IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA. STATE OF ALABAMA, ) ) vs. ) Case No. CC ) FELIX BARRY MOORE, ) Defendant. ) MOTION TO DISMISS

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1 ELECTRONICALLY FILED 4/30/2014 3:32 PM 43-CC CIRCUIT COURT OF LEE COUNTY, ALABAMA MARY B. ROBERSON, CLERK IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA STATE OF ALABAMA, ) ) vs. ) Case No. CC ) FELIX BARRY MOORE, ) Defendant. ) MOTION TO DISMISS Comes now, Felix Barry Moore, by and through his undersigned attorneys and moves this Honorable Court to dismiss the instant Indictment and each count thereof on the following grounds, separately and severally: 1. The indictment, particularly counts two and four, does not allege that the Defendant was placed under oath. 2. The indictment, particularly counts two and four, does not allege that the Defendant was duly sworn to testify. 3. The indictment, particularly counts two and four, does not allege who placed the Defendant under oath. 4. The indictment, particularly counts two and four, does not allege that the person who administered the oath, if in fact there was one, had authority to administer such oath. 5. The indictment, particularly counts two and four, does not allege that the testimony of the Defendant was willfully false. 6. The indictment, particularly counts two and four, does not allege that said testimony was corruptly false.

2 7. The indictment, particularly counts two and four, does not allege that the oath of the said Felix Barry Moore in relation to the questions asked was willfully and corruptly false. 8. The indictment, particularly counts two and four, does not name the court or officer before whom the oath was taken. 9. The indictment, particularly counts two and four, does not allege that the court or officer before whom the oath was taken had authority to administer it. 10. The indictment, particularly counts two and four, does not allege the necessary allegations of falsity of the matter upon which the perjury is assigned. 11. The indictment, particularly counts two and four, is unlawfully vague. 12. The indictment, particularly counts two and four, does not state facts constituting the alleged offense in ordinary and concise language. 13. The indictment, particularly counts two and four, is prolix and repetitious. 14. The indictment, particularly counts two and four, does not state the facts constituting the offense in a manner as to enable a person of common understanding to know what is intended. 15. Section , Code of Alabama, is contrary to the Constitution of the United States and the Constitution of the State of Alabama. 16. Section , Code of Alabama, as applied in these circumstances to Felix Barry Moore, is contrary to the Constitution of the United States and the Constitution of the State of Alabama. 17. Section , Code of Alabama, is unconstitutional in its application. 2

3 18. The statements quoted in the indictment as made by the Defendant are not materially false. 19. The statements quoted in the indictment are not materially fictitious. 20. The statements quoted in the indictment are not materially fraudulent. 21. Section , Code of Alabama, is overly broad. 22. The allegations of count one are overly broad. 23. The allegations of count three are overly broad. 24. The statements allegedly made by the Defendant and quoted in the indictment, and each and every count thereof, are materially true and cannot serve as the basis of any charges. 25. At all times relevant to his testimony, Felix Barry Moore was materially honest with his statements to the prosecutors and to the Grand Jury. 26. The appearance of W. Van Davis and Miles M. Hart before said Grand Jury constitutes a conflict of interest. 27. The appearance of W. Van Davis and Miles M. Hart before said Grand Jury constitutes a conflict of interest requiring dismissal of the indictment because W. Van Davis and Deputy Attorney General Miles M. Hart are identified as witnesses or victims in counts one and three of the indictment. 28. The indictment is signed by W. Van Davis as Acting Attorney General and by Miles M. Hart, as Chief Special Prosecutions Division. 29. The indictment does not identify any jurisdiction over which W. Van Davis claims to be the Acting Attorney General. 3

4 30. The indictment does not specify or identify what the Special Prosecutions Division is, or is a part of, rendering it fatally flawed. 31. For aught appearing, W. Van Davis could be acting attorney general of Timbuktu, having no authority to sign the instant indictment or to appear before the Grand Jury of Lee County, Alabama. 32. For aught appearing, the Special Prosecutions Division could be for the City of Baghdad, Iraq. 33. For aught appearing, Miles M. Hart could be the Chief of the Special Prosecutions Division for the City of Baghdad, Iraq and therefore have no authority to sign the instant indictment or to appear before the Grand Jury of Lee County, Alabama. 34. The indictment in its entirety violates Section , Code of Alabama. 35. Counts one and three of the indictment are in violation of Section , Code of Alabama. 36. W. Van Davis, Miles M. Hart and Michael B. Duffy are included in counts one and three as witnesses or victims, and also are the prosecutors of record appearing in this case. 37. The indictment, particularly counts one and three, are contrary to Ervin v. State, 442 So.2d 123 (Ala.Crim.App. 1983). 38. The appearance of W. Van Davis, Miles M. Hart and Michael B. Duffy as both witnesses or victims and also as prosecutors is improper and therefore the indictment is fatally flawed. 39. All statements made by Felix Barry Moore, included in the indictment, are materially true. 4

5 40. Questions posed to the Defendant and forming the basis of each count in this indictment were compound, vague, incompetently worded, and cannot be made the basis of a lawful indictment. 41. Including counts one and three in the indictment as separate charges is in violation of Dill v. State, 723 So.2d 787 (Ala.Crim.App. 1998). 42. Including counts two and four as separate charges in the indictment is in violation of Dill v. State, 723 So.2d 787 (Ala.Crim.App. 1998). dismissed. 43. The Grand Jury was improperly constituted. 44. The indictment was returned by an improperly constituted Grand Jury and must be WHEREFORE, premises considered, Felix Barry Moore is entitled as a matter of law to have the Indictment in its entirety and each count thereof separately and severally dismissed. Respectfully submitted, s/william J. Baxley William J. Baxley (BAX001) s/joel E. Dillard Joel E. Dillard (DIL005) BAXLEY, DILLARD, MCKNIGHT & JAMES 2008 Third Avenue South Birmingham, AL Telephone: Telecopier: BBaxley@BaxleyDillard.com JDillard@BaxleyDillard.com 5

6 OF COUNSEL: Gregory B. McCain, Esq. Law Offices of Gregory B. McCain, P.C. 204 North Lena Street Dothan, AL Derek E. Yarbrough, Esq. Motley, Motley & Yarbrough 117 E. Main Street Dothan, Alabama CERTIFICATE OF SERVICE I hereby certify that on this the 30th day of April, 2014, a true and correct copy of the foregoing pleading has been served upon all counsel of record via the AlaFile electronic filing system and/or via U.S. Mail, postage prepaid. Robert T. Treese, III District Attorney 2311 Gateway Drive, Suite 111 Opelika, Alabama Luther Strange, Esq. Attorney General P.O. Box Montgomery, AL Michael B. Duffy, Esq. Deputy Attorney General P.O. Box Montgomery, AL Matt Hart, Esq. Office of the Attorney General P.O. Box Montgomery, AL W. Van Davis, Esq. rd Street North Pell City, AL s/ William J. Baxley OF COUNSEL 6