Case 8:12-cr-00343-VMC-AEP Document 18

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ) Case No.: 8:12-cr-343-T-33AEP ) ) ) ) ) ) ) DEFENDANTS MOTION TO DISMISS THE ) INDICTMENT )

UNITED STATES OF AMERICA, Plaintiff, vs. JOHN D. STANTON, III Defendant

NOW COMES The Defendant, John D. Stanton, by and through undersigned Counsel and moves this Court pursuant to Fed.R.Crim.P 12 to dismiss the indictment and further states unto this Honorable Court in support of his motion: FACTS On August 15, 2012 the Grand Jury returned an eight count indictment alleging one count of Corrupt Interference with Internal Revenue Laws (Corrupt Interference), 26 U.S.C 7212(a), and seven counts of failing to file a tax return, 26 U.S.C. 7203. Counts four (4) and seven (7) allege that the Defendant had a legal duty to file returns or other information individually and for a company that the Government alleges the Defendant controlled for tax year 2005. Counts two (2), five (5) and eight (8) allege that the Defendant had a legal duty to file returns or other information for himself and companies that the Government alleges the Defendant controlled for tax year 2006. Counts three (3) and six (6) allege that the Defendant had a legal duty to file returns or other information on behalf of companies that the Government alleges the Defendant controlled for tax year 2007.

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ARGUMENT The test for sufficiency of the indictment is "not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Hinton, 222 F.3d 664, 672 (9th Cir.2000)(see also United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. 1981). A. Multiplicity In General "An indictment is multiplicitous if it charges a single offense in more than one count." United States v. Howard, 918 F.2d 1529, 1532 (11th Cir.1990). The test for multiplicity is whether

each count `requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) see also U.S. v. Awad, 551 F.3d 930 (9th Cir., 2009). If the multiple counts all contain the same elements, then those counts are Multiplicious. See United States v. Wilkinson, 124 F.3d 971 (9th Cir. 1997)(The holding in Wilkinson is the inverse, i.e. that the indictment is not multiplicious if each charge requires proof of at least one element that the others do not). 1. The Counts Pursuant to 26 U.S.C. 7203 are multiplicitous 26 U.S.C 7203 States in relevant part: Any person. . . required by this title or by regulations made under authority thereof to make a return. . . or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution. According to the 11th Circuits pattern jury instructions, the elements of the offense are (1) the Defendant was required by law or regulation to file an income-tax return for the taxable year charged; (2) the Defendant failed to file a return when required by law; and

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(3) At the time the Defendant failed to file the return, he knew he was required by law to file a return. (i) Counts Four (4) & Seven (7) are multiplicitous.

Count four alleges the same duty or requirement alleged by the Government of the Defendant to file a return for the 2005 tax year. Count Four alleges that the Defendant was required to file a return for Florida Engineered Construction Products Corporation and in count seven that he was required to file an individual return for the same tax year. The indictment further alleges that for tax year 2005, the Defendant did fail to file both the individual return and the corporate return, and finally that he failed to file the returns knowing that he was required by law to do so. The allegations in Counts four (4) and seven (7) are multiplicitous as they encompass the same alleged duty and failure of Duty. Neither Count requires any additional facts or elements. (ii) Counts two (2), five (5) & (8) are multiplicious.

Just as the argument above, Counts two, five, and eight charge that the Defendant was required to file a return for the 2006 tax year for himself individually (Count 8), a company that he was the alleged director of, Denouement Strategies (Count 2), and Florida Engineered Construction Products Corporation (Count 5). Furthermore, just as argued above, all the elements are the same, for the exact same tax year, therefore these Counts are multiplicious. The Government need only prove the same three elements, a duty to file, the failure to file, and knowledge that a return was required.

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(iii)

Counts three (3) and six (6) are multiplicious.

