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[Pauligirl]

UNITED STATES' RESPONSE TO DEF. MOT.
CR 05-0611 WHA
1
JOSEPH P. RUSSONIELLO (CABN 44332)
United States Attorney
BRIAN J. STRETCH (CABN 163973)
Chief, Criminal Division
BRIGID S. MARTIN (CABN 231705)
C. DAVID HALL (CABN 66081)
Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
Telephone: (415) 436-7200
FAX: (415) 436-7234
brigid.martin@usdoj.gov
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
DALE SCOTT HEINEMAN and
KURT F. JOHNSON,
Defendants.
))))))))))))))
No. CR 05-0611 WHA
UNITED STATES' RESPONSE TO
DEFENDANTS' MOTION TO DISMISS
AND DEFENDANTS' MOTION FOR
DEFENSE SUPPLIES TO REMAIN
INTACT and UNITED STATES'
MOTION TO RESET HEARING DATE
On February 14, 2008, Defendants filed motions entitled Motion [for] Defense Supplies
to Remain Intact for Appeal and Motion to Dismiss Based on Rule 8(a) and 12(b) (Docket # 573-
574). The Court should deny both motions.
I. Motion to Dismiss
Defendants' motion to dismiss appears to allege defects in the Superseding Indictment.
The government divines two lines of argument: (1) the indictment is duplicative, and (2) the
indictment improperly charges multiple parties for multiple offenses.
Defendants' motion should be denied as untimely. Federal Rule of Criminal Procedure
Case 3:05-cr-00611-WHA Document 578 Filed 02/27/2008 Page 1 of 5

1Defendants erroneously state in their Motion that codefendant Bill Julian was also "a 371
conspirator." Def. Mot. at 5. In fact, Julian pleaded guilty to Count One of the Superseding
Indictment, conspiracy to commit bank fraud, wire fraud, and mail fraud in violation of
18 U.S.C. § 1349.
UNITED STATES' RESPONSE TO DEF. MOT.
CR 05-0611 WHA
2
12(b) states that a motion alleging a defect in the indictment "must be raised before trial." The
trial was completed in November, the jury convicted both Defendants, and the matter has been
set for sentencing. The motion is therefore untimely. Further, Defendants' contention that they
could not have raised these issues prior to trial is baseless because the alleged defects were
present in the Superseding Indictment when it was filed on February 16, 2006. Finally, to the
extent that Defendants repeat arguments set forth in their motion for judgment of acquittal – that
the single conspiracy count was duplicative because (1) it charged conspiracy to commit bank
fraud, wire fraud, and mail fraud; and (2) some overt acts alleged in furtherance of the conspiracy
were also charged as separate fraud counts – this Court has already ruled against Defendants.
United States v. Johnson, No. CR 05-0611, 2008 WL 205596, at *11 (N.D. Cal. January 24,
2008).
A.
Apart from the procedural failures, the motion to dismiss is substantively flawed.
Defendants appear to argue that the indictment is duplicative because: (1) the subsections in
Count One create four separate and distinct crimes; (2) some of the overt acts set forth in the
Count One conspiracy charge are also separately charged mail fraud counts; and (3) some of the
charged codefendants pleaded guilty to conspiracy under 18 U.S.C. § 371 rather than the separate
and distinct conspiracy charged in the indictment under 18 U.S.C. § 1349.
This Court has already ruled in this case on Defendants' first two arguments. Addressing
Defendants' third argument, the fact that codefendant LeCompte was charged with and pleaded
guilty to conspiracy in violation of a different federal statute, 18 U.S.C. § 371, does not affect
Defendants' conviction for conspiracy in violation of 18 U.S.C. § 1349.1
Defendants contend that the jury was "exposed to an easy correlation between
[LeCompte's] guilty plea to section 371 and the inference that [LeCompte was party] to the 1349
Case 3:05-cr-00611-WHA Document 578 Filed 02/27/2008 Page 2 of 5

