Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 1 of 12 1 ELIZABETH A. STRANGE First Assistant United States Attorney 2 District of Arizona 3 MATTHEW BINFORD Arizona Bar No. 029019 4 Matthew.Binford@usdoj.gov CAROLINA ESCALANTE 5 Arizona Bar No. 026233 Fernanda.Escalante.Konti@usdoj.gov 6 GARY M. RESTAINO Arizona Bar No. 017450 7 Gary.Restaino@usdoj.gov Assistant U.S. Attorneys 8 Two Renaissance Square 40 N. Central Ave., Suite 1200 9 Phoenix, Arizona 85004 Telephone: 602-514-7500 10 Attorneys for Plaintiff 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE DISTRICT OF ARIZONA 13 14 United States of America, CR-17-00585-PHX-GMS 15 Plaintiff, GOVERNMENT’S RESPONSE TO 16 vs. MOTION TO DISMISS COUNTS 3, 4, 5, 6, & 7 OF THE FIRST SUPERSEDING 17 INDICTMENT FOR OUTRAGEOUS Thomas Mario Costanzo, GOVERNMENT CONDUCT 18 Defendant. 19 20 Costanzo’s motion to dismiss based on outrageous government conduct should be 21 denied. In this case, undercover government agents approached Costanzo with money 22 purported to be drug proceeds and asked Costanzo to exchange it for Bitcoin. The 23 investigative techniques used here are commonly used in criminal cases and are not “so 24 shocking and so outrageous as to violate the universal sense of justice.” Instead, this 25 investigation was based squarely on the money laundering sting statute. Applying the six- 26 factor test recently set forth by the Ninth Circuit, Costanzo cannot meet his burden of 27 establishing outrageous government conduct. 28 Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 2 of 12 1 I. Background 2 Bitcoin was the first decentralized digital currency. The Bitcoin network came into 3 existence in 2009. See Benjamin Wallace, The Rise and Fall of Bitcoin, WIRED (Nov. 23, 4 2011), available at https://www.wired.com/2011/11/mf_bitcoin/. In 2011, when talking 5 about Bitcoin, Senator Charles Schumer said, “It’s an online form of money laundering 6 used to disguise the source of money, and to disguise who’s both selling and buying the 7 drug.” NBC New York, Schumer Pushes to Shut Down Online Drug Marketplace (June 8 5, 2011), available at https://www.nbcnewyork.com/news/local/123187958.html. In 9 2013, the Senate Committee on Homeland Security and Government Affairs held a hearing 10 on Bitcoin. See Timothy B. Lee, Here’s How Bitcoin Charmed Washington, Washington 11 Post (Nov. 21, 2013), available at https://www.washingtonpost.com/news/the- 12 switch/wp/2013/11/21/heres-how-bitcoin-charmed-washington/. Speakers at the hearing 13 included representatives from the Department of Justice, the Secret Service, and the 14 Financial Crimes Enforcement Network (FinCEN). Id. Jennifer Calvery, the Director of 15 FinCEN, discussed “money laundering vulnerabilities in virtual currencies” and told the 16 Committee that “the idea that illicit actors might exploit the vulnerabilities of virtual 17 currency to launder money is not merely theoretical.” Statement of Jennifer Calvery, 18 Director, Financial Crimes Enforcement Network, United States Department of the 19 Treasury, Before the United States Senate Committee on Homeland Security and 20 Government Affairs (Nov. 18, 2013). Even state-level law enforcement began to crack 21 down on virtual currency exchangers. See Krebs on Security, Florida Targets High-Dollar 22 Bitcoin Exchangers (February 7, 2014)(“undercover officers and agents from the U.S. 23 Secret Service’s Miami Electronic Crimes Task Force contacted several individuals who 24 were facilitating high-dollar transactions via localbitcoins.com”). And in January of 2015, 25 the Northwestern University School of Law published an article discussing money 26 laundering in the Bitcoin network. See, e.g., Kavid Singh, The New Wild West: Preventing 27 Money Laundering in the Bitcoin Network, 13 NW. J. TECH & INTELL. PROP. 37 (2015) 28 (“The use of bitcoins for illicit purposes not only facilitates criminal activity throughout -2- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 3 of 12 1 the world, but also undermines the security of individuals using bitcoins for legitimate 2 purposes . . . .” and stating that money laundering is “a pervasive problem in the world of 3 decentralized virtual currencies”). The article specifically discussed the difference 4 between large mainstream exchanges and smaller “secretive” exchanges. Id. at 58–59. 