Opinion
No. 1:02-CR-46
June 26, 2002
OPINION DENYING DEFENDANTS' FIRST AND SECOND MOTIONS TO DISMISS
Now before the Court are defendants' first motion to dismiss per Rule 12(b) and Rule 7(c) as to 26 U.S.C. § 7201 (dkt. #70) and defendants' second motion to dismiss per Rule 12(b) and Rule 7(c) as to 18 U.S.C. § 2 (dkt. #71). The government has file a response to both of defendants' motions (dkt. #74), to which defendants have filed a reply (dkt. #81). The Court held a final pretrial conference on June 24, 2002, from 9:00 a.m. to 12:00 p.m., at which time it heard oral argument on defendants' motions. The Court denied defendants' first and second motions to dismiss from the bench, stating that a written opinion would follow.
The Court rejected defendants reply brief for failure to comply with W.D. L.Crim.R. 47.1(c). See dkt. #85.
A. LEGAL ANALYSIS — FIRST MOTION TO DISMISS
Defendants' first motion to dismiss is disjointed and difficult to understand. Defendants advance seven arguments in support of their first motion to dismiss, none of which has merit.
1. Deficiency Notice "Requirement"
Defendants contend that prior to instituting a. criminal proceeding for income tax evasion, the government must first assess a tax, pursuant to 26 U.S.C. § 6201-6203, and issue a notice of deficiency, pursuant to 26 U.S.C. § 6211 and 6212. See Brief in Support of Defendants' First Motion to Dismiss per Rule 12(b) and Rule 7(c) as to 26 U.S.C. § 7201 ("Brief in Support") 5-11. Basically, what defendants argue is that because the existence of a tax deficiency is one of the elements necessary to convict under § 7201, the failure of the IRS to provide a notice of deficiency renders this prosecution fatally defective. See United States v. Daniel, 956 F.2d 540, 542 (6th Cir. 1992) (stating the elements of § 7201 prosecution).
Defendants have offered no authority from any Circuit holding that a notice of tax deficiency is required prior to a criminal prosecution for income tax evasion. Most of the cases in their brief involve civil actions related to the determination of income tax liability, not criminal convictions for income tax evasion. See, e. g., Repetti v. Jamison, 131 F. Supp. 626 (N.D. Cal. 1955), aff'd, 239 F.2d 901 (9th Cir. 1956) (action by taxpayer to restrain assessment of taxes allegedly due to government); Schmidt v. Commission, 28 T.C. 367 (1957) (claimed credit for 1945 tax year and applicability of 25% additions to tax for failure to file timely returns), rev'd, 272 F.2d 423 (9th Cir. 1959); Millsap v. Commissioner, 91 T.C. 926, 927 (1988) (whether taxpayer is entitled to use "married filing jointly" rates for the tax years at-issue); Penn Mut. Indem. Co. v. Commissioner, 277 F.2d 16 (3d Cir. 1960) (discussing jurisdiction of Tax Court and constitutionality of § 207(a)(2) of Internal Revenue Code of 1939); Moir v. Commissioner, 3 BTA 21, 22 (1925) (discussing disallowance of claims for abatement and credits); and Kearney v. A'Hearn, 210 F. Supp. 10 (S.D. N.Y. 1961), aff'd, 309 F.2d 487 (2d Cir. 1962) (affirming denial of injunction against Internal Revenue District Director to collect tax deficiency based on failure to issue statutory deficiency notice).
Defendants cite to no case law stating that 26 U.S.C. § 6201-6203, §§ 6211 and 6212 apply to criminal proceedings. Defendants appear to confuse civil proceedings for the collection of taxes owed with criminal prosecutions for willful evasion of income tax. Nothing in the cases cited by defendants stands for the proposition that criminal prosecution cannot be pursued simply because the government has not first attempted to collect the tax owed using its civil enforcement mechanisms.
In their brief, defendants also cite to two Supreme Court decisions, neither of which supports their argument. First, defendants quote from Spies v. United States, 317 U.S. 492 (1943), where the Supreme Court stated that the purpose of the law was not "to penalize frank differences of opinion or innocent errors made despite the exercise of reasonable care." Id. at 496; see Brief in Support at 8. Those errors, said the Court, were to be "corrected by the assessment of the deficiency of tax and its collection with interest for the delay." Id. (citations omitted). Defendants apparently believe that this language means that they are entitled to an assessment and deficiency notice prior to institution of criminal proceedings. See Brief in Support at 8-9.
