01/28/2010 69 MOTION to Dismiss Counts Rufus Paul Harris (1) Count 1s,2s,8s for duplicity by Rufus Paul Harris. (Manchel, Howard) (Entered: 01/28/2010)
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Motion to Dismiss Indictment on Grounds of Duplicity
Comes now Defendant RUFUS PAUL HARRIS and requests this Court to dismiss Count One and Two of the above styled indictment on the grounds that it is duplicitous and multiplicitous. In support of his motion Defendant Harris shows the following:
Counts One, Two and Eight Are Duplicitous
1. In Count One of the attached indictment Mr. Harris is charged with conspiring to commit securities fraud in violation of 18 U.S.C. §1349. Count One, paragraph 2 states that the object of the conspiracy was to “knowingly and willfully execute and tempt to execute a scheme to defraud with regard to the publicly-traded securities of Conversion Solutions Holdings Corporation, in violation of Title 18 U.S.C. §1348”.
18 U.S.C.§1348 charges as follows:
Whoever knowingly executes, or attempts to execute, a scheme or artifice—
(1) to defraud any person in connection with any security of an issuer with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d); or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in connection with the purchase or sale of any security of an issuer with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d); shall be fined under this title, or imprisoned not more than 25 years or both.
Indictments charging two or more distinct offenses in a single count are duplicitous. Duplicitous indictments prevent the jury from separately deciding the issue of guilt or innocence with respect to each particular offense, thus creating uncertainty as to whether the defendant’s conviction was based on a unanimous jury decision. Further, duplicitous indictments raise the risk of prejudical evidentiary rulings and make meaningful appellate review difficult. Thus the failure of the Government to allege which section of 18 USC §1348 was the object of the conspiracy in Count One violates the Rule 8(a) of the Federal Rules of Criminal Procedure.
2. Count Two is also duplicitous. Although it charges Mr. Harris and his two codefendants with violating 18 U.S.C. §1348, and the wording of the Count suggests the Government’s intention is to establish a violation of 18 U.S.C. §1348 (2). However, the first paragraph of Count Two states “The Grand Jury includes by incorporation and re-alleges Paragraphs 1-5 of Count One, above” it adopts the same pleading error contained in Count One. Also in alleging the violation of Title 18 U.S.C. §1348 it fails to specify which section of the statute Defendant violated.
3. Count Eight is duplicitous. It charges Mr. Harris with either violating 18 U.S.C. §1350 (c)(1) and (c)(2), but fails to include the necessary language in the charge to warrant charging (c)(2).
WHEREFORE, Defendant Harris requests this Court either order the Government to strike the offending charges or for this Court to dismiss Counts One and Two of said indictment for the reason that it is duplicitous.
Respectfully submitted,
Howard J. Manchel
Howard Manchel
Ga. Bar No. 468550
Attorney for Rufus Paul Harris
729 Piedmont Avenue
Atlanta, Georgia 30308
404-522-1701 |
