IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 1:11-cr-402-1 UNITED STATES OF AMERICA

v. JORGE PETER CORNELL ) ) ) ) ) MOTION TO STRIKE SURPLUSAGE FROM SUPERSEDING INDICTMENT

NOW COME DEFENDANTS JORGE CORNELL, RUSSELL KILFOIL, WESLEY WILLIAMS, SAMUEL VELASQUEZ, AND RANDOLPH KILFOIL1, by and through their attorneys, pursuant to Rule 7(c)(1) of the Federal Rules of Criminal Procedure and asks the Court to strike certain language from the indictment as surplusage. A motion to strike is warranted to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges. United States v. Terrigno, 838 F. 2d 371, 373 (9th Cir. 1988). Specifically, the following paragraphs of the Superseding Indictment contain surplusage: 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12. Paragraphs 2 to 9 contain allegations concerning the nature, organization and operation of the Latin Kings on a national level and while some of the allegations may be subject to proof at trial, the lengthy description in the indictment of the nature of the Latin Kings would prejudicial if evidence is not admitted on these issues at the trial of this action. The allegations of 12 allege that Defendant Cornell and others engaged in a variety of actions that are protected speech and association activities under the First Amendment of the Constitution of the United States. To permit such allegations to be presented to the jury through

Counsel for each of the listed Defendants have advised undersigned counsel for Jorge Cornell that their clients join in this motion.
1

Case 1'11-cr-++,+2-JAB Document 17+ Filed +7<27<12 Page 1 of @

the indictment would be prejudicial to the defendant. In addition, numerous allegations of overt acts allegedly in furtherance of the racketeering enterprise allegedly were committed by persons, who according to the Governments discovery evidence, took these actions when they were no longer a part of the Latin Kings which is alleged to be the racketeering enterprise in this action. For example, 18(q) makes allegations about an armed robbery and kidnaping committed by co-defendants Yates and Vasquez when the Governments own evidence establishes that by October 2008 Defendants Yates and Vasquez were no longer a part of the Latin Kings connected to Defendant Cornell.2 Additionally, in 18(kk), allegations are made concerning statements by the Defendant Cornell bragging about a murder. The Governments discovery to date has shown no evidence of a murder being committed by Defendant Cornell or any other defendant in this action. Inclusion of these references in the indictment would be inflammatory and prejudicial. WHEREFORE, WHEREFORE DEFENDANTS JORGE CORNELL, RUSSELL KILFOIL, WESLEY WILLIAMS, SAMUEL VELASQUEZ, AND RANDOLPH KILFOIL, by and through their attorneys, respectfully move the Court to enter an order striking from the indictment as surplusage the above-referenced paragraphs of the indictment because they are surplusage and are prejudicial and inflammatory to the jury in this case.

A copy of a portion of the Government discovery, Bates pages 6871, has been filed under seal as an attachment 1 to Defendant Cornells Motion to Dismiss the Indictment for duplicity.

Case 1'11-cr-++,+2-JAB Document 17+ Filed +7<27<12 Page 2 of @

This the 27th day of July, 2012. Law Office of Michael W. Patrick By: /s/ Michael W. Patrick Michael W. Patrick NC Bar #7956 312 West Franklin Street P.O. Box 16848 Chapel Hill, NC 27516 (919) 960-5848 (telephone) (919) 869-1348 (facsimile) Email: mpatrick@ncproductslaw.com Attorney for Defendant Jorge Cornell

CERTIFICATE OF SERVICE I hereby certify that on the 27th day of July, 2012 I electronically filed the foregoing with the clerk of the court using the CM/ECF system which will provide a copy of the motion be to counsel of record. /s/ Michael W. Patrick Attorney for Defendant Jorge Cornell

Case 1'11-cr-++,+2-JAB Document 17+ Filed +7<27<12 Page @ of @