Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Brian F. Russo (018594) Attorney at Law 111 West Monroe Street Suite 1212 Phoenix, Arizona 85003 (602) 340-1133 telephone (602) 258-9179 facsimile e-mail: [email protected] Attorney for Defendant Robert Johnston IN THE UNITED STATES DISTICT COURT DISTRICT OF ARIOZNA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR03-1167-PHX-DGC MOTION TO DISMISS COUNT ONE OF THE INDICTMENT RE: INSUFFICIENT EVIDENCE TO SUSTAIN PREDICATE ACTS

(Evidentiary Hearing Requested)

COMES NOW the defendant ROBERT J. JOHNSTON, by and through his attorney, Brian F. Russo, and hereby moves this Honorable Court for an order dismissing Count 1 of the Indictment because there is no evidence to establish that Robert Johnston committed the predicate acts as required as a necessary element of RICO. This Motion is supported by the Memorandum of Points and Authorities attached hereto and incorporated herein by reference. RESPECTFULLY SUBMITTED this 13th day of December, 2005. /s/Brian F. Russo Brian F. Russo Attorney for Defendant Johnston

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MEMORANDUM OF POINTS AND AUTHORITIES I. BACKROUND

The Government has charged the defendant in Count 1 with RICO in violation
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of 18 U.S.C. § 1962(c). In order to sustain a conviction for this count the government must show as one of the elements that he participated in the conduct of the affairs of the enterprise through a pattern of racketeering. Ninth Circuit Model Criminal Jury Instructions, 8.130.; United States v. Shyrock, 342 F.3d 948 (9th Cir. 2003). A "Pattern of Racketeering" is defined as "at least two racketeering acts" committed by the defendant and proved beyond a reasonable doubt. . Ninth Circuit Model Criminal Jury Instructions, 8.126 and 8.130.

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In this case the government alleges in paragraph twelve, racketeering act six that Defendant Johnston committed witness tampering in violation of 18 U.S.C. § 1512(b)(3), and paragraph 27 racketeering act 20 that he conspired to distribute methamphetamine and marijuana in violation of 21 U.S.C. § 841(a)(1). II. FACTS

A review of all materials, including ROIS and electronic surveillance fails to provide any proof that Robert Johnston committed the alleged predicates. In fact,

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many of the electronic surveillance recordings contradict statements made in the ROIs used to allege the predicates.

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It is anticipated that counsel will make a presentation to the court, at an evidentiary hearing, demonstrating the discrepancies between the related ROIs and

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electronic surveillance. III. LEGAL ARGUMENT

A RICO conviction cannot stand and will be invalidated where there is insufficient evidence to sustain predicates. United States. v. Sanders, 929 F. 1466

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(9th Cir. 1991) (RICO conviction reversed when convictions of two of three predicates vacated); United States v. Schwartz, 924 F.2d 410 (2d Cir. 1991); U.S. v. Walgren, 885 F2d 1417 (9th Cir. 1991) (If convictions for all predicate offenses underlying a RICO count are vacated, then conviction for RICO must also be

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vacated). In this case, here is no evidence that Robert Johnston committed the alleged predicates. He should not be required to stand trial on allegations that have no evidentiary support. Therefore, this court should dismiss count 1of the indictment as to Robert Johnston. RESPECTFULLY SUBMITTED this 13th day of December, 2005.

/s/Brain F. Russo Brian F. Russo Attorney for Defendant Johnston

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COPY of the foregoing mailed electronically this 13th day of December, 2005, to: Tim Duax Keith Vercauteran Asst. U.S. Attorneys All Defense Counsel /s/

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