5 In March of 2015, federal law enforcement began looking into virtual currency 6 exchangers in Arizona. (Doc. 63-1, at 10-11.) They focused on individuals who were 7 conducting peer-to-peer exchanges using a website called localbitcoins.com. (Doc. 63-1, 8 at 10-11.) When reviewing profiles on localbitcoins.com, they identified the profile of 9 Morpheus Titania (later identified as Costanzo), an exchanger who had numerous 10 confirmed transactions, advertised that he could perform multi-thousand dollar deals, and 11 mentioned that he would provide Bitcoins “immediately and discretely [sic].” (Doc. 63-1, 12 at 11.) 13 That same month, an undercover agent from the Internal Revenue Service contacted 14 Costanzo to exchange cash for Bitcoin. (Bates 000001.) During that first meeting, when 15 the undercover talked about Bitcoin transactions being different than wiring money and 16 suggested that wiring money to Mexico or Panama may draw some attention, Costanzo 17 responded, “It is untraceable, untraceable” and said, “I don’t keep no records at all, of 18 anything.” (Exhibit A [Bates 001749], at 54:30.) When Costanzo began to rant about 19 rules, the undercover agent responded that there have to be some rules. (Exhibit A, at 20 55:00.) Costanzo then stated, “Don’t get bit, don’t get shot, don’t talk to any policemen, 21 that’s my rule.” (Exhibit A, at 55:30.) When the agent brought up the IRS, Costanzo used 22 a series of curse words and other pejoratives to describe that federal law enforcement 23 agency. (Exhibit A, at 55:50.) Later, the agent said, “I have not figured how to get them 24 [referring to the government] off my back yet.” (Exhibit A, at 1:15:15.) Costanzo then 25 responded, “Bitcoin is the way to do it because, guess what, now there is no income” and 26 “It’s a good way to, at least, lower your visibility.” (Exhibit A, at 1:15:30.) During that 27 first transaction, Costanzo exchanged $2,000 for Bitcoins. (Bates 000001.) 28 -3- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 4 of 12 1 It was not until May of 2015, after the review of the Morpheus profile and after the 2 initial comments by Costanzo about untraceable funds, unreported income, and contempt 3 for local and federal law enforcement, that the undercover agent told Costanzo that he was 4 using drug proceeds to purchase Bitcoin. The undercover agent made it clear that the cash 5 he was giving to Costanzo was drug proceeds, specifically saying, “you know when I talk 6 about supplier I’m talking about drugs, right?” (Doc. 63-1, at 44.) Costanzo responded 7 with, “I know nothing, hahahahah.” (Doc. 63-1, at 44.) Costanzo later said, “I like keeping 8 things super confidential.” (Doc. 63-1, at 44.) When the undercover agent said, “Heroin,” 9 Costanzo responded, “Don’t say that word out loud, hahaha,” and “I can come up with as 10 much as you want to do, we just have to keep everything on the low.” (Doc. 63-1, at 44.) 11 Costanzo then completed the transaction and exchanged $3,000 for Bitcoin. (Doc. 63-1, at 12 45.) 13 In October of 2015, a second undercover agent met with Costanzo and claimed to 14 be a business partner of the first undercover agent. (Doc. 63-1, at 14.) Costanzo provided 15 Bitcoin to the undercover agent in exchange for $13,000. (Doc. 63-1, at 14.) The first 16 undercover agent met with Costanzo again in November and gave Costanzo another 17 $13,000 in exchange for Bitcoin. (Doc. 63-1, at 15.) 18 In March of 2016, a Joint Task Force—comprised of the Drug Enforcement 19 Administration, Internal Revenue Service Criminal Investigators, the United States Postal 20 Inspectors Service, and the Department of Homeland Security—took over the 21 investigation. (Doc. 63-1, at 17.) As part of the investigation, a new undercover agent 22 initiated contact with Costanzo using his localbitcoins.com profile. (Doc. 63-1, at 18.) 23 In September of 2016, the new undercover agent met with Costanzo. (Doc. 63-1, at 24 18.) During the conversation, Costanzo told the undercover agent that localbitcoins.com 25 is a good way to conceal money transactions. (Doc. 63-1, at 19.) The undercover agent 26 told Costanzo that he needed to transport large quantities of money between Arizona and 27 California and was trying to avoid having the money seized if stopped by law enforcement. 28 (Doc. 63-1, at 20.) Costanzo told the agent, “If you are doing anything illegal, I don’t want -4- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 5 of 12 1 to know about it.” (Doc. 63-1, at 20.) Costanzo subsequently provided the agent with 2 Bitcoin, in exchange for $2,000. (Doc. 63-1, at 20.) 