Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Timothy T. Duax Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Squ are 40 North Central Avenue Phoenix, Arizona 85004-4408 Em ail: [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States, through counsel undersigned, hereby responds to defendant's Motion to Dismiss Counts 1, 2, 5 and 12-15. The Government's position, as set forth more completely in the attached Memorandum of Points and Authorities, is that the Second Superseding Indictment (SSI) properly alleges the crimes set forth therein, and probable cause to believe the defendants committed said crimes has been found by a Federal Grand Jury. The defendant's disputes with the Government's facts are a subject for trial. If the facts adduced at trial fail to establish the crimes alleged in the SSI, the defendant is free to make a motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court will direct a verdict, or allow the case to go to the jury. The jury, if in accord with the defendant's assertions, will acquit. But in no event is it legally permissible to deny the Government its right to trial, and that is what the defendant is asking this Court to do. In essence, the defendant is making a request for sum mary judgment, judgment made before a single witness has testified, and before a single exhibit entered. There are no legal grounds to support the relief requested by the defendant. Therefore, his Motion should be denied without evidentiary hearing. United States of America, CR 03-1167-16-PHX-DGC Plaintiff, v. Craig T. Kelly (12) Defendant. RESPONSE TO DEFENDANT'S MOTION TO DISM ISS COUNTS 1, 2, 5 and 12-15 OF SECOND SUPERSEDING INDICTMENT

Case 2:03-cr-01167-DGC

Document 790

Filed 08/24/2005

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The Government's position is set forth more fully in the attached M emorandum of Points and Authorities. Respectfully submitted this 24th day of August, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona

/S/ Timothy T. Duax
TIMOTHY T. DUAX Assistant United States Attorney

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MEMO RANDUM OF POINTS AND AUTHORITIES I. Indictments are not open to challenge in the manner requested by the defendant. The defendant has requested this Court dismiss certain counts of the SSI because "they do not allege facts which constitute crimes under RICO", i.e. there is an insufficient factual basis to sustain such counts. However, the defendant's request is not cognizable under law. Once a grand jury has returned an indictment, valid on its face, the government is entitled to a trial on the m erits. Costello v. United States, 350 U.S. 359 (1956). "An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Id. at 363. The rationale behind the above-referenced rule is easy to apprehend. "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment." Id. at 363. A challenge to the sufficiency of Government evidence is more properly made by motion for judgment of acquittal, after the government presents its evidence at trial. United States v. Caceres-Prado, 601 F.Supp. 468 (D.Puerto Rico 1984). The SSI was returned on January 19, 2005, and, there being no finding to the contrary, the indictment is valid on its face. Accordingly, the United States is entitled to present its evidence at trial, and the defendant's request for relief must be denied without evidentiary hearing. Respectfully submitted this 24th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Timothy T. Duax TIMOTHY T. DUAX Assistant United States Attorney 3 Case 2:03-cr-01167-DGC Document 790 Filed 08/24/2005 Page 3 of 4

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CERTIFICATE OF SERVICE

: I hereby certify that on August 24, 2005, I electronically transmitted the attached document
to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: [email protected]; [email protected] Joseph Abodeely Attorney for Craig T. Kelly

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