September 10, 2009
The lawyers for former County Judge Luther Jones and current District Clerk Gilbert Sanchez are asking that federal Judge Frank Montalvo recuse himself from presiding over their public corruption trial -- if there is one.
They're also asking that the public corruption charges against them be dismissed on grounds that the government waited too long to bring those charges. [view documents below this article]
The motion to dismiss filed today on behalf of both of the defendants, who were indicted on five counts on May 28, alleges that the offenses alleged in each count took place more than five years before and are not prosecutable under the federal statute of limitations.
In the case of a $750 check that Jones gave to Sanchez that is alleged in the indictment to be a bribe, it was written on Jan. 28, 2004 and cashed the following day – five years and four months before the indictment.
The motion also argues that the $750 was not a bribe but a legitimate donation. The money was intended to pay Sanchez’s expenses for attending an El Paso Bar Association meeting in Las Vegas to promote a project to digitize the district clerk’s record-keeping system.
The money was given legally and used legally, the motion argues. The motion was signed by Jones’ defense lawyers, Stephen Peters and Jones' brother Grant Jones, and Sanchez's lawyer, Orlando Mondragon.
Addressing a mail fraud count (Count 2), the motion apparently intends to assert that a package that is the subject of the charge was received on May 28, 2004, but was mailed the previous day. Therefore, they argue, the date of the alleged crime would have been the date of mailing, not of receipt. The indictment was handed up on May 28 of this year, missing by a day, the motion asserts.
The motion contains an apparent typographical error stating that the package was delivered on May 27 of this year, a day before the indictment, but it is clear from the context that the motion intends to refer to a 2004 delivery. Elsewhere in the motion, it does.
Grant Jones, on behalf of his brother and Sanchez, also contends that sending the package didn’t constitute mail fraud because it did not further the alleged illegal scheme.
And in the case of a conspiracy to commit wire fraud charge in the indictment, the motion asserts that an email in question discussing the item was sent May 23, 2004.
“The indictment would have had to be brought by May 23, 2009 to be timely,” the motion states. “It was not, so this count must be dismissed.”
Even if the case goes to trial, Jones and Sanchez are asking for a different judge.
They argue in a motion filed Sept. 2 that Montalvo has been too deeply involved in "supervising" the case, a key term in the context of the motion, pointing to his use of language and the lack of a docket posting events early on, among other issues.
"The Honorable Judge Frank Montalvo actively and continuously engaged in the direct supervision of personnel, procedures and processes involved in the federal criminal investigations, which preceded and resulted in the indictment of Defendants Luther Jones and Gilbert Sanchez," the motion states.
The motion also argues that the judge did not do enough to protect the identity of alleged conspirators listed in the guilty plea document of Travis Ketner, a former chief of staff for County Judge Anthony Cobos. Ketner pleaded guilty more than two years ago, and in the document outlining the charges 17 other people were named as "co-conspirators," but enough information was given for most that their identities were able to be figured out.
"A casual reading of that document makes clear the identity of a number of 'subjects' of the government’s investigation, movants herein being one of them," states the motion. "Movants are concerned that the Honorable Judge’s failure to note the obvious application of Section 9-16.500 of the United States Attorney Manuel to the conduct of the United States Attorney in this cause, raises serious questions about his overall impartiality."
A footnote states that Section 9.16.500 directs that "it is generally not appropriate for a United States Attorney to identify (either by name or unnecessarily-specific description), or cause a defendant to identify, a potential third party wrongdoer unless that party has been officially charged with the misconduct at issue."