DOJ Recommends Court Deny All Dismissal Motions in BoS Case

Prosecuting attorneys in the federal case against BetonSports (BoS) have recommended that all motions to dismiss certain charges, or the case in its entirety, be denied.

Ten months of motions and counter motions have resulted in a very slow process of review.

Eight of the defendants, who were arrested in July 2006, (David Carruthers, Lori Beth Kaplan Multz, Neil Scott Kaplan, Tim Brown, William Hernan Lenis, William Luis Lenis, Manny Gustavo Lenis and Monica Lenis) in January filed various pretrial motions to dismiss the charges against them, including a motion to dismiss count one (the RICO charge), and a motion to dismiss the whole indictment based on the U.S. violation of the World Trade Organization (WTO) treaty and its decisions and appeals.

Magistrate Judge Mary Ann Medler in May ruled that each of the defendants failed to present proper grounds for dismissal and denied each of their motions to dismiss the RICO charge. She reserved judgment on the WTO motion, however, and has yet to enter a ruling. As prescribed by law, each of the defendants filed subsequent responses objecting to Medler's decision, and each reiterated that the government failed to allege a pattern of racketeering activity.

Nonetheless, the government has now recommended to Medler that both motions be denied because the defendants do not present any adequate arguments to support dismissal in either motion.

According to new court documents regarding the dismissal of the RICO charges, the government states point-blank that "none of the arguments put forward by any of the defendants states an adequate basis in law or in fact for rejection of the Magistrate Judge's Report and Recommendation on this issue."

On the issue of dismissing the entire case on grounds that the United States has violated the WTO treaty and its decisions and appeals, the government said the motions seek to replace U.S. domestic law with rulings from the Appellate Body of the WTO, in direct contravention of U.S. statutes.

"The treaty that the defendants appeal to is a trade agreement between sovereigns," court documents read. "It does not create individual rights, nor does it have a direct impact on any domestic law. The defendants have no standing to claim protection under the GATS."

It's not likely a judge would rule to replace domestic law with the WTO ruling, said a source with knowledge of the case.

The defendants have the right to file responses to the government's recommendations, and they have two weeks to do so, but this is their last round of motions before appeals. They must now await Medler's decision on the motions before appealing to U.S. District Court Judge Carol Jackson. On the other hand, if Medler grants any of the motions, the government can appeal.

Bottom line is that the defendants may not see a final ruling on pretrial motions until at least the end of November, making the trial date difficult to predict.

Meanwhile, BoS founder Gary Kaplan, who is charged with 21 of 22 counts of the indictment, and former employee Penelope Tucker have each filed numerous cleverly constructed motions to dismiss their cases.

Killing two birds with one stone, the government filed a consolidated response to both defendants' motions to dismiss count one (RICO), arguing that both defendants' motions are "inappropriately pled" and actually ask for summary judgment prior even to jury selection. The government argues that this is improper criminal prosecution procedure and thus the motions should be denied.

Furthermore, the government recommends that Kaplan's motions to dismiss counts three through 12 and count 13 be denied. They have made the same recommendation on Tucker's other motions, including a motion to suppress evidence.

Kaplan and Tucker have filed other motions to which the government has yet to respond. And since this is Kaplan and Tucker's first round of motions, respectively, they have the right to respond and await further response from the government. They can then file another response, just as the other defendants did, which will likely further delay the trial's commencement.

Click here to view a copy of the government's response to the defendants' motions to dismiss count one.

Click here to view a copy of the government's response to the defendants' motions to dismiss the indictment based on the WTO ruling.

Click here to view a copy of the government's response to Kaplan and Tucker's motions to dismiss count one.

Click here to view a copy of the government's response to Kaplan's motion to dismiss counts three through 12.

Click here to view a copy of the government's response to Kaplan's motion to dismiss count 13.

Click here to view a copy of the government's response to Tucker's motion to suppress evidence.

Click here to view a copy of the indictment.