3 During subsequent meetings, the undercover agent told Costanzo that the money he 4 was providing Costanzo was from drug proceeds, specifically cocaine. (Doc. 63-1, at 24.) 5 Costanzo nonetheless conducted the transactions and exchanged $30,000 on February 2, 6 2017, and $107,000 on April 20, 2017. (Doc. 63-1, at 24; Bates 000066-69.) 7 II. Law 8 A. 18 U.S.C. § 1956(a)(3) – The “Sting” Provision 9 The federal money laundering statute specifically provides for situations “involving 10 property represented to be the proceeds of specified unlawful activity, or property used to 11 conduct or facilitate specified unlawful activity.” 18 U.S.C. § 1956(a)(3). “Money 12 laundering stings are relatively common, especially where the laundering is tied to drug 13 dealing.” Steven Mark Levy, Federal Money Laundering Regulation: Banking, Corporate 14 and Securities Compliance, § 22.01, Introducing Section 1956(a)(3) (2d ed. 2017). 15 B. Outrageous Government Conduct 16 The claim of “outrageous government conduct” asserts that government conduct 17 “was so shocking to due process values that the indictment must be dismissed.” United 18 States v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008), see also United States v. Holler, 19 411 F.3d 1061, 1065 (9th Cir. 2005). “For a due process dismissal, the [g]overnment’s 20 conduct must be so grossly shocking and so outrageous as to violate the universal sense of 21 justice.” United States v. Hullaby, 736 F.3d 1260, 1262 (9th Cir. 2013), quoting United 22 States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). The police conduct must be “repugnant 23 to the American system of justice.” Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir. 1986) 24 (quoting United States v. Lomas, 706 F.2d 886, 891 (9th Cir.1983). This is “an extremely 25 high standard.” Smith, 924 F.2d at 897. “This standard is met when the government 26 engineers and directs a criminal enterprise from start to finish,” but “is not met when the 27 government merely infiltrates an existing organization, approaches persons it believes to 28 be already engaged in or planning to participate in the conspiracy, or provides valuable and -5- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 6 of 12 1 necessary items to the venture.” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2 2003) (quoting United States v. Russell, 411 U.S. 423, 431–32 (1973) (internal quotations 3 and citations omitted)). There are “only two reported decisions in which federal appellate 4 courts have reversed convictions under this doctrine.” See United States v. Black, 733 F.3d 5 294, 302 (9th Cir. 2013) (citing United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) and 6 Greene v. United States, 454 F.2d 783 (9th Cir. 1971)); see also Hullaby, 736 F.3d at 1262. 7 If the government’s conduct does not rise to the level of a due process violation, the 8 court can dismiss an indictment under its supervisory powers, but this is a drastic step and 9 therefore disfavored. United States v. Rogers, 751 F.2d 1074, 1076–77 (9th Cir. 1985). 10 Dismissal is appropriate when the investigatory or prosecutorial process has resulted in a 11 violation of a federal constitutional or statutory right and no lesser remedial action is 12 available. United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991). If no 13 constitutional or statutory violation can be identified, the remedial or deterrent goals cannot 14 justify dismissal in a case. Id. 15 The six factors identified by the Ninth Circuit as being relevant to a claim of 16 outrageous government conduct are: (1) known criminal characteristics of the defendants; 17 (2) individualized suspicion of the defendants; (3) the government’s role in creating the 18 crime of conviction; (4) the government’s encouragement of the defendants to commit the 19 offense conduct; (5) the nature of the government's participation in the offense conduct; 20 and (6) the nature of the crime being pursued and necessity for the actions taken in light of 21 the nature of the criminal enterprise at issue. Black, 733 F.3d at 303. 