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THOMAS P. O’BRIEN
United States Attorney
CHRISTINE C. EWELL
Assistant United States Attorney
Chief, Criminal Division
DONALD F. GAFFNEY (State Bar No. 156245)
ROBERT J. KEENAN (State Bar No. 151094)
Assistant United States Attorney
U.S. ATTORNEY’S OFFICE
411 West Fourth Street
Suite 8000
Santa Ana, California 92701
Telephone: (714) 338-3597
Facsimile: (714) 338-3708
E-Mail:
Rob.Keenan@usdoj.gov
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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TANNER MILES PAULINE, et al., )
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Defendants.
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Case No. SA CR 07-33-DOC
GOVERNMENT’S SUPPLEMENTAL
OPPOSITION TO DEFENDANT
POHLABLE’S MOTION TO DISMISS
COUNTS ONE THROUGH SIX OF THE
INDICTMENT
[Fed. R. Crim. P. 12(b)(3)]
DATE:
April 21, 2008
TIME:
1:30 p.m.
PLACE:
Courtroom 9-D
EST:
30 minutes
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INTRODUCTION
In his amended “surrebuttal” (i.e., reply brief), defendant
Pohlable raises a number of arguments that were not raised in his
motion to dismiss. New arguments are not properly raised in a
reply brief. Nonetheless, we thought it advisable to respond
briefly to the new arguments, which are all devoid of merit.
ARGUMENT
I.
DEFENDANT’S CORPUS DELICTI ARGUMENT LACKS MERIT
Defendant argues that “[a]ll crime requires a corpus delicti
-- a body of crime,” which includes two parts: (1) “a loss or
injury suffered by a party with standing”; and (2) “someone’s
unlawful conduct resulting in the specific and palpable injury or
loss.” (Reply at 15.) Defendant’s characterization of the
corpus delicti rule is incorrect, and the rule -- properly
construed -- does not warrant dismissal of the indictment.
The actual corpus delicti rule is nothing like defendant
imagines. The corpus delicti rule stands for the simple
proposition that the government needs some quantum of evidence
beyond a mere confession to prove that a defendant has committed
a crime. See United States v. Corona-Garcia, 210 F.3d 973, 978
(9th Cir. 2000) (“Although the government may rely on a
defendant's confession to meet its burden of proof, it has
nevertheless been long established that, in order to serve as the
basis for conviction, the government must also adduce some
independent corroborating evidence.”); Opper v. United States,
348 U.S. 84, 89-93 (1954) (establishing applicability of common
law corpus delicti rule). “Under Opper, such corroborating
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evidence must ‘tend to establish the trustworthiness of’
defendant's admission.” Corona-Garcia, 210 F.3d at 978 (quoting
Opper). “Although independent evidence is not necessary to
establish the whole of the corpus delicti, such evidence must
‘support the essential facts admitted sufficiently to justify a
jury inference of their truth.’” Id. “[T]he prosecution need
not introduce independent evidence of every element of the
crime.” Id. The prosecution must simply “introduce evidence
‘tending to establish the trustworthiness of the statement.’”
Id. (quoting Opper).
The corpus delicti rule is not a proper basis for
challenging an indictment. The rule’s focus is not the
sufficiency of the indictment, but the sufficiency of the
government’s evidence. Thus, as in Corona-Garcia, the argument
is properly made at trial, after the government has rested its
case. See generally Fed. R. Crim. P. 29.
As a preview, the government notes that it has plenty
evidence the defendant committed the crimes with which he is
charged in counts one through six of the indictment. The
government’s evidence at trial will not rely on a mere post-
arrest confession. It will include testimony of federal agents
regarding meetings and telephone calls in which defendant and/or
his accomplices discuss the delivery of MDMA pills to a CI;
testimony regarding defendant’s actual delivery of such pills to
the CI; audio and video recordings of such telephone calls and
meetings; and expert testimony regarding the composition of the
Ecstacy pills delivered by defendant and his co-conspirators.
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II. DEFENDANT’S “STANDING” AND JURISDICTIONAL ARGUMENTS LACK
MERIT
Defendant argues that the indictment must be dismissed
because the government’s counsel has no “standing” to prosecute
the charged offenses. (Reply Brief at 15-16, 18.) On a related
note, defendant also argues that there is no “plaintiff” with
standing to prosecute the case (i.e., a person who has suffered a
specific and palpable injury), and this Court thus has no
jurisdiction over the matter.
These arguments lacks merit. To the extent defendant relies
on any legal authorities, it is inapposite case law dealing with
principles of “standing” in civil cases and state cases dealing
with state law doctrines. We will address each point in turn.
First, the government’s counsel has “standing” to prosecute
all offenses against the United States, including the offenses
alleged in the indictment on file in this case. See 28 U.S.C.
§ 547 (“each United States Attorney, within his district, shall
-- (1) prosecute for all offenses against the United States”).
Given the nature of defendant’s entire motion, we suppose it
bears noting that the status and authority of United States
Attorneys to prosecute federal crimes is also beyond doubt. See
U.S. C
ONST
., Art. II, § 2 (authorizing President, upon advice and
consent of the Senate, to appoint “all other Officers of the
United States”); see also 28 U.S.C. § 541 (authorizing President
to appoint United States Attorneys, with advice and consent of
the Senate).
Second, in contrast to the cases cited by defendant, federal
criminal cases do not require proof of an identifiable person who
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has suffered a “specific and palpable injury.” The Controlled
Substances Act is premised on Congress’ finding that the
distribution, possession, and improper use of controlled
substances have “a substantial and detrimental effect on the
health and general welfare of the American people.” See 21
U.S.C. § 801. In short, if a victim were needed, the victim of
drug-trafficking offenses is the people of the United States.
Third, the district court has jurisdiction over this case
pursuant to 18 U.S.C. § 3231. Section 3231 provides that “[t]he
district courts of the United States shall have original
jurisdiction . . . of all offenses against the laws of the United
States.” Id.
CONCLUSION
For the foregoing reasons, the Court should deny defendant’s
motion in its entirety.
Date: April 16, 2008.
THOMAS P. O’BRIEN
United States Attorney
CHRISTINE C. EWELL
Assistant United States Attorney
Chief, Criminal Division
/s/ R.J.K.
ROBERT J. KEENAN
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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CERTIFICATE OF SERVICE
I am a citizen of the United States and a resident of Orange
County, California. I am over 18 years of age, and I am not a
party to the above-entitled action. My business address is the
United States Attorney’s Office, Ronald Reagan Federal Building
and United States Courthouse, 411 West Fourth Street, Suite 8000,
Santa Ana, California 92701.
On this date, April 16, 2008, I served a copy of the above
entitled document, GOVERNMENT’S SUPPLEMENTAL OPPOSITION TO
DEFENDANT POHLABLE’S MOTION TO DISMISS COUNTS ONE THROUGH SIX OF
THE INDICTMENT, on the following person(s) as follows:
O
by e-mail to defendant and his standby counsel at the
following e-mail address:
earlylaw@cox.net
mike@pohlable.com
I declare under penalty of perjury that the foregoing is
true and correct. Executed on April 16, 2008, at Santa Ana,
California.
/s/ R.J.K.
Robert J. Keenan