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 Square 40 North Central Avenue Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR 03-1167-PHX-DGC Plaintiff, v. Robert J. Johnston, Defendant. The United States, through counsel undersigned, hereby responds to defendant's Motion RESPONSE TO DEFENDANT'S MOTION TO DISMISS COUNT ONE OF THE INDICTMENT

15 to Dismiss Count One of the Indictment.. The Government's position, as set forth more 16 completely in the attached Memorandum of Points and Authorities, is that the Second 17 Superseding Indictment (SSI) properly alleges the crimes set forth therein, and probable cause 18 to believe the defendants committed said crimes has been found by a Federal Grand Jury. The 19 defendant's disputes with the Government's facts are a subject for trial. If the facts adduced at 20 trial fail to establish the crimes alleged in the SSI, the defendant is free to make a motion for 21 acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court will direct 22 a verdict, or allow the case to go to the jury. The jury, if in accord with the defendant's 23 assertions, will acquit. But in no event is it legally permissible to deny the Government its right 24 to trial, and that is what the defendant is asking this Court to do. 25 In essence, the defendant is making a request for summary judgment, judgment made before 26 a single witness has testified, and before a single exhibit entered. There are no legal grounds to 27 support the relief requested by the defendant. Therefore, his Motion should be denied without 28 evidentiary hearing.

Case 2:03-cr-01167-DGC

Document 1051

Filed 01/13/2006

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1 The Government's position is set forth more fully in the attached Memorandum of Points and 2 Authorities. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 13th day of January, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant United States Attorney

Case 2:03-cr-01167-DGC

Document 1051

Filed 01/13/2006

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. Indictments are not open to challenge in the manner requested by the defendant. 3 The defendant has requested this Court dismiss Count One of the SSI because of

4 "Insufficient Evidence to Sustain Predicate Acts", i.e. there is an insufficient factual basis to 5 sustain the Count. However, the defendant's request is not cognizable under law. Once a grand 6 jury has returned an indictment, valid on its face, the government is entitled to a trial on the 7 merits. Costello v. United States, 350 U.S. 359 (1956). 8 "An indictment returned by a legally constituted and unbiased grand jury, like an

9 information drawn by a prosecutor, if valid on its face, is enough to call for trial of the charge 10 on the merits. The Fifth Amendment requires nothing more." Id. at 363. 11 The rationale behind the above-referenced rule is easy to apprehend. "If indictments were

12 to be held open to challenge on the ground that there was inadequate or incompetent evidence 13 before the grand jury, the resulting delay would be great indeed. The result of such a rule would 14 be that before trial on the merits a defendant could always insist on a kind of trial to determine 15 the competency and adequacy of the evidence before the grand jury. This is not required by the 16 Fifth Amendment." Id. at 363. 17 A challenge to the sufficiency of Government evidence is more properly made by motion

18 for judgment of acquittal, after the government presents its evidence at trial. United States v. 19 Caceres-Prado, 601 F.Supp. 468 (D.Puerto Rico 1984). 20 The SSI was returned on January 19, 2005, and, there being no finding to the contrary, the

21 indictment is valid on its face. Accordingly, the United States is entitled to present its evidence 22 at trial, and the defendant's request for relief must be denied without evidentiary hearing. 23 24 25 26 27 28
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Respectfully submitted this 13th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant United States Attorney

1 I hereby certify that on January 13, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 s/ Timothy Duax 22 TIMOTHY T. DUAX 23 24 25 26 27 28
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