22 III. There Was No Outrageous Government Conduct 23 In this case, although the government was not aware of the specific identity of all of 24 the participants before it launched the sting investigation, the government knew that peer 25 to peer virtual currency exchangers were involved in money laundering. Because the 26 government did not initiate the criminal activity, but rather sought to crack an ongoing 27 money laundering operation, its conduct was not outrageous and did not violate due 28 -6- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 7 of 12 1 process. As explained in below, after applying the factors set forth by the Ninth Circuit in 2 Black, it is clear that the conduct of the government in this case was appropriate and was 3 not “so grossly shocking and so outrageous as to violate the universal sense of justice.” 4 United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011). 5 A. Known Criminal Characteristics 6 In this case, the government focused on a category of persons—peer to peer virtual 7 currency exchangers—that it had reason to believe were laundering money. As explained 8 above, the government was concerned about the use of Bitcoin to further illegal activity. 9 There were congressional hearings, FinCEN was issuing regulations in attempt to combat 10 criminal activity, and academics were publishing articles discussing the use of Bitcoin to 11 launder money. Gurolla, 333 F.3d at 950, provides a useful analogy. In Gurolla, a money- 12 laundering sting case, the Ninth Circuit explained that the government knew generally 13 before it launched the sting that “Mexican banks were involved in money laundering, 14 although it was not aware of the specific identity of all the participants.” Here, the 15 government was aware that peer to peer virtual currency exchangers were often involved 16 in money laundering, although it was not aware of the specific identity of Costanzo when 17 the undercover agents began identifying profiles on localbitcons.com. 18 B. Individualized Suspicion 19 The government had individualized suspicion based on Costanzo’s 20 localbitcoins.com profile, where he had numerous confirmed transactions and stressed 21 anonymity. Requiring the government to prove that it knew that each defendant involved 22 in a sting operation had already engaged in a series of similar crimes before it was allowed 23 to proceed or risk facing the penalty of having its conduct later be declared “outrageous” 24 would likely cripple all future attempts to run undercover sting operations. But even if the 25 government wasn’t entirely certain that Costanzo had engaged in money laundering before 26 it was first mentioned by the undercover agent, Costanzo’s response and reactions created 27 a reasonable basis for the government’s belief that he had engaged in prior similar criminal 28 activities. Specifically, Costanzo used an alias and his profile stated, “I will get you -7- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 8 of 12 1 Bitcoins immediately and discretely! [sic]” The telephone number provided on his 2 localbitcoins.com account was registered with his alias and the address of a public 3 shopping complex. Costanzo’s subsequent statements to the undercover agents bolstered 4 the initial suspicion based on the profile and provided predication to continue. For 5 example, Costanzo advised that his business model is, “I don’t care who you are, what you 6 are, where you are,” and said things like, “I like keeping things super confidential” and 7 “you can do whatever you want, you can do something illegal, I don’t want to know about 8 it.” In one instance, Costanzo told an undercover agent that he previously laundered his 9 Bitcoin proceeds through a casino to exchange his $20 bills for $100 bills. Costanzo also 10 recommended the use of an encrypted messaging application. 11 C. Government’s Role in Creating the Crime 12 The government introduced the fact that the money was proceeds of drug 13 trafficking, but that scheme was not far-fetched given the multiple examples of virtual 14 currency exchangers converting drug proceeds into virtual currency on previous occasions. 15 Additionally, any concern that the government sought to manufacture a crime that would 16 have not otherwise occurred is mitigated by the fact that Costanzo made statements almost 17 immediately about not wanting to know the source of the money. See Black, 733 F.3d at 18 307 (“[O]ur concerns are mitigated to a large degree because [the defendants] told [the 19 undercover agent] very early and often that they had engaged in similar criminal activity 20 in the past, in conversations that were recorded on tape.”). 