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United States v. Petruk

United States District Court, Eighth Circuit

September 23, 2013

United States of America, Plaintiff,
v.
Elfred William Petruk, Defendant.

Thomas M. Hollenhorst, United States Attorney's Office, for Plaintiff.

Douglas Olson, Office of the Federal Defender, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's Objection [Doc. No. 57] to Magistrate Judge Leo I. Brisbois' Report and Recommendation [Doc. No. 55], which recommended that: (1) Defendant's Motion to Dismiss Count One Based on an Unsupportable Carjacking Theory [Doc. No. 41] be denied; (2) Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Doc. No. 26] be denied; (3) Defendant's Motion to Suppress Eyewitness Identifications [Doc. No. 27] be denied; and (4) Defendant's Motion to Suppress Statements, Admissions, and Answers [Doc. No. 28] be denied. Defendant only objects to the Magistrate Judge's recommendation that Defendant's Motion to Dismiss Count One be denied. [Doc. No. 57]. For the following reasons, the Court overrules Plaintiff's Objection and adopts the Magistrate Judge's Report and Recommendation in its entirety.

II. BACKGROUND

As the Magistrate Judge's Report and Recommendation thoroughly sets forth the factual and procedural background of this case, the Court incorporates the R&R by reference and recites facts to the extent necessary to rule on Plaintiff's Objection. In short, Defendant Elfred William Petruk is charged with: (1) carjacking, (2) conspiracy to distribute actual methamphetamine, (3) felon in possession of a firearm-armed career criminal, and (4) possession with intent to distribute actual methamphetamine. (Indictment at 1-3 [Doc. No. 1].) On July 12, 2013, Defendant made his suppression motions. [Doc. Nos. 26-28]. On August 14, 2013, Defendant moved to dismiss Count One. [Doc. No. 41]. On September 4, 2013, the Magistrate Judge recommended that all of Defendant's motions be denied. [Doc. No. 55]. On September 10, 2013, Defendant objected only to the Magistrate Judge's recommendation that Defendant's Motion to Dismiss Count One be denied. [Doc. No. 57]. The parties have stipulated to the following facts concerning Defendant's sole objection:

Around 2:00 a.m. on [June 18], 2012, T.B. received a call from his mother that his truck had been stolen from their garage. T.B. was out driving in another truck at the time he received the phone call, and started heading home. As T.B. drove home, he noticed his truck drive past him on the road. T.B. did a u-turn and followed the truck, eventually flashing the truck over to the side of the road. The driver of his stolen truck got out, and when T.B. started to get out of his car, the driver got back into the truck and took off. T.B. followed his stolen truck onto some rural roads, where it was pulled over. T.B. pulled over behind his stolen truck. The driver of the truck got out and approached T.B. with something behind his back. As the driver approached T.B.'s window, he swung a hammer at T.B., who grabbed it with his hands. The driver pulled the hammer out of T.B.'s hands. T.B. engaged his vehicle and started driving away, and the driver swung the hammer and struck the driver's rear window, breaking it as T.B. drove away. The driver got back in the stolen truck and drove away. The truck was later discovered abandoned in a rural ditch. The government alleges that Mr. Petruk is the driver/car thief.

(Sept. 4, 2013, Order at 2 [Doc. No. 55].)

III. DISCUSSION

A. Standard of Review

A district court must make an independent, de novo evaluation of those portions of a report and recommendation to which objection is made, and it may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. ยง 636(b)(1)(C); FED. R. CIV. P. 72(b)(3); D.Minn. LR 72.2(b).

As to the underlying motion to dismiss, Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure provides that a motion alleging a defect in the indictment must be raised before trial, and a claim that the indictment fails to state an offense may be raised while the case is pending. FED. R. CRIM. P. 12(b)(3)(B). In addition, the Eighth Circuit has held that

An indictment adequately states an offense if: it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot ...

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