Spies, however, does not stand for that proposition. The language from Spies quoted by defendants is part of a larger discussion by the Court as to the various sanctions available to the government for the nonpayment of income tax. See Spies, 317 U.S. at 496-97. The Supreme Court in Spies did not hold that the government must first provide a notice of deficiency to a taxpayer prior to bringing criminal sanctions against that taxpayer.
Second, defendants' reliance on Gregory v. Helvering, 293 U.S. 465 (1935), is misplaced. See Brief in Support at 6. That case involved a shareholder who attempted to avoid payment of income taxes on the sale of 1,000 shares of corporate stock by creating a shell corporation and transferring her shares to it, calling the transaction a corporate reorganization. Id. at 467. The tax laws provided an exception on the recognition of a gain for income tax purposes when a stockholder received shares in a corporate reorganization. Id. at 468. The Supreme Court recognized that a taxpayer's motive in trying to reduce his or her taxes is not dispositive if the taxpayer does so pursuant to lawful means. See id. at 468-69. That does not mean, however, that taxpayers may avoid taxes by any means possible, including those not recognized as lawful.
Moreover, in Helvering, the Supreme Court found that the transaction in question fell outside the statutory exception and was nothing more than "an elaborate and devious form of conveyance masquerading as a corporate reorganization." Id. at 470.
The only case cited by the parties that is relevant to the notice of deficiency issue in a criminal context is United States v. Daniel, 956 F.2d 540 (6th Cir. 1992). In Daniel, defendant was convicted of income tax evasion, under 26 U.S.C. § 7201, for failure to file federal income tax returns. Id. at 542. He argued that because the government had not "made a tax assessment and a demand for payment," a tax deficiency did not arise and, therefore, he could not be convicted under § 7201. Id. The Sixth Circuit disagreed, concluding that "when a taxpayer fails to file a federal income tax return and the government can show a tax liability pursuant to the tax code, a tax deficiency within the meaning of section 7201 arises by operation of law on the date that the return is due to be filed." Id. (citations omitted).
The facts in Daniel differ from those in our case because the Christians filed an income tax return for the year in question, while Daniel did not do so. See Brief in Support, Exh. 5. Nonetheless, in Daniel, the Sixth Circuit went on to say in more general language that the "law does not require an assessment or demand for payment before a tax deficiency arises." Id.
In conclusion, even though Daniel does not deal directly with the facts of this case, it is the closest authority on the issue of whether a notice of deficiency is required before a tax deficiency arises. Defendants provide the Court with no Sixth Circuit authority or case law from any other court to support their position. They also fail to point out any statutory section that expressly requires the government to issue a notice of deficiency prior to the institution of criminal proceedings against a taxpayer. Moreover, their argument makes little sense, basically according to taxpayers the right to avoid criminal prosecution, even when there is evidence that they have attempted to evade the payment of taxes, simply because the government has not first invoked the separate civil mechanism for collecting income tax deficiencies.
2. Insufficient Indictment
Defendants make five arguments as to why the indictment against them is insufficient. They contend that the indictment: (1) does not clearly identify, using specific facts, the element of a tax deficiency, (2) does not allege a willful attempt to evade payment of income taxes, (3) does not allege an affirmative act, (4) does not set forth the elements of fraud per § 6653, and (5) does not allege a negation of ignorance of the law. See Brief in Support at 16-25.
In order to convict defendants under 26 U.S.C. § 7201, the government must prove "the existence of a tax deficiency, willfulness, and an affirmative act constituting an evasion or an attempted evasion of the tax." Daniel, 956 F.2d at 542 (citations omitted). Defendants' arguments suffer from a fatal flaw: they confuse what must be proved at trial with what must be included in the indictment itself. The issue is whether the indictment places defendants on notice of the offense charged and the conduct leading to that offense, not whether the government has proven its case, with specific facts, at the outset of the criminal proceeding. Because the issue in this case is the sufficiency of the indictment, the language of the indictment itself is set forth below:
That on or about the 15th of April, 1996, in the Western District of Michigan, Southern Division, JACK B. CHRISTIANS and RUTH I. CHRISTIANS, residents of Rockford, Michigan, who during the calendar year 1995 were married, did willfully attempt to evade and defeat a large part of the income tax due and owing to the United States of America for the calendar year 1995, by filing and causing to be filed with the Director, Internal Revenue Service Center, at Covington, Kentucky, a false and fraudulent joint U.S. Individual Income Tax Return, Form 1040, wherein approximately TWO MILLION NINE HUNDRED FORTY SIX THOUSAND FIFTY dollars ($2,946,050.00) of income was excluded from the return causing an underpayment of approximately EIGHT HUNDRED TWENTY FOUR THOUSAND EIGHT HUNDRED NINETY FOUR Dollars ($824,894.00) in taxes.