21 D. Government’s Encouragement of the Defendant to Commit the Offense 22 There is no evidence suggesting that a coercive relationship existed between any of 23 the undercover agents and Costanzo. Costanzo’s claim that he was vulnerable because of 24 his “anti-establishment political views” is far-fetched, and his claim that he lived in 25 “poverty” is contradicted by his own claims that he was “semi-retired” and was able “to do 26 what [he] want[ed] when [he] want[ed] to do it.” (Doc. 63-1, at 56.) At one point, 27 Costanzo claimed to have built a “multi-million dollar business” from localbitcoins.com. 28 The fact that no coercive relationship existed is bolstered by the fact that the former co- -8- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 9 of 12 1 defendant in this case (who shared similar political views) expressly refused to engage in 2 money laundering when given the opportunity to do so. 3 E. Nature of the Government’s Participation 4 Although the investigation in this case spanned over a multi-year period, the number 5 of transactions involved were minor, compared to all of Costanzo’s transactions. Costanzo 6 is charged with money laundering on five separate occasions with three different 7 undercover agents. In March of 2015, prior to the first transaction with undercover agents, 8 Costanzo’s localbitcoins.com profile stated that he had more than 70 confirmed 9 transactions. In May of 2015, Costanzo claimed to have done “about half a million in the 10 last year.” The undercover agents in this case were not providing Costanzo with Bitcoin 11 wallets, money counters, money bands, vehicles, or anything else to support his money 12 laundering activity. The only thing provided by any of the agents in this case was money 13 that was identified as drug proceeds—money that Costanzo gladly accepted. 14 F. Nature of the Crime Being Pursued and Necessity for the Actions Taken 15 During the time that this investigation was ongoing, the popularity of virtual 16 currency skyrocketed. That popularity provided opportunities for drug traffickers and 17 others to launder proceeds using the emerging technology. Peer to peer virtual currency 18 exchangers, like Costanzo, were making this type of activity possible. See Press Release, 19 Dep’t of Justice, Manhattan U.S. Attorney Announces Charges Against Bitcoin 20 Exchangers, Including Ceo Of Bitcoin Exchange Company, For Scheme To Sell And 21 Launder Over $1 Million In Bitcoins Related To Silk Road Drug Trafficking (January 27, 22 2014); see also Beyond Silk Road: Potential Risks, Threats, and Promises of Virtual 23 Currencies: Hearing on S.D. 342 Before the S. Comm. on Homeland Sec. & Gov’t Affairs, 24 113th Cong. 6, 10, 11 (2013), available at 25 http://www.hsgac.senate.gov/download/?id=e92d0cf1-9df0-44d9-b25ad734547c0c30 26 (“the idea that illicit actors might exploit the vulnerabilities of virtual currency to launder 27 money is not merely theoretical”)(“Legitimate financial institutions, including virtual 28 currency providers, do not go into business with the aim of laundering money on behalf of -9- Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 10 of 12 1 criminals.”)(“[T]hose institutions that choose to act outside of their AML obligations and 2 outside of the law have and will continue to be held accountable.”). 3 Given the unique nature of peer to virtual currency exchanges—and the lack of any 4 associated paperwork or reporting—investigators had no other option to identify and 5 investigate individuals laundering criminal proceeds. Indeed, Costanzo has not suggested 6 any other investigative strategy that would have worked here. Instead, he simply argues 7 that sting operations are only justified when there is “an imminent danger of violence or 8 physical harm.” (Doc. 63, at 15.) But if danger or violence were prerequisites to sting 9 operations, the sting provision of the money laundering statute could never be used. 10 Furthermore, there are numerous examples of money laundering sting investigations where 11 the government agents introduced purported drug proceeds. See, e.g., United States v. 12 Nelson, 66 F.3d 1036, 1038 (9th Cir. 1995)(Rahlf took Agents White and Malley for a test 13 drive in a Toyota 4–Runner, during which Agent White told Rahlf that she was “in the 14 dope business” and Malley was her supplier. She added that she wanted to buy a car with 15 cash, but did not want a “paper trail.”); United States v. Castaneda, 16 F.3d 1504, 1506 16 (9th Cir. 1994)(denying a judgment of acquittal on substantive money laundering sting 17 counts where