THE DEFENDANT: Grand jury misconduct and/or
outrageous Government misconduct, prosecutorial misconduct,
however you want to phrase it, Government misconduct.
KILLERCOP: My theory, Your Honor, is that the
first year I was incarcerated, everybody was proceeding under a
general intent crime. The Government finally superseded the
indictment when the defense raised up that this was not a
general intent crime, this was a specific intent crime. The
Government, on that theory, then, went back t o the grand jury
and was supposed t o apprise them that this was no longer a
general intent , but a specific intent crime.
I have read the transcript of the hearing of the
superseding indictment, and it failed t o note any mention of
anyone informing the grand jury that this was all of a sudden a
specific intent crime. Therefore -- I believe that the Fifth Amendment requires that defendant be convicted only on a charge
considered by the grand jury. And I would cite U.S. versus
Dubo -- that's spelled D-u-b-o -- 186 F. 3d, 1177, 1179, which
is a Ninth Circuit case in 1999 holding that indictments
failure to specify mens rea require dismissal, the requirement
insuring that defendant is prosecuted, quote, "on the basis of
the facts presented to the grand jury." And I would cite U.S.
versus Rosi, R-o-s-i, 27 F. 3d, 409, at page 414, which is,
again, a Ninth Circuit.
I don't believe the grand jury was ever told that
this was a specific intent crime. At least I didn't see it in
the transcript.
THE COURT: Okay. I haven't read the transcript, but
I can tell you that the motion lacks merit. The superseding
indictment contains, as part of its language, the necessary
allegation -- whether it can be proven or not, we'll see -- of
mens rea, which addresses that case you talked about. Do you want to be heard about the rest of what
Killercop said?
MS. DUARTE: I don't have the transcript in front of
me, but I don't recognize and am not aware of the legal duty
he's talking about. Generally I read the statute and the
elements to the grand jury. I then present the indictment. So
they had it from several sources that that was the requirement.
THE COURT: I have considered and I reject that
motion, as well, both motions, Killercop.
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