THE UNITED STATES OF AMERICA

NORTH DISTRICT OF TEXAS.

.
THE UNITED STATED STATES OF AMERICA
(Plaintiff)

CASE No: 4:17MJ-714

V.

DATON DEGNIDE
(Defendant)

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MOTION TO DISMISS THE SUPERSEDING INDICTMENT

Comes Now, Daton Degnide in Federal proceedings and pursuant to the Federal

Rule 12; in compliance with local rules of the court; Moves this honorable court to;

Dismiss the Superseding Indictment alleging a defect in the Grand Jury

instituting the prosecution, and asserts the foregoing.

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STATEMENT OF FACTS

1) On or about August 28,2017 the defendant, Daton Degnide

had been arrested by the Grand Jury in Dallas County by Federal Marshals
for ”Conspiracy to Possess with Intent to Distribute a Controlled Substance”,
a violation of Federal Code 21 USC§841(a)(1) and (b)(1)(B).

2) On or about September 6, 2017. The Defendant appeared in Federal Court in

pursuant to (Rule 5.1) The Court Granted a Joint Motion to continue time to
indict.

3) In the examination of the case at the hearing it had been determined that
there had been no exculpatory evidence seeking the Defendant as a drug
transport or a distributer in the offense charged.

4) The Defendant later was released on a (devise monitor system) until

resolution of the case.

5) The Defendant had been appointed Loren Green as for his representation.

6) On or about September 25, 2017 the defendant had met with his counsel and
discussed a plausible direction for his defense.
The defendant than filed Motion to Discharge Court Appointed
Representation, and Appoint New Counsel; and Motion to With Draw Joint
Motion to Continue Time to Indict Document 144.

7) On or about October 18. 2017 the court entered a superseding indictment on

the same charges and allegations.

8). On or about October 25, 2017 the Court then scheduled two conferences
hearings on the merits.
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9) The Motions had ultimately been denied and trial set for December 11,
2017.

10) On or about November 13, 2017 Mr. Degnide moved to represent himself
pro se.

11). A Ferretta hearing had been held on or about November 17, 2017 The court
had granted the motion for Mr. Degnide to represent himself pro se and trial
was set for December 11, 2017..

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ARGUMENT I

The Grand Jury failed to include on the face of the superseding indictment
the amount of controlled substance conspired with intent to be distributed by
the defendant Daton Degnide.

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1). The superseding indictment is insufficient upon its face, because it fails to

Adequately indicate the quantity of drugs intended to be distributed by the

Defendant for the purposes of supporting the conspiracy to distribute control

substance.

I. Evidence for Motion to Dismiss Indictment.

Fed. Rule Crim P. 6 (e)(3)(C) (ii) also permits disclosure upon a showing

that grounds may exist for a motion to dismiss the indictment because of

matters occurring before the grand jury.(see) Infra regarding Jury

misconduct.

II. The evidence Needed Before a “true Bill” May be voted.

It is the responsibility of the grand jury to weigh the evidence presented to it,

in order to determine whether this evidence usually without any explanation

being offered by the accused, persuades it that there is probable cause to

believe that a crime has been committed and that the accuses person is the

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 one who committed it. Thus, that the grand jury is not responsible for

determining whether the accused is guilty beyond a reasonable doubt; But

only if there is sufficient evidence of probable cause to justify bring the

accused to trial. (See hand book for federal grand jurors HB-101 pg 5 ss.5).

2). The defendant contends, that it should have been determined in the Pre-

indictment investigation proceedings that the defendant agreed to conspire to

distribute controlled substance.

a). The Defendants fifth amendment right had been violated.

b). Grand Jury’s independent decision to indict Mr. Degnide had been
impaired.

c). Attorney of the government disclosed only hearsay evidence supported

by no tangible information. In return , it influenced the independent
decision making to indict Mr. Degnide.

III. The courts role with regards to the conduct of grand jury proceedings.

In general a court will not dismiss a grand jury unless pre-indictment

conduct affected the independent decision making ability of the grand jury.

While courts are reluctant to interfere with a grand jury s investigation,

there are instances where judicial intervention is required even before grand

jury proceedings are completed, and were there is a great potential for a

violation of rights either of a non-witness, and if the violation cannot be

corrected at a later stage, a court is not required to defer relief until after

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 issuance of the indictment.

(see) In re Grand Jury Investigation of Hugle , 754 F.2d 863, 864 (9 th Cir
1985) (see also) Special April 1977 Grand Jury, 587 F.2d 889,891-92 (7th
Cir 1978).

3). It is black letter law; that In order to establish probable cause in an pre-

indictment investigation for an superseding indictment for drug conspiracy.

