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

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WO

IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

United States of America, 10 Plaintiff, 11 12 13 14 15 16 17 18 vs. Robert J. Johnston, Defendant.

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No. CR 03-1167-PHX-DGC

ORDER DENYING MOTION TO DIS MIS S COUNT ONE

Pending before the Court is Defendant Robert J. Johnston's M otion to Dismiss Count O ne of the Indictment. (Dkt. 948.) The Government filed a response opposing

Defendant's motion. (Dkt. 1051.) No reply has been filed. 19 DIS CUS S ION 20 Count One of the Second Sup erceding Indictment ("Indictment") charges Defendant 21 22 23 24 25 26 27 28 Johnston with racketeering under the Racketeer Influenced and Corrupt Organization Act ("RICO"), in violation of 18 U.S.C. § 1962(c). (Dkt. 541.) Defendant argues that there is insufficient evidence to support a showing that he committed two of the predicate acts set forth in the Indict ment, and that the Indictment therefore fails show that he participated in a pattern of racketeering activities as required under § 1962(c). (Dkt. 948.) D efendant

reques t s an evidentiary hearing. For the reasons set forth below, Defendant's motion will be denied. Document 1176 Filed 02/03/2006 Page 1 of 3

Case 2:03-cr-01167-DGC

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The Ninth Circuit has exp lained that "[a] motion to dismiss an indictment cannot be used as a device for a summary t rial of the evidence." United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996) (citation omitted). Therefore, "[a] defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not sup p orted by adequate evidence." Id. (citation omitted). In considering a pretrial motion to dismiss an indictment for failure to s t at e an offense, the Court must accept the truth of the allegations in t he indictment. Id. The Court is bound by the four corners of the indictment. United States v. Boren, 278 F.3d 911, 914

9 (9th Cir. 2002); see Jens en, 93 F.3d at 669. "The indictment either states an offense or it 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue raised in Defendant's motion, which seeks a pretrial order dis mis s ing Count One for 26 insufficient evidence. As noted above, Ninth Circuit law clearly holds t hat t his Court can 27 28 -2Case 2:03-cr-01167-DGC Document 1176 Filed 02/03/2006 Page 2 of 3 doesn't." Boren, 278 F.3d at 91. "There is no need for an evidentiary hearing," id., and the Court " s hould not consider evidence not appearing on the face of the indictment," Jensen, 93 F.3d at 669. An indictment that follows statutory language is sufficient if the st at ute sets forth the elements of the crime. United States v. Zavala, 839 F.2d 523, 526 (9th Cir. 1988) (citing H amling v. United States, 418 U.S. 87, 117 (1974)); United States v. Woodruff, 50 F.3d 673, 676 (9th Cir. 1995) ("Generally, an indictment is sufficient if it sets forth the element s of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged"). statutory language of § 1962(c) and is therefore sufficient. Defendant cites United States v. Sanders, 929 F.2d 1466 (10th Cir. 1991), abrogated in part by Salinas v. United States, 522 U.S. 52 (1997), and United St at es v. Walgren, 885 F.2d 1417 (9th Cir. 1989), for the proposition that a RICO conviction cannot stand where convictions for the predicate acts have been vacated. These cases are irrelevant to the The Indictment here follows the

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grant neit her the motion for dismissal nor the request for an evidentiary hearing. 93 F.2d at 669.

Jensen,

IT IS ORDERED that Defendant's motion to dismiss Count One of the Indictment (Dkt. 948) is denied. DATED this 2nd day of February, 2006.

-3Case 2:03-cr-01167-DGC Document 1176 Filed 02/03/2006 Page 3 of 3