Free Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

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JOSEPH E. ABODEELY (2683) Attorney at Law 1345 West Monroe St. Phoenix, Arizona 85007 Tel: (602) 253-2378 Fax: (602) 253-3342 E-Mail: [email protected] Attorney for Craig T. Kelly UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) 12. Craig T. Kelly, et al., ) ) Defendants. ) ______________________________) United States of America, No. CR-03-1167-PHX-DGC MOTION TO DISMISS COUNTS 1 AND 2 WITH PREJUDICE

Defendant, CRAIG T. KELLY, by and through his attorney undersigned, moves this 14 Honorable Court to Dismiss Counts 1 and 2 With Prejudice for the reasons stated in the following 15 memorandum of points and authorities. 16 RESPECTFULLY SUBMITTED this 27th day of February, 2006. 17 18 19 20 21 22 23 24 25 26 MEMORANDUM OF POINTS AND AUTHORITIES The government has filed an Amended Motion to Dismiss Counts and Order (doc #1279). The intent of the pleading is to put to rest any and all charges, allegations, or potential charges which relate to the Second Superceding Indictment. Undersigned counsel received the pleading at the close of business last Friday. Upon further study of the indictment, it appears that the government /s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

in-artfully tried to cloak Craig Kelly with the aura of being part of the criminal "enterprise" as a coCase 2:03-cr-01167-DGC Document 1289 Filed 02/27/2006 Page 1 of 3

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conspirator and as an aider and abettor. Undersigned counsel discussed this issue with the AUSA who said that Mr. Kelly was not charged with the RICO charges and refused to dismissed Counts 1 and 2. Hence, this matter is hereby presented to the court for its consideration. Applicable language of Count 1 says: "A. The Enterprise 1. At various times relevant to this indictment, defendants...and others known and unknown to the Grand Jury, including, but not limited to, CRAIG T. KELLY,...were members and associates of the Hells Angels Motorcycle Club of Arizona ("HAMC"), an organization whose members and associates engaged in (various criminal acts)...in the District of Arizona. 2. The HAMC, including its leadership, membership, and associates constituted an "enterprise,' as defined by (federal statute). The enterprise constituted an ongoing organization whose members functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise..." Although the caption of the indictment only shows Craig Kelly being charged with "Counts 5, 12-15", it is clear that the language referenced above in the body of the allegations states that he was part of this criminal "enterprise". Count 2 charges all of the defendants, including Craig Kelly, with RICO conspiracy by incorporating paragraphs 1 through 4 in Count 1 of this indictment. Paragraph 2 of Count 2 says: "It was part of the conspiracy that each defendant agreed that a conspirator would commit at least two acts of racketeering in the conduct of the affairs of the enterprise." If Defendant Kelly has not been charged with Count 1, being a party to or aiding and abetting a criminal "enterprise", and if Defendant Kelly has not been charged with Count 2, being a party to a RICO conspiracy, then the government should have no qualms about dismissing the charges with prejudice for the record (just in case the charges were viable). Undersigned counsel shares the same concern as does counsel for Defendant Augustiniak in Defendant's Response to the Government's Motion to Dismiss Without Prejudice and Motion to -2Filed 02/27/2006

Case 2:03-cr-01167-DGC

Document 1289

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Compel Disclosure of All Outstanding Discovery (doc #1281) that the government could resurrect this case in some form or another at a future time, and undersigned hereby incorporates by reference the applicable law from that document. The government's conduct in this case has been

questionable at best and reprehensible and egregious at worst. If all the Counts are dismissed with prejudice against Defendant Kelly, he may never know what was so important to keep secret from the defense all the years of this pending case. If Counts 1 and 2 are not Dismissed against Defendant Kelly with prejudice, he requests all of the discovery the government has been hiding pursuant to the Court's Protective Orders.

RESPECTFULLY SUBMITTED this 27th day of February, 2006.

s/Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

CERTIFICATE OF SERVICE

I hereby certify that on February 27, 2006, I electronically transmitted the attached document to the Clerk of the U.S. District Court using the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all counsel, and I emailed a copy to the Hon. David G. Campbell. s/ Joseph E. Abodeely

JOSEPH E. ABODEELY Attorney for Craig T. Kelly

Case 2:03-cr-01167-DGC

Document 1289

-3Filed 02/27/2006

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