IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

JAMES E. JOHNSTON, et al.,

Defendants.

Case No. 2:11-cr-185

Judge Peter C. Economus

OPINION AND ORDER

This matter is before the Court for consideration of Defendant James E. Johnson’s 

Motion to Dismiss Counts Four and One of the Indictment, or Alternatively, To Limit Scope of 

Evidence of Conspiracy. (Dkt. 128.) Defendant asserts that Count One of the Superseding 

Indictment improperly “lumps the occurrence of multiple conspiracies . . . into a single 

conspiracy.” He argues that, if certain alleged acts are not part of a continuing conspiracy, they 

are precluded by the five year statute of limitations. He also apparently argues that Count Four 

should be dismissed if the alleged act occurred before the date specified in the indictment 

because it was filed exactly five years after that date. For the reasons set forth below, the Court 

DENIES Defendant’s motion. 

I.

In a superseding indictment dated November 22, 2011, the Government alleges that, 

“[b]etween in or about 2000 through in or about September of 2008,” Defendant Johnston and 

Defendant Karim Soto-Huerta conspired with each other and with other persons to distribute 5 

kilograms or more of cocaine and 1000 kilograms or more of marihuana. (Dkt. 61 at 1.) 

Count One

According to Defendant, a separate alleged “cocaine conspiracy” involving co-defendant 

Ray Ellis ended in 2001, outside the statute of limitations for this case. (Mot. at 4.) Defendant 

asserts that the indictment in this case fails to “list any specific overt acts or participation by 

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Defendant Johnston in relation to the cocaine,” and argues that the “cocaine distribution 

conspiracy . . . cannot be alleged to be a continuing conspiracy.” (Mot. at 4, 5.) Defendant 

therefore seeks dismissal or an order precluding the Government from introducing evidence as to 

the “cocaine conspiracy” portion of Count One.

Defendant is asking this Court to decide a question reserved for the jury. In a similar 

case, United States v. Namer, the government charged the defendant with a single conspiracy, 

and the defendant argued that the district court should have stricken certain overt acts from his 

indictment “because they constituted separate conspiracies that fell outside the relevant statute of 

limitations.” The Sixth Circuit rejected this argument, holding that “[w]hether multiple or single 

conspiracies exist is a factual question to be determined solely by the jury.” United States v. 

Namer, 149 Fed. Appx. 385, 398 (6th Cir. 2005) (citing United States v. Hughes, 895 F.2d 1135, 

1140 (6th Cir. 1990) (“[w]hether a single conspiracy or multiple conspiracies have been shown is 

a question of fact resolved by the jury”)). 

Because the existence of a single conspiracy is a question for the jury, Defendant’s 

motion is DENIED as to Count One.

II.

Count Four of the Superseding Indictment alleges that Defendant engaged in money 

laundering “[o]n or about November 22, 2006,” which is exactly five years from the date of the 

Superseding Indictment. (Dkt. 61 at 6.) Defendant states that “[i]f the offense were deemed to 

have occurred on or about any day other than November 22, 2006, the action would be barred.” 

(Mot. at 5.) Presumably, Defendant is arguing that the statute of limitations would bar 

prosecution for this offense if it occurred before November 22, 2006, which is correct. However, 

like the issue raised as to Count One, this factual question is a matter for the jury. See, e.g., 

Count Four

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United States v. Harris, No. 95-4356, 1997 U.S. App. Lexis 16402 (6th Cir. 1997) (upholding a 

jury instruction that “the government must convince you beyond a reasonable doubt that the 

crime happened on or after” the date required to satisfy the statute of limitations).

Because the exact date of the offense in Count Four is a question of fact for the jury, 

Defendant’s motion is DENIED as to Count Four.

III.

For the reasons set forth above, the Court hereby DENIES Defendant’s Motion. (Dkt. 

128.)

Conclusion

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

/s/ Peter C. Economus

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