Exhibit B - Motion To Dismiss

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GORENCE & OLIVEROS, P.C. 20/ /2/11 Street Nf.-V

Albuquerque, New JVfexico 87/02

(505) 244-02/4 Fax (505) 244-0888

RonliRT J. GOt!.ENcg LOUt!.EII OLIVEROS

,VLIRJE LEGfl.Ai'lD

January 21,2009 Via FacsiJni!t! - 222-9009 Ann Bad\.vay Assistant Attorney General Attorney General's Office II! Lomas Blvd., NW, Suite 300 Albuquerque, NM 87102

Re:

Rebecca Vigil-Giron

Dear Ms.Badway: I am in receipt of Y0Ll!" January 17, 2009 letIer which purportedly memorializes our telephone conversation of Friday, January [6,2009. After reading your letter, I believe we mutually endured in that conversation a failure to communicate "Cool Hand Luke" moment. To t-efresh your recollection, [called you in an attempt to obtain information about the factual basis for the amended target letter that has been sent to Ms. Vigil-Giron. You were not in, but called me back with ML Lackmann on the line. 1proceeded to inform you that I \.I/as at a loss as [0 the factual basis for the ta:'get letter notwithstanding your assertion that my "client is well aware of the basis for this prosecution," My inquiry over the telephone, and what 1communicated in my January 9, 2009 letter was straightforward: What is the evidence of any money or any other thing of value being impermissibly transferred from Mr. Guiterrez to Ms. Vigil-Giron? As you are aware, kickback or bribery cases are uSll:lliy substantiated by proof that a public official received money, or some tangible thing ofpersol1al value, in exchange for the discharge of public responsibilities. I'vly review of the evidence reveals that thel'e was no, a single penny or any other benefit that flowed from Mr. Gui:erTez to Ms, Vigil·Giron, [n response to my inquiry. M:', Lnckmar.n was highly condescending by reading me portions of New Mexico state statutes. He then added that the benefit to my client was "in the Commission report and it was valued at $22 million by Ms. Vigil-Giron." As you certainiy know from r~ading the repol"t, that was one estimate of the value oftlle HAVA (The Help America Vote Act) advertising provided to the citizens of New Mexico that \.\l2S mandated by a federalla·vv. You are also aware that the actual cost orthe voter education component of the HA VA contract was approximately 6.2 million clotlai·s. hom that came a myriad of identifiable services effectuated in the effort to edllcZlte New Mexico voters. Indeed, Ms, Vigi!~Gii'on received no

Ann Badway Attorney General's Office January 21, 2009 Page 2

personal benefit other than the fulfillment of her responsibilities as the Secretary of State by spending the funds directed by HAVA for the purpose ofeducating New Mexico voters. If federal funds had been misappropriated by Ms. Vigil-Giron, I am confident that the United States Attorney's Office would pmsecute the matter under 18 U.S.c. 666. Despite my plea that you share information concerning what is the basis for a kickback or bribe, it appears that the Attorney General will now embark on some novel theory regarding the value of federally required advertising as constituting some fm!1l of bribe or kickback. I am can fident that this absurd theory will fail both factually and legally. [communicated to you, as [ will to Attorney General King, that as· an elected official the people of New Mexico hold him accountable for faithfully executing the laws of our state. Going off on a wild goose chase with a completely preposterous theory should have consequences because of that accountability. That is not a threat nor am I trying to derail a "productive dialogue for resolution of this case." [nstead, this is the reality of what we expect of pub lic officials. Much !lice the Duke University LaCrosse pmsecution, there must be accountability consequences for a woefully misbegotten proseclItion. I have requested the Attorney General, and you have refused, to disclose the evidence which purportedly suppmts the target letter so that a meaningful exculpatory presentation can be made to avoid this train wreck. If! have missed something with regard to your theory ofa brLbe or kickback, I continue to request that you inform me of what Lt is because I continue to remain clueless. After that in formation has been pmv ided, and we understand the nature of the a llegations, I wi 11 most certaLn Iy provide yOLl with an exculpatory package of information. [fyou continue to keep us in the dark about the factual b2.sis for the allegations of a most novel theol"y, I wi Ii not engage in a game of pinata. I look forward to Attorney General King's response.

RJG/llh cc:

Attorney General Gary King Ms. Rebecca Vigil-Giron Jason Bowles, Esq. Miles Hanisee, Esq. Hank ral':'ah, Esq.

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