US v. Jones
| Decision Date | 28 October 2009 |
| Docket Number | No. EP-09-CR-1567-FM.,EP-09-CR-1567-FM. |
| Citation | 676 F. Supp.2d 500 |
| Parties | UNITED STATES of America, Plaintiff, v. Luther JONES (1) and Gilbert Sanchez (2), Defendants. |
| Court | U.S. District Court — Western District of Texas |
Laura Franco Gregory, Antonio Franco, Jr., Assistant U.S. Attorney, El Paso, TX, for Plaintiff.
Stephen Gordon Peters, El Paso, TX, for Defendants.
On this day, the Court considered Luther Jones ("Jones") and Gilbert Sanchez's ("Sanchez") (collectively, "Defendants") "Defendants' Joint Motion to Dismiss All Five Counts of the Indictment" ("Motion to Dismiss the Indictment") Rec. No. 72, filed September 10, 2009, and the United States of America's ("Government") "Government's Opposition and Response to Defendants' Joint Motion to Dismiss the Five Counts Charged in the Indictment" Rec. No. 82, filed September 21, 2009.
On May 28, 2009, the Grand Jury handed down a five-count Indictment against Jones and Sanchez. The Government charged Defendants with conspiracy to commit wire fraud, conspiracy to commit mail fraud, mail fraud, and one count of bribery each. Specifically, the Government charged Jones and Sanchez with a scheme to defraud El Paso County ("County") and its citizens of the rights to Sanchez's and two unnamed County officials' honest services, and a scheme for obtaining money and property through material false and fraudulent pretenses, representations, and promises. The Government alleged Jones and Sanchez schemed to structure a County Request for Proposal ("RFP") for a digitization contract ("Contract") so that Jones's client, Vendor-1, could get the Contract. The Government alleged Jones offered to pay $750.00 of Sanchez's expenses for a trip to Las Vegas, Nevada to attend a meeting regarding the digitization of records, and in exchange, Sanchez would have Vendor-1 presented as the best choice for the Contract to the El Paso Commissioner's Court ("Commissioner's Court").
On June 5, 2009, Defendants waived personal appearance at their arraignments and entered pleas of not guilty. Defendants subsequently filed their Motion to Dismiss the Indictment, requesting the Court to dismiss all five counts of the Indictment. For the reasons set forth below, the Court will grant in part and deny in part Defendants' Motion to Dismiss the Indictment.
The fifth amendment makes clear that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,"1 and any defendant must "be informed of the nature and cause of the accusation" against him.2 "The indictment. . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged."3 A defendant must raise "a motion alleging a defect in the indictment or information— but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense."4 Likewise, "a party may raise by pretrial motion any defense ... that the court can determine without a trial of the general issue."5
An indictment will suffice if "it conforms to minimal constitutional standards."6 "An indictment is sufficient if it (1) contains the elements of the offense charged, (2) fairly informs the defendant of the charge, and (3) enables the defendant to plead acquittal or conviction in bar of future prosecutions for the same offense."7 For purposes of defining the elements of the offense, an indictment can "set forth the offense in the words of the statute itself, as long as `those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence sic intended to be punished.'"8 With certain offenses, in which the question of guilt turns "crucially upon such a specific identification of fact," however, the statutory language alone may not be sufficient.6 Rather, the Government must charge the crime with greater specificity to ensure that the defendant receives fair notice and that any ensuing conviction arises out of the theory of guilt presented to the grand jury.7
Defendants argue all five counts of the Indictment are time-barred. Defendants further argue that even if the Government timely-charged the five counts, they are still subject to dismissal for other reasons. The Government contends all the charges against Defendants were timely filed, and the Indictment sufficiently alleges the five charges.
Defendants argue the Government failed to timely charge Counts One and Two, conspiracies to commit wire fraud and mail fraud, respectively. Defendants assert any conspiracy to commit wire fraud ended when the objective of the conspiracy was achieved—the transmission of the wire communication. Defendants contend the alleged transmission occurred on May 23, 2004, and therefore, the Government's May 28, 2009, Indictment was outside of the five-year statute of limitations period. With respect to the conspiracy to commit mail fraud, Defendants contend the alleged mailing occurred on May 27, 2004, and therefore, the conspiracy ended on that day, which was five years and one day before the Government filed the Indictment. Defendants also argue the Government cannot establish an element of mail fraud conspiracy because the alleged mailing did not further the scheme to defraud.
The Government argues Defendants rely only on the substantive law for wire fraud and mail fraud and fail to address the law of conspiracy. The Government points out the scope of the conspiracy defines its duration and whether the charged overt act was in furtherance of the conspiracy. The Government contends the Indictment alleged Defendants committed overt acts within the statute of limitations in furtherance of their scheme to defraud the County, including acts on June 4, 2004, and July 11, 2004. Hence, the Government argues the May 28, 2009, Indictment timely charged the conspiracies to commit wire fraud and mail fraud.
Defendants contend Counts One, Two, and Three8 should be dismissed because the alleged scheme to defraud fails to allege a violation of state law. Defendants argue the alleged financial transactions, including the $750.00 check, were all lawful. Defendants point out that if those allegations related to the financial transactions were removed from the Indictment, the only allegations that remain are that Jones and Sanchez instructed a cooperating witness to structure the RFP in a manner that benefitted Vendor-1; and that Sanchez caused an RFP to be issued. Defendants contend this is insufficient to constitute a scheme or artifice to defraud. Defendants argue even if Sanchez was required to report the $750.00, any failure to do so would not have affected whether the scheme to defraud advanced or regressed. Jones argues Sanchez's decision not to report the $750.00 cannot establish his participation in any alleged scheme or artifice.
Likewise, Defendants argue Vendor-1's political contribution was lawful. Defendants assert the Government also failed to allege the recipient of the contribution would not have voted for Vendor-1 absent the contribution, and therefore, the allegation is insufficient to support a scheme or artifice. Finally, Defendants argue Jones's contribution is protected by the first amendment, and the Government should be required to show its allegation of unlawful conduct is comprised of more than simply the Government's disdain of Jones's lawful political activities.
In response, the Government argues that Defendants' dispute of the facts alleged in the Indictment does not warrant its dismissal. The Government contends Jones fails to show an unconstitutional application of the charged statutes because he ignores the Government has charged him with offering bribes.
Similar to section 1341, section 1343, Title 18 of the United States Code, sets forth the following offense:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than twenty years, or both.10
Section 1346, Title 18 of the United States Code, states:...
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