Free Order on Motion to Dismiss Counts - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 648

Filed 02/02/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn

Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. 3. 4. 5. 6. 7. NORMAN SCHMIDT GEORGE ALAN WEED, PETER A.W. MOSS, CHARLES LEWIS, JANNICE McLAIN SCHMIDT, MICHAEL SMITH, and GEORGE BEROS,

Defendants. _____________________________________________________________________ ORDER DENYING CHARLES FRANKLIN LEWIS'MOTION TO DISMISS COUNTS 1, 7, 8 AND 9 OF SECOND SUPERSEDING INDICTMENT _____________________________________________________________________ Blackburn, J. The matter before me is Charles Franklin Lewis'Motion To Dismiss Counts 1, 7, 8 and 9 of Second Superseding Indictment [#605] filed December 30, 2005.1 I deny the motion.2 Defendant argues that Counts 1, 7, 8, and 9 of the Second Superseding Indictment [#526] filed September 14, 2005, should be dismissed as a matter of law. Defendant notes first that " . . [a]n arrest, coupled with no continued involvement in the alleged criminal activity, . compels a finding that a defendant cannot be charged with the crimes occurring after such

The motion is joined by defendants, Norman Schmidt and George Beros. See Minute Order [#640] entered January 30, 2006. The issues raised by and inherent to the motion are briefed adequately; thereby, obviating the necessity for evidentiary hearing or oral argument.
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Case 1:04-cr-00103-REB

Document 648

Filed 02/02/2006

Page 2 of 2

arrest."Motion at 2, ¶ 5. Defendant then contends that he was under arrest and in pretrial detention at the time of the alleged commission of the crimes charged in Counts 1, 7, 8, and 9 of the Second Superseding Indictment. Id. at ¶ 3. Defendant concludes his argument by contending that " . . the Government has no evidence that Mr. Lewis participated in any . criminal activity since his arrest and incarceration, [sic] he cannot, therefore, be held responsible for acts committed by third parties in those mail fraud counts alleged to have occurred on April 3, 2004 and May 8, 2004 nor can he be held accountable for any acts of his co-conspirators committed during the last 8 month period contained in the Conspiracy Count." Id. at 3, ¶ 7. I hold 1) that the enumerated counts are not subject to dismissal ipso facto on the arrest and subsequent continuous incarceration of the defendant; and 2) that the alleged withdrawal of defendant from the alleged conspiracy is an affirmative defense, presenting issues of fact to resolved at trial by a jury. In support of my holding, I approve, adopt, and incorporate the reasons stated, arguments advanced, and authorities cited by the government in its response [#624] filed January 18, 2006, which needs no further festooned reiteration by me. THEREFORE, IT IS ORDERED that Charles Franklin Lewis' Motion To Dismiss Counts 1, 7, 8 and 9 of Second Superseding Indictment [#605] filed December 30, 2005, IS DENIED. Dated February 2, 2006, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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