2Defendants state in their motion that "[t]o our knowledge and understanding THE
DOREAN GROUP was never arraigned." Def. Mot. at 12. But this assertion is contradicted by
Defendants themselves a page later when they admit that they "received [court] papers reflecting
that THE DOREAN GROUP had been arraigned." Def. Mot. at 13. In any event, the procedural
posture of the case against codefendant THE DOREAN GROUP is irrelevent to Defendants'
conviction.
3It appears that Defendants may be making an improper joinder argument based on the
reference to Federal Rule of Criminal Procedure 8(a) in the title of their motion and references to
multiple parties.
UNITED STATES' RESPONSE TO DEF. MOT.
CR 05-0611 WHA
3
though these conspiracies are distinct." Def. Mot. at 8. The Court speficically instructed the
jury, however, that others' "pleas are not evidence against defendants, and you may consider
them only in determining those witnesses' believability." Final Charge to Jury, Paragraph 14
(Docket #519). There is a strong presumption that juries follow the court's instructions. United
States v. Peralza, 439 F.3d 1149 (9th Cir. 2006). Moreover, in advance of trial the government
provided Defendants with LeCompte's Second Superseding Information and Plea Agreement.
When LeCompte testified as a witness during the trial, the Defendants cross-examined LeCompte
about the fact that he pleaded guilty to a different federal statute.
B.
Defendants also appear to argue that multiple parties are improperly listed in the
substantive mail fraud counts as those causing items to be mailed in furtherance of the scheme to
defraud. Defendants contend that "[t]he only reference to a causing to be mailed is in the overt
acts where THE DOREAN GROUP is the only perpetrator."2 Id. at 12:2-3.
Defendants are simply wrong on the facts. In each and every count of the Superseding
Indictment, Defendants Heineman and Johnson, specifically, are charged with causing a
Presentment Packet and/or a Full Reconveyance (a/k/a Discharge of Mortgage, Satisfaction of
Mortgage) to be sent by Mail Delivery.
Further, to the extent that Defendants appear to argue improper joinder of parties and
offenses, Defendants do not articulate a factual basis for this argument.3 The mere fact that a
single indictment charges multiple codefendants with multiple crimes does not make the
indictment defective. Under Federal Rule of Criminal Procedure 8, joinder of offenses or
Case 3:05-cr-00611-WHA Document 578 Filed 02/27/2008 Page 3 of 5

UNITED STATES' RESPONSE TO DEF. MOT.
CR 05-0611 WHA
4
defendants is permissible. The indictment may charge a defendant in separate counts with two or
more offenses if the offenses charged are of the same or similar character, or are based on the
same act or transaction, or are connected with or constitute parts of a common scheme or plan.
Fed. R. Crim. P. 8(a). Similarly, the indictment may charge two or more defendants if they "are
alleged to have participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The defendants may be charged in one or more
counts together or separately. All defendants need not be charged in each count."
Fed. R. Crim. P. 8(b).
II. Motion for Defense Supplies to Remain Intact
In their next motion, Defendants request that they remain housed at the Dublin Federal
Detention Center after they are sentenced and be permitted continued access pending appeal to
computers, printers, hard-drive data storage devices, hard-copy documents, and legal assistance
from CJA paralegal Steven Moore and appointed procedural counsel Richard Tamor. These
requests are not properly directed to this Court, therefore the motion should be denied.
First, while a judge has wide discretion in determining the length and type of sentence,
the court has no jurisdiction to select the place where the sentence imposed will be served.
United States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984). Authority to determine place of
confinement resides in the executive branch of government and is delegated to the Bureau of
Prisons. Id. While the Bureau may consider the Court's recommendation, ultimately it is the
Bureau that "shall designate the place of the prisoner's imprisonment." 18 U.S.C. § 3621(b).
Further, Defendants' requests for computers, legal materials, and legal assistance should
be directed to the Bureau of Prisons. Prison officials are certainly aware that they must provide
Defendants a certain level of access to legal materials while incarcerated. Bounds v. Smith, 430
U.S. 817, 828 (1977) (prisoners have constitutional right of meaningful access to courts that may
be met by providing an adequate law library, legal assistance, or alternative means); Lewis v.
Casey, 518 U.S. 341, 351 (1996) (prisoner must show that any alleged shortcomings hindered
efforts to pursue legal claim). The extent of that access is best left to the Bureau of Prisons to
determine. Lewis, 518 U.S. at 361 (court must give "adequate deference to the judgment of the
Case 3:05-cr-00611-WHA Document 578 Filed 02/27/2008 Page 4 of 5

UNITED STATES' RESPONSE TO DEF. MOT.
CR 05-0611 WHA
5
prison authorities"); see also Sands v. Lewis, 886 F.2d 1166, 1168 (9th Cir. 1989) (prison
officials set policy on possession and access to supplies including typewriters).
For the foregoing reasons, the Court should deny Defendants' motion to dismiss and
motion for defense supplies to remain intact.
III. Motion to Reset Hearing Date
Defendants caption their motions with a hearing date and time of March 4, 2008 at 2:00
p.m. The government notes that the hearing now appears on the Court's schedule at that time.
The government is not available on that date and requests that the hearing be reset for March 18
at 8:00 a.m., the date of sentencing or, in the alternative, March 11 at 2:00 p.m.
DATED: February 27, 2008 Respectfully submitted,
JOSEPH P. RUSSONIELLO
United States Attorney
/s/ Brigid S. Martin
BRIGID S. MARTIN
Special Assistant United States Attorney
Case 3:05-cr-00611-WHA Document 578 Filed 02/27/2008 Page 5 of 5