26 U.S.C. X7201
Dkt. #1.
a. Deficiency
Defendants claim that the indictment does not clearly set forth the elements of a tax deficiency. This argument is without merit. The indictment clearly informs the defendants of the amount of income on which their 1995 tax was computed, as well as the amount that they allegedly failed to pay.
b. Willfulness
Defendants cite to three cases, Cheek v. United States, 498 U.S. 192 (1991), Botta v. Scanlon, 288 F.2d 504 (2d Cir. 1961), and United States v. Jannuzzio, 184 F. Supp. 460 (D.Del. 1960), in support of their argument that the indictment must allege more than the filing of a false or fraudulent tax return in order to satisfy the willfulness element under § 7201. See Brief in Support at 17-19. None of the three cases stands for the proposition of law advanced by defendants.
First, in Cheek, the Supreme Court analyzed the willfulness element of a § 7201 proceeding, but in the context of jury instructions and the government's burden of proof at trial. See Cheek, 498 U.S. at 201-204. The Supreme Court held that in order to satisfy the willfulness element in a § 7201 proceeding, the government had to "prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty." Id. at 201. The Court did not hold that the elements of willfulness had to be set forth in the indictment.
Second, Botta is not even a § 7201 proceeding. Instead, it involved a civil complaint filed by two officers and one non-officer of a bankrupt corporation, challenging penalties imposed by the government for failure to pay withholding and unemployment taxes. Botta, 288 F.2d at 505.
Finally, Jannuzzio involved an appeal of criminal convictions against owners of a used car business for willfully attempting to defeat and evade federal income taxes and FICA taxes. Jannuzzio, 184 F. Supp. at 462. The district court discussed the question of willfulness, but in the context of what was necessary to sustain a conviction, not in the context of what is needed in a criminal indictment. See id. at 463, 465-68, 470-71.
In conclusion, none of the cases cited by defendants support their argument. The indictment states that the defendants willfully attempted to evade and defeat taxes by filing a false and fraudulent return. Nothing in the case law cited by defendants requires that each element of willfulness be stated in the indictment or that the indictment provide specific facts showing willfulness.
c. Affirmative Act
Defendants claim that the indictment fails to set forth an affirmative act to mislead or conceal. This argument is also without merit.
Defendants start their analysis with a quote from United States v. Williams, 928 F.2d 145 (5th Cir.), cert. denied, 502 U.S. 811 (1991), which provides that "[a]bsent an allegation of an affirmative act to mislead or conceal, a felony tax evasion indictment is defective." Id. at 148; see Brief in Support at 19. What defendants omit in their brief, however, is the language immediately following this quote. The Fifth Circuit went on to distinguish Williams's felony conviction from Fifth Circuit precedent, Clay v. United States, 218 F.2d 483 (5th Cir. 1955), noting that Williams's conviction was based on charges of more than the owing and mere failure to pay taxes. Williams, 928 F.2d at 148.
The indictment in this case is premised on more than the mere owing and failure to pay taxes. It alleges an affirmative act: the filing of a false and fraudulent return for tax year 1995. That fact also distinguishes the recent Sixth Circuit decision, U.S. v. Cor-Bon Custom Bullet Co., 287 F.3d 576 (6th Cir. 2002).
In Cor-Bon, the Sixth Circuit reviewed a felony tax conviction under § 7201 against a corporate defendant. Cor-Bon argued that because the indictment did not allege an affirmative act, the district court lacked subject matter jurisdiction over the case. Id. at 578. The Sixth Circuit did not resolve whether the indictment in a felony income tax evasion case must allege an affirmative act. "Although an affirmative act constitutes an element of a § 7201 case, this court need not decide whether an indictment under § 7201 must allege an affirmative act because the deficiency in the indictment here, if any, constituted harmless error." Id. at 580. Thus, the Sixth Circuit has not held that failure to allege an affirmative act in a § 7201 indictment renders the indictment legally insufficient.