an informant working for federal agents provided real estate agents with large 18 amounts of cash hinted to be drug proceeds); United States v. McLamb, 985 F.2d 1284 (4th 19 Cir. 1993)(undercover IRS special agent purchasing vehicle from dealership with 20 purported drug proceeds); United States v. Kaufmann, 985 F.2d 884 (7th Cir. 21 1993)(informant working on behalf of IRS purchasing vehicle from dealership with 22 purported drug proceeds); United States v. Loehr, 966 F.2d 201, 202 (6th Cir. 1992)(“The 23 sting required that Carpenter and Bell attempt the purchase of an automobile after clearly 24 informing the defendant that the purchase price was to be paid from drug proceeds.”). As 25 set forth in the examples above, law enforcement officials have—for many years— 26 conducted sting operations where undercover agents or informants used purported drug 27 proceeds in an attempt to launder money through businesses that were capable of 28 - 10 - Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 11 of 12 1 laundering funds. The fact that this case involved Bitcoin, instead of real estate or vehicles, 2 does not make it outrageous. 3 The six factors set forth by the court in Black, all favor the government. The agents 4 knew that peer to peer virtual currency exchangers across the country were engaged in 5 money laundering. Costanzo’s profile showing numerous transactions and the ability to 6 conduct high-dollar transactions, combined with his advertisement promising discreetness, 7 justified further investigation. There is no evidence to support Costanzo’s claim that the 8 agents encouraged him to commit the offense other than providing him with the 9 opportunity to do so, and his reaction after the agents told him that the money was drug 10 proceeds confirmed their suspicions. Finally, this investigation sought to combat a 11 nationwide problem involving virtual currency money laundering and used a technique that 12 has been used by federal agents for years. Thus, dismissal based on outrageous government 13 conduct is not appropriate. 14 IV. Dismissal based on the Court’s supervisory powers is likewise not appropriate 15 Costanzo also asks this Court to dismiss the money laundering counts based on its 16 supervisory powers. But such a request is inappropriate here. Costanzo argues that the 17 same facts underlying the due process violation also support an exercise of the Court’s 18 supervisory powers to dismiss the charges. Given that the government’s investigation did 19 not violate Costanzo’s constitutional rights and was not illegal, the only basis for relief 20 would be to protect judicial integrity. Costanzo, however, presents no plausible argument 21 to lead the Court to conclude that judicial integrity was in any way offended by the 22 government’s investigation in this case or would be by not dismissing the charges. 23 Dismissal under supervisory powers is limited to extreme cases, Smith, 924 F.2d at 897, 24 and even in some of the most egregious situations it has not been met. See, e.g., Emmert, 25 829 F.2d 805, 811–12 (9th Cir. 1987)(confidential informant’s offer of $200,000 to college 26 student to locate supplier of cocaine was not outrageous conduct); United States v. 27 Simpson, 813 F.2d 1462, 1466 (9th Cir. 1987)(FBI’s continued use of female informant 28 after she became intimate with defendant was not outrageous conduct). For the same - 11 - Case 2:17-cr-00585-GMS Document 79 Filed 12/04/17 Page 12 of 12 1 reasons that Costanzo has failed to meet his burden of establishing outrageous government 2 conduct, he has failed to provide justification for this Court to use the extreme measure of 3 exercising its supervisory authority to dismiss the charges. 4 V. Conclusion 5 Costanzo has failed to establish that the government’s conduct in this case was 6 “outrageous” and his justifications for dismissal fall short. The motion to dismiss should 7 be denied without a hearing. 8 Respectfully submitted this 4th day of December, 2017. 9 ELIZABETH A. STRANGE First Assistant United States Attorney 10 District of Arizona 11 s/ Matthew Binford MATTHEW BINFORD 12 CAROLINA ESCALANTE GARY M. RESTAINO 13 Assistant U.S. Attorneys 14 15 16 17 CERTIFICATE OF SERVICE 18 I hereby certify that on this date, I electronically transmitted the attached document 19 to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of 20 Electronic Filing to counsel of record in this case. 21 22 23 24 25 26 27 28 - 12 -