Co., U.S.A. v. Marshall, 603 F.2d 590, 591-93, 597 (7" Cir. 1979) (defendant cited repeatedly for
same offense suffered harassment); United States v. Am. Honda Motor Co., 273 F. Supp. 810, 812,
819-20 (N.D. Ill. 1967) (defendant indicted repeatedly for the same offense in different federal
districts suffered harassment); United States v. Am. Honda Motor Co., 271 F. Supp. 979, 980-81,
987-88 (N.D. Cal. 1967) (same). In fact, one of the cases cited by Defendants held that a defendant
subjected to prosecution for two separate offenses — possession of a firearm by a felon and attempted.
murder ~ arising out of a single act/event had not been deprived due process. See United States v.
Jordan, 870 F.2d 1310, 1311-12, 1313-14 (7" Cir. 1989).

Il. The Indictments Do Not Present Diametrically Opposed Theories.

Defendants also argue that the allegations of the instant indictment “are facially
inconsistent to the government’s first trial theory despite the fact that no new evidence has come to
light.” In support, Defendants’ state:

In the 2002 case, the government theorized that Presbitero Drywall

and Ronald Presbitero issued payments to the subcontractors for

drywall installation labor, but did not report all of the worker hours

on the monthly Fringe Benefit Funds Reports. Significantly, the

government steadfastly argued that the corporation paid a substantial

amount of money over time for extensive hours of actual

labor....Under the new charges, however, the government theorizes

that Presbitero Drywall’s cost of goods sold deductions for payments

to the subcontractors were inflated. In other words, the government

now theorizes that all or some of the extensive hours of work

performed (as was argued in the first trial) was not in fact performed.

On the basis of this purported inconsistency, Defendants request that the instant indictment be

dismissed.

The indictments do not contain facially inconsistent allegations or allow for


18 U.S.C. § 1027, and...devised a scheme to defraud the Chicago District Counsel of Carpenters
Pension, Welfare, and Apprentice Trust Funds..., in violation of 18 U.S.C. § 1341.” Standing alone,
these two admissions are sufficient to defeat Defendants’ argument.’ Quite clearly, the indictments
are directed to completely different acts and offenses.” This distinction is crucial in light of the cases
cited by Defendants in support of their motion.’ See Abbate v. United States, 359 U.S. 187, 196-201
(1959) (Brennan, J., comment) (addressing possibility of one defendant being tried repeatedly under

separate federal statutes for the same underlying criminal acts/conduct); CA 79-2617 Cont’l Can

Defendants’ own cases do not support their position that the instant indictment
constitutes harassment. See, e.g., United States v. Am. Honda Motor Co., 273 F. Supp. 810, 812,
819-20 (N_D. Ill. 1967) (involving defendant indicted repeatedly for the same offense in different
federal districts). The general similarities identified by Defendants with respect to the allegations
and evidence involved in both cases (e.g., “alleged[] submi[ssion of] false documents,...amount
of work actually performed,...same six subcontractor corporations,...[and] cashing of the same
checks at the currency exchanges”) are insufficient to justify dismissal. See Abbate v. United
States, 359 U.S. 187, 196-201 (1959) (Brennan, J., comment) (concerning defendant tried
repeatedly for same criminal acts and/or conduct under separate federal statutes); United States
y, Jordan, 870 F.2d 1310, 1311-12, 1313-14 (7 Cir, 1989) (involving defendant tried for two
separate offenses — one federal offense and one state offense — arising out of a single act/event);
CA 79-2617 Cont’! Can Co., U.S.A. v. Marshall, 603 F.2d 590, 591-93, 597 (7 Cir. 1979)
(involving defendant cited repeatedly for same offense); United States v. Am. Honda Motor Co.,
271 F. Supp. 979, 980-81, 987-88 (N.D. Cal. 1967) (involving defendant indicted repeatedly for
same offense in different federal districts).

