Case 6:09-cr-10005-MLB -DWB Document 409

Filed 08/25/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

) ) Plaintiff, ) ) ) v. ) ) LAZARE KOBAGAYA, ) ) Defendant. ) ____________________________________)

UNITED STATES OF AMERICA,

Case No. 09-10005-01-MLB

MOTION TO DISMISS THE INDICTMENT The United States of America, by and through its undersigned attorneys, files this motion to set aside the verdict as to Count Two, and to dismiss the indictment with prejudice. The Defendant consents to this motion. On January 13, 2009, a grand jury returned an Indictment charging the defendant, Lazare Kobagaya, with unlawful procurement of citizenship or naturalization (naturalization fraud), in violation of 18 U.S.C. 1425(a) (Count One) and fraud and misuse of visas, permits, and other documents (visa fraud), in violation of 18 U.S.C. 1546(a) (Count Two). On May 31, 2011, the jury returned a guilty verdict on Count Two (18 U.S.C. 1546(a)) and informed the Court that it was unable to reach a unanimous verdict on Count One (18 U.S.C. 1425(a)). The Court declared a mistrial as to Count One. Upon the return of the guilty verdict, the Defendant filed a renewed motion for judgment of acquittal as to both counts. In the course of responding to that motion and in reviewing the record in connection with the Defendants motion, the Government identified a potential issue
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with the clarity of the legal instructions that the jury received regarding whether materiality was an element of the offense in Count Two and, as set forth in the Governments recently filed response to the Defendants motion, identified information provided by a witness which, when considered in conjunction with the lack of clarity in the jury instructions, would likely warrant a new trial on Count Two. Based on the totality of circumstances in this case, including the substantial resources required to continue to litigate this matter and the jurys verdict in the first trial, the Government has determined that it would not seek to retry this case. Accordingly, pursuant to Fed. R. Crim. P. 48(a), the Government, with the Defendants consent, moves to set aside the verdict in Count Two and dismiss the indictment with prejudice. In consenting to this motion, the Defendant has also waived any right to make any claim for attorney fees or expenses under the Hyde Amendment (Public Law 105-119, Title VI 617, 111 Stat. 2440, 2519 (1997)).

Respectfully submitted, LANNY A. BREUER Assistant Attorney General Criminal Division TERESA MCHENRY Chief Human Rights and Special Prosecutions s/Christina Giffin CHRISTINA GIFFIN DC 476229 Senior Trial Attorney (202) 514-5792 Christina.Giffin@doj.gov ROBERT G. THOMSON, OR 80133 Deputy Chief (202) 514-5792 Robert.Thomson@usdoj.gov
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STEVEN C. PARKER, DC 457239 Senior Trial Attorney (202) 616-2529 Steve.Parker2@usdoj.gov

Human Rights and Special Prosecutions Criminal Division Department of Justice John C. Keeney Bldg., Suite 200 10th & Constitution Ave., N.W. Washington, DC 20530 Date: August 25, 2011

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CERTIFICATE OF SERVICE I hereby certify that on August 25, 2011, I electronically filed the foregoing Motion to Dismiss the Indictment with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following:

Kurt P. Kerns Ariagno, Kerns, Mank & White, L.L.C. 328 N. Main Street Wichita, KS 67202 Melanie Morgan Morgan Pilate, L.L.C. 142 North Cherry Street Olathe, KS 66061 Attorneys for Defendant

s/Christina Giffin CHRISTINA GIFFIN