Appeals. His request for a new trial was denied on Feb. 11 of this year. 
The federal indictment accuses Houston of being in possession of firearms on 14 dates between Oct. 11, 2012, and Jan. 11, 2013.
Court-appointed defense attorney Michael P. McGovern contends Houston wasn’t prohibited from possessing firearms on those dates because his appeal was still pending.
“Tennessee case law, however, teaches that a criminal judgment is not final – and therefore not a ‘conviction’ for any purpose – until all appeals have been exhausted,” McGovern said in the motion asking that the indictment be dismissed.
U.S. Magistrate C. Clifford Shirley Jr. gave the government until Sept. 11 to respond to the motion. Jennings called McGovern’s arguments misplaced and said the motion incorrectly relies on case law.
“Here, since the defendant’s case had proceeded through a verdict and the imposition of a sentence, it is a conviction under Tennessee law,” Jennings said, “and the fact that it was pending an appeal to the Tennessee Court of Criminal Appeals is of no consequence. Therefore, the defendant’s motion to dismiss the indictment should be denied.”
A ruling from Shirley had not yet been filed as of press time Thursday.