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United States v. Hemme

United States District Court, D. Minnesota

November 25, 2013

UNITED STATES, Plaintiff,
v.
ALAN D. HEMME, Defendant

Order Filed: August 12, 2013

Thomas Calhoun-Lopez,, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN, for plaintiff.

Jan D. Stuurmans, LAW OFFICES OF JAN STUURMANS, PA, Minneapolis, MN; and Scott J. Strouts, SCOTT J. STROUTS, ESQUIRE, Minneapolis, MN, for defendant.

Page 941

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

JOHN R. TUNHEIM, United States District Judge.

Defendant Alan Hemme was indicted for violating the Lacey Act by knowingly engaging in conduct that involved the sale and purchase of fish in violation of the Leech Lake Conservation Code. 16 U.S.C. § 3372(a). Hemme moves to dismiss his indictment under Federal Rule of Criminal Procedure 12(b) as failing to state an offense under the Lacey Act. United States Magistrate Judge Leo I. Brisbois issued a Report and Recommendation (" R& R" ) recommending that the Court deny Hemme's motion. Hemme objects, arguing that the Magistrate Judge erred in refusing to consider undisputed facts that prove the insufficiency of the indictment. The Court will overrule the objections and deny Hemme's motion to dismiss, as recommended by the R& R.

BACKGROUND

This case arises out of an undercover operation to apprehend what officials believed to be the illegal catch and sale of fish on the Leech Lake Reservation in northern Minnesota.

I. INDICTMENT

The indictment includes charges against Hemme and three other defendants: Jerry Reyes, Marc Lyons, and Frederick Tibbetts. The indictment alleges that defendants Reyes, Lyons, and Tibbetts " took

Page 942

fish by gill net from lakes within the boundaries of the Leech Lake Indian Reservation" in violation of the Leech Lake Band's Conservation Code and that Reyes, Lyons, and Tibbetts sold and attempted to sell the " unlawfully acquired fish" to Hemme. (Indictment ¶ ¶ 7-8, Apr. 9, 2013, Docket No. 1.) Count I of the indictment charges Reyes, Lyons, and Tibbetts with a Lacey Act violation for transport and sale of fish taken in violation of tribal law. ( Id. ¶ ¶ 9-10.) Count II of the indictment charges Hemme with aiding and abetting this Lacey Act violation. ( See id. ¶ ¶ 11-12 (citing 18 U.S.C. § 2 (" Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." )).) Specifically, Count II states that " between in or about September 2010 and July, 2011" Hemme

knowingly engage[d] in conduct that involved the sale and purchase of fish with a market value in excess of $350.00, that is: fish that were netted from lakes within the boundaries of the Leech Lake Indian Reservation for commercial purposes, and did knowingly transport receive, acquire and purchase said fish knowing that said fish were taken, possessed, transported and sold in violation of and in a manner unlawful under Tribal Law, specifically, Sections 22.01(2) and 23.01 of the Conservation Code of the Leech Lake Band of Chippewa Indians.

( Id. ¶ 12.) Thus, Hemme is accused not of the actual netting and catch of the illegal yield, but of purchasing or being involved in the purchase and sale of the fish.

II. MOTION TO DISMISS THE INDICTMENT

Hemme moves to dismiss the indictment, arguing that the indictment is insufficient to support a conviction under the Lacey Act. Most relevant here, he argues that the Government's evidence is insufficient to sustain an indictment for " aiding and abetting" violation of the Lacey Act because the only evidence of his alleged involvement in the fish sales during the timeframe of the indictment shows merely that he introduced the seller defendants to the undercover buyers and vouched for those buyers to defendant Reyes. (Mem. of Law in Supp. of Mot. to Dismiss Indictment at 7, June 19, 2013, Docket No. 89.)

The Magistrate Judge recommended denying the motion. (R& R at 9, Aug. 12, 2013, Docket No. 146.) The R& R counsels that Hemme's argument is premature because there are facts in dispute which should be presented to a jury. ( Id. at 6-9.) Hemme objects to this recommendation of the R& R, specifically " to the factual and legal basis" of the R& R's recommendation that it is " 'inappropriate to consider evidence beyond the Indictment because the underlying facts remain in dispute.'" (Objections to R& R at 2, Aug. 26, 2013, Docket No. 155 (citing R& R at 6-7).) He argues that the evidence the Government has presented in support of aiding and abetting the purchase and sale of fish is insufficient to support a conviction under the Lacey Act. Hemme's objection is based on the evidence produced during discovery and introduced before the Magistrate Judge at an evidentiary hearing. ( Id. at 3.) This evidence includes an audio recording and many electronic records, which contain two investigatory reports of the undercover officers: a Summary Report and pages from the Department of Interior's " Report of Investigation." ( See Aff. of Jan D. Stuurmans ¶ 3, Exs. 1-2, June 19, 2013, Docket No. 88.) [1]

Page 943

DISCUSSION

I. STANDARD OF REVIEW

Upon the filing of a report and recommendation by a magistrate judge, a party may " serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). " The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3).

II. MOTION TO DISMISS THE INDICTMENT

A. Legal Standard for Pretrial Dismissal of an Indictment

The Courts of Appeals are split as to whether a district court can dismiss an indictment based on a defendant's argument that facts outside the indictment show that there is insufficient evidence for a conviction. The Eleventh Circuit expressly prohibits the dismissal of an indictment on sufficiency grounds. See United States v. Salman, 378 F.3d 1266, 1268 n.5 (11th Cir. 2004) (" [T]here is currently no authority within the Federal Rules of Criminal Procedure for granting a motion to dismiss predicated on the insufficiency of the evidence, whether it be based in fact or law." ). In contrast, other Courts of Appeals allow, or have left open the possibility for allowing, such dismissals in rare circumstances. See, e.g., United States v. Huet, 665 F.3d 588, 597-98 (3d Cir. 2012) cert. denied, 133 S.Ct. 422, 184 L.Ed.2d 256 ( 2012) (acknowledging that the court has " left open the possibility that, in limited ...


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