IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF ALABAMA

UNITED STATES OF AMERICA )

)

vs. ) CASE NUMBER: 2:06-CR-00202-WKW 

)

EUGENE L. CLECKLER )

DEFENDANT EUGENE CLECKLER’S MOTION TO DISMISS

COMES NOW Eugene L. Cleckler, and hereby moves the Court to dismiss

Count One of the indictment. The defendant states as follows: 

Count One alleges that “T.M.” and “C.B.” conspired with the Defendant

between November 1996 and November 2000 to obstruct or impede the

administration of the IRS by causing false documents to be delivered to the IRS. 

There are actually two different alleged conspiracies charged in Count One: 

1. A conspiracy to create false documents and submit a false summary to the

IRS in 1996 on behalf of Gene’s Marine. (Count One Paragraphs 5 and 6);

and 

2. A conspiracy to create false documents between May 2000 and November

2000 and cause them to be delivered to an IRS agent in order to shift

income to EZY-Ryder. (Count One Paragraphs 7 and 8).

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Count One alleges two separate conspiracies with separate objects to

accomplish different purposes with a three and one-half years intervening period

between the alleged conduct in 1996 and that of 2000. Each conspiracy requires

proof of three factors: common goal, common scheme, and overlapping

participants. United States v. Brito, 721 F.2d 743, 747 (11 Cir. 1983). Each th

conspirator must have a general knowledge of the conspiracy’s overall purpose

and scope. United States v. Jones, 913 F.2d 1552, 1561 (11 Cir. 1990). th

The government’s charge in Count One contemplates a continuing

conspiratorial agreement hatched but not completed in 1996, then a forty-two

month incubation period where no activity whatsoever occurred, and finally, a

resumption of the 1996 conspiracy in May, 2000, notwithstanding new means,

methods, object and plan. 

The charged conduct in 1996 committed by “TM” involved the alleged

preparation and submission of a summary sheet reflecting Gene’s Marine

expenses. The conduct in 2000 involved the preparation of false documents

relating to Ezy Rider. The conduct is not of a common purpose and plan. The

joining of two or more distinct offenses in the same indictment count, as here, is

forbidden and is due to be dismissed. United States v. Ramos, 666 F.2d 469 (11th

Cir. 1982).

Case 2:06-cr-00202-WKW-CSC Document 43 Filed 11/09/2006 Page 2 of 4
Respectfully submitted, this the 9 day of November, 2006. th

s/ Ronald R. Brunson 

RONALD R. BRUNSON 1696

ATTORNEY FOR EUGENE L. CLECKLER

2126 Morris Avenue

Birmingham, Alabama 35203

(205) 252-2100

Case 2:06-cr-00202-WKW-CSC Document 43 Filed 11/09/2006 Page 3 of 4
CERTIFICATE OF SERVICE

I hereby certify that on November 9th, 2006, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to the following:

Andrew O. Schiff, Esq., Assistant U.S. Attorney

201 One Court Square

Post Office Box 197

Montgomery, AL 36101-0197

Andrew.schiff@usdoj.gov, Debbie.shaw@usdoj.gov

George L. Beck, Jr., Esq.

Terrie S. Biggs, Esq.

CAPELL & HOWARD, P.C.

150 South Perry Street

Post Office Box 2069

Montgomery, Alabama 36102-2069

glb@chlaw.com tsb@chlaw.com 

s/ Ronald R. Brunson 

 RONALD R. BRUNSON

Case 2:06-cr-00202-WKW-CSC Document 43 Filed 11/09/2006 Page 4 of 4