=============================================================



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
KURT F. JOHNSON and DALE SCOTT
HEINEMAN,
Defendants.
/
No. CR 05-00611 WHA
ORDER DENYING
DEFENDANTS' MOTION TO
DISMISS AND VACATING
HEARING
Defendants move to dismiss the indictment as being duplicative and for improperly
charging multiple parties for multiple offenses. According to FRCrP 12(b), a motion alleging a
defect in the indictment must be raised before trial. The trial ended in November 2007, when a
jury convicted both defendants of conspiracy and multiple counts of mail fraud. The motion is
untimely and is therefore DENIED. The motion for defense supplies to remain intact for appeal
and motion for payment of trial expenses shall be decided at the sentencing hearing on March
18, 2008. Because no hearing for the motion to dismiss is necessary, the hearing set for March
4, 2008, at 2:00 p.m. is hereby VACATED.
IT IS SO ORDERED.
Dated: February 28, 2008.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

[Judge Roy Bean]

Obviously, Judge Alsup is nothing more than a mindless tool of the dark forces, thwarting the will of Christ and his chosen earthly messenger (Johnson) at every move.

If Johnson wasn't crazy before and during the trial, it appears he is now drifting further and further off into unreality as he becomes less and less relevant. To an ego of that enormity, it must at least be disconcerting that the system confining him hasn't succumbed.

[Dr. Caligari]

So they're being sentenced March 18?

I can see them right now
Get the calendar down
and draw a circle around
The day they’re prison bound

[Scott from Vineland]

Was sentencing still scheduled for today? Any thoughts on how soon we may hear something?

[Judge Roy Bean]

I would expect PACER to be updated by tomorrow.

I don't think they're even getting news coverage any more.

[Demosthenes]

Sentencing guidelines for Johnson came in at 360 months.

http://www.cheatingfrenzy.com/johnson583.pdf

[Demosthenes]

Heineman's guideline ranges from 262 months (the prosecutor's calculation) to 360 months (the probation officer's calculation).

http://www.cheatingfrenzy.com/heineman584.pdf

[Judge Roy Bean]

I can see Johnson getting the maximum, but unless I've missed something, Heineman has been pretty much along for the ride and has no prior convictions. We may never know what kept him from lawyering up and getting a chance at a few years behind bars.

[Dr. Caligari]

Sentencing guidelines for Johnson came in at 360 months.

Actaually, according to the Government's Sentencing Memorandum, the Guidelines call for life, but the Government is asking for a 3-level downward departure, to 360 months.

[Dr. Caligari]

Heineman's guideline ranges from 262 months (the prosecutor's calculation) to 360 months (the probation officer's calculation).

Your link doesn't work.

[Demosthenes]

Does now.

[Dr. Caligari]

Anything on Pacer yet?

[Scott from Vineland]

Sentencing guidelines for Johnson came in at 360 months.

Heineman's guideline ranges from 262 months to 360 months..

So they could potentially be out in ten? (Or slightly less for Scott?)

[Demosthenes]

Under federal laws, there is no probation, just a potential 15% discount for good behavior. The bare bones minimum time that someone has to stay in prison if they are sentenced to 30 years would be 306 months (25 1/2 years).

[Scott from Vineland]

Under federal laws, there is no probation, just a potential 15% discount for good behavior. The bare bones minimum time that someone has to stay in prison if they are sentenced to 30 years would be 306 months (25 1/2 years).

Wow, didn't realize that. I knew a federal LIFE sentence meant no parole but I didn't know that standard was applied to ALL federal sentences.

[Judge Roy Bean]

Sentences can be suspended in whole or in part, but I seriously doubt there will be any consideration given to that avenue under these circumstances.

[Dr. Caligari]

Sentences can be suspended in whole or in part,

Only short ones. Sentences over 18 months (I think) have to be served in prison.

[Demosthenes]

Sentences can be suspended in whole or in part,

Only short ones. Sentences over 18 months (I think) have to be served in prison.

And the higher the sentence, the higher the security level of the prison.

[Dr. Caligari]

Demo,
Do we know what they actually got? There is a lot of talk over on Kurt's blog, but no one has posted anything from Pacer or the U.S. Attorney's Office.

[Demosthenes]

Demo,
Do we know what they actually got? There is a lot of talk over on Kurt's blog, but no one has posted anything from Pacer or the U.S. Attorney's Office.

I'll go find out.