TO DISMISS 22 CR No. 14-380 CRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of some form of illegal activity, with the intent to promote the carrying on of the specified unlawful activity.6 Super. Ind. ¶¶ 63, 108, 115. In support of these charges, the superseding indictment alleged that the financial transactions at the heart of these three conspiracies involved the proceeds of “the possession with intent to distribute and distribution of controlled substances outside the usual course of professional practice and not for a legitimate medical purpose, knowing and intending that the possession with intent to distribute and distribution was outside the usual course of professional practice and not for a legitimate medical purpose,” in violation of 21 U.S.C. § 841(a). Id.

#28 at ¶ 89.  Count Fifteen alleges a violation of 21 U.S.C. § 841 that occurred on August 15, 2008. Dkt.

The first conspiracy prosecuted in the trial, involving the transportation of cocaine across the United States into Canada in 1998 and 1999, could be found by a reasonable juror to be a violation of 21 U.S.C. §§841(a) and 846. But Rule 29 will not permit a reasonable juror to find a violation of 21 U.S.C. §§841(a) and 846 where cocaine was obtained in Colombia and transported directly to Spain. In sum, the government presented no evidence that a co-conspirator committed any act in furtherance of the conspiracy charged in Count One in the District of Columbia during the limitations period.

29 Motion to Dismiss No. CR 14-380 (CRB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 U.S.C. § 841. The charges must be dismissed because liability is precluded by the exemption contained in § 822(c)(2).

Mr. Cooper’s conviction, founded upon a blatant due process violation, cannot and should not stand. BACKGROUND A. Criminal Proceedings Ronnie Cooper was charged with (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841; (2) conspiracy to distribute and possess with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841; (3) conspiracy to distribute and possess with 3 intent to distribute 50 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 841; (4) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956; and (5) conspiracy to intimidate a witness, in violation of 18 U.S.C. §§ 1512 and 1513. (ECF No. 398, Page ID # 2211–28.)

(Board of Immigration Appeals [hereinafter BIA] Decision at 4). The BIA, in turn, dismissed defendant's appeal, holding that her New York misdemeanor conviction is an aggravated felony under the Controlled Substances Act [CSA], 21 U.S.C. §§ 841(a), 841 (b)(l)(D). Id.

For the reasons explained supra in footnote 2, the United States disagrees with this holding. Case 2:16-cv-00165-MV-SMV Document 5 Filed 04/04/16 Page 7 of 11 offense, see 21 U.S.C. § 841(b)(1)(B), and his 12-year sentence as a career offender was well within those statutory parameters. In cases describing appellate review under United States v. Booker, 543 U.S. 220 (2005), the Supreme Court has characterized errors in calculating a defendant’s advisory guidelines range as “procedural,” rather than substantive.

In count three, Flores, Flores, Jr., and Negrete were charged with possession with intent to distribute 217 kilograms of cocaine, a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Under count four, Guerra was charged with possession with intent to distribute 500 Case 7:15-cv-00280 Document 6 Filed in TXSD on 01/25/16 Page 4 of 90 5 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (DE- 55). The indictment was superseded on October 9, 2007.

PROCEDURAL BACKGROUND 1. In a Third Superseding Indictment dated July 10, 2010, Mr. Cooper was charged before this Court with (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841; (2) conspiracy to distribute and possess with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841; (3) conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 841; (4) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956; and 2 (5) conspiracy to intimidate a witness, in violation of 18 U.S.C. §§ 1512 and 1513. (ECF No. 398, Page ID # 2211–28.)

Gaston Blanchet Gaston Blanchet owned and operated GTM World, Inc. and GTM USA Corp., two companies that acquired and resold FedEx shipping services to Johar Saran and other members of Saran’s illegal Internet pharmacy operation. On September 6, 2006, Blanchet pled guilty to one count of knowingly and intentionally conspiring to distribute Schedule III and IV controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Case No.