Finally, Counts three and six allege that the Defendant failed to file Returns on behalf of Denouement Strategies (Count 3) and Florida Engineered Construction Products Corporation (Count 6) for tax year 2007. As argued above, these two Counts are multiplicious because there is only one duty to file returns upon which the Defendant is alleged to be responsible for. The Government has no additional elements or facts to prove between the two counts that encompass the exact same person, the same date and the same duty to file. B. Double Jeopardy in General The Fifth Amendment to the United States Constitution states in relevant part: nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . The Double Jeopardy Clause affords a defendant three basic protections: "[I]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Because this case involves a single prosecution, only the third protection is relevant here. The protection against multiple punishments is "designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. at 499, 104 S.Ct. at 2540-41. Whether punishments are multiple, for purposes of double jeopardy analysis, is a question of legislative intent. Id. If the statutes under which the defendant was sentenced specifically authorize cumulative punishments for the same offense, a court may impose cumulative punishment without running afoul of the Double Jeopardy Clause. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); United States v. Ricks, 817 F.2d 692, 698-99 (11th Cir.1987). If, however, the statute does not clearly authorize cumulative punishment, then the court must apply the test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), to determine if the offenses are

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sufficiently distinguishable to permit the imposition of cumulative punishment. See Ohio v. Johnson, 467 U.S. at 499 n. 8, 104 S.Ct. at 2541 n. 8; Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985) (holding that "the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history"). * ** The language "in addition to other penalties provided by law" contained in Sec. 7201 (but not in Sec. 7206(1)) does not rise to the level of clear authorization for multiple punishments that this circuit has recognized as sufficient in prior cases. See Fallada v. Dugger, 819 F.2d 1564, 1572 (11th Cir.1987). U.S. v. Kaiser, 893 F.2d 1300 (C.A.11, 1990).

(i)

Not only are Counts two (2) through (8) multiplicious they also expose the Defendant to Double Jeopardy.

Applying the same arguments above involving Counts two through eight, it is clear that not only are the groups of counts, as separated by tax year, multiplicious, the manner in which they are charged also exposes the Defendant to Multiple convictions and punishment for the same alleged acts. (ii) Count I subjects the Defendant to Double Jeopardy

Count One (1) alleges that the Defendant Corruptly Interfered with Internal Revenue Laws. The Government must prove beyond a reasonable doubt the following elements: (i) the Defendant knowingly tried to obstruct or impede the due administration of the Internal Revenue laws; and (ii) the Defendant did so corruptly. The Indictment cites a list of alleged corrupt acts to support Count One, which includes the same acts charged in Counts Two (2), three (3), four (4), five (5), and six (6) of the indictment. This allows the Jury to make a finding

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of guilt on counts three through six and to transfer those same acts to Count One thus exposing the Defendant to multiple convictions and punishment for the same alleged acts. 1 CONCLUSION The indictment is incurably defective. It subjects the Defendant to multiple convictions and punishment for the same alleged conduct or acts, and its overt Multiplicity. The defects are so numerous they cannot be cured by amendment or special jury instructions at trial. Counsel for the Defendant contacted the Assistant U.S. Attorney assigned to this matter seeking concurrence with the relief requested herein and that request has been denied. WHEREFORE, for the reasons stated herein and any others which may appear to the Court the Defendant respectfully requests that the Court dismiss the indictment, and to afford any other relief that the Court deems equitable.

By:s/ Paul DeCailly Paul DeCailly, 796301 Attorney for Defendant 19455 Gulf Blvd., Ste 8 Indian Shores, FL 33785 (813) 286-2909 pdecailly@dlg4me.com Dated: October 12, 2012

Not only does the indictment allow for multiple punishment for the same acts, but also transforms those counts charged under 26 USC 7203 which by statute are misdemeanors punishable by up to one year in prison, to Felonies with a term of imprisonment of more than a year. (see 18 USC 3559).
1

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Certificate of Service I hereby certify that on October 12, 2012, I electronically filed the foregoing MOTION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Robert Monk at robert.monk@usdoj.gov, TPADocket.Mailbox@usdoj.gov, beverly.coats@usdoj.gov and I hereby certify that I have mailed or served the document or paper to the following CM/ECF non- participant in the manner (mail, hand-delivery, etc.) indicated by the non-participants name: John D. Stanton, Defendant via Hand Delivery.

By:s/ Paul DeCailly Paul DeCailly, 796301 Attorney for Defendant pdecailly@dlg4me.com

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