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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 2-91-78
)
APPALACHIAN OIL COMPANY, INC., et al., )
)
Defendants. )
UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT
JAMES R. MACLEAN'S MOTION TO DISMISS BECAUSE OF
VARIANCE AND IMPROPER JOINDER
The United States submits this Memorandum in opposition to
defendant James R. MacLean's Motion to Dismiss Because of
Variance and Improper Joinder. Defendant's motion lacks merit
and should be dismissed.
As the defendant concedes, it is a fact question for the
jury whether the evidence establishes that more than one
conspiracy existed. United States v. Battista, 646 F.2d 237, 243
(6th Cir. 1981), cert. denied, 454 U.S. 1046 (1982); United
States v. Varelli, 407 F.2d, 735, 746 (7th Cir. 1969), cert.
denied, 405 U.S. 1040 (1972). Thus, unless MacLean can
establish as a matter of law that multiple conspiracies have been
proven, defendant's motion must be denied. Defendant's inability
to carry this heavy burden is clearly demonstrated by his own
characterization of the evidence, which he contends "indicates
the possible existence of more than one conspiracy." MacLean's
Memo at 1. (emphasis added). Defendant's illogical and
inconsistent position highlights that even he concedes that the
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facts proven at trial do not support his conclusory legal
assertion.
Moreover, MacLean's brief is totally lacking in any facts or
analysis. As a result, he fails to demonstrate how the bare
legal assertions recited in his brief even apply in this case.
Thus, to provide the Court with some guidance in this matter the
government assumes arguendo that the defendant would assert that
any gaps in communications between the conspirators is sufficient
to terminate the conspiracy and that a new conspiracy is created
when the communications are resumed.
Until there has been some affirmative act showing that a
conspiracy has terminated, however, a conspiracy is presumed to
continue to exist. United States v. Mayes, 512 F.2d 637, 642
(6th Cir.) (evidence of events occurring and statements made
after main conspiratorial acts had been completed admissible
against a defendant because the conspiracy was presumed to have
continued), cert. denied, 422 U.S. 1008 (1975); Hyde v. United
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