The Court addresses defendants' subject matter jurisdiction argument in Part B of this opinion.
Even had the Sixth Circuit so held, however, the indictment in this case does allege an affirmative act the filing of a false and fraudulent income tax return. The indictment in Cor-Bon merely stated that the corporation had "willfully attempted to evade and defeat a tax imposed . . . on ammunition sales that were due and owing from COR-BON CUSTOM BULLET CO." during the applicable tax periods. Id. at 579. Therefore, the Court rejects defendants' claim that the indictment is defective because it fails to set forth an affirmative act to mislead or conceal.
d. Elements of Fraud — § 6653
Defendants contend that the indictment is deficient because it fails to state the "mens re [sic] intent to commit the fraud." Brief in Support at 21. More specifically, defendants claim that the indictment is defective because it does not "contain the elements of civil fraud per 26 U.S.C. § 6653 (b) to fulfill the mens re [sic] requirement." Id. at 24. Defendants' argument, once again, is without merit.
First, the Sixth Circuit has held that in order to convict under 26 U.S.C. § 7201, the government must prove "the existence of a tax deficiency, willfulness, and an affirmative act constituting an evasion or an attempted evasion of the tax." Daniel, 956 F.2d at 542 (citations omitted). The indictment in this case sets forth a tax deficiency, an allegation that defendants acted willfully, and an affirmative act constituting an evasion or an attempted evasion of income tax. Defendants offer the Court absolutely no authority from the Sixth Circuit requiring that the government prove the elements of civil fraud pursuant to 26 U.S.C. § 6653 (b), let alone state such elements in the indictment.
Second, of the seventeen cases cited by defendants in the section of their brief on the elements of fraud, thirteen involve crimes having nothing to do with income tax evasion. See United States v. Slawik, 548 F.2d 75 (3d Cir. 1977) (making false declarations before a grand jury); United States v. Nance, 533 F.2d 699 (D.C. Cir. 1976) (scheme to defraud by wire and obtaining something of value under false pretenses); United States v. Berlin, 472 F.2d 1002, 1005 (2d Cir.) (submitting false mortgage applications), cert. denied, 412 U.S. 949 (1973); United States v. Vinyard, 266 F.3d 320, 322 (4th Cir. 2001) (mail fraud and money laundering), cert. denied, 2002 U.S. App. LEXIS 4469 (June 17, 2002); United States v. Hooker, 841 F.2d 1225, 1226 (4th Cir. 1988) (conspiracy to defraud, conspiracy to distribute cocaine, and conspiracy to commit RICO offense); United States v. Meyer, 266 F.2d 747, 749 (5th Cir. 1959) (appeal of dismissal of indictment charging conspiracy and various offenses against certain banks and financial institutions), cert. denied, 361 U.S. 875 (1959); United States v. Koppelman, 61 F. Supp. 1007 (M.D. Pa. 1945) (embezzling U.S. property); United States v. Licciardi, 30 F.3d 1127 (9th Cir. 1994) (conspiracy to defraud by obstructing functions of ATF, mail fraud, and making a false statement); United States v. Keith, 605 F.2d 462, 463 (9th Cir. 1979) (involuntary manslaughter); Russell v. United States, 369 U.S. 749, 752 (1962) (convictions for refusing to answer questions when summoned before a Congressional subcommittee); United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (interference with commerce by extortion); United States v. Morrison, 529 U.S. 598 (2000) (constitutionality of the Violence Against Women Act); and United States v. May, 625 F.2d 186, 188-89 (8th Cir. 1980) (directing a series of unauthorized flights using National Guard aircraft and making false statements about and attempting to conceal records of such flights). As they do consistently throughout their brief, defendants pull quotations completely out of context and cite case authority that has no relevance whatsoever to the question before the Court: the sufficiency of defendants' indictment pursuant to 26 U.S.C. § 7201.
The Court cites the cases in the order cited by defendants at 20-23 of their Brief in Support.
Defendants also repeatedly fail to provide citations to the relevant sections of the cases on which they base their arguments. Thus, the Court has had to sift through long discussions of legal principles that are simply irrelevant to the issues before the Court in order to determine whether the cases cited support defendants' legal arguments.
