The opinion of the court was delivered by: The Honorable Manuel Real United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNTS 1 AND 16 DUE TO PROSECUTORIAL MISCONDUCT (Doc. No. 612) 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 JOSE ALFARO, by and through the authorized representative of his counsel of record, James Cooper, 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 Jose Alfaro's Motion To Dismiss (Doc. No. 612), 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 United States v. Jacobs, 855 F.2d 652 (9th Cir. 1988)and finds that a district court may properly dismiss an indictment only if the prosecutorial misconduct is flagrant and causes substantial prejudice.
4. The Court finds that the prosecutor here, was under no obligation to disclose an ongoing investigation to the defendant, or the possible collateral consequences associated with the defendant's guilty plea.
5. The Court considered United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980) and finds that the prosecutor's reasons for non-disclose of possible future charges do not suggest foul play. The investigation into the current prosecution was a larger investigation, the defendant if convicted would face a potentially larger sentence, and disclosure would have raised significant safety concerns for those involved.
6. The Court therefore finds that the government did not violate the defendant's due process rights under any circumstances, either procedurally or substantively. THEREFORE, FOR GOOD CAUSE SHOWN:
IT IS HEREBY ORDERED that defendant Jose Alfaro's Motion to Dismiss Counts 1 and 16 for Prosecutorial Misconduct is denied.
Presented by: Kevin L. Rosenberg Department of Justice
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