Free Motion to Dismiss All Charges - District Court of Arizona - Arizona

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DIANE J. HUMETEW A United States Attorney District of Arizona RICHARD I. MESH Assistant U.S. Attorney Arizona State Bar No. 002716 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-0162-01-PHX-SRB Plaintiff, v. 1. Joseph Patrick Smith, Jr. Defendant. The United States of America, through its undersigned attorneys, hereby moves this Court for its Order pursuant to Fed. R. Crim. P. 48(a) dismissing without prejudice the Indictment on the basis that since the filing of this case on February 18, 2004, there have been several developments that diminish the viability of the government's case against Mr. Smith. Mr. Smith was charged by the grand jury in a 55 count indictment with having sold misrepresented aircraft parts to companies located in the United States from his business in Shannon, Ireland during 1997 to 2000. This motion is filed ex parte as the defendant was never arrested as a result of the indictment therein. GOVERNMENT'S EX PARTE MOTION TO DISMISS

First and foremost of the developments that negatively impacted the government's case was an Irish Court Ruling that all of the evidence seized in Ireland by the Irish police incident to a search warrant issued by a Dublin magistrate, was in error, as the search warrant should have been issued by a magistrate from Shannon. The ruling required the return to Irish authorities of all of the seized evidence to include that sent to the United States law enforcement as the product of an illegal search. This ruling has been complied with by the FBI. Many of the documents

Case 2:04-cr-00162-SRB

Document 117

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seized in the search, bearing Mr. Smith's initials, upon which the government would have relied in its case in chief are no longer available because of this ruling. The loss of this evidence removed the possibility of proving any other relevant conduct against Mr. Smith at sentencing. The government's loss would amount to only the items purchased from the company during the sting operation in the amount of approximately $26,500. Mr. Smith was never tape recorded in the authorized wire interception operation as other employees handled the actual negotiations for the sale of the fraudulent parts.

Secondly, with the passage of time, one of the Irish cooperating witnesses who had personal contact with Mr. Smith, and could testify to his knowledge of the misrepresented parts being sent to the United States, has elected to decline further cooperation with the prosecution. It is suspected that the witness became frightened of cooperation with the U. S. government, when the United States government is not in a position to offer her any real protection in Ireland from threats from anyone who might take issue with government informers. While the

government would have the testimony of two of the defendants, now convicted accomplices, his sons, their testimony will likely be attacked as self serving in order to lessen their own admitted misconduct.

Thirdly, the prosecutor who has had case responsibility for this case to include preparation of the indictment, will retire at the end of this month. It would be a massive undertaking for a new prosecutor to get up to speed with this matter which is now more than ten years old. Simply put, the prosecution had to determine where to allocate its scarce resources. The cost of going forward with this now relatively small loss case where virtually every government employed witness has now retired from active service, had to be weighed against the failure to prosecute other matters of a greater loss arising from more recent offenses. A decision as a function of prosecutorial discretion has been made in favor of going forward with higher dollar loss cases of currently greater national interest. As part of the decision making 2

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process was that government has not developed any evidence that the defendant returned to fraudulent aircraft parts sales after the search of his premises that put Mr. Smith out of the business. Additionally, the government has not been able to develop any evidence of any aircraft mishaps could be associated with the sale of any fraudulent part sold by the defendant's company.

Based upon all the foregoing, the government respectfully moves this court for its order dismissing without prejudice the prosecution against Joseph Patrick Smith.

Excludable delay under 18 U.S.C. 3161(h) will not occur from as a result of this motion or an order based thereon.

Respectfully submitted this 30 th day of June, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona S/ Richard I. Mesh RICHARD I. MESH Assistant U.S. Attorney

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