Two cases cited by defendants are not criminal prosecutions under § 7201, but rather appeals from a Tax Court decision sustaining civil fraud penalties under 26 U.S.C. § 6653 (b). See Klein v. Commissioner, 880 F.2d 260 (10th Cir. 1989); Zell v. Commissioner, 763 F.2d 1139, 1141 (10th Cir. 1985). Because Klein and Zell involve civil tax fraud, neither case holds that an indictment under § 7201 is deficient for failure to state the elements of fraud under 26 U.S.C. § 6653 (b). See Brief in Support at 24.
Only two of the seventeen cases cited by defendants in their brief involve criminal prosecutions under the federal income tax laws. Neither case, however, supports defendants' argument.
Defendants cite Jannuzzio for the proposition that "willful intent cannot be the mere understatement of income." Brief in Support at 21. Defendants fail to explain how this statement, even if correct, means that the indictment against them must state the "mens re [sic] intent to commit fraud." Id. Moreover, as noted in the Court's earlier discussion on the element of willfulness, the district court in Jannuzzio analyzed willfulness in the context of what was necessary to sustain a conviction, not in the context of what is needed in a criminal indictment.
Finally, defendants cite to United States v. Huebner, 16 F.3d 348 (9th Cir. 1994), for the proposition that "`implied' or `indirect' allegations that merely suggest a postponement or delay in the payment of taxes are not sufficient criminal allegations." Brief in Support at 20. The Ninth Circuit, however, has withdrawn its original opinion in Huebner, on which defendants rely. See United States v. Huebner, 48 F.3d 376, 384 (9th Cir. 1994), cert. denied, 516 U.S. 816 (1995). The Ninth Circuit, in its substituted opinion, mentions the indictment against Huebner only once in its opinion, in response to defendant Huebner's claim that he was tried and convicted on theories not alleged in the indictment. See Huebner, 48 F.3d at 382. The Ninth Circuit summarily rejected this argument, noting that it was "satisfied that the government's theory at trial was consistent with the charges." Id.
In conclusion, defendants have offered the Court no authority from the Sixth Circuit or from any other court that requires the indictment in a criminal proceeding under § 7201 to "contain the elements of civil fraud per 26 U.S.C. § 6653 (b) to fulfill the mens re [sic] requirement." Brief in Support at 24. Therefore, the Court denies defendants' motion to dismiss on these grounds.
e. Negation of Ignorance of the Law
Defendants cite to language from Cheek, claiming that the indictment must include an allegation that defendants knew and understood the law. See Brief in Support at 24. Cheek does not support this proposition. As discussed above, Cheek involved jury instructions and the government's burden of proof at trial. Defendants are confusing what the government must prove at trial with what must be alleged in the indictment against them.
The remaining two cases cited by defendants, United States v. Outler, 659 F.2d 1306 (5th Cir. 1981), cert. denied, 455 U.S. 950 (1982), and United States v. King, 587 F.2d 956 (9th Cir. 1978), are not even income tax evasion cases. Outler involved an appeal by a medical doctor from his conviction for violations of the Controlled Substances Act and King was an appeal of convictions for conspiracy to possess cocaine with intent to distribute it. Thus, any language about negation of ignorance in Outler or King simply does not apply to a § 7201 proceeding.
3. Statute of Limitations
Defendants' statute of limitations argument is premised on the Court finding the indictment insufficient as a matter of law and dismissing the case against defendants. Because the indictment is not insufficient as a matter of law and because defendants have not argued that the original indictment was brought outside the statutory limitations period, the Court denies defendants relief on these grounds.
B. LEGAL ANALYSIS — SECOND MOTION TO DISMISS
Defendants argue in their second motion to dismiss that the indictment against them is fatally defective and that the Court lacks jurisdiction over them because the indictment fails to set forth the essential elements of the offense under 18 U.S.C. § 2. See Brief in Support of Defendants' Second Motion to Dismiss per Rule 12(b) and Rule 7(c) as to 18 U.S.C. § 2 ("Brief in Support II") Section 2 provides as follows:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(B) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.18 U.S.C. § 2 (2000).
First, in Cor-Bon, an appeal of a conviction under § 7201, the Sixth Circuit addressed the question whether the failure to allege certain elements of an offense deprived the district court of subject matter jurisdiction. The Sixth Circuit noted that "[a] majority of the circuits has specifically rejected the notion that the failure of an indictment to allege an element of an offense charged prevents a district court from having subject-matter jurisdiction over the indictment." Cor-bon, 287 F.3d at 581 (citations omitted). The Sixth Circuit agreed, explaining that such failure, apparently when raised on appeal after conviction, was subject to harmless error review. See id.
