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Laroque Cheshire43013motion

Laroque Cheshire43013motion

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Published by NC Policy Watch

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Published by: NC Policy Watch on May 02, 2013
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08/31/2013

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NORTH CAROLINAEASTERN DIVISIONNo. 4:12-CR-88-1H(2)UNITED STATES OF AMERICAv.STEPHENA.LAROQUE
REPLY TO GOVERNMENT’S
RESPONSE IN OPPOSITIONTO MOTION TO DISMISSCOUNTS 1 THROUGH8
In responding to Mr. LaRoque’s motion to dismiss Counts 1 through 8,
the governmenthas attempted to unilaterallyamendthe Second Superseding Indictment in an effort tosavethosecounts. The governmentalsoessentiallyarguesthat, because it included the words of the statutewithin the Indictment,the Courtshould allowitto subject Mr. LaRoque to a prosecutioneven if Counts 1 through 8 fail to state an offense.
The government’s previous theory of prosecution was that Mr. LaRoque defrauded
ECDC and PDC,
not by defrauding the boards
, but merely by controlling them. Now aware thatthis theory does not constitute a crime, the government posits a new theory: that Mr. LaRoquedid defraud the boards, either in obtaining approval of the contracts or in obtaining authorizationto accept the loansin question. However, this new theory was not found by the Grand Jury.Instead,it relies on allegations not found in the Second Superseding Indictment,which areinconsistent with the facts the Grand Juryactuallyfound.TheCourt should reject the
 prosecution’s attempt to rely on facts and theories not found by the
GrandJury to supportCounts1 through 8.
Case 4:12-cr-00088-H Document 48 Filed 04/30/13 Page 1 of 5
 
2To satisfy the Fifth and Sixth Amendments,theindictmentin this casemustdo more thanparrot the language of the statute;it must(1) charge all of the essential elements of a criminaloffense
and 
sufficiently apprise the defendant of what he must be prepared to meet so he will notbe misled while preparing his defense, (2) protect the defendant against double jeopardy, and (3)
 be sufficiently specific to ensure that the defendant is prosecuted only on an “indictment
of agrand jury
.”
1
“Adherence to the language of the indictment is essential because the Fifth
Amendment requires that criminal prosecution be limited to the unique allegations of the
indictments returned by the grand jury.”
 Hitt 
, 249 F.3d at 1016.
The government’s prior theory relied on the Grand Jury finding that the boards would
approve any measure presented to them.Trying to saveCounts 1 through 8, the governmenthaschanged course. It now allegesthat Mr. LaRoque defrauded the boards. But thegovernmentalreadyconvinced the Grand Jury thathe controlledthese boardsto such a point that they wouldhave approved any measure heproposed. The government cannot have it both ways.Moreover,nowhere in the Second Superseding Indictment is the allegation that Mr. LaRoque defrauded theboards in relation to the 2009 contract,
cf.
Second Superseding Indictment ¶1-5-110, or in
1
See
U.S. Const. amend. VI (“In all crimina
l prosecutions, the accused shall enjoy the right . . .
to be informed of the nature and cause of the accusation[.]”); U.S. Const. amend. V (“No person
shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment orindictmen
t of a grand jury,” “nor shall any person be subject for the same offense to be twice putin jeopardy of life or limb.”);
 Russell v. United States
, 369 U.S. 749, 770 (1962); United
States v. Hayes
, 775 F.2d 1279, 1282 (4th Cir. 1985);
United States v. Brandon
, 298F.3d 307, 310 (4th
Cir. 2002) (When the words of a statute are used to describe the offense generally, they ‘must be
accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under
the general description, with which he is charged.’” (quoting
 Hamling v. United States
, 418 U.S. 87, 117-118 (1974)).
United States v. Haas
, 583 F.2d 216(5th Cir.),
reh’g denied 
, 558 F.2d 829,
cert. denied 
, 440 U.S. 981 (1978) (minimal constitutionalstandards for an indictment require that the defendant be called to answer charges actually
 brought by the grand jury and not a prosecutor’s interpretation of those charges, that the
defendant be apprised of the charge against him in order to permit preparation of a defense, andthat he be protected against double jeopardy).
Case 4:12-cr-00088-H Document 48 Filed 04/30/13 Page 2 of 5
 
3relatio
n to the boards’ approval of the loans at issue,
cf.i
. at ¶117. Thus, the government’s new
theory was not found by the Grand Jury, either because it was not presentedor because theGrand Jury rejected it.The grand jury is more than an investigativetool of the government; it is also aconstitutionally required shield against unfounded prosecutions.
The government’s last minute
change of courseviolates Mr
. LaRoque’s rights
under the Fifth and Sixth Amendments.Thegovernmentmay not have
“a free h
and to insert the vital part of the indictment without referenceto the grand jury.
United States v. Nance
, 533 F.2d 699, 701 (D.C. Cir. 1976) (dismissing
indictment for lack of specificity because, without such specificity, “the United States Attorney
would have a free hand to insert the vital part of the indictment without reference to the grand jury[,] [and
] [t]he law does not vest him with such authority.”
).Because thesenewallegationsandtheorieswerenotfound bytheGrandJury, the Court shouldnot allow the government torely on them to support Counts 1 through 8, and becausetheGrand Jury did not find that Mr.LaRoque defrauded the boards,Counts 1 through 8 fail to state an offense.
CONCLUSION
North Carolina Policy Watchwrote a seriesof articles designed to attackthen RepublicanRepresentative StephenA.LaRoque. The government took those articles and launched aninvestigation of its own. For at least 19 months, spending untold amounts of taxpayer dollars,they have attempted to reach a pre-determined result by trying to force square theories of prosecution through round slots required by law. As facts continued to disappoint anditsactionswerechallengedby the accused,the prosecutionsoughtsuperseding indictment after supersedingindictment, all in anattempt to force the square peg into the round slot.When those effortsfailed, it now seeks to call its unfit theory a round one by arguinga theory based on factsthattheGrand Jurysimply did not find. This attempt to fundamentally change the facts and theoryon
Case 4:12-cr-00088-H Document 48 Filed 04/30/13 Page 3 of 5

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