*It is worth mentioning that Velasquez was never indicted in Case No. 02 CR 165.
Moreover, Velasquez offers no authority for his argument that “the instant investigation and
prosecution of...Velasquez amounts to harassment because the government had extensively
investigated...Velasquez prior to the 2002 trial and had raised the factual issues surrounding this
indictment in the 2002 trial.” Because Velasquez simply adopts the authority cited in
Presbitero’s memorandum (authority addressing multiple indictments filed against the same
defendant) and Case No. 02 CR 165 addressed actions unrelated to those addressed by the instant
indictment, Velasquez’s position does not merit further discussion.

3County of Sacramento v. Lewis, 523 U.S. 833, 836-37, 840 (1998) does not provide
support for Defendants’ position because it concerned a 42 U.S.C. § 1983 action alleging a
deprivation of substantive due process and not harassment resulting from a subsequent criminal
indictment filed against the same defendant.


diametrically opposed theories of prosecution.’ Furthermore, Defendants’ briefs do not explain why
a party could not simply under report labor hours on ERISA-required documents and exaggerate its
cost of goods sold deductions on its tax returns. The two filings are wholly unrelated and ultimately
submitted to different federal agencies. Although both acts may constitute criminal behavior, they
are independent from one another (and require the government to establish different criminal
elements using evidence specific to each allegation). Therefore, it is possible to commit both
criminal acts simultaneously in order to derive illegal benefits from each act. In such cases, the
government should not have to choose which case to prosecute.

The cases cited by Defendants do not mandate a different conclusion. As with
Defendants’ harassment argument, each case may be distinguished. Three of Defendants’ cases
concern a defendant or defendants subjected to multiple indictments for the same act/conduct or
offense. See Smith v. Groose, 205 F.3d 1045, 1049, 1052 (8" Cir. 2000) (“The question before us
is whether the Due Process Clause forbids a state from using inconsistent, irreconcilable theories to
secure convictions against two or more defendants in prosecutions for the same offenses arising out
of the same event....To violate due process, an inconsistency must exist at the core of the prosecutor’s
cases against defendants for the same crime.) (emphasis added); Thompson v. Calderon, 120 F.3d.
1045, 1058 (9" Cir. 1997) (“From these bedrock principles, it is well established that when no new

significant evidence comes to light a prosecutor cannot, in order to‘convict two defendants at

‘Velasquez argues (without citing any authority) that “this indictment and prosecution
violate Due Process because the government will present an inconsistent theory from the 2002
trial of...Presbitero and Presbitero Drywall although no new evidence has come to light.” As
previously noted, Velasquez was never prosecuted in Case No. 02 CR 165. Despite that fact,
Velasquez makes no attempt to explain how he could be subjected to an inconsistent theory of
prosecution in the instant action. When coupled with Defendants’ failure to establish the
presence of inconsistent theories, this failure dooms Velasquez’s argument.

5


Minuie Order Form (06/94)

United States District Court, Northern District of Iinois

Name of Assigned Judge 7. Li Sitting Judge if Other
or Magistrate Judge George W. Lindberg than Assigned Judge
CASE NUMBER 03 CR 786 - 1,2 DATE 1/29/2004
CASE United States of America vs. Ronald J. Presbitero, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nawure
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Q Answer brief to motion due. . Reply to answer brief due .
(4) oO Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for]on___——ssetfor_ ss aat_
(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(oa) Oo Trial[set for/re-set for] on _at_
(8) a {Bench/Tury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) O Local Rule 41.1 OCIFRCP41(a)(1) OO FRCP41(a)(2).
ao [Other docket entry] Defendants’ motion to dismiss the indictment is denied. Enter memorandum
and order.

al [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

Notices mailed by judge’s staff. -

Ga

Notified counsel by telephone. dAN 29 2004 ;
JV | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

date miled notice
courtroom an

SLB deputy’s ft
initials

CT 7 “Datestimte regeived in
iy k & teutat idk s Office railing deputy initials



separate trials, offer inconsistent theories and facts regarding the same crime.”) (emphasis added);
United States v. Ashland-Warren, Inc., 537 F. Supp. 433, 434, 449-50 (M.D. Tenn. 1982)
(government may be precluded from altering its position concerning substantive law in an effort to
justify multiple indictments alleging the same offense and filed against the same defendant). A
fourth case does not even address the issue of inconsistent theories of prosecution. See Berger v.
United States, 295 U.S. 78, 79-81, 88-89 (1935) (new trial awarded as a result of prosecutorial
misconduct consisting of “improper suggestions, insinuations, and...assertions of personal
knowledge[;]” inconsistent theories of prosecution not asserted).

