IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

UNITED STATES OF AMERICA	)

)

v.	) Criminal No. 2-91-78

)

APPALACHIAN OIL COMPANY, INC., et al.,	)

)

Defendants.	)

UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANT

JAMES R. MACLEAN'S MOTION TO DISMISS BECAUSE OF

VARIANCE AND IMPROPER JOINDER

The United States submits this Memorandum in opposition to defendant James R. MacLean's Motion to Dismiss Because of Variance and Improper Joinder. Defendant's motion lacks merit and should be dismissed.

As the defendant concedes, it is a fact question for the jury whether the evidence establishes that more than one conspiracy existed. United States v. Battista, 646 F.2d 237, 243 (6th Cir. 1981), cert. denied, 454 U.S. 1046 (1982); United States v. Varelli, 407 F.2d, 735, 746 (7th Cir. 1969), cert. denied, 405 U.S. 1040 (1972). Thus, unless MacLean can establish as a matter of law that multiple conspiracies have been proven, defendant's motion must be denied. Defendant's inability to carry this heavy burden is clearly demonstrated by his own characterization of the evidence, which he contends "indicates the possible existence of more than one conspiracy." MacLean's Memo at 1. (emphasis added). Defendant's illogical and inconsistent position highlights that even he concedes that the

facts proven at trial do not support his conclusory legal assertion.

Moreover, MacLean's brief is totally lacking in any facts or analysis. As a result, he fails to demonstrate how the bare legal assertions recited in his brief even apply in this case. Thus, to provide the Court with some guidance in this matter the government assumes arguendo that the defendant would assert that any gaps in communications between the conspirators is sufficient to terminate the conspiracy and that a new conspiracy is created when the communications are resumed.

Until there has been some affirmative act showing that a conspiracy has terminated, however, a conspiracy is presumed to continue to exist. United States v. Mayes, 512 F.2d 637, 642 (6th Cir.) (evidence of events occurring and statements made after main conspiratorial acts had been completed admissible against a defendant because the conspiracy was presumed to have continued), cert. denied, 422 U.S. 1008 (1975); Hyde v. United