Defendants Moved to Dismiss Superseding Indictment, U.S. v. Jefferson, 2010 U.S. Dist. Lexis 8131 (E.D. LA. Jan. 4, 2010)

U.S. v. Jefferson,  2010 U.S. Dist. Lexis 8131 (E.D. LA. Jan. 4, 2010)

      Defendants were indicted on June 4, 2008 of various crimes involving fraud.   On May 22, 2009 a superseding indictment was returned adding 34 counts including income tax evasion and conspiracy to commit income tax evasion.

     The defendants moved to dismiss the superseding indictment on the grounds that the superseding indictment did not present charges that were not known at the time the first indictment was returned.  

      The defendants argued that since the changes were more than mere cosmetic changes the use of the grand jury was improper.  The defendants cited U.S. v. Apperson 441 F.3d 1162, 1189 (10th Cir. 2006) in support of their argument.  The defendants also argued that the Government had violated its own rules, specifically, Attorney Manual Section 9-11.120 which states that "the grand jury cannot be used for pre-trial discovery or trial preparation."

     The Court held that the defendant must show prejudice to dismiss an indictment. Since the defendants did not establish any prejudice the motion wasproperly denied.

       The Court noted that a presumption may arise that the Government is being vindictive if it presents an indictment after a defendant exercises a procedural right or post-trial.  However, the Court refused to impose any presumption when the superseding indictment adds new charges pre-trial. Defendants also moved to severe the tax counts under Rule 8 and  Rule 14.  

        The Court found that a severance was not needed at that time. There was a relationship between the non-tax matters and the tax counts that made joinder proper.

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