Opinion
Case No. 8:04-CR-226-T-17-TBM.
February 1, 2006
ORDER
This cause comes before the Court on the defendant's motion to dismiss indictment (Docket No. 68) and response thereto (Docket No. 73); and defendant's request for evidentiary hearing on motion to dismiss (Docket No. 74) and response thereto (Docket No. 75). The defendant, who has been indicted for conspiracy to possess cocaine with intent to distribute, moves for dismissal of the indictment with prejudice.
The defendant asks this Court to dismiss the indictment because he asserts that he and his coconspirators would not have possessed or distributed cocaine in the United States, a requirement of the relevant statute. In opposition, the government asserts that the evidence of the case does establish that the defendant did possess cocaine in the United States. In requesting that this Court resolve the motion to dismiss, both parties have provided transcripts and tapes of the defendant and his co-conspirators and seek to have this Court determine what these transcripts and tapes establish in the way of facts in this case.
The defendant's motion is an attempt to have this Court to invade the province of the jury, the fact-finder in this case, and to review evidence and determine what that evidence establishes. The Court declines to invade the province of the jury.
Since the Court is denying the motion to dismiss, there is no necessity for the Court to hold an evidentiary hearing on the motion to dismiss. Accordingly, it is
ORDERED that the defendant's motion to dismiss indictment (Docket No. 68) and request for evidentiary hearing on motion to dismiss (Docket No. 74) be denied.
DONE AND ORDERED.