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United States of America v. Gary Raymond Harvey

August 24, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
GARY RAYMOND HARVEY,
DEFENDANT.



The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court

MEMORANDUM DECISION AND ORDER

Before the Court are Defendant Gary Raymond Harvey's Motions to Dismiss (Dkts. 44, 46, 47, and 57). The matter is fully briefed, and the Court finds that oral argument will not assist the decisional process. Based on the pleadings and record before it, the Court will deny the Motions, as more fully expressed below.

INTRODUCTION

Defendant Gary Raymond Harvey was indicted on August 23, 2011, with ten counts of false claims for refund, in violation of 18 U.S.C. § 287. Defendant was represented for a time by Federal Defender Robert Fischer, who moved to withdraw citing irreconcilable differences. The Court granted the motion and appointed substitute counsel from the CJA panel, John Miller, who currently represents Defendant. At a June 12, 2012 status conference, in which Mr. Miller, the Defendant, and AUSA Cook participated, the Court advised the parties it would allow hybrid representation;

Defendant was permitted to file pre-trial motions on his own behalf, where such motions were against the advice of his counsel. Mr. Harvey has filed four motions to dismiss, which are now fully briefed.

DISCUSSION

1. Motion for CIPA Discovery or to Dismiss

The defendant has requested all CIPA information held by any Federal or State agency. The defendant demands dismissal of the indictment with prejudice for failure to provide such materials in a timely manner. Alternatively, he requests a CIPA hearing with disclosure of all classified records in the possession of any agency of the United States or any state agency.

The Classified Information Procedures Act (CIPA) sets forth procedures for criminal cases in which classified information is at issue, with the goals of protecting classified information while also ensuring defendants a fair trial. The Act established a process for resolving the admissibility of evidence before trial. See United States v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998).

The Government has indicated that all relevant and material discovery has been provided to Defendant in this case, and the discovery simply contains no CIPA materials. According to the Government, the items requested in Defendant's motion are immaterial. An item is material if it "enable[s] the [defendant] to substantially alter the quantum of proof in his favor." United States v. Marshall, 532 F.2d 1279 (9th Cir. 1976). Materiality is determined on a case-by-case basis. Basic Inc. v. Levinson, 485 U.S. 224, 250 (1988); United States v. Smith, 155 F.3d 1051, 1066 (9th Cir.1998).

A defendant bears the burden of making a "threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense." United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). To this end, "[n]either a general description of the information sought nor conclusory allegations of materiality suffice." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990). Based on Defendant's arguments and evidence in the pleadings before it, the Court finds that Defendant has not met his burden here. Thus, Defendant's Motion for CIPA records will be denied; his Motion to Dismiss for failure to provide such records will be denied as well.

2. Motion to Dismiss Pursuant to Equitable Estoppel

In his second Motion, Defendant argues that he acted in "good faith" when he committed the offenses charged, and that dismissal is warranted because he offered to repay the money he received as a result of his alleged crimes. However, as noted by the Government, Defendant cites no valid legal basis for dismissal under a theory of equitable estoppel or otherwise.

Defendant's reliance on Cheek v. United States, 498 U.S. 192 (1991), is mistaken. In that case, the court found a defendant has the right to argue to the jury, a "good faith" defense when charged with "willfully" violating a law. Id. Nothing in Cheek supports dismissal of an indictment before trial on the basis of the defendant's good faith. In addition, Cheek has no application here because ...


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