Opinion
2:06-cr-50-FtM-29SPC.
December 19, 2006
OPINION AND ORDER
This matter comes before the Court on defendant Orlando Lopez's Motion to Dismiss Indictment (Doc. #197), filed on December 14, 2006. Also before the Court are defendant Alfredo Diaz Rojas's Motion to Adopt the Factual Issues and Legal Arguments (Doc. #201) and defendant Jose Luis Zaldivar's Motion to Adopt (Doc. #198). Defendants seek dismissal of the Superceding Indictment because false testimony was allegedly given to the grand jury which returned the original Indictment.
A grand jury indictment may be dismissed when an error before the grand jury substantially influenced the grand jury's decision to indict, when there is a grave doubt that the decision to indict was free from the substantial influence of the error, or false testimony resulted from prosecutorial misconduct that causes prejudice to the defendant. United States v. Berbitskaya, 406 F.3d 1324, 1336 n. 13 (11th Cir. 2005) (citations omitted). There are "isolated exceptions" to this harmless-error rule, but these are limited "to cases in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing a presumption of prejudice."United States v. Exarhos, 135 F.3d 723, 726-27 (11th Cir. 1998),cert. denied, 526 U.S. 1029 (1999) (citation omitted).
Here, defendants have not satisfied their burden of showing the Second Superceding Indictment should be dismissed. None of the examples of allegedly false, incorrect, or misleading testimony satisfy the standard summarized above. Therefore, dismissal is not appropriate as a sanction.
Accordingly, it is now
ORDERED:
1. Defendant Orlando Lopez's Motion to Dismiss Indictment (Doc. #197) is DENIED.
2. Defendant Alfredo Diaz Rojas's Motion to Adopt the Factual Issues and Legal Arguments (Doc. #201) is GRANTED.
3. Defendant Jose Luis Zaldivar's Motion to Adopt (Doc. #198) is GRANTED. DONE AND ORDERED at Fort Myers, Florida.