OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
This matter is before the Court on the motions to dismiss count one of the superseding indictment filed by defendants Freddy W. Thompson (DE 1372) and Charles Wayne Jones (DE 1418).
The defendants are charged with various violations of federal law, all of which are related to their alleged participation in a vote-buying and vote-stealing scheme in Clay County, Kentucky that lasted from 2002 to 2007 and encompassed three election cycles - 2002, 2004, and 2006. There are now five defendants in this matter scheduled for trial: Thompson, Jones, Russell Cletus Maricle, Douglas C. Adams, and William E. Stivers.
Trial is scheduled to begin November 4, 2013. This will be the second trial of these defendants. Their first trial occurred before U.S. District Judge Danny Reeves. After seven weeks, the jury found all of the defendants guilty of all counts. The Sixth Circuit vacated the defendants' convictions finding that that the cumulative effect of various errors during the trial warranted a new trial. United States v. Adams, et al., 722 F.3d 788 (6th Cir. 2013). Judge Reeves recused from the matter and reassigned it to the undersigned. (DE 1311.)
Following is a summary of the charges against each defendant:
Count Number Defendants Charged Charge Count 1 Maricle, Adams, Jones, Stivers, Conspiracy to violate RICO Thompson under 18 U.S.C. § 1962(d) Count 2 Maricle and Stivers Instructing a grand jury witness to testify falsely in violation of 18 U.S.C. § 1503 Count 3 Thompson Giving false grand jury testimony in violation of 18 U.S.C. § 1503 Count 4 Maricle, Jones, Stivers, and Conspiracy to oppress voting Thompson rights of citizens under 18 U.S.C. § 241 Count 5 Maricle, Jones, Stivers, and Conspiracy to buy votes in Thompson violation of 18 U.S.C. § 371 and 42 U.S.C. § 1973i
In count one of the superseding indictment, all five defendants are charged with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C § 1962(d). RICO regulates enterprises "engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1962(c).
At the time the defendants filed their motions, the effective indictment alleged that the Clay County Board of Elections (the "Board") was the RICO enterprise in this action. After the defendants filed their motions, the grand jury issued a superseding indictment (DE 1530) that now alleges that the RICO enterprise consisted of the defendants and their associates who constituted a group of individuals associated in fact though not a legal entity. The indictment further alleges that this association engaged in interstate commerce and that its activities affected interstate commerce as required under RICO.
In their motions to dismiss, defendants Thompson and Jones argue that the Court should dismiss the RICO charge because the government cannot prove that the Board's activities sufficiently affected interstate commerce. Because the superseding indictment no longer alleges that the Board is the RICO enterprise, the defendants' motions are no longer relevant.
Accordingly, the Court hereby ORDERS that the motions to dismiss count one of the superseding indictment filed by defendants Freddy W. Thompson (DE 1372) and ...