IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 1:11-cr-402-1 UNITED STATES OF AMERICA

v. JORGE PETER CORNELL, et al. ) ) ) ) ) MOTION TO DISMISS INDICTMENT AS DUPLICITOUS

NOW COMES DEFENDANTS JORGE CORNELL, RUSSELL KILFOIL, WESLEY WILLIAMS, SAMUEL VELASQUEZ, AND RANDOLPH KILFOIL pursuant to Rule 12 of the Federal Rules of Criminal Procedure and hereby moves to dismiss the indictment on the grounds that it is factually duplicitous in that Count 1 of the indictment charges multiple crimes in a single count. In support of this motion, the Defendant respectfully shows unto the Court the following: 1. Defendant Cornell is charged with 13 other defendants in a three count

indictment. Count 1 of the indictment charges a conspiracy to engage in a racketeering enterprise by members of the Latin Kings1. The alleged conspiracy spans a period of four to five years from 2006 to 2011. The superseding indictment charges 14 individuals with engaging in this conspiracy. An examination of the Governments evidence discloses that there are at least 20 additional persons who were alleged to be associated with the Latin Kings in North Carolina during the five year period of the alleged conspiracy and that many of these persons may be considered by the Government to be unindicted co-conspirators with the defendants who were actually charged.

The indictment alleges that the enterprise is the Almighty Latin King and Queen Nation. It will be referred to as the Latin Kings in this motion for the sake of brevity.
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2.

The indictment itself alleges that the Latin Kings were an enterprise and that the

enterprise was conducted through pattern of racketeering activity. It further alleges that the various defendants conspired to conduct the racketeering activity and that at least 41 overt acts in furtherance of the conspiracy were committed. 3. The Governments discovery materials also disclose that at various times

during the period of the alleged racketeering enterprise numerous individuals ended their association with the Latin Kings, including some of the co-defendants. The indictment alleges that some of the alleged overt acts in furtherance of the racketeering conspiracy were committed by persons who, according to the Governments evidence, were no longer associated with the Latin Kings. 4. The actions alleged to have been committed by persons after they left the Latin

Kings cannot be actions that were in furtherance of the racketeering enterprise (the Latin Kings) which the Government alleges began in 2005. The Government nevertheless that all of the alleged overt acts were in furtherance of a RICO racketeering conspiracy, including actions taken by those individuals who were no longer associated with the Latin Kings. 5. It may be that the Government contends that the later actions by these individuals

were in further of a RICO enterprise in which they were engaged, but if so, it appears that the Government intends to present evidence relating to least two separate conspiracies. 6. This issue is illustrated by the following sequence of events. The Governments

discovery indicates that on or about October 1, 2008, several alleged members of the Latin Kings including an unindicted co-conspirator Cesar Herrara and co-defendant Paul Yates attempted to call a meeting to vote out co-defendant Jorge Cornell as Inca of the Latin Kings in North 2

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Carolina. The Government evidence indicates that as a result, defendants Jason Yates and Irvin Vasquez were expelled from the Latin Kings in October 2008.2 Nevertheless, the indictment alleges Yates and Vasquez committed overt acts after that time in furtherance of the Latin Kings racketeering enterprise conspiracy charged in the indictment. For example, the superseding indictment in 18(q) alleges that on or about December 18, 2008, Yates, Vasquez and two others committed an armed robbery and kidnaping of a drug dealer in Morrisville, North Carolina. The superseding indictment also alleges that in March 2009, Defendant Cornell ordered members of the Latin Kings to be ready to take action against Yates. See 18(z). While the actions taken after October 2008 by Yates and Vasquez may have theoretically constituted a second racketeering conspiracy conducted by Yates and Vasquez, their actions cannot have been in furtherance of the racketeering enterprise that the indictment alleges Defendant Cornell was conducting. Moreover the overt act alleged in 18(z) cannot be in further of a conspiracy that Defendant Yates was a part of. To the extent that the indictment attempts to allege all such overt acts are in furtherance of racketeering, it alleges at least two racketeering enterprise conspiracies in a single count of the indictment. As a consequence, by attempting to allege multiple crimes in one count, the indictment is duplicitous. 6. Under Federal Rule of Criminal Procedure 8(a) and due process, separate offenses

must be charged in separate counts. See Abney v. United States, 431 U.S. 651 (U.S. 1977). 7. Accordingly, because the indictment is on its face duplicitous, the Defendant

Cornell respectfully requests the Court to enter an order dismissing Count 1 of the indictment as

See the portion of the Government discovery, Bates # 6871, that is filed under seal as Attachment 1 to this motion. 3

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duplicitous or alternatively requiring the Government to elect which criminal conspiracy it is seeking to prosecute at trial in this action. Respectfully submitted this the 27th day of July, 2012. Law Office of Michael W. Patrick By: /s/ Michael W. Patrick Michael W. Patrick NC Bar #7956 312 West Franklin Street P.O. Box 16848 Chapel Hill, NC 27516 (919) 960-5848 (telephone) (919) 869-1348 (facsimile) Email: mpatrick@ncproductslaw.com Attorney for Defendant Jorge Cornell

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CERTIFICATE OF SERVICE I hereby certify that on the 27th day of July, 2012 I electronically filed the foregoing with the clerk of the court using the CM/ECF system which will provide a copy of the motion on counsel of record. /s/ Michael W. Patrick Attorney for Defendant Jorge Cornell

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