Free Motion to Dismiss Counts - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 605

Filed 12/30/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn

Case Number: 04-cr-00103-REB

UNITED STATES OF AMERICA, Plaintiff, v.

4. CHARLES FRANKLIN LEWIS, Defendant.

CHARLES FRANKLIN LEWIS' MOTION TO DISMISS COUNTS 1, 7, 8 AND 9 OF SECOND SUPERSEDING INDICTMENT__________________

Pursuant to Federal Rule of Criminal Procedure 12(b)(3), Defendant Charles Franklin Lewis moves to dismiss Counts 1, 7, 8 and 9 of the Second Superseding Indictment and states as follows: 1. On March 10, 2004, a Federal Grand Jury sitting in the District of

Colorado returned an Indictment against Mr. Lewis and six others. Among other things, the Indictment alleged mail fraud, wire fraud and securities fraud, plus a conspiracy to commit these alleged offenses, in respect of alleged false statements and representations about the nature of a high-yield investment program. 2. Mr. Lewis was arrested on this Indictment on March 16, 2004 and has

been incarcerated in the Federal Detention Center since that date, a period of nearly 22 months.

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3.

A year and a half after Mr. Lewis' arrest and incarceration, on September

14, 2005, a Second Superseding Indictment was filed by the Government. Counts 1, 7, 8 and 9 of the Second Superseding Indictment charge Mr. Lewis with alleged criminal acts of third parties which occurred after Mr. Lewis' arrest and incarceration, with certain of such acts occurring approximately eight months after Mr. Lewis' incarceration. 4. As a matter of law, Mr. Lewis cannot be charged with any alleged crimes

subsequent to his arrest and incarceration. 5. Courts around the country, including the Tenth Circuit, have consistently

determined that an arrest, coupled with no continued involvement in the alleged criminal activity, compels a finding that a defendant cannot be charged with the crimes occurring after such arrest. See, e.g., United States v. Urrego, 853 F. Supp. 646, 650 (E.D.N.Y. 1994)(Court granted the defendant's Rule 29 motion to dismiss a conspiracy count where the government charged the defendant with alleged acts of a co-conspirator occurring after the defendant's arrest because there was no evidence to establish the defendant's continued involvement in the alleged conspiracy subsequent to his arrest.); United States v. Escobar, 842 F. Supp. 1519, 1528 (E.D.N.Y. 1994)(Court found that arrest and incarceration terminated defendant's involvement in the alleged conspiracy.). See also United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997) (Tenth Circuit cited Urrego and Escobar approvingly, among other cases, in connection with the Court's holding that the defendant could not be held responsible for acts committed by third parties after the defendant's arrest where the government conceded that the defendant's participation in the conspiracy terminated at the time of his arrest.)

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6.

Since his arrest on March 16, 2004, Mr. Lewis has been in continuous

federal custody. It is the Government's burden to establish that Mr. Lewis continued to participate in the alleged criminal activity. Escobar at 1528 ("[T]here is a rebuttable presumption that incarceration constitutes withdrawal ...."). 7. In essence, the Government has no evidence that Mr. Lewis participated in

any criminal activity since his arrest and incarceration, he cannot, therefore, be held responsible for acts committed by third parties in those mail fraud counts alleged to have occurred on April 3, 2004 and May 8, 2004 nor can he be held accountable for any acts of his co-conspirators committed during the last 8 month period contained in the Conspiracy Count. 8. Accordingly, Counts 1, 7, 8, and 9 of the Second Superseding Indictment

should be dismissed pursuant to Federal Rule of Criminal Procedure 12(b)(3). Wherefore, based on the above and foregoing, undersigned counsel requests that this Honorable Court enter an order dismissing Counts 1, 7, 8, and 9 of the Second Superseding Indictment. Dated this 30th day of December, 2005

Respectfully submitted, s/ Ronald Gainor RONALD GAINOR 6414 Fairways Drive Longmont, CO 80503 (303) 448-9646(phone) (303) 447-0930 (Facsimile) [email protected] Attorney for Charles Lewis

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that I have electronically filed the foregoing Motion to Dismiss Counts 1, 7, 8 and 9 in Second Superseding Indictment on this 30th day of December, 2005 with the Clerk of the Court using the ECF system which will send notification of such filing to the following e-mail addresses:

Matthew Kirsch [email protected] Peter Bornstein [email protected] Thomas Hammond [email protected] Thomas Goodreid [email protected] Daniel Smith [email protected] Declan O'Donnell [email protected] Paul Daiker [email protected]

s/ Ronald Gainor

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