The opinion of the court was delivered by: The Honorable Manuel Real United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNT 16 OF THE INDICTMENT AND FINDINGS THERETO
Having heard from plaintiff, the United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, and defendant RAMON CENDEJAS, by and through the authorized representative of his counsel of record, Thomas W. Kielty, at a hearing held before this Court on September 16, 2010, and good cause appearing, the Court hereby FINDS AS FOLLOWS
1. The Court read and considered Ramon Cendejas' Motion to Dismiss Count 16 of the indictment (doc. 687) filed August 11, 2010, and the government's opposition thereto.
2. The Court, after carefully considering the pleadings, declarations and documents filed by the parties, as well as the argument presented at the hearing, orally denied the defendant's Motion to Dismiss. This Order will supplement the Court's oral ruling denying the motion. In connection with this Order, the Court makes the following Findings of Fact and Conclusions of Law.
3. On September 16, 2010, this Court held a hearing on the motion. Defendant appeared in person with his counsel of record. After affording the parties opportunity for argument, the Court denied defendant's Motion to Dismiss. The Court considered the factors set forth in United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997). Applying these factors, it is apparent that the conspiracy alleged in count 16 of the current indictment is considerably larger than the previous conspiracy, has substantially more overt acts, has many times more defendants who play different roles, and it charges a greater quantity and variety of controlled substances violations than the previous conspiracy. Accordingly the Court finds that the previous conspiracy, and that which is currently charged in Count 16, are separate and distinct conspiracies.
4. The Court also considered United States v. Saccoccia, 18 F.3d 795 (9th Cir. 1994), and rules that a substantive crime and a conspiracy to commit the crime are not the same offense for double jeopardy purposes. Furthermore, the Court rules that the government may prosecute a defendant for a conspiracy and for RICO violations using the prior conspiracy as predicate acts without running afoul of the double jeopardy clause.
5. Therefore there are no double jeopardy concerns implicated in the current prosecution.
6. The Court does however strike the overt acts alleged in the prior prosecution to which the defendant pled guilty. The Court strikes overt act No. 115. As to the defendant's motion for specific performance, the Court strikes overt act No. 103. THEREFORE, FOR GOOD CAUSE SHOWN:
IT IS HEREBY ORDERED that defendant Ram Cendejas' Motion to Dismiss is denied and overt acts No. 115 and 103 are stricken.
Kevin L. Rosenberg Department of Justice
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