Second, the Sixth Circuit has held that 18 U.S.C. § 2 "does not create a separate crime, but rather abolishes the common law distinction between the principals and accessories." See Superior Growers Supply, 982 F.2d 173, 177-78 (6th Cir. 1992). What § 2 does is to make the principal's actions those of the aider and abettor as a matter of law. U.S. v. Simpson, 979 F.2d 1282, 1285 (8th Cir. 1992), cert. denied, 507 U.S. 943 (1993); see Nye Nissen v. United States, 336 U.S. 613, 619 (1949). Because § 2 does not state a separate offense, defendant's argument as to the need for the indictment to include the elements of the statutory offense is without merit.
Moreover, defendants offer the Court absolutely no authority to support their argument that failure to allege the "elements" of 18 U.S.C. § 2 in the indictment (1) deprives this Court of subject matter jurisdiction or (2) requires dismissal of the indictment. Defendants argue that United States v. Scott, 993 F.2d 1520 (11th Cir. 1993) is "a case on point." Brief in Support II at 3. They are wrong. Scott involved the question of the sufficiency of an indictment for unlawful detention of the mail by a postmaster, pursuant to 18 U.S.C. § 1703. See Scott, 993 F.2d at 1521. The indictment did not state that the detention was "unlawful," an essential element of a § 1703(a) offense, and the reference to the statute in the indictment did not state whether subsection (a) or (b) of § 1703 applied. See id. at 1522.
In this case, however, the underlying offense is 26 U.S.C. § 7201, not 18 U.S.C. § 2. The indictment states the elements under § 7201. Thus, the indictment is not similar to the indictment in Scott, in which an essential element of the offense is omitted. In addition, nothing in Scott requires that the indictment spell out the elements of 18 U.S.C. § 2. In fact, that statutory section is not even mentioned in Scott.
Defendants' citation to United States v. Teffera, 985 F.2d 1082 (D.C. Cir. 1993) is similarly unavailing. While Teffera does address 18 U.S.C. § 2, it does so in the context of defendant's appeal of his conviction based on the sufficiency of evidence at trial, not in the context of the sufficiency of the indictment.
C. CONCLUSION
Defendants' claims that the indictment in this case should be dismissed because the government failed to first provide them with a notice of deficiency is without merit. The Court rejects, as without legal support, defendants' contention that the indictment is defective because it fails to set forth essential elements of the offense under 26 U.S.C. § 7201. In addition, the Court rejects defendants' arguments based on the statute of limitations and the absence of subject matter jurisdiction. Neither argument has any merit. Finally, defendants' claim that the indictment should be dismissed for failure to include the elements of 18 U.S.C. § 2 is similarly lacking in merit. Accordingly, the Court denies defendants' first and second motions to dismiss (dkt. ##70, 71). The Court will enter an order consistent with this opinion.
ORDER DENYING DEFENDANTS' FIRST AND SECOND MOTIONS TO DISMISS
In accordance with this Court's opinion of even date,
IT IS ORDERED that defendants' first motion to dismiss per Rule 12(b) and Rule 7(c) as to 26 U.S.C. § 7201 (dkt. #70) is DENIED.
IT IS FURTHER ORDERED that defendants' second motion to dismiss per Rule 12(b) and Rule 7(c) as to 26 U.S.C. § 7201 (dkt. #71) is DENIED.
IT IS SO ORDERED.
[EDITORS' NOTE: THE MARKER FOR FOOTNOTE IS NOT IN THE OFFICIAL TEXT COPY OF THIS FILE. THEREFORE ONLY THE SECOND DEFINITION FOOTNOTE MARKER FOR NUMBER 6 IS DISPLAYED IN THE ONLINE VERSION.]
The Court notes that the local rules limit a brief in support of a dispositive motion, such as a motion to dismiss, to 25 pages. See W.D.L. Crim. R. 47.1(a), (b). The brief accompanying defendants' first motion to dismiss is 25 pages long. The brief accompanying defendants' second motion to dismiss is 4 pages long. Rather than seek leave of the Court to file a brief outside the limits of the local rule, defendants attempted to avoid the local rule's limitation by filing two separate motions to dismiss.