The grand jury must establish a nexus between the conspiracy and the

defendants agreement to distribute.

4). The evidence in which influenced the grand jury’s decision to indict Mr.

Degnide had been based on one uniformed and two unclear conversations to

the same person indicating an agreement to purchase of 14 grams of white

which is interpreted by the Government to be a cocaine schedule II

controlled substance. (see)(exhibit doc. 280 script 10-19 pg 1)).

5). Moreover; in the governments charge indicates mere suspicion that the

defendant intend to distribute, but fails to indicate upon the indictment face

the amount communicated to distribute in conspiracy.

6). The government attorney influenced the integrity of the Grand Jury by

disclosing mere hearsay evidence, which by its self is insufficient to sustain

a conspiracy conviction.

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7). Excessive use of hearsay evidence in a grand jury proceedings may violate

the defendants Fifth Amendment right. If the hearsay testimony was

represented in any way as reliable, the integrity of the grand jury may have

been impaired (see) (United states v Flomenhoft, 714, F.2d 1132, 1136
(2nd)(Cir. 1972)).

8). The actions of the Government Attorney disclosing only hearsay evidence

supported by no incriminating evidence in the attempt to sway the

independent decision making of the Grand Jury is prosecutorial misconduct.

If it is established that the violation substantially influenced the grand jury

decision to indict or there is greater doubt that the decision to indict was free

from substantial influence. (see)(Bank of Nova Scotia v United States 108

S.Ct.693)(1988)).

9). That the one piece of hearsay evidence introduced to the Grand Jury by the

attorney of the Government had violated Mr. Degnide Fifth amendment

right, and can be scrutinized under examination.

IV. The Decision in United States v Martinez No. 164, docket 94-1082

All nine Justices agreed that possession of 14.68 grams of cocaine and sugar
mixture was insufficient for concluding that the Defendant was distributing
cocaine. (see) Turner v United States 396 U.S. 398, 90, S. Ct. 642, 24 L.Ed.
2d 610 (1970).

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10). In establishing a probable cause relevant in a pre-indictment investigation by

the Grand Jury, if the defendant conspired with the intent to distribute, than

it must determine that the defendant was a drug seller.

The issue before a jury is whether the evidence proved beyond a reasonable
doubt that this cocaine user was a seller; and the issue before the
government is whether the jury reasonably could so find.
(see) Jackson 443 us at 318, 99, S.Ct at 2788.

11). We recognize that no minimum quantity has been established as a necessary

part of proof to sustain a conviction for possession of controlled substance

with intent to distribute. Holding that a prosecution under 21 USC 841 the

quantity of drugs involved is not an element of the crime. (See)(United

States v Monk 15F.3d 25, 27 (2d Cir. 1994))

12). However; Possession of a small quantity, with substantial evidence of intent

to sell, would suffice.

13). The contrary would clarify that a small amount of narcotics, standing alone
is insufficient evidence to sustain a conviction for intent to distribute.

14). If the accused conspires to purchase 14 grams of controlled substance which

is only enough for their personal use, then he or she does not have the intent
to distribute.

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..

15). In the case at hand there is no inclination by the Governments evidence upon

probable cause to the Grand Jury that Mr. Degnide has intended to

distribute. And that in fact, such evidence used for superseding

indictment is insufficient because of the integrity of the Grand Jurys decision

making had been influenced.

16). Thus, where bias and prejudice inhabit the Grand Jurys ability to serve as

independent and impartial investigative body, constitutional guarantee are

abrogated and indictment must be dismissed.

Costello v United States, 350 U.S. at 363;

United States v Mitchell, 777 F.2d at 263;

Beck v Washington, 369 U.S.541, 546(1962);

Hoffman v United States 341U.S. 479,485 (1951)

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ARGUMENT II

Daton Degnide had been prejudiced by the prosecutorial misconduct

for the failure of a proper pre- indictment investigation of probable cause to

determine the role, and involvement in the alleged agreement to conspiracy

with the intent to distribute controlled substance in violation of 21

U.S.C.841(a)(1)and b)(1) (C).

1). The defendant contends, that the Attorney for the Government coerced the

Grand Jury into believing that the word 14… communicated in the wire tap

To Mr. Fernando Obregon (co-defendant) had been an agreement to

purchases 14 kilo- grams.

2). Whereas, if the Attorney for the government would had disclosed a true and

correct testimony by Adan Baarrientos (co-defendant), that the agreement

had been to purchase 14 grams instead of 14 kilo-grams of controlled

substance, than a reasonable Grand Jury under the circumstances, would

have conclude that Mr. Degnide had not conspired with intent to distribute a

controlled substance; but rather he is a user of the illicit product.