ORDERED: Defendants’ Motion to Dismiss the Indictment is denied.

DATED: JAN 2-9 2004 ENTER:

HON. GEORGE W. LINDBERG
United States District Judge


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA ) es
) Case No. 03 CR 786°~
v. )
y George W. Lindberg
RONALD J. PRESBITERO and } Senior United States District Judge
JOE J. VELASQUEZ, )
also known as Pepe Velasquez )

MEMORANDUM AND ORDER

On August 14, 2003, a three-count indictment was filed against Ronald J. Presbitero
(‘Presbitero”) and Joe J. Velasquez, a/k/a Pepe Velasquez (“Velasquez”) (collectively,
“Defendants”). Count I charges Defendants with conspiracy to defraud the United States in violation
of 18 U.S.C. § 371 by impeding, impairing, obstructing, and defeating the lawful functions of the
Internal Revenue Service in the correct determination and collection of revenue and income taxes.
Counts I and II charge Presbitero with filing and causing the filing of false federal corporate income
tax returns for the fiscal years ending April 30, 1997 and April 30, 1998, respectively, in violation
of 26 U.S.C. § 7206(1).

Defendants have filed a motion to dismiss the indictment pursuant to Fed. R. Crim.
P. 12(b) and the Due Process Clause of the Fifth Amendment. Defendants’ motion is hereby denied.

Analysis

Federal Rule of Criminal Procedure 12(b) provides, in relevant part, that “[a] party
may raise by pretrial motion any defense, objection, or request that the court can determine without
atrial of the general issue.” Fed. R. Crim. P. 12(b). “A motion to dismiss an indictment is...similar
to acivil Rule 12(b)(6) motion...” United States v. Pitt-Des Moines, Inc., 970 F. Supp. 1346, 1349

(N.D. IIL. 1997) (citation omitted). As such, an “indictment, or a portion thereof, may be dismissed

S7/


if it is otherwise defective or subject to a defense that may be decided solely on issues of law.”
United States v. Labs of Va., Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003) (citation omitted); but
see United States v. Kingston, 971 F.2d 481, 491 (10" Cir. 1992) (“Because it is a drastic step,
dismissal of an indictment is a disfavored remedy.”) (citation omitted).

After careful review, the Court concludes that dismissal is not appropriate because
the factual bases for Defendants’ motion have not been established. Moreover, the legal authority
cited to support Defendants’ arguments is inapposite. Accordingly, it is not necessary to subject the
instant indictment to any further due process analysis.

L The Indictment Does Not Amount to Harassment.

Defendants assert that “the government offends Due Process where it harasses an
individual by successive grand jury inquiries and successive indictments for offenses arising out of
the same transactions and course of conduct.” Based on that assertion, Defendants argue that the
instant indictment constitutes harassment because it involves allegations and evidence similar to the
allegations and evidence presented in United States v. Presbitero & Presbitero Drywall Co., Case
No. 02 CR 165 (N.D. Ill.). Defendants’ position is not well-taken.

Defendants state that the instant indictment concerns, inter alia, Defendants’ alleged
conspiracy to defraud the United States by “issu[ing] checks to...six corporations...[and] claim[ing]
these payments, totaling approximately $5.9 million, as cost of goods sold deductions on [Presbitero
Drywall’s] federal income tax returns...[even though] the six corporations were ‘fictitious,’ the
invoices for work performed were ‘false,’ and the ‘claimed payments had not been made.’”
However, Defendants also acknowledge that the indictment in Case No. 02 CR 165 alleged that

Defendants “made false statements and/or omissions in ERISA required documents, in violation of