3). Majority of Federal Courts has recognized that in order to sustain a

conspiracy conviction, then there must be more than mere suspicion, more
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 than knowledge, acquiescence, carelessness, indifference, [ or] lack of

concern (see)(Direct sales 319 U.S.at 713, 63 S. Ct. at 1270)).

4). It has also been recognized by majority courts that evidence of conspiratorial

conversations between defendants, whether drug dealers or buyers; are

insufficient to link the larger distribution conspiracy in which they were

separately involved. (see)(U.S v Townsend 924 F.2d 1385 court of appeals

(7th )(Cir) (see) also United States v Fiorito, 499 F.2d 106 109 (7th Cir 1974).

V. A History of the interactions between the prosecutor and Grand Jury.

A). In 1166, King Henry II established the Grand Jury in England to exercise
tighter control over the administration of justice throughout his
kingdom. (see)(reference 12)).

B). This centralization of control diminished the power of both

the church and the feudal lords.(see)(reference 13)).

C). The Grand Jury, as created, existed not to protect citizens from arbitrary
prosecution, but to serve the will of the king.(see)(reference 14)).

D). The Grand Jury did not take on its present role as a "shield for the
innocent against malicious and oppressive prosecution" until 1681, during
the reign of King Charles II. (see)(reference 15)).

E). British colonists transplanted the protection

of the Grand Jury to America, where it firmly took root. (see)(reference 16)).
.
F). By 1787, the Framers regarded this procedural safeguard as so essential to
citizens' basic liberties that they incorporated it into the fifth amendment of
the Constitution. (see)(reference 17))

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Foot not and references

The Grand Jury proceeding functions as an ex parte 8 investigation to

12. See M. Frankel & G. Naftalis, The Grand Jury: An Institution on Trial 6 (1975);

Note, The Exercise of Supervisory Powers to Dismiss a Grand Jury Indictment-A Basis for Curbing
Prosecutorial Misconduct, 45 Ohio St. L.J. 1077, 1077-78 (1984). See generally G. Edwards, The Grand
Jury (1906) (general history of the Grand jury).

13. See Note, supra note 12, at 1078.

14. See M. Frankel & G. Naftalis, supra note 12, at 7; Note, supra note 12, at 1078.

15. See M. Frankel & G. Naftalis, supra note 12, at 9. Several developments in grand jury procedure
contributed to the evolution of the grand jury to its current function as a protector of the people. First, the
panel began hearing witnesses in private, thus enabling it to withstand pressure from the King. See id. at
9-10.

Second, when it became apparent that trial juries were unable to protect the innocent because the King
possessed the power to fine or imprison jurors who voted to acquit, the grand jury filled a necessary
vacuum
by refusing to indict innocent persons. See id. at 10.

Finally, judges discontinued the practice of "cross-examining grand jurors about their findings." See id.

16. See Costello v. United States, 350 U.S. 359, 362 (1956); L. Clark, The Grand Jury.

13. (1975); Note, supra note 12, at 1078.

17. See United States v. Calandra, 414 U.S. 338, 343 (1974). The fifth amendment of the Constitution
provides in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury "
U.S. Const. amend. V. The fifth amendment right to a grand jury applies only to federal criminal actions;
it is not applicable to the states. See C. Torcia, Wharton's Criminal Procedure § 190, at 416 (12th ed.
1974).

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5). In today’s time, the responsibility for the Grand Jury with the Attorney of

the Government, are to ensure that a defendant Fifth Amendment

constitutional rights are secure by protecting the innocent from arbitrary

prosecution.

6). In securing a defendants constitutional values in the process of pre-

indictment applications for a conspiracy offense as to the meaning of

possession of a controlled substance with the intent to distribute, in violation

of 21 U.S.C 841(a)(1) is a specific intent crime, making the defendants own

state of mind an element of the crime which is to be determined by the finder

of fact. (see)(Long, 86 F.3d at 84)).

7). However the pre-indictment investigation fact finder analysis may be

admissible to determine the role of the identity of defendants state of mind to

demonstrate the motive, opportunity, intent, preparation, plan, knowledge or

identity, for the purposes of the distribution of the controlled substance

inferred in the charged.

8). The role of the defendant in a particular drug conspiracy offence can be

determined through Rule 404 (b) which is judged according to a four part-

test which requires the government to demonstrate that.

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 a) The evidence is directed toward establishing a matter in issue other
than the defendants propensity to commit the crime charged.

b) The evidence shows that the other acts are similar enough and close
enough in time to be relevant to the matter at issue.

c) That the evidence is sufficient to support a jury finding that the

defendant committed the similar act.

d) The probative value of the evidence is not substantially outweighed by

the danger of unfair prejudice.

See United Stated v Pucket 405 F.3d 589 (also see) Jones 389F.3d at
757.

9). In the case at hand it had been a failure of the Grand Jury to thoroughly

implement its pre- investigation conduct in order to correctly identify that

Mr. Degnide had the intent to distribute the 14 grams of controlled substance

or had such capability to do such.

10). That the Grand Jury would have surly recognized the difference between a

person engaged in distribution of controlled substance compared to a person

victimized by drugs, wanting to purchase a personal use. (14 grams). Had

the Attorney for the Government disclosed all relevant facts to the Grand

Jury, as to the statement of Adan Barrientos (co-defendant,) and the history

of his drug abuse, it would had clarified Mr. Degnide as a user, with no

intention of distribution. (see)(criminal history)). .

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11). That in no way does the identity, role, and historical back ground of Mr.

Degnide indicates a person who sells control substances for a Mexican,

Spanish non- English speaking conspiratorial drug enterprise. Nor does his

financial aptitude move to believe that he would be capable of distributing

14 kilo-grams of controlled substance.

12). It is recognized under consensus that drug dealers belonging to

conspiratorial drug enterprises may sell small quantities of drugs to

individual users, and sell large amount to drug dealers.

13). But we cannot violate constitutional rights of individuals by prosecuting

those who are victims of illegal drugs, with that of trafficking or intent to

distribute offenses without first analyzing the hypothesis need to recollect

whether one has such intent, and capability to do so. .

VI. Contends that the Defendants Fifth Amendment right to Grand Jury
had been violated.

14). The Attorney of Government, had led the Grand Jury to believe that Mr.

Degnide had been a seller of controlled substance, and had been purchasing

and distributing control substance for a conspiratorial drug enterprise.

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15). The Attorney of the Government, with intent; failed to disclose evidence to
the Grand Jury in favor of Mr. Degnide;

16) Had the Attorney of the Government disclosed to the Grand Jury the

testimony by Adan Barrientos (co-defendant) which states that Mr. Degnide

was a user of the substance and only agreed to purchase 14 grams of

cocaine. Than a reasonable Grand Jury would have come to conclusion that

Mr. Degnide is a user and not a person of interest in consisted of a

conspiracy with intent to distribute.

17). Mr. Degnide contends, that due to the Attorney for the Government, failure

to disclose any and all relevant evidence in favorable of the defendant has

violated Brady v Maryland.

18). Based on lack of information provided to the Grand Jury by the Attorney for

the Government, prejudiced the defendant into a unfair, and bias prosecution

for conspiracy with intent distribute.

19). Mr. Degnide accepts responsibility as to any law deemed necessary to

indicate a violation for “conspiracy to purchase personal use of controlled

substance”. Furthermore, he wishes to come to resolution with the Attorney

for the Government before trial to resolve this matter.

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 If matters are not resolved.

VII. Disclosure of Grand Jury Testimony.

Fed. R. Crim. P. 6(e) provides two exemptions for disclosure of grand jury
testimony: Rule 6 (e) (3)(C)(i) and Rule 6(e)(C)(i).

a). Particularized Need

When a criminal proceedings is pending, the sole issue regarding disclosure

is whether the particularized need requisite has been satisfied.

To obtain a court order under the (C)(i) exception for a “particularized need”
a test has been delineated in Douglas Oil Co. v Petrol Stops Northwest 441
U.S 211, 222, 99 S.Ct. 1667, 60 L.Ed. 156 (1978)

20) The defendant contend, that with respect to law and judicial opinion; and

within the right to hear evidence against him guaranteed by the 14th

amendment of the United states constitution;

21). He would like to thoroughly understand a common interest, on why would a

reasonable Grand Jury indict him on conspiracy with the intent to distribute

a controlled substance without indicating any role of involvement in the

conspiracy, in which the record only indicates an agreement to purchase

personal use of controlled substance.

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CONCLUSION

a). Mr. Degnide respectfully moves this court to dismiss the superseding
indictment,

b). Hearing on the matters.

c). Order directing the Attorney for the Government to respond in writing
refuting each ground.

RESPECTFULLY SUBMITTED...

CERTIFICATE OF SERVICE

I, hereby certify that a true and correct copy of the

forgoing has been hand delivered to the United States District Attorney
US District Court Clerk 501 w 10th 310 Fort Worth 76102.
On this day of 2017.

Print